                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  March 14, 2006
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                     Clerk
                             No. 04-40705

                       ))))))))))))))))))))))))))

GUANG QIU LI,

                                                    Petitioner-Appellant,

versus

CONRAD AGAGAN, ET AL.,


                                                 Respondents-Appellees.




           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. 5:04-CV-28




Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

PER CURIAM:1

     Petitioner Guang Qiu Li appeals the district court’s dismissal

of his petition for writ of habeas corpus and his requests for

injunctive relief and mandamus.     Because we find that the district

court lacked jurisdiction to hear any of Appellant’s claims, we

VACATE and DISMISS.




     1
      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this opinion should not be published and is not precedent except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.
I.   Background

     In 1989, Li, a native and citizen of the People’s Republic of

China, entered the United States.       Although Appellant applied for

political asylum in 1996, because the application was withdrawn, the

Immigration Court allowed him to depart voluntarily before April 26,

1998.

     On January 15, 1998, Appellant married Chui Fong Chan, a

permanent resident of the United States, who became a citizen in

November 1998.    On March 5, 1998, Chan filed a Petition for Alien

Relative.      In light of this petition, Appellant requested an

extension of his voluntary departure date.          The Immigration and

Customs Enforcement (“ICE”) District Director denied his request.

     Because Appellant failed to depart the United States prior to

April 26, 1998, his voluntary departure order was transformed into

an order of deportation.   On April 28, an Immigration Judge (“IJ”)

denied as untimely Appellant’s request to reopen his immigration

proceedings.

     After   Chan’s   Petition   for    Alien   Relative   was   approved,

Appellant filed an application to adjust his status to that of a

lawful permanent resident on June 30, 1999, which is still pending.

On September 17, 1999, an IJ denied Appellant’s second motion to

reopen his immigration proceedings.

     In December 2003, ICE took Appellant into custody.          Appellant

requested a stay of deportation which was denied by an ICE officer

on February 4, 1999.   Appellant remains in ICE custody and has not

                                  -2-
been deported because he is currently awaiting a travel document.

      In   the    district   court,      Appellant      sought      to   enjoin     his

deportation until his attorney could obtain a response to his

Freedom Of Information Act request to complete an investigation into

the   effectiveness     of   the   lawyer      who    handled    his     1996   asylum

petition.     Appellant also sought release from detention and work

authorization while his claims were pending.                    Finally Appellant

asked the court to either adjudicate his application for adjustment

or to order the Department of Homeland Security (formerly the INS)

to adjust his status.

      While      Appellant   asserted      that      the   district       court     had

jurisdiction      to   consider    his   claims       under   the    habeas     corpus

statutes, 28 U.S.C. §§ 2241-2255, the general federal question

statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361,

and the Administrative Procedure Act, 5 U.S.C. § 551 et seq., the

court found that it only had jurisdiction to consider Appellant’s

petition for writ of habeas corpus.             Addressing the merits of that

claim, the court denied the petition.                This appeal followed.

II.   Standard of Review

      Whether a district court has subject matter jurisdiction to

hear a case is a question of law that we review de novo.                          Gandy

Nursery, Inc. v. United States, 318 F.3d 631, 636 (5th Cir. 2003).



III. Discussion


                                         -3-
     Appellant submits two arguments: (1) the district court had

jurisdiction to consider his petition for writ of habeas corpus, and

should have granted the writ; and (2) the district court had

jurisdiction to address his request for mandamus or affirmative

injunctive    relief    to    order   the     Department    to   adjudicate   his

application for adjustment of status.             We will address each claim

in turn.

A.   Writ of Habeas Corpus

     With    regard    to    his   petition    for   writ   of   habeas   corpus,

Appellant asserts that being held without bond violates the Due

Process clause of the Fifth Amendment because the INS has not

adjudicated his application for adjustment of status. Additionally,

in light of the possibility that his previous counsel might have

been ineffective, he challenges the legality of the deportation

order against him.     Appellees contend that the court’s jurisdiction

was precluded on three separate grounds: (1) 8 U.S.C. § 1252(g)

precludes jurisdiction because Appellant was actually seeking review

of the decision to execute a removal order; (2) habeas review is

unavailable because Appellant has an adequate remedy by petition for

review in this Court; and (3) review of discretionary decisions in

deportation proceedings is outside of the scope of habeas review.

The district court, however, based its jurisdiction to consider

Appellant’s petition for writ of habeas corpus on 28 U.S.C. §

2241(c)(1), which permits courts to issue writs to prisoners “in

custody under or by color of the authority of the United States.”

                                       -4-
     Congress and the courts have devoted much attention to the

extent of jurisdiction in immigration cases.                In October 1996,

Congress passed the Illegal Immigration Reform and Immigration

Responsibility Act (“IIRIRA”), 110 Stat. 3009-546 (1996), which

substantially limits judicial review of the Attorney General’s

immigration   decisions.         See    Reno        v.   American-Arab   Anti-

Discrimination Comm., 525 U.S. 471, 486 (1999) (“[M]any provisions

of the IIRIRA are aimed at protecting the Executive’s discretion

from the courts-- indeed, that can fairly be said to be the theme

of the legislation.”).       Title 8 U.S.C. § 1252(g), which serves as

a starting point for our inquiry into jurisdiction in this case,

reads:

           Except as provided in this section and
           notwithstanding any other provision of law, no
           court shall have jurisdiction to hear any
           cause or claim by or on behalf of any alien
           arising from the decision or action by the
           Attorney General to commence proceedings,
           adjudicate cases, or execute removal orders
           against any alien under this chapter.

8 U.S.C. § 1252(g).2     In Reno, the Supreme Court explained that

§ 1252(g) was not a general bar on jurisdiction, but rather limited

judicial   review   to   a   narrow   class    of    discretionary   executive

decrees, decisions or actions to commence proceedings, adjudicate




     2
      This provision became effective on April 1, 1997 and
“appl[ies] without limitation to claims arising from all past,
pending, or future exclusion, deportation, or removal
proceedings.” IIRIRA § 306(c)(1); 8 U.S.C. § 1252.

                                      -5-
cases, or execute removal orders.3         525 U.S. at 483 (1999).      The

Court opined that      the provision was included “to give some measure

of   protection   to   ‘no   deferred   action’   decisions   and   similar

discretionary determinations, providing that if they are reviewable

at all, they at least will not be made the bases for separate rounds

of judicial intervention outside the streamlined process that

Congress has designed.”      Id. at 485.

      The process for obtaining an adjustment of status is delineated

in the Code of Federal Regulations. The Code of Federal Regulations

provides that an alien who is in deportation or removal proceedings

shall have his application for adjustment of status considered only

in those    proceedings.     8 C.F.R § 245.2(a)(1).     Moreover, “[t]he

[Legal Immigration and Family Equity] LIFE Act Amendments contain

no special provisions for reopening cases under Section 245(i) of

the Act (8 U.S.C. 1255(i)) where an alien already is the subject of

a final order of removal, deportation or exclusion.”          66 F.R. 16383

at 16386.    Hence, motions to reopen based on Section 245(i) are

governed by the Department of Justice’s rules which contain time and

numerical limitations on the filing of such motions.          See 8 C.F.R.


      3
      Because the IIRIRA changed the language of immigration
orders, orders of deportation and orders of exclusion are both
now referred to as “orders of removal.” See IIRIRA § 309(d)(2),
110 Stat. 3009 (1996) ( “[A]ny reference in law to an order of
removal shall be deemed to include a reference to an order of
exclusion and deportation or an order of deportation.”).
Therefore, we use the words “removal” and “deportation”
interchangeably.


                                    -6-
§§ 3.23(b)(1) and 3.2(c)(2)(now codified at 8 C.F.R. §§ 1003.23 and

1003.2).

     Appellees cite Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000),

to buttress their argument that § 1252(g) stripped the district

court of jurisdiction over Appellant’s habeas claim.     In Cardoso,

we affirmed the district court’s application of        § 1252(g) to

dismiss aliens’ requests to compel the Attorney General to adjust

their immigration status, permit them to remain in the United

States, and provide them with work authorization.    Id. at 513.   We

found that regardless of how the plaintiffs characterized their

claims, they were seeking to prevent the Attorney General from

executing orders of removal.    Id. at 516.      We recognized that,

although their prayers might have been different, the plaintiffs’

claims were, in essence, an attempt to compel the Attorney General

to allow them to remain in the country.   Id.   Therefore, this Court

reasoned that if the plaintiffs had been successful, permitting

“such challenges would ‘lead to the deconstruction, fragmentation,

and hence prolongation of removal proceedings at which the Supreme

Court concluded that § 1252(g) is directed.’” Id. (quoting Alvidres-

Reyes v. Reno, 180 F.3d 199, 205 (5th Cir. 1999).

     We find Appellant’s situation analogous to the circumstances

of the plaintiffs in Cardoso notwithstanding the fact that the

plaintiffs in Cardoso had all been denied adjustments of status, and

Appellant’s application has never been adjudicated.        Appellant


                                -7-
essentially seeks review of the decision to execute a removal order

against him, a request which § 1252(g) precludes the court from

exercising jurisdiction.    Because Appellant had a final order of

deportation, his only avenue for adjustment of status was by

reopening his proceedings. Appellant’s adjustment of status has not

been adjudicated because Immigration Judges have denied two of his

motions to reopen. In other words, there is a process for adjusting

the status of an alien in Appellant’s position.     Because Appellant

has been unsuccessful at reopening his deportation proceeding, the

April 26, 1998 order of removal entered against Appellant has not

been vacated.   By confining Appellant until a travel document for

his deportation arrives, the agency is executing a valid removal

order.   Even if Appellant couches his claim as a request for

adjustment of status, he is actually seeking review of the decision

to execute a removal order against him.     Hence, 8 U.S.C. § 1252(g)

precludes jurisdiction.

     Assuming arguendo that 8 U.S.C. § 1252(g) did not preclude the

district court from exercising jurisdiction, habeas jurisdiction

does not extend to review of discretionary matters like the one at

issue here. “The decision to grant or deny a motion to reopen is

purely discretionary.” Altamirano-Lopez v. Gonzales, 435 F.3d 547,

550 (5th Cir. 2006);      8 C.F.R.     § 1003.23(b)(1)(iv).   We have

acknowledged that federal habeas jurisdiction does not extend to

review of discretionary determinations made by agencies. See, e.g.,



                                 -8-
Bravo v. Ashcroft, 341 F.3d 590, 592-93 (5th Cir. 2003).     Hence,

because Appellant’s petition depends on relief within the agency’s

discretion, and because jurisdiction is precluded by § 1252(g), the

district court lacked jurisdiction over Appellant’s habeas claims.4

B.   Writ of Mandamus

     Appellant also asserts that the district court erred by not

addressing his request for mandamus or affirmative injunctive relief

to order the INS to adjudicate his application for adjustment of

status. Appellant argues that this is a case of unreasonable delay,

and that the agency should be forced to adjudicate his claim for

adjustment.   The district court found that it lacked jurisdiction

to issue an affirmative injunction or a writ of mandamus ordering

the agency to adjust Appellant’s status.

     The test for whether jurisdiction lies pursuant to the Mandamus

Act, 28 U.S.C. § 1361, is “whether mandamus would be an appropriate

means of relief.”   Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.

1980).   “Three elements must exist before mandamus can issue: (1)

the plaintiff must have a clear right to the relief, (2) the

defendant must have a clear duty to act, and (3) no other adequate

remedy must be available.”   Id.

     Taking Appellant’s allegations at face value, we find that the


     4
      We also note that aliens should seek review of deportation
orders in this Court. “[F]ailure to pursue [direct review]
before filing [a] habeas petition in the district court” will
trigger denial on jurisdictional grounds. Salazar-Regino v.
Trominski, 415 F.3d 436, 445 (5th Cir. 2005).

                                   -9-
district court lacked jurisdiction over Appellant’s request for a

writ of mandamus.          As with Appellant’s habeas claim, because

Appellant had a final order of deportation, and although Appellant

characterized his claim as a request for adjustment of status, he

is actually seeking review of the decision to execute a removal

order    against    him.       Hence,     8    U.S.C.      §    1252(g)        precludes

jurisdiction.

      Assuming arguendo that 8 U.S.C. § 1252(g) did not strip the

district court of jurisdiction, Appellant failed to establish a

clear, nondiscretionary duty owed by the agency, a requirement for

exercising jurisdiction pursuant to the mandamus statute, 28 U.S.C.

§ 1361.    Although Appellant attempts to frame his request as an

action    against   the    agency   for   unreasonable          delay,     8       C.F.R   §

245.2(a)(1) provides that an alien who is in deportation or removal

proceedings shall have his application for adjustment of status

considered only in those proceedings.            Appellant’s only avenue for

relief is through a motion to reopen. As discussed above, this type

of relief is discretionary.         Therefore, a writ of mandamus should

not   issue   because      Appellees    did    not   owe       Appellant       a    clear,

nondiscretionary duty.        See Dunn-McCambell Royalty Interest, Inc.

v. Nat’l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997)(holding

that in order for mandamus to issue, the party seeking the writ had

to demonstrate a “legal duty that is a specific, ministerial act,




                                        -10-
devoid of the exercise of judgment or discretion.”).5

IV.   Conclusion

      Because we find that the district court lacked jurisdiction to

hear any of Appellant’s claims, we VACATE and DISMISS.




      5
      Additionally, we note that Appellant implicitly
acknowledged the existence of another remedy, under section 706
of the Administrative Procedures Act. See 5 U.S.C. § 706(1).
This, too, would foreclose mandamus jurisdiction which requires
that the party seeking the writ has no other adequate remedy.

                                -11-
