Sifuentes-Barraza v. Chertoff

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 1, 2006

Charles R. Fulbruge III Clerk No. 03-51202 Summary Calendar

SERVANDO SIFUENTES-BARRAZA

Petitioner - Appellant

v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ET AL,

Respondents

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ROBERT E JOLICOEUR, Interim Field Office Director, Bureau of Immigration and Customs Enforcement

Respondents - Appellees

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CV-45-DB --------------------

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges. PER CURIAM:*

Servando Sifuentes-Barraza (Sifuentes) appeals the dismissal of his 28 U.S.C. § 2241 habeas corpus petition challenging a removal order issued by the Board of Immigration Appeals (BIA). In accordance with the REAL ID Act, this court converts Sifuentes’s § 2241 petition into a petition for review of the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

No. 03-51202 -2-

BIA’s order. See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 126 S. Ct. 1055 (2006); 8 U.S.C. § 1252(a)(5).

Sifuentes contends that the 1998 removal order was invalid in light of this court’s decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001). The 1998 removal order became final on October 15, 1999, when the BIA dismissed Sifuentes’s appeal and found him removable as an aggravated felon. The final removal order was executed on August 3, 2000, when Sifuentes was removed to Mexico. Once removed from the country, Sifuentes’s case was effectively finished. See Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (holding that removal proceedings are “completed and final” after a person is actually removed pursuant to a removal order). Because Sifuentes’s completed and final removal order had been legally executed at the time Chapa-Garza was decided, Chapa-Garza does not retroactively apply to Sifuentes’s removal order. See Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1172 (9th Cir. 2001) (declining to retroactively apply “to [a] prior order of deportation a new rule that did not take effect until two-and-ahalf years after [the alien] had been deported”). Accordingly, Sifuentes’s petition for review is DENIED.