                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-12921         ELEVENTH CIRCUIT
                         Non-Argument Calendar       MARCH 16, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                   D.C. Docket No. 1:10-cv-20385-PCH

OXANA IVANTCHOUK,

                                                     Plaintiff-Appellant,

                                  versus

U.S. ATTORNEY GENERAL,

                                                     Defendant-Appellee.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (March 16, 2011)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Oxana Ivantchouk appeals the district court’s dismissal of her complaint for

review of the Immigration Judge’s (IJ) and Board of Immigration Appeals’s (BIA)

determination that she is statutorily ineligible for adjustment of status or other

relief from deportation. She argues that the district court incorrectly determined

that it lacked subject-matter jurisdiction over her claim. For the reasons set forth

below, we affirm.

                                          I.

      Ivantchouk entered the United States in 1994 on a passport from the former

U.S.S.R., and filed an asylum application in 1995, alleging that she had been

persecuted in her home country, the newly independent Republic of Uzbekistan.

The BIA determined that she was a dual national of Russia and Uzbekistan and

ordered her removed to Russia or, alternatively, to Uzbekistan.

      In 2005, Ivantchouk was granted a motion to reopen the removal

proceedings for the purpose of determining whether she possessed a well-founded

fear of future persecution based on changed country conditions in Uzbekistan.

She simultaneously sought adjustment of status based on her bona fide marriage to

a United States citizen. At the reopened hearing, the government presented

evidence that she had used an alias to file a second asylum application that

contained mistaken, erroneous, and false factual assertions and conclusions.

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Ivantchouk testified that she knew the fraudulent application had been filed on her

behalf, that it bore her signature, and that it contained patently false statements and

documents. The IJ determined that the second application was frivolous and, thus,

she was statutorily ineligible for any form of relief from removal. The BIA

affirmed the decision. While on appeal, the BIA denied Ivantchouk’s motion to

admit evidence of her bona fide marriage on the ground that the frivolous

application barred her from adjustment of status and, thus, the evidence was

immaterial. The BIA denied her subsequent motion for reconsideration, we

dismissed her petition for review of that decision, and the Supreme Court denied

certiorari.

      In 2010, Ivantchouk filed the instant civil complaint in the district court,

alleging that the government had violated her right to due process when it denied

her requests for relief from an order of deportation. She alleged that she was not

given notice of the frivolous application and, thus, did not have the opportunity to

investigate and defend against the allegation. She asked the court to (1) enter

judgment that the allegedly frivolous application should not disqualify her from

having her immigration claim considered, (2) order that the removal order be set

aside, and (3) order that she be allowed to present her claims without the

frivolous-application bar.

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         The government moved to dismiss the complaint on grounds that the federal

courts of appeals are the sole and exclusive means for judicial review of a removal

order, and the district court lacked habeas corpus jurisdiction over Ivantchouk’s

claims. Furthermore, it contended that we had already considered and rejected her

constitutional claims when we denied her petition for review, that she had no

constitutionally protected interest in obtaining adjustment of status, and that no

other federal statute conferred an independent basis for jurisdiction. Ivantchouk

responded that the jurisdictional bar in 8 U.S.C. § 1252(g) did not apply to her

claim.

         The district court found that Ivantchouk’s complaint sought to challenge the

final removal order, and, thus, the court lacked jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(5) and (b)(9). It noted that any petition challenging the removal order

had to be brought in this Court. Accordingly, it granted the government’s motion

to dismiss the complaint.

                                          II.

         We review questions of subject-matter jurisdiction de novo.

Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004).

         Prior to the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231

(2005), we held that habeas review under 28 U.S.C. § 2241 was available to aliens

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challenging constitutional issues and errors of law arising from their removal

orders. See Cadet v. Bulger, 377 F.3d 1173, 1182-84 (11th Cir. 2004). The REAL

ID Act subsequently amended the judicial-review provisions of 8 U.S.C. § 1252,

providing that:

      Notwithstanding any other provision of law . . . , including section
      2241 of Title 28, . . . a petition for review filed with an appropriate
      court of appeals in accordance with this section shall be the sole and
      exclusive means for judicial review of an order of removal . . . ,
      except as provided in subsection (e) of this section. . . .
      ....
      Judicial review of all questions of law and fact, including
      interpretation and application of constitutional and statutory
      provisions, arising from any action taken or proceeding brought to
      remove an alien from the United States under this subchapter shall be
      available only in judicial review of a final order under this section.
      Except as otherwise provided in this section, no court shall have
      jurisdiction, by habeas corpus . . . or by any other provision of law
      . . . , to review such an order or such questions of law or fact.

§ 1252(a)(5), (b)(9). Section 1252(e) states that no court may enter declaratory,

injunctive, or other equitable relief pertaining to a removal order, except that the

courts retain habeas corpus jurisdiction to determine whether an individual is an

alien, is subject to a removal order, and already has lawful status as a permanent

resident, refugee, or asylee.

      Thus, the REAL ID Act expanded appellate courts’ jurisdiction to consider

constitutional and legal questions in a petition for review of the immigration



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proceedings, and it rendered a petition for review the alien’s exclusive means for

review of the removal order. Alexandre v. U.S. Att’y Gen., 452 F.3d 1204, 1206

(11th Cir. 2006). Habeas corpus relief in the district court is precluded insofar as

the alien seeks review of a removal order. See id. Habeas corpus jurisdiction

exists over a petition challenging the legality of an alien’s detention, see Madu v.

U.S. Att’y Gen., 470 F.3d 1362, 1366-67 (11th Cir. 2006), but the alien cannot

state a claim for habeas corpus relief arising from her allegedly illegal post-

removal-order detention unless she can “show post-removal[-]order detention in

excess of six months [and] . . . good reason to believe that there is no significant

likelihood of removal in the reasonably foreseeable future,” Akinwale v. Ashcroft,

287 F.3d 1050, 1052 (11th Cir. 2002).

      An alien who knowingly makes a frivolous application for asylum is

permanently ineligible for any benefits under 8 U.S.C. § 1158, which includes

asylum and adjustment of status. See 8 U.S.C. § 1158(d)(6). An alien applying

for asylum must receive notice from the government of the consequences of filing

a frivolous application. See id. § 1158(d)(4)(A), (d)(6). Nothing in § 1158(d)

creates a private right of action against the government. Id. § 1158(d)(7).

      Ivantchouk is not detained. See Madu, 470 F.3d at 1366-67. She argues

only that the frivolous-application bar in § 1158(d)(6) should not have applied to

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her, and that its imposition deprived her of her right to due process in the reopened

removal proceedings. To the extent that these claims are reviewable, they

constitute a statutory and constitutional challenge to her final removal order and,

thus, she was required to pursue her claims in a timely petition for review in this

Court. See 8 U.S.C. § 1252(a)(5); Alexandre, 452 F.3d at 1206. Furthermore,

insofar as she challenged the adequacy of the notice that the frivolous-application

bar would be invoked, this issue did not create a private right of action that could

be enforced in the district court. See § 1158(d)(4)(A), (d)(6), (d)(7). Finally, her

arguments regarding the scope of § 1252(g), which bars judicial review of certain

discretionary decisions by the Attorney General, are inapposite, as the district

court’s ruling was based on subsections (a)(5) and (b)(9), not subsection (g).

Therefore, the district court correctly concluded that it lacked jurisdiction to

review Ivantchouk’s claims.

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




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