                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



    JUAN SOBERANES,

                Petitioner - Appellant,

    v.                                                     03-1388

    MICHAEL COMFORT, Acting
    District Director, et al.,

                Respondents - Appellees.


                                      ORDER
                                  November 3, 2004


Before TACHA , Chief Judge, MURPHY , Circuit Judge, and        CAUTHRON , *
Chief District Judge.


         Appellees’ motion to publish the order and judgment dated September 21,

2004, is granted. A copy of the published opinion is attached.


                                             Entered for the Court
                                             Patrick Fisher, Clerk of Court

                                             By:
                                                     Amy Frazier
                                                     Deputy Clerk



*
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                        SEP 21 2004
                  UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                               TENTH CIRCUIT



 JUAN SOBERANES,

             Petitioner-Appellant,

 v.                                                    No. 03-1388

 MICHAEL COMFORT, Acting
 District Director, United States
 Immigration and Naturalization
 Service, Denver, Colorado; JOHN
 ASHCROFT, United States Attorney
 General,

             Respondents-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                    (D.C. No. 02-D-1564 (OES))


Submitted on the briefs:

Patrick C. Hyde of Patrick C. Hyde, P.C., Denver, Colorado, for Petitioner-
Appellant.

John W. Suthers, United States Attorney, Nina Y. Wang, Assistant United States
Attorney, Denver, Colorado, for Respondents-Appellees.
Before TACHA, Chief Judge, MURPHY, Circuit Judge, and CAUTHRON, *
Chief District Judge.


CAUTHRON, Chief District Judge.



      Petitioner Juan Soberanes is in custody pending the execution of a 1996

deportation order that he never appealed to the Bureau of Immigration Appeals

(BIA). Currently that order is, indirectly, the subject of a petition for review in

the U.S. Court of Appeals for the Ninth Circuit, filed by petitioner following the

denial of a subsequent motion to reopen. Petitioner also filed a habeas petition in

the federal district court for Colorado challenging his deportation proceeding and

attendant confinement. He now appeals the denial of that petition. We deny

relief for three basic reasons, each relating to a distinct group of issues. First,

challenges to the unappealed deportation order are not properly before us: if

never brought before the BIA, they are unreviewable for failure to exhaust

administrative remedies; if exhausted by the motion to reopen, they are subject to

direct review in the Ninth Circuit and procedurally barred here. Second, as to

petitioner’s broader challenges to the immigration statutory scheme, which are

outside the scope of administrative review and, hence, unaffected by exhaustion



*
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.

                                          -2-
concerns, we agree with the district court that the challenges are meritless.

Finally, as to confinement, petitioner has failed to identify any error in the district

court’s determination that he has been properly confined while awaiting

resolution of his various legal challenges to deportation.

      A brief elaboration on the relevant procedural facts will suffice to frame

the dispositive issues on appeal. Petitioner, a native of Peru, illegally entered the

United States in January 1990. He applied for asylum in California four years

later. In August 1996, an immigration judge (IJ) denied asylum and ordered

petitioner deported, but granted him a voluntary departure by September 23, 1996.

Petitioner did not appeal to the BIA, nor did he voluntarily depart, and his

deportation order became final when the time for administrative appeal expired.

See Onwuneme v. INS, 67 F.3d 273, 276 (10th Cir. 1995). 1

      In early 2001, petitioner applied for adjustment of status based on marriage

to a U.S. citizen. When he appeared for an interview in California in July 2002,

he was taken into custody for execution of the extant deportation order. He filed

a motion to reopen the deportation proceeding, which the IJ denied as untimely.

After the BIA summarily affirmed that ruling, he filed a petition for review in the



1
      Because the deportation order became final before October 30, 1996, it is
governed by the law in effect prior to passage of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA).    See generally Jurado-Gutierrez v.
Greene , 190 F.3d 1135, 1143 (10 th Cir. 1999).

                                          -3-
Ninth Circuit, which is still pending. In the meantime, he was transferred to

Colorado, where he filed a habeas petition seeking release from custody on

various grounds, some involving the merits of his administrative proceedings.

The district court denied the petition and this appeal followed. 2

          Specific Challenges to Deportation/Asylum Determination
                   (Failure to Exhaust and Procedural Bar)

      Neglecting to take an appeal to the BIA constitutes a failure to exhaust

administrative remedies as to any issue that could have been raised, negating the

jurisdiction necessary for subsequent judicial review. Akinwunmi v. INS,

194 F.3d 1340, 1341 (10th Cir. 1999) (following Rivera-Zurita v. INS, 946 F.2d

118, 120 n.2 (10th Cir. 1991)). While we have thus far had occasion to apply this

exhaustion rule only in the context of petitions for review, we see no reason for

excepting habeas proceedings–traditionally constrained by exhaustion principles

in other contexts–from its natural reach. Many circuits, applying the exhaustion

requirement that was contained in 8 U.S.C. § 1105a(c) (repealed) prior to passage

of IIRIRA and is now contained in 8 U.S.C. 1252(d)(1), 3 have held the failure to

2
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
3
      Section 1105a(c) directed that “[a]n order of deportation . . . shall not be
reviewed by any court if the alien has not exhausted the administrative remedies
available to him as of right under the immigration laws and regulations.” IIRIRA
                                                                       (continued...)

                                          -4-
exhaust issues before the BIA bars judicial review through habeas just as it does

through a petition for review. See, e.g., Sun v. Ashcroft, 370 F.3d 932, 937-41

(9th Cir. 2004) (applying § 1252(d)(1)’s exhaustion requirement in accord with

four other circuits); Kurfees v. United States INS, 275 F.3d 332, 335-37 (4th Cir.

2001) (applying § 1105a(c)’s exhaustion requirement); Correa v. Thornburgh,

901 F.2d 1166, 1171 (2d Cir. 1990) (same). Following that accepted view, we

lack jurisdiction to review the unappealed deportation order issued by the IJ in

1996.

        This jurisdictional prohibition extends not only to substantive issues, but to

constitutional objections that involve “administratively correctable procedural

errors, even when those errors are failures to follow due process.” Akinwunmi,

194 F.3d at 1341 (quotation omitted). Thus, petitioner’s complaints about

omissions by counsel and associated inadequacies in his evidentiary and review

proceedings fall within the prohibition. Id.; Baria v. Reno, 94 F.3d 1335, 1340

(9th Cir. 1996). We note, however, that the means for administratively correcting

an instance of ineffective assistance of counsel is a motion to reopen, id., and

petitioner did eventually pursue this avenue through appeal to the BIA. Thus, we



3
 (...continued)
replaced § 1105a(c) with § 1252(d)(1), which directs that “[a] court may review a
final order of removal only if . . . the alien has exhausted all administrative
remedies available to the alien as of right.”

                                          -5-
turn to the question whether the disposition of that motion is subject to collateral

habeas review when direct review was also available–indeed, is pending in

another circuit. At this point, our analysis shifts from administrative exhaustion

to procedural bar. See Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004)

(distinguishing two procedural concepts); see also Akinwale v. Reno, 216 F.3d

1273, 1279 n.11 (11th Cir. 2000); cf. Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th

Cir. 2004) (identifying same distinct procedural bar issue, separate from principle

of administrative exhaustion, though referring to it in circuit’s unique vernacular

as “prudential” requirement of “exhaustion of judicial remedies”).

      “Generally, a habeas petition cannot be used to substitute for direct

appeal.” Latu, 375 F.3d at 1012. Consequently, an alien subject to deportation

may not bypass available direct review in the court of appeals in favor of a

collateral habeas attack in the district court. Duran-Hernandez v. Ashcroft, 348

F.3d 1158, 1162 (10th Cir. 2003). But by the same token, if an alien raises issues

that would fall outside the jurisdictional scope of a petition for review, “he has

not failed to seek an available judicial remedy, and he is not procedurally barred

from habeas review in the district court.” Latu, 375 F.3d at 1017 (approving

habeas review of removal based on alien’s status as aggravated felon, direct

review of which is barred under 8 U.S.C. § 1252(a)(2)(C)) (emphasis added). The

ineffective assistance/due process issues raised here could have been (and perhaps


                                         -6-
are being) pursued in a petition for review from the denial of petitioner’s motion

to reopen. 4 See, e.g., Siong v. INS, 376 F.3d 1030, 1035-36 (9th Cir. 2004);

Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir. 1994). Accordingly, the matter is

not properly before us in this habeas proceeding.


               Constitutional Challenges to Deportation Statutes

      Petitioner’s broad constitutional challenges to deportation statutes are on a

different footing. “Courts have carved out an exception to the exhaustion

requirement for constitutional challenges to the immigration laws, because the

BIA has no jurisdiction to review such claims.” Akinwunmi, 194 F.3d at 1341.

With exhaustion constraints thus removed, petitioner’s statutory challenges are

unaffected by his failure to appeal the IJ’s deportation order or by any procedural

infirmity in his later motion to reopen. Moreover, unlike the petition for review

in the Ninth Circuit, which is limited to the motion to reopen, Boudaguian v.

Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004), our habeas review can encompass


4
       It is not clear whether petitioner has actually satisfied the conditions for
such review–in particular, the denial of his motion to reopen as untimely may, if
upheld, mean that it did not serve to exhaust the substantive issues raised.    See
Taniguchi v. Schultz , 303 F.3d 950, 955 (9 th Cir. 2002) (holding citizenship
claim, raised in untimely motion to reopen, barred for failure to exhaust);   Zheng
v. Ashcroft , 36 Fed. Appx. 301, 302 (9 th Cir. June 3, 2002) (unpub.) (making
same point more explicitly). But recognizing this contingency does not aid
petitioner here. If it occurs, the procedural bar noted above would simply be
replaced with an exhaustion deficiency that, as we have seen, also precludes
habeas relief.

                                         -7-
statutory challenges that relate directly to the initial determination of asylum and

deportation.

      These challenges were, however, properly rejected on the merits by the

district court. As it recognized, petitioner’s constitutional objections to 8 U.S.C.

§ 1231(a)(5) are simply inapposite. The statute deals with summary reinstatement

of removal orders when “an alien has reentered the United States illegally after

having been removed or having departed voluntarily, under an order of removal.”

Petitioner did not leave the country under the 1996 deportation order. Thus, when

he was taken into custody in 2002, a previously executed order was not reinstated;

rather, a pending order was enforced.

      Petitioner also challenged the retroactive application of 8 U.S.C. § 1229b,

which specifies conditions for cancellation of removal that are stricter than those

specified in 8 U.S.C. § 1254(a)(1) (repealed) for suspension of deportation, the

pre-IIRIRA equivalent. The district court correctly held this challenge foreclosed

by circuit precedent. See Lockett v. INS, 245 F.3d 1126, 1129 (10th Cir. 2001).


                              Challenge to Detention

      Challenges to immigration detention are properly brought directly through

habeas. Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). And the exhaustion

deficiencies we have noted in other respects do not affect habeas jurisdiction over

such claims. See Arango Marquez v. INS, 346 F.3d 892, 896 (9th Cir. 2003);

                                         -8-
Hoang v. Comfort, 282 F.3d 1247, 1254-55 (10th Cir. 2002), cert. granted and

judgment vacated on other grounds sub nom. by Weber v. Hoang, 538 U.S. 1010

(2003).

      Zadvydas directed that, in considering whether an alien’s continued

detention after issuance of a final order of removal is permissible, “the habeas

court must ask whether the detention in question exceeds a period reasonably

necessary to secure removal.” 533 U.S. at 699. Given the focus on effectuation

of removal, “if removal is not reasonably foreseeable, the court should hold

continued detention unreasonable.” Id. By the same token, “an alien may be held

in confinement until it has been determined that there is no significant likelihood

of removal in the reasonably foreseeable future,” and the onus is on the alien to

“provide[] good reason to believe that there is no [such] likelihood” before “the

Government must respond with evidence sufficient to rebut that showing.” Id. at

701. Petitioner’s unsuccessful effort to challenge his deportation through habeas

here obviously provides no reason to discount the likelihood of his impending

removal. See, e.g., Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (“Because

we have declined . . . to grant [petitioner’s] habeas petition . . . [his] removal is

not merely reasonably foreseeable, it is imminent [and] . . . continued detention

does not violate his right to due process of law.”).




                                          -9-
      The only relevant argument advanced by petitioner on appeal is that his

detention should not be sanctioned under Zadvydas, because it is based on a

deportation order that, he insists, is invalid and will ultimately be overturned in

conjunction with his effort to reopen his administrative proceeding, now under

review in the Ninth Circuit. Thus, his sole challenge to detention depends on the

outcome of his petition for review, which only the Ninth Circuit has jurisdiction

to resolve. If the Ninth Circuit grants relief, he may return to the district court

for reconsideration of his detention in light of that new circumstance. Cf. Arevalo

v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003). But for now, his detention is clearly

neither indefinite nor potentially permanent like the detention held improper in

Zadvydas; it is, rather, directly associated with a judicial review process that has a

definite and evidently impending termination point, and, thus, is more akin to

detention during the administrative review process, which was upheld in Demore

v. Kim, 538 U.S. 510, 527-29, 531 (2003) (“Detention during removal proceedings

is a constitutionally permissible part of that process.”). Of course, we can only

presume that the Ninth Circuit’s decision on the petition for review will be

forthcoming in due course; at this point we have no occasion to express any

opinion on whether subsequent delay in that court might warrant remedial action

under Zadvydas.




                                          -10-
      We therefore affirm the denial of habeas relief with respect to petitioner’s

current detention. We recognize, however, that there are pertinent contingencies,

involving a sister circuit’s timely consideration and disposition of a petition for

review, that are beyond our control. We therefore emphasize that “[b]ecause

circumstances may ultimately change in [petitioner’s] situation, we affirm the

dismissal [of his habeas petition] without prejudicing [his] ability to file a new

§ 2241 petition in the future.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th

Cir. 2002).

      Finally, we should say something about the nature–and consequences–of

the briefing in this case. Petitioner’s brief makes several passing comments that

show no concern for whether the issues they may touch upon were preserved in

the district court, were subsequently sufficiently developed in the brief to permit

informed appellate review, or indeed are even within the scope of judicial review

at all. 5 Our reason for pointing this out is not to criticize counsel; the intersection

of immigration and habeas corpus marks an evolving and challenging area of the

law and the briefing from both sides informed our review in this case. We do,

however, want to make it clear that “[w]e have considered all of petitioner’s



5
       One example specifically noted by the Government is petitioner’s reference
to the BIA’s failure to reopen his deportation proceedings sua sponte. The BIA’s
discretion to extend such relief is not subject to judicial review. See Belay-Gebru
v. INS , 327 F.3d 998, 1000-01 (10 th Cir. 2003).

                                          -11-
contentions and, whether explicitly addressed or implicitly rejected, each has been

found [for substantive, procedural, and/or jurisdictional reasons] to lack merit.”

Washington v. DOT, 84 F.3d 1222, 1225 (10th Cir. 1996).

      The judgment of the district court is AFFIRMED. Petitioner’s motions to

supplement the appendix, with materials that we have reviewed and concluded do

not affect our disposition of this appeal, are DENIED as moot.




                                        -12-
