                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 24, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 FR AN CISC O LEO N -FLO TA ,

               Petitioner-A ppellant,                   No. 05-9590
          v.                                  (Bureau of Immigration Appeals)
 ALBERTO R. GONZA LES,                            (B.I.A. No.A34 669 246)

               Respondent-Appellee.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Petitioner Francisco Leon-Flota pled guilty to re-entry as a deported alien

previously convicted of an aggravated felony. Before judgment and sentence

were entered, the Department of Homeland Security issued an order reinstating a

prior order of removal based on Leon-Flota’s aggravated felony conviction. The

district court sentenced him to a term of imprisonment and recommended his




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
removal proceedings commence afterward. W hile in custody in the District of

New M exico, Leon-Flota filed a federal habeas petition arguing he was not

subject to removal because he was a citizen or national of the United States. W e

DISM ISS his petition pursuant to the requirements of 8 U.S.C. § 1252.

                                  I. Background

      On August 17, 2004, Leon-Flota entered the United States and was arrested

for illegal re-entry. According to the administrative record, he was a citizen and

national of M exico who had been ordered deported on at least seven prior

occasions. The Department of Homeland Security concurrently issued an order

reinstating a prior removal order based on the aggravated felony conviction under

8 U.S.C. § 1227(a)(2)(A)(iii).

      On December 29, 2004, the federal court for the District of New M exico

entered judgment for the crime to w hich Leon-Flota pled guilty— re-entry as a

deported alien previously convicted of an aggravated felony under 8 U.S.C.

§§ 1326(a)(1), (2) and (b)(2). The court sentenced him to 21 months

imprisonment and recommended that removal proceedings commence thereafter.

On M arch 20, 2005, while in custody, Leon-Flota filed a petition for habeas

corpus in the district court. W hile conceding the felony conviction, he argued he

was a United States citizen or national at the time and therefore not subject to

removal from this country for his conduct.




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                                   II. Discussion

      Because Leon-Flota challenges his removal, our review is governed by

8 U .S.C. § 1252. Specifically, § 1252(a)(2)(C), provides,

      Notwithstanding any other provision of law (statutory or nonstatutory),
      including section 2241 of Title 28, or any other habeas corpus provision
      . . . no court shall have jurisdiction to review any final order of removal
      against an alien who is removable by reason of having comm itted a
      criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii),
      (B ), (C), (D) of this title . . . .

As noted above, § 1227(a)(2)(A)(iii) covers any alien “convicted of an aggravated

felony,” which was the basis for Leon-Flota’s removal here.

      Nonetheless, we retain jurisdiction to determine whether the jurisdictional

bar applies. That is, we may decide whether Leon-Flota is an alien who is

removable by reason of a criminal offense listed in the relevant sections of the

statute. Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001). First,

despite Leon-Flota’s conclusory allegations to the contrary, all evidence in the

record demonstrates Leon-Flota is an alien. Indeed, on multiple occasions, he

submitted sworn testimony stating he was a citizen and national of M exico when

he committed the aggravated felony and that he was deported and subsequently

entered this country illegally. Second, the record indicates Leon-Flota was

convicted of a controlled substance offense, which is covered by 8 U.S.C.

§ 1182(a)(2)(A )(i)(II) and therefore renders the jurisdictional bar applicable. This

crime also qualifies as an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A )(iii)



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as defined by 8 U.S.C. § 1101(a)(43)(B), 18 U.S.C. § 924(c)(2), and 21 U.S.C.

§ 801 et seq. Thus, all of the elements for the jurisdictional bar are met.

      Nonetheless, § 1252(a)(2)(D) allows for judicial review of “constitutional

claims or questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.” In such cases, the

“sole and exclusive means for judicial review of an order of removal” is a petition

for review that is filed (1) directly in the court of appeals for the judicial circuit

in which the immigration judge completed the proceedings (2) within thirty days

of the final order of removal. 8 U.S.C. § 1252(a)(5) and (b)(1) (emphasis added).

Leon-Flota did not pursue direct review under this statute. Nor could we

somehow construe his habeas petition as a § 1252 petition for review because he

filed it (1) in district court (2) over seven months after the latest reinstatement of

his removal order by the Department of Homeland Security.

      Finally, even if we w ere to reach the merits, the statute provides, where

“the petitioner claims to be a national of the United States,” the court of appeals

may dismiss without ordering a hearing if the court finds from the record that “no

genuine issue of material fact about the petitioner’s nationality is presented.” 8

U.S.C. § 1252(b)(5)(A). Here, as noted above, Leon-Flota’s bare assertions that

he is a United States citizen or national are unsupported by the record and indeed

undermined by his own sworn statements to the contrary.




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                          III. Conclusion

For the foregoing reasons, we DISM ISS Leon-Flota’s petition.

                                      Entered for the Court


                                      Timothy M . Tymkovich
                                      Circuit Judge




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