                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                                                             F I L E D
                  IN THE UNITED STATES COURT OF APPEALS                      August 16, 2005
                           FOR THE FIFTH CIRCUIT
                                                                         Charles R. Fulbruge III
                                                                                 Clerk


                                     No. 04-10630



ADRIAN ROSALES,

                                               Petitioner-Appellant,

versus

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,

                                               Respondent-Appellee.

                                   --------------------
                      Appeal from the United States District Court
                          for the Northern District of Texas
                                   --------------------

  ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

         Adrian Rosales petitioned for writ of habeas corpus under 28 U.S.C. § 2241

to challenge his final order of deportation on due process grounds. The district

court concluded that it lacked jurisdiction because Rosales was not “in custody”

under § 2241 and dismissed his suit. We affirmed in an unpublished opinion.

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Rosales v. Bureau of Immigration and Customs Enforcement, No. 04-10630, 2004

U.S. App. LEXIS 26538 (5th Cir. Dec. 21, 2004). The Supreme Court vacated the

opinion after the government conceded in its brief to the Court that Rosales should

be considered “in custody” according to the prevailing view in our sister circuits.

Rosales v. Bureau of Immigration and Customs Enforcement, __ U.S. __, 125 S.

Ct. 2541 (2005). Reconsidering the case in light of the government’s concession,

we join the Second, Sixth, Ninth, and Tenth Circuits and hold that an alien who is

subject to a final order of deportation, like Rosales, is “in custody” under § 2241.

Because Rosales has not established that the immigration judge’s alleged due

process violation has prejudiced him, however, we deny the petition.

                                   I. Background

      Rosales is a Mexican citizen who became a permanent resident of the United

States in 1989. In 2000, he was convicted in Texas state court of aggravated

kidnaping and sentenced to 65 years incarceration. In February 2001, the INS

served Rosales with a Notice of Rights and Request for Disposition. The Notice

informed Rosales that the INS believed him to be in the country illegally, that he

was entitled to a hearing on whether he could remain in the U.S., that he had a right

to seek legal representation and to communicate with his consulate, and that he

could use a telephone to contact an attorney or the consulate at any time before his

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departure from the U.S. Rosales signed, initialed, and dated the Notice in the

presence of an INS officer. The officer signed a certificate of service reflecting that

Rosales had read the Notice.

      The INS charged Rosales with removability as an aggravated felon under 8

U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) in November 2001, while he was

serving time on the Texas conviction. It filed an immigration detainer concerning

Rosales with the Texas Department of Criminal Justice in March 2002. At

Rosales’s immigration hearing in July 2002, the IJ advised Rosales of his right to

legal representation. Rosales waived that right, said he wished to be removed to

Mexico, and elected to proceed with his hearing that day. He conceded the grounds

for his removal, that he had been convicted of an aggravated felony. The IJ found

Rosales ineligible for relief from removal and ordered him deported.

      Rosales appealed to the BIA, arguing that his hearing did not afford him due

process because the IJ did not inform him of his right to contact his consulate under

the Vienna Convention on Consular Relations, Dec. 24, 1969, art. 36, 21 U.S.T. 77.

The BIA dismissed the appeal because it lacked jurisdiction to consider Rosales’s

constitutional claim. Rosales then filed the present habeas suit.

                                     II. Analysis

                     A. Rosales is “In Custody” Under § 2241

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      An individual may seek habeas relief under § 2241 if he is “in custody” under

federal authority or for violation of federal law. 28 U.S.C. § 2241(c). As the

Supreme Court recently noted, physical detention (or here, physical detention by

federal, rather than state, authority) is no longer required for a petitioner to meet the

custody requirement and obtain habeas relief. Rumsfeld v. Padilla, 542 U.S. 426,

124 S. Ct. 2711, 2719 (2004) (“[O]ur understanding of custody has broadened to

include restraints short of physical confinement[.]”); see also Jones v. Cunningham,

371 U.S. 236, 239-40 (1963) (recognizing that restraints on liberty other than

physical confinement may constitute custody for habeas purposes).

      At least four circuits have held that a final deportation order subjects an alien

to a restraint on liberty sufficient to place the alien “in custody.” Simmonds v. INS,

326 F.3d 351, 354 (2d Cir. 2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291

(10th Cir. 2001); Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1021 n.4 (6th

Cir. 1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995); cf.

Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 541 (5th Cir. 2003) (holding that,

where the INS had not ordered the alien deported, an immigration detainer alone did

not place him “in custody” under § 2241). We agree. The federal government has

placed a significant restraint on Rosales’s liberty by issuing a final order of

deportation against him. It must detain him once his removal period begins at his

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release from state prison. 8 U.S.C. § 1231(a)(1)(B)(iii), (a)(2). He is therefore “in

custody” and may seek relief under § 2241. Simmonds, 326 F.3d at 354-55; cf.

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973) (holding that a

prisoner under the authority of State A may file an immediate habeas petition to

attack future confinement by State B where State B has filed a detainer against the

prisoner with State A).

                     B. Rosales Has Not Established Prejudice

      We consider the merits of Rosales’s petition rather than remanding because §

106 of the REAL ID Act has divested the district courts of jurisdiction over § 2241

petitions attacking removal orders. Pub. L. No. 109-13, 119 Stat. 231, 302 (May

11, 2005); Enwonwu v. Chertoff, No. 05-10511-WGY, 2005 U.S. Dist. LEXIS

13890, *121-23 (D. Mass. July, 12, 2005). Section 106 provides:

      Notwithstanding any other provision of law (statutory or nonstatutory),
      including section 2241 of title 28, United States Code, or any other habeas
      corpus provision, . . . 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 entered or issued under
      any provision of [the Immigration and Nationality] Act . . . .

The section took effect upon its enactment and applies “to cases in which the final

administrative order of removal, deportation, or exclusion was issued before, on, or

after the date of enactment of this division.” Pub. L. No. 109-13, § 106(b). This



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court is thus the exclusive forum for Rosales’s challenge to his removal order.

      Although aliens have no Sixth Amendment right to counsel at deportation

hearings, Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001), due

process requires that such hearings be fundamentally fair. Animashaun v. INS, 990

F.2d 234, 238 (5th Cir. 1993). “[T]o succeed on a collateral attack of a deportation

order on due process grounds, an alien must first demonstrate that he has suffered

actual prejudice.” Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir. 2002).

Rosales argues that his hearing was not fundamentally fair because the IJ did not

inform him of his right to contact the Mexican consulate. He contends that this

alleged due process violation caused him prejudice because, had he been informed

of the right, he would have contacted the consulate and the consulate would have

provided him free legal representation at the hearing.

      Article 36 of the Vienna Convention on Consular Relations requires the

“competent authorities” of the arresting country to inform an alien arrestee of his

rights under the Convention, including his right to contact his consulate.

Immigration regulations contain the same requirement. 8 C.F.R. § 1236.1(e)

(“Every detained alien shall be notified that he or she may communicate with the

consular or diplomatic officers of the country of his or her nationality in the United

States.”). The government complied with these provisions in the present case, by

                                           6
informing Rosales of his Vienna Convention rights in the Notice of Rights and

ensuring that he read it. Rosales contends the Notice was insufficient because he

actually did not read it or could not understand it because his English was not good

enough. He argues that due process requires, either in addition to or instead of the

Notice, that the IJ inform an alien of his right to contact his consulate during the

immigration hearing.

      It is unclear whether Rosales’s Vienna Convention rights are protected under

the Due Process Clause. See Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994)

(“[T]he privilege of communication with consular officials . . . [is] not [a]

fundamental right[] derived from the Constitution”); cf. Medellin v. Dretke, __ U.S.

__, 125 S. Ct. 2088, 2089 (2005) (dismissing the writ of certiorari as improvidently

granted in a case raising the issue of whether federal courts are bound by the

International Court of Justice’s ruling that the Vienna Convention confers

individually enforceable rights on detained aliens); Breard v. Greene, 523 U.S. 371,

376 (1998) (noting that the Vienna Convention “arguably” confers a right to

consular assistance on an alien following arrest); United States v. Jimenez-Nava,

243 F.3d 192, 198-200 (5th Cir. 2001) (rejecting the defendant’s arguments that the

Vienna Convention confers a judicially enforceable right on a detained alien to

contact his consulate and holding that the government’s failure to inform a detainee

                                           7
of such a right does not warrant suppression of evidence). It is also unclear

whether, if the right is within due process, the Notice did not provide sufficient

process under the principles of Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

See Ramirez-Osorio v. INS, 745 F.2d 937, 944-47 (5th Cir. 1984) (holding that the

INS provided sufficient process under Mathews v. Eldridge by informing only those

aliens who the agency believed could be subject to persecution if returned home of

their right to petition for asylum). We need not address these questions, because

Rosales has not shown that he suffered prejudice due to the IJ’s failure to inform

him of his right to contact the Mexican consulate. Rosales admitted in the

immigration hearing that he had been convicted of an aggravated felony, which

makes him deportable. 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(iii). He does not

argue that he is eligible for any relief from deportation. Because he makes no

showing that assistance from his consulate would have changed the result of the

hearing, he is not entitled to relief on due process grounds. Ojeda-Terrazas, 290

F.3d at 302 (holding that, where an alien had not shown that the procedural

safeguards he sought would have changed the result of his deportation hearing, the

alien failed to establish prejudice and the court was not required to evaluate the

merits of his due process claim).

      Rosales also argues that his due process rights were violated because the

                                           8
government did not immediately deport him after it obtained the final order of

deportation against him. This argument is without merit—by statute, Rosales’s

removal period does not start until his state term of incarceration ends. 8 U.S.C. §

1231(a)(1)(B)(iii).

                                   III. Conclusion

      We hold that an alien subject to a final deportation order is “in custody” for

purposes of 28 U.S.C. § 2241. We consequently have jurisdiction over Rosales’s

habeas petition. Rosales has not established that he has suffered prejudice because

the IJ did not inform him of his right to contact the Mexican consulate, however,

dooming his due process claim. We accordingly deny the petition.

PETITION DENIED.




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