                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 16, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50768
                         Summary Calendar



     PRAMIT SANCHEZ,

                                         Petitioner-Appellant,

          versus

     GRACIELA WINFREY, as Interim Field
     Office Director for Detention and
     Removal for the U.S. Immigration
     and Customs Enforcement; BUREAU OF
     IMMIGRATION AND CUSTOMS ENFORCEMENT,
     as an agency of the Government of the
     United states of America; DEPARTMENT
     OF HOMELAND SECURITY, as an agency
     of the Government of the United States
     of America; MICHAEL CHERTOFF, SECRETARY,
     DEPARTMENT OF HOMELAND SECURITY;
     ALBERTO L. GONZALEZ, U.S. ATTORNEY GENERAL,

                                         Respondents-Appellees.




          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 5:04-CV-293



Before GARWOOD, STEWART and PRADO, Circuit Judges.

PER CURIAM:*




     *
     Pursuant to 5TH CIR. R. 47.5 the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     Pramit Sanchez (Sanchez) is a native and citizen of Thailand.

Sanchez married an American named Michael Sanchez (Michael) in

1990.   On October 19, 1990, the Immigration and Naturalization

Service (INS) granted Sanchez conditional permanent residence on

the basis of this marriage.    This condition was lifted on October

16, 1992.

     The marriage ended in divorce in June of 1993.               Acting on an

anonymous tip, the INS initiated an investigation on July 26, 1994

into the possibility that the marriage had been a fraud whose only

purpose was to obtain permanent residency for Sanchez.                       This

investigation eventually resulted in a decision by an Immigration

Judge (IJ), rendered on July 31, 1997, that the marriage was in

fact a sham and Sanchez was subject to removal.

     Sanchez appealed this decision to the Board of Immigration

Appeals (BIA), which on July 10, 2002 summarily affirmed the IJ.

She next appealed to this court.      In that appeal, she raised, inter

alia, a statute of limitations argument that she had not presented

to the IJ or the BIA.    The panel concluded that this issue was not

ripe for review because she had not exhausted her administrative

remedies.    Sanchez v. Ashcroft, 2003 WL 22013551 at **1 (5th Cir.

August 26, 2003) (per curiam).

     While her appeal to this court was pending, Sanchez filed a

motion to reconsider with the BIA, requesting permission to depart

the United    States   voluntarily,       a   privilege   which   the   IJ    had


                                      2
denied.1 Following the above-cited decision of this court, Sanchez

filed a second motion for reconsideration with the BIA in which she

pleaded her statute of limitations claim. The BIA summarily denied

this motion on March 3, 2004 on procedural grounds, citing 8 C.F.R.

§ 1003.2(b)(2) (2003), which limits a petitioner to one motion to

reconsider.

       Sanchez then filed the instant petition for habeas review in

which she raised statute of limitations and procedural due process

claims.          The district court concluded that it lacked jurisdiction

over       her    statute   of   limitations   claim   and,   though   it   had

jurisdiction over the due process issue, ruled that Sanchez failed

to state her constitutional claim with particularity sufficient to

establish an Article III case or controversy.                 It is from this

disposition that Sanchez now appeals.

     Before we reach the merits of Sanchez’ petition, we must, as
always, be certain of both our own jurisdiction and the
jurisdiction of the district court. Goonsuwan v. Ashcroft, 252
F.3d 383, 385 (5th Cir. 2001). The extent of our jurisdiction, as
well as that of the district court, to review Sanchez’ order of
removal is set forth in the transitional rules of the Illegal
Immigration Reform and Immigration Responsibility Act (IIRIRA) of
1996.2 Id. at 386. These transitional rules incorporated section


       1
      The BIA rendered a decision on this motion on March 12,
2003, though the record does not contain a copy of the
disposition.
       2
      The transitional rules apply because the deportation
proceedings were initiated before IIRIRA’s effective date of
April 1, 1997 and were not concluded until at least 30 days after
September 30, 1996. Goonsuwan, 252 F.3d at 386 (citing Lerma de
Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1998)); IRRIRA §
309(c)(4).

                                         3
106(c) of the INA, 8 U.S.C. § 1105a, which provided that:3

     “No petition for review or for habeas corpus shall be
     entertained if the validity of the order has been
     previously   determined  in   any  civil   or   criminal
     proceeding, unless the petition presents grounds which
     the court finds could not have been presented in such
     prior proceeding, or the court finds that the remedy
     provided by such prior proceeding was inadequate or
     ineffective to test the validity of the order.”

     The validity of Sanchez’ order of removal was determined by

the civil proceeding that began with her appearance before the IJ

and culminated with her first appeal to this court.         As such,

neither the district court nor this panel is authorized to exercise

jurisdiction over her habeas petition unless it presents grounds

that Sanchez could not have presented in the prior proceeding.

     The sole basis of Sanchez’ habeas petition is her claim that

the five-year statute of limitations, codified at 8 U.S.C. §

1256(a), barred the Attorney General from rescinding her permanent

residency.     We discern no reason why this defense could not have

been asserted before the IJ because this statute of limitations was

in effect when the INS commenced removal proceedings on September

5, 1996.4    Nor is there any reason to conclude that the prior civil


     3
      8 U.S.C. § 1105a was repealed by IIRIRA § 306(b), Pub. L.
104-208, and the effective date of repeal is the same as the
effective date of IRRIRA, April 1, 1997.
     4
      Sanchez in fact raised the statute of limitations defense
in a response sent to the INS on March 28, 1996 concerning a June
23, 1995 “Notice of Intention to Rescind Adjustment of Status[.]”
The INS decided not to take action on this notice and instead, on
September 5, 1996, issued the order to show cause that eventually
resulted in the order of removal at the heart of this case.

                                   4
proceeding would have been an inadequate or ineffective forum in

which to test the validity of the removal order.     The district

court, therefore, should have dismissed her habeas petition in its

entirety for want of jurisdiction.

                           Conclusion

     The judgment of the district court is affirmed but on the

alternate grounds set forth in this opinion.




There is nothing in the record to explain why Sanchez did not
raise the statute of limitations argument during the show cause
proceeding.

                                5
