              Case: 12-12595   Date Filed: 04/16/2013   Page: 1 of 11


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-12595
                            Non-Argument Calendar
                          ________________________

                           Agency No. A077-121-790


GUO XING SONG,

Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                (April 16, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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       Guo Xing Song seeks review of the Department of Homeland Security’s

(DHS) Final Administrative Removal Order (FARO) issued pursuant to the

Immigration and Nationality Act (INA), 8 U.S.C. § 1228(b). Song presents four

arguments on appeal. First, Song argues that DHS erred in issuing the FARO

against him because his conviction under 8 U.S.C. § 1324(a)(1)(A)(iv) did not

involve alien smuggling and was therefore not an aggravated felony as defined by

8 U.S.C. § 1101(a)(43)(N). Next, Song argues that it was improper for DHS to

commence expedited removal proceedings against him because he had a pending

adjustment of status application. Third, Song argues that DHS violated his due

process rights by not complying with 8 C.F.R. § 238.1(c)(1), which requires DHS

to provide an alien with a copy of the government’s evidence against him if the

alien requested it, and which allows the alien ten days following the service of the

evidence to file a final response. Lastly, Song challenges his continued detention,

asserting that he was detained in excess of the allowed removal period in

retaliation for seeking withholding of removal. After reviewing the record and

parties’ briefs, we affirm.

                                          I.

        Our jurisdiction to review orders of removal is limited by the INA, which

provides that “no court shall have jurisdiction to review any final order of removal

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against an alien who is removable by reason of having committed a criminal

offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)].” 8 U.S.C. § 1252(a)(2)(C). We

retain jurisdiction, however, over “constitutional claims or questions of law raised

upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). The question of whether a

petitioner’s conviction constitutes an “aggravated felony” within the meaning of

the INA is a question of law that falls within our jurisdiction. See Balogun v. U.S.

Att’y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005).

      Song first argues that DHS erred in issuing the FARO against him because

his conviction was not an aggravated felony as it did not involve alien smuggling.

We review de novo whether a prior conviction qualifies as an aggravated felony.

Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011). The INA

provides that “[a]ny alien who is convicted of an aggravated felony at any time

after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA

specifically defines an “aggravated felony” to include

      an offense described in paragraph (1)(A) or (2) of [8 U.S.C.
      § 1324(a)] . . . (relating to alien smuggling), except in the case of a
      first offense for which the alien has affirmatively shown that the alien
      committed the offense for the purpose of assisting, abetting, or aiding
      only the alien’s spouse, child, or parent (and no other individual) to
      violate a provision of this chapter.




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8 U.S.C. § 1101(a)(43)(N). The INA also defines an “aggravated felony” to

include “an attempt or conspiracy to commit an offense described in this

paragraph.” 8 U.S.C. § 1101(a)(43)(U).

         Song was convicted pursuant to a guilty plea in federal court for conspiracy

to encourage and induce aliens to reside in the United States, in violation of 8

U.S.C. §1324(a)(1)(A)(iv) 1 and 18 U.S.C. § 371, and aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1) and (b)(2). The indictment reflected that

Song and four other conspirators produced false Georgia driver’s licenses and

issued them to people who did not qualify for them under Georgia law in order to

encourage and induce the aliens to reside in the United States.

         Song argues that his conviction is not an aggravated felony because it did

not relate to “alien smuggling.” We disagree. The inclusion of the “relating to

alien smuggling” parenthetical within INA § 101(a)(43)(N) acts to encompass all

of the offenses described in 8 U.S.C. § 1324(a)(1)(A) and (2); it is not designed to

limit the offenses deemed aggravating felonies under this section. See Patel v.

Ashcroft, 294 F.3d 465, 470–71 (3d Cir. 2002) (finding that “relating to alien

smuggling” was “nothing more than a shorthand description of all of the offenses

listed in INA § 274(a)(1)(A)”), superseded by statute on other grounds, REAL ID

1
 One violates § 1324(a)(1)(A)(iv) when one “encourages or induces an alien to come to, enter, or reside in the
United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in
violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iv).
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Act of 2005, Pub. L. No. 109-13, div. B, § 106, 119 Stat. 231; United States v.

Galindo-Gallegos, 244 F.3d 728, 733–34 (9th Cir. 2001) (concluding that the

“aggravated felony provision has to include transporting aliens who are already in

the United States”); United States v. Salas-Mendoza, 237 F.3d 1246, 1247–48

(10th Cir. 2001) (holding that crime of transporting aliens is an aggravated felony);

United States v. Monjaras-Castaneda, 190 F.3d 326, 330–31 (5th Cir. 1999)

(finding that “[t]he phrase ‘relating to alien smuggling’ does describe the offenses

in § 1324(a). All involve the transportation, movement, and hiding of aliens into

and within the United States”). It is clear that alien smuggling is not limited solely

to actually bringing, or attempting to bring, an alien into the United States. DHS

did not err when it concluded that Song’s conviction for conspiring to encourage

and induce aliens to reside in the United States constituted an aggravated felony.

       Additionally, the limited exception to when a conviction pursuant to 8

U.S.C. § 1324(a)(1)(A) is an aggravated felony is inapplicable to Song because his

criminal indictment contains no indication that Song’s conviction involved

assisting, abetting, or aiding his spouse, child, or parent. Accordingly, we deny the

petition as to this issue.




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                                         II.

      To the extent that Song challenges DHS’s decision to commence expedited

removal proceedings against him, we lack jurisdiction to review this claim. See 8

U.S.C. § 1252(g). Nevertheless, to the extent that Song raises a legal question

regarding whether DHS had the authority to commence expedited removal

proceedings against him, we have jurisdiction to review this claim. See 8 U.S.C.

§ 1252(a)(2)(D).

      DHS did not err in commencing expedited removal proceedings while

Song’s adjustment of status application was pending. There is nothing in the

statute or regulation to suggest that DHS cannot commence expedited removal

proceedings while an alien has a pending application for relief. Song cites to

Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 444 (7th Cir. 2007), which noted that

DHS “ha[s] the authority” to stay proceedings or decline to issue a FARO because

of a pending application. That case, however, does not bind us. More

importantly, however, Fonseca-Sanchez in no way mandates that DHS stay

proceedings or decline to issue a FARO because of a pending application; the case

merely states that, in its discretion, DHS may stay removal proceedings. Id. at 444.

As such, we deny Song’s petition as to this issue.




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                                         III.

      Song next argues that DHS violated his due process rights by not complying

with 8 C.F.R. § 238.1(c)(1), which requires DHS to provide an alien with a copy of

the government’s evidence against him if the alien requested it, and which allows

the alien ten days following the service of the evidence to file a final response. We

have jurisdiction over Song’s due process claim. See 8 U.S.C. § 1252(a)(2)(D).

We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d

1338, 1341 (11th Cir. 2003) (per curiam).

      Aliens are entitled to due process of law in deportation hearings, which is

satisfied only by a full and fair hearing. Ibrahim v. U.S. INS, 821 F.2d 1547, 1550

(11th Cir. 1987). To establish due process violations in removal proceedings, an

alien must show that he was deprived of liberty without due process of law, and

that the asserted errors caused him substantial prejudice. Lonyem, 352 F.3d at

1341–42. “To show substantial prejudice, an alien must demonstrate that, in the

absence of the alleged violations, the outcome of the proceeding would have been

different.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per

curiam).

      The notice of intent is required to advise the alien that he has a right to

inspect the evidence in support thereof and to rebut the charges against him. 8

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C.F.R. § 238.1(b)(2)(i). The alien has ten calendar days from the service of the

notice of intent to file a response. Id. § 238.1(c)(1). In the alien’s response, he can

rebut the allegations supporting the charge and/or request the opportunity to review

the government’s evidence. Id. If the alien requests to review the evidence, DHS

must provide the alien with a copy of the evidence in the record. Id.

§ 238.1(c)(2)(ii). The alien then has ten calendar days after the service of the

evidence to provide a final response to the notice of intent. Id.

      Here, because DHS provided Song with a copy of the evidence less than ten

days prior to the issuance of the FARO, Song was prevented from filing a final

response to the notice of intent before the issuance of the FARO as permitted by

the regulations. See 8 C.F.R. § 238.1(c)(2)(ii). However, Song has failed to

establish that DHS’s non-compliance with the regulations violated his due process

rights because he cannot show substantial prejudice. See Lonyem, 352 F.3d at

1341–42. The record reflects that even without a copy of the evidence, Song was

still able to file an initial response to the notice of intent, where he argued that his 8

U.S.C. § 1324(a)(1)(A)(iv) conviction was not an aggravated felony. Moreover,

Song cannot show that the outcome of his proceedings would have been

different—his conviction still stands as an aggravated felony. Song fails to explain

how having more time to respond would have changed his status as an aggravated

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felon. See Lapaix, 605 F.3d at 1143. Accordingly, we deny Song’s petition as to

this issue.

                                         IV.

       Lastly, Song challenges his continued detention, asserting that he was

detained in excess of the allowed removal period in retaliation for seeking

withholding of removal. The government argues that Song’s petition for review is

not the proper method for Song to challenge his detention. According to the

government, the proper method for challenging detention is to file a petition for a

writ of habeas corpus.

       The INA provides that the filing of a petition for review in the court of

appeals, rather than a 28 U.S.C. § 2241 habeas corpus petition, is “the sole and

exclusive means for judicial review of an order of removal.” 8 U.S.C.

§ 1252(a)(5). Furthermore, the INA states that no court shall have jurisdiction

under § 2241 to review questions of law or fact that arise “from any action taken or

proceeding brought to remove an alien from the United States.” 8 U.S.C.

§ 1252(b)(9). Nevertheless, so long as an alien does not challenge a final order of

removal, district courts retain jurisdiction under § 2241 to review habeas petitions,

including challenges to an alien’s detention. Madu v. U.S. Att’y Gen., 470 F.3d

1362, 1366–68 (11th Cir. 2006). However, if the alien challenges both his removal

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order and his continued detention, we have jurisdiction to review the alien’s

challenge to his continued detention. See id. at 1366–67. Accordingly, because

Song is challenging both his removal order and his continued detention, we can

review Song’s challenge to his continued detention. See id.

      Following a final order of removal, “the Attorney General shall remove the

alien from the United States within a period of 90 days.” 8 U.S.C.

§ 1231(a)(1)(A). This 90-day period is known as the “removal period.” Id.

Generally, an alien is held in custody during the removal period. Zadvydas v.

Davis, 533 U.S. 678, 682, 121 S. Ct. 2491, 2494 (2001). An alien who is

removable for an aggravated felony conviction is subject to further detention

beyond the removal period. 8 U.S.C. § 1231(a)(6).

      Song’s challenge to his continued detention is premature. Song is

removable based on his aggravated felony conviction, thus he can be detained for

at least six months. See Zadvydas, 533 U.S. at 701, 121 S. Ct. at 2505 (concluding

that six months was a presumptively reasonable period of time to allow the

government to remove an alien). The six-month period includes the 90-day

removal period and the 90 days thereafter. Akinwale v. Ashcroft, 287 F.3d 1050,

1052 (11th Cir. 2002) (per curiam). The six-month period is tolled, however, if the

alien acts to prevent his removal. See id. at 1052 n.4. For an alien to state a claim

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under Zadvydas, he “not only must show post-removal order detention in excess of

six months but also must provide evidence of a good reason to believe that there is

no significant likelihood of removal in the reasonably foreseeable future.” Id. at

1052.

         In the current matter, at the time Song filed his petition for review and his

appellate brief he had not been detained in excess of six months following the

FARO’s issuance. Accordingly, we deny Song’s petition for review as to this

issue.

         PETITION DENIED.




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