                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                            F I L E D
                                                                            March 11, 2005
                                     In the
                United States Court of Appeals                         Charles R. Fulbruge III
                                                                               Clerk
                           for the Fifth Circuit
                               _______________

                                 m 04-10323
                               _______________




                            OYEKUNMI OYELUDE,

                                                    Petitioner-Appellant,

                                    VERSUS

                            MICHAEL CHERTOFF,
               SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
                            ANGELA K. BARROWS,
ACTING DIRECTOR OF THE BUREAU OF CITIZENSHIP AND IMMIGRANT SERVICES IN DALLAS,

                                                    Respondents-Appellees.


                         _________________________

                   Appeal from the United States District Court
                       for the Northern District of Texas
                               m 1:03-CV-095-C
                     ______________________________
Before DAVIS, SMITH, and DEMOSS,                          to cancel removal proceedings to allow the
  Circuit Judges.                                         INS to adjudicate an I-130 visa petition that
                                                          his purported spouse had filed. The IJ ruled
JERRY E. SMITH, Circuit Judge:*                           against him on the I-130 petition.3

    Oyekunmi Oyelude, a native and citizen of                In December 2002, the IJ ordered Oyelude
Nigeria, challenges the dismissal and denial of           removed to Nigeria, denied voluntary depar-
his 28 U.S.C. § 2241 petition for writ of habe-           ture, and denied his application for cancella-
as corpus. He argues that his prolonged de-               tion of removal.4 In April 2003, Oyelude filed
tention, in the absence of a reasonable bond,             a 28 U.S.C. § 2241 petition for writ of habeas
violates due process. He specifically reasons             corpus setting forth the factual circumstances
that the finding that he is a deportable criminal         surrounding his seven-month detention and al-
alien under 8 U.S.C. § 1226(c) is clearly er-             leging that he was about to be deported “with-
roneous. Because the record does not estab-               out cause.” He asserted that he had no felony
lish that Oyelude is a criminal alien, we vacate          convictions,5 challenged the denial of his I-130
that finding, remand for proceedings not in-              petition, and argued that the $10,000 bond
consistent with this ruling, and express no fur-          was unreasonable. He also asked the court to
ther opinion as to the merits of the habeas               order his release during the pendency of the
petition.

                      I.                                     2
                                                              (...continued)
   In September 2002, the Immigration and                 posting of a $10,000 bond. The IJ noted that
Naturalization Service (“INS”)1 charged Oye-              Oyelude was in removal proceedings because of
lude with remaining in the United States with-            “an overstay” and that he had never been convicted
out authorization and detained him pending his            of a criminal offense.
removal; he applied for release on bond during
                                                             3
the pendency of his proceedings.2 He moved                     The IJ found that Oyelude had failed to dem-
                                                          onstrate that his children would suffer exceptional
                                                          and extremely unusual hardship if he were removed
                                                          from the United States. The IJ also refused to
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-       interrupt the removal proceedings, because
termined that this opinion should not be published        Oyelude was not likely to be able to show, by clear
and is not precedent except under the limited cir-        and convincing evidence, that the marriage would
cumstances set forth in 5TH CIR. R. 47.5.4.               be deemed valid. Apparently, the couple had not
                                                          lived together for three years.
   1
     As of March 1, 2003, the Bureau of Immi-
                                                             4
gration and Customs Enforcement (“BICE”) of the                Oyelude then filed a motion to stay the IJ’s
Department of Homeland Security (“DHS”) as-               December 2002 order. BICE, on its own motion,
sumed responsibility for functions the INS pre-           stayed Oyelude’s removal to ensure that he was
viously had performed.                                    properly accorded his rights before the Board of
                                                          Immigration Appeals (the “BIA”).
   2
     In October 2002, at Oyelude’s request for a
                                                             5
change in custody status, the immigration judge                 Oyelude contends that although he has been
(“IJ”) conducted a bond hearing, granted Oyelude’s        arrested for outstanding traffic tickets, the case was
bond application, and ordered him released upon           dismissed as “time served,” and he has never been
                                     (continued...)       tried for or convicted of a felony.

                                                      2
removal proceedings.6 The DHS argued that                not be subject to judicial review. No court
Oyelude’s detention is lawful under 8 U.S.C.             may set aside any action or decision by the At-
§ 1226(a), as an arrest and detention of an              torney General under this section regarding the
alien pending removal proceedings, and, citing           detention or release of any alien or the grant,
§ 1226(e), that the district court lacked juris-         revocation, or denial of bond or parole.”
diction to consider the bond determination.                  The DHS suggests that the district court
                                                         dismissed Oyelude’s petition for lack of sub-
   The district court cited § 1226(c)(1), noting         ject matter jurisdiction. The order and judg-
that the Attorney General is required to detain          ment, however, do not so indicate or suggest.8
deportable criminal aliens until the final order         Section 1226(e) may strip us of jurisdiction to
of removal is issued. The court also relied on           review judgments designated as discretionary
Demore v. Kim, 538 U.S. 510 (2003), for the              under the pertinent language of the statute, but
proposition that mandatory detention of a per-           it does not deprive us of all authority to review
manent resident alien does not violate due pro-          statutory and constitutional challenges. We
cess. The court denied as moot Oyelude’s                 retain jurisdiction to review Oyelude’s deten-
motions to stay removal, held that his claims            tion insofar as that detention presents constitu-
were foreclosed by Kim, and dismissed his                tional issues, such as those raised in a habeas
§ 2241 petition.7                                        petition. See Kim, 538 U.S. at 516-17.

   Oyelude contends that the district court                                     III.
erred in denying his habeas petition on the                  Oyelude argues that the district court erred
ground that he was a deportable criminal who             in finding that he was a criminal alien. We re-
had been mandatorily detained pursuant to                view the district court’s determinations of law
§ 1226(c). He urges us, inter alia, to vacate            de novo and its findings of fact for clear error.
and remand for further proceedings.                      See Royal v. Tombone, 141 F.3d 596, 599 (5th
                                                         Cir. 1998). A finding of fact is clearly errone-
                       II.                               ous “only if it leaves the Court with the defi-
   The DHS argues that we have no jurisdic-              nite and firm conviction that a mistake has
tion to consider the Attorney General’s discre-          been made.” Galvan v. Cockrell, 293 F.3d
tionary determination that Oyelude should not            760, 764 (5th Cir. 2002).
be released. Section 1226(e) states that the
“Attorney General’s discretionary judgment                  The district court closes with a quote from
regarding the application of this section shall          Kim: “Detention during removal proceedings
                                                         is a constitutionally permissible part of that
                                                         process.” See Kim, 538 U.S at 531. The
   6
     The § 2241 proceeding was transferred to the        court omits the next, significant sentence:
Abilene Division, Northern District of Texas, at
which point the government filed a status report
                                                            8
asserting that Oyelude’s appeal before the BIA was            The district court’s opinion examines the mer-
then pending and that he had not posted the              its of the habeas petition as applied to a § 1226(c)
$10,000 bond and remained in detention.                  detention and uses the language “dismissed and de-
                                                         nied.” Those circumstances, plus the fact that at
   7
     The court did grant Oyelude leave to supple-        no point does that order discuss subject matter
ment his habeas petition with additional documen-        jurisdiction, militate strongly against the DHS’s in-
tation.                                                  terpretation of the ruling.

                                                     3
“The INS detention of respondent, a criminal              portunistically implies that the district court
alien who has conceded that he is deportable,             approved his detention pursuant to some other
for the limited period of his removal                     provision.11
proceedings, is governed by [the cases cited
for the proposition in the previous sentence].”               Insofar as the district court “found” that
See id. Oyelude has not conceded that he is a             Oyelude was being detained as a criminal alien
criminal alien, so Kim does not foreclose a               under the authority of § 1226(c), that finding
potential challenge to a § 1226 detention.9               is clearly erroneous. The IJ’s bond decision
                                                          states that Oyelude was in removal pro-
    The district court also cites two unpub-              ceedings “as an overstay” and that he “appar-
lished district court cases, Stephens v. Estrada,         ently has never been convicted of any criminal
2003 WL 21499323 (N.D. Tex. June 19,                      matter.” The Attorney General does not con-
2003), and Omari v. Estrada, 2003 WL                      test that finding on appeal.12
21355891 (N.D. Tex. June 5, 2003), for the
proposition that Oyelude’s detention is consti-
tutional. These cases are consistent with Kim;               11
                                                                Perhaps the district court considered Oyelude
the district court’s decision here is not. In Ste-        as being in custody under the more general de-
phens the petitioner had been convicted of as-            tention provisions of § 1226(a). The IJ set a
sault on a family member, see Stephens, 2003              $10,000 bond, a ruling that is incompatible with
WL 21499323, at *1, and in Omari the peti-                the very limited circumstances § 1226(c)(2) sets
tioner had been convicted of fifth degree as-             forth for allowing criminal aliens involved in re-
sault of his wife, see Omari, 2003 WL                     moval proceedings to be released on bond. It is,
21355891, at *1. The record in the instant                however, compatible with the more general deten-
case gives no indication that Oyelude has crim-           tion provisions of § 1226(a).
inal convictions.10
                                                             The district court recognized both that Oyelude
   Kim dealt with the constitutionality of man-           was being detained and that the IJ had set bond at
datorily detaining criminal aliens during the             $10,000. We refuse on these grounds, however, to
                                                          impute to that court the position that Oyelude was
pendency of deportation proceedings. Evi-
                                                          being detained pursuant to § 1226(a). The opinion
dently the district court believed that Oyelude           does not mention that subsection. Moreover, its
was being detained pursuant to § 1226(c), the             reasoning seems to assume that Oyelude was a
provision at the heart of the constitutional dis-         criminal alien and therefore that the jurisprudence
pute in Kim, although on appeal the DHS op-               surrounding § 1226(c) applied.
                                                             12
                                                                We also decline to order Oyelude’s release
   9                                                      during the pendency of his petition. The district
      The DHS invokes language in Kim that one
might read in a vacuum as supporting its conten-          court has not had an opportunity to rule on that re-
tion, but that language, when read in context, does       quest, and Oyelude provides no authority explain-
not directly address the constitutionality of             ing why we should grant such unusual relief.
non-§ 1226(c) detentions.                                 Moreover, we reject two additional requests from
                                                          Oyelude: that we (1) order BICE to adjudicate his
   10
      We express no opinion as to whether Oyelude         I-130 petition and (2) direct the Attorney General
is actually a criminal alien; we merely conclude          to expedite the processing of that petition. Oyelude
that there is no support for that finding in the          provides no relevant legal authority for such relief,
record now on appeal.                                                                             (continued...)

                                                      4
   This matter is VACATED and
REMANDED so that the district court may
consider the foregoing explanation. We ex-
press no view as to the ultimate merits of this
proceeding.




   12
     (...continued)
nor has the district court ruled on these requests.

                                                      5
