                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 7, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    SIMON CHEGE MWANGI,

                Petitioner-Appellant,

    v.                                                   No. 11-2091
                                             (D.C. No. 1:10-CV-00225-MV-DJS)
    RAY TERRY, Warden, Otero County                       (D. N.M.)
    Processing Center,

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HOLMES, Circuit Judges.



         Simon Chege Mwangi appeals the district court’s dismissal of his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Mwangi is a

Kenyan national who entered the United States in 2004 and overstayed his visa.

In 2008, he was arrested for domestic violence and detained by the Department of




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Homeland Security (“DHS”) for remaining in this country without authorization.

He has been detained by DHS since November 6, 2008. 1

      In removal proceedings, Mr. Mwangi admitted that he was removable, see

8 U.S.C. §§ 1227(a)(1)(B), (a)(1)(C)(i), but he applied for asylum, restriction on

removal, and relief under the Convention Against Torture (“CAT”). An

immigration judge (“IJ”) denied his applications and ordered him to be removed

to Kenya. The IJ’s decision was based in part on Mr. Mwangi’s testimony that he

had been a member of the Mungiki sect, which is devoted to “eliminat[ing] the

western style of life within the country of Kenya.” R., Vol. 1 at 62. Mr. Mwangi

indicated that as a member of this sect, he had participated in robberies, beatings,

and forcing women to submit to female genital mutilation. The IJ found that

Mr. Mwangi had engaged in acts of persecution, which barred him from relief.

Mr. Mwangi appealed to the Board of Immigration Appeals (“BIA”), which

affirmed the denial of asylum and restriction on removal but remanded to the IJ

for further consideration of Mr. Mwangi’s CAT claim.

      On remand, Mr. Mwangi requested to be released on bond. The IJ denied

his request, finding that Mr. Mwangi’s previous testimony established that he

posed a danger to society. The IJ later held a bond redetermination hearing and



1
      Mr. Mwangi’s 28 U.S.C. § 2241 petition challenges his detention pursuant
to federal process, so he need not obtain a certificate of appealability to proceed.
See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291-92 (10th Cir. 2001).

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again denied bond. Eventually, the IJ rejected the CAT claim as well.

Mr. Mwangi appealed these decisions to the BIA, but the BIA denied his bond

appeal as untimely and has not yet issued a decision on the CAT appeal.

      Meanwhile, Mr. Mwangi filed this habeas petition pro se in the district

court, claiming on a form petition that his detention violated Zadvydas v. Davis,

533 U.S. 678 (2001). Zadvydas held that a six-month post-removal period of

detention to allow the government to secure an alien’s removal was presumptively

reasonable. Id. at 701. Mr. Mwangi asserted that his detention violated Zadvydas

because he was being detained indefinitely in violation of his due process rights.

      After considering these arguments, a magistrate judge determined that

federal courts lack jurisdiction to review the Attorney General’s discretionary

decision to deny an alien bond. The magistrate judge also ruled that Zadvydas did

not govern Mr. Mwangi’s case because he was not yet subject to a final order of

removal, but rather was still in removal proceedings. Finally, the magistrate

judge ruled that even if there were jurisdiction to review Mr. Mwangi’s detention,

his removal proceedings would end in the foreseeable future, and therefore his

confinement was not indefinite. The magistrate judge therefore recommended

that Mr. Mwangi’s habeas petition be dismissed. Over Mr. Mwangi’s objections,

the district court adopted the magistrate judge’s report and recommendation and

dismissed the petition.




                                        -3-
         Since then, Mr. Mwangi has sought and obtained another remand from the

BIA to allow the IJ to evaluate his competency; he has also been granted release

on $6,000 bond. 2 As of the date of this writing, the IJ has concluded that

Mr. Mwangi is competent, although still not entitled to CAT relief. 3 And, as

indicated above, the BIA has not yet issued a decision on Mr. Mwangi’s CAT

claim.

         The issue before us is whether the district court correctly dismissed the

habeas petition for lack of jurisdiction. Under our de novo review, see Burger v.

Scott, 317 F.3d 1133, 1137 (10th Cir. 2003), we agree that dismissal was proper.

         As the magistrate judge correctly observed, Mr. Mwangi has not been

subject to mandatory detention as a criminal alien under 8 U.S.C. § 1226(c), see

Demore v. Kim, 538 U.S. 510, 513-14 (2003). Nor has he been detained as an

alien subject to a final order of removal pursuant to 8 U.S.C. § 1231(a), as was

the case in Zadvydas. Rather, Mr. Mwangi has been in DHS custody during the

pendency of his removal proceedings and is therefore eligible for release on bond

under 8 U.S.C. § 1226(a). Pursuant to this provision, the Attorney General may

exercise his discretion to either detain or release an alien on bond or conditional

parole. See id., § 1226(a)(1)-(2); see also 8 C.F.R. § 236.1(c)(8) (providing that

2
         Mr. Mwangi indicates that he cannot pay the bond amount. Reply Br. at 3.
3
     These proceedings followed the district court’s dismissal, and therefore the
agency’s decisions are not included in the record on appeal. We grant
Mr. Mwangi’s unopposed motion to supplement the record with these decisions.

                                           -4-
an authorized officer may exercise discretion to release an alien if the alien

demonstrates that release would not pose a danger and the alien is likely to appear

at future proceedings). But the Attorney General’s exercise of discretion is not

subject to judicial review. See 8 U.S.C. § 1226(e) (“The Attorney General’s

discretionary judgment regarding the application of this section shall not be

subject to review.”); cf. Demore, 538 U.S. at 516-17 (asserting jurisdiction to

consider challenge to statutory framework providing for mandatory detention

under § 1226(c), not the discretionary judgment of the Attorney General);

Zadvydas, 533 U.S. at 688 (distinguishing applicability of § 1226(e) to

“detention-related decisions in period preceding entry of final removal order”).

      Moreover, as the magistrate judge recognized, Congress has specifically

eliminated Mr. Mwangi’s attempted means of review---a habeas petition pursuant

to § 2241---as a way of challenging the Attorney General’s discretionary decision.

See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every provision that

limits or eliminates judicial review or jurisdiction to review, the terms ‘judicial

review’ and ‘jurisdiction to review’ include habeas corpus review pursuant to

section 2241 of Title 28 . . . .”). Indeed, Congress has eliminated judicial review

over these types of discretionary decisions “regardless of whether the judgment,

decision, or action is made in removal proceedings.” Id., § 1252(a)(2)(B)(ii).

Therefore, to the extent Mr. Mwangi challenges the agency’s discretionary bond

decision, the magistrate judge was correct that the court lacked jurisdiction.

                                          -5-
      Mr. Mwangi contends, however, that he is not challenging the discretionary

aspects of his detention, but rather its constitutionality. He says his detention is

indefinite and therefore violates his due process rights under Zadvydas. But here

again, the magistrate judge correctly observed that even if Mr. Mwangi could

successfully characterize his claim as constitutional, he is not like the aliens in

Zadvydas. In that case, the aliens had already been ordered removed, they had

exhausted their administrative and judicial remedies, and yet the government

could not secure their removal because the designated countries either refused to

accept them or maintained no repatriation agreement with the United States.

Zadvydas, 533 U.S. at 684-86. Recognizing that “[a] statute permitting indefinite

detention of an alien would raise a serious constitutional problem,” id. at 690, the

Court ruled that “once removal is no longer reasonably foreseeable, continued

detention is no longer authorized,” id. at 699.

      But Mr. Mwangi’s removal remains reasonably foreseeable. He is being

detained “pending a decision on whether he is to be removed from the United

States.” 8 U.S.C. § 1226(a); see Zadvydas, 533 U.S. at 697 (“post-removal-period

detention, unlike detention pending a determination of removability[,] . . . has no

obvious termination point” (emphasis added)). Although a precise end-date to his

removal cannot be pinpointed, that is because his removal proceedings continue,

not because the government cannot remove him. Indeed, there is no indication

that Mr. Mwangi is unremovable, whether it be for lack of a repatriation

                                          -6-
agreement or because his designated country will not accept him. Cf. Zadvydas,

533 U.S. at 684-86. Under these circumstances, Mr. Mwangi’s detention is not

indefinite. Mr. Mwangi contends he should be afforded an evidentiary hearing to

establish he is unremovable, but where he could still be admitted to the United

States, such a hearing is premature. And in any event, nothing in his allegations

demonstrates that he is entitled to relief. See Medina v. Barnes, 71 F.3d 363, 366

(10th Cir. 1995) (“To be entitled to an evidentiary hearing in a federal habeas

action, the petition must first make allegations which, if proved, would entitle

him to relief.”).

      We see no reason to further retrace the magistrate judge’s cogent and

well-reasoned analysis. Therefore, having reviewed the parties’ appellate

materials, the record on appeal, and the relevant legal authority, we AFFIRM the

district court’s judgment for substantially the same reasons stated in the

magistrate judge’s report and recommendation dated March 19, 2010, which was

adopted by the district court’s decision dated March 30, 2011.


                                                    Entered for the Court


                                                    Jerome A. Holmes
                                                    Circuit Judge




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