                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 January 5, 2006

                           _____________________           Charles R. Fulbruge III
                                                                   Clerk
                               No. 05-20175

                             (Summary Calendar)
                           _____________________

            PEDRO GUZMAN

                               Petitioner - Appellant

            v.

            ALBERTO GONZALES, U S ATTORNEY GENERAL

                                Respondent - Appellee

            __________________________________________

              Appeal from the United States District Court
         for the Southern District of Texas, Houston Division
                              No. H-04-1551
             __________________________________________

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant appeals the district court’s order

dismissing his habeas petition for lack of subject matter

jurisdiction.    We AFFIRM.

                                     I

     Petitioner-Appellant, a Mexican national, was granted lawful

permanent resident status in 1990.       On July 13, 1992, he pled


     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                     1
guilty to sexually assaulting a child, his niece, in the second

degree and was placed on probation for ten years.     Based on this

conviction, the Department of Homeland Security charged him with

removability for having been convicted of an aggravated felony

under section 237(a)(2)(A)(iii) of the Immigration and

Naturalization Act (“Act”), 8 U.S.C. § 1227(a)(2)(A)(iii).     See

section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A)

(defining sexual abuse of a minor as an aggravated felony).

     Given the serious nature of his crime, Petitioner-Appellant

bore the burden of establishing unusual or outstanding equities

in order to qualify for a discretionary waiver of inadmissibility

under former section 212(c)of the Act, codified at 8 U.S.C. §

1182(c).1   Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988).   The

immigration judge (“IJ”) granted Petitioner-Appellant’s

application for waiver from deportation under section 212(c),

finding that he met his burden of demonstrating he deserved the

relief as a matter of discretion.     The Department of Homeland

Security appealed the grant of relief from removal.     The Board of

Immigration Appeals (“BIA”) reversed the IJ’s decision and denied

the relief because it did not find that Petitioner-Appellant’s

family ties and his employment history outweighed the gravity of

Petitioner-Appellant’s offense.   The BIA also did not agree with


     1
       Although repealed in 1996, section 212(c)relief remains
available for convictions occurring prior to the repeal of that
section. INS v. St. Cyr, 533 U.S. 289, 326 (2001).

                                  2
the IJ that Petitioner-Appellant had established rehabilitation

as a positive equity, noting that the Petitioner-Appellant

testified that he would have continued having sexual relations

with his niece, a minor at the time, if she had not reported the

acts at school.   In addition, the BIA noted that Petitioner-

Appellant did not think it was “such a great crime” to have had

sexual relations with his niece since he had become sexually

involved with his wife when they both were minors.   Thus, the BIA

concluded that Petitioner-Appellant’s statements “indicate[d]

that [Guzman] does not appreciate either the wrongfulness of

adults having sex with children or of incestuous sexual

relationships.”   Hence, the BIA vacated the IJ’s decision

granting Petitioner-Appellant the waiver and ordered Petitioner-

Appellant’s removal to Mexico.

     Petitioner-Appellant filed a district court habeas corpus

suit challenging the decision of the BIA denying his application

for discretionary relief from removal.   He argued that he was

entitled to habeas relief based on the BIA’s improper balancing

of the equities in reversing the IJ’s decision.   The district

court granted the government’s motion to dismiss for lack of

subject matter jurisdiction under 28 U.S.C. § 2241(c)(3) because

“Guzman failed to state any cognizable constitutional or

statutory claim in his petition.”



                           II

                                 3
     We review de novo the district court’s legal determinations

regarding jurisdiction.   Requena-Rodriguez v. Pasquarell, 190

F.3d 299, 302 (5th Cir. 1999).

     Section 2241(c)(3) may be used broadly to challenge orders

of deportation as being in violation of the Constitution or laws

or treaties of the United States.    Thus, federal courts retain

habeas jurisdiction to review statutory and constitutional

claims.   However, section 2241(c)(3) does not confer jurisdiction

to review denials of discretionary relief by an IJ or the BIA.

Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003).

     We find that Petitioner-Appellant fails to state any

cognizable constitutional or statutory claim in his petition.      In

addition, as former § 212(c) of the Act is a discretionary form

of relief, we agree that the district court did not have habeas

jurisdiction to review the BIA’s decision to deny Petitioner-

Appellant relief made available under that section.

     Thus, we AFFIRM the district court’s dismissal of

Petitioner-Appellant’s habeas petition for lack of subject matter

jurisdiction.




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