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                           United States Court of Appeals
                                    Tenth Circuit
                                     MAR 7 2001
                                   PATRICK FISHER
                                        Clerk                                      PUBLISH
                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
         FIERRO; RICHARD  SCHULL,         
                    Plaintiffs - Appellants,                    No. 00-4008
         WAYNE KIRKPATRICK, Acting  OIC;  
         JOSEPH GREENE, District  Director,
         INS; JANET RENO, U.S.  Attorney  
              Defendants - Appellees.     
                              FOR THE DISTRICT OF UTAH
                              (D. Ct. No. 99-CV-37-B)
         Todd A. Utzinger (Hakeem Ishola, on the brief), Ishola, Utzinger & Perretta, Salt 
         Lake City, Utah, appearing for Appellants.
         Francis W. Fraser, Attorney (John J. Andre, Senior Litigation Counsel, with him 
         on the brief), Office of Immigration Litigation, United States Department of 
         Justice, Washington, DC, appearing for Appellees.
         Before TACHA, Chief Judge, McWILLIAMS and MURPHY, Circuit Judges.
         TACHA, Chief Judge.
        Petitioners appeal the district court's dismissal of their habeas corpus 

         petition for lack of subject matter jurisdiction.  Although we hold that we do have 

         jurisdiction under 28 U.S.C. . 2241, we dismiss because Petitioners fail to state a 

         claim upon which relief can be granted.

                                   I.  Background

         A.   Factual Background

         1.   Petitioners Mario and Judith Aguilera

              On January 26, 1995, an immigration judge denied Petitioner Mario 

         Aguilera's asylum application.  Mr. Aguilera, a citizen and native of Chile, 

         appealed to the Board of Immigration Appeals (BIA), which affirmed the 

         immigration judge's decision on October 12, 1995.   Mr. Aguilera did not 

         exercise his statutory right to appeal to this court.  On October 25, 1995, after 

         Mr. Aguilera's final order of deportation had been entered, he married Petitioner 

         Judith Aguilera, a U.S. citizen.  In addition to Mr. Aguilera's two sons from a 

         previous marriage, Mr. and Mrs. Aguilera have two daughters, who were born in 

         the United States.  In May 1997, Mrs. Aguilera filed Form I-30 immediate 

         relative visa petitions for her husband and step-children.  The next year, the 

         Immigration and Naturalization Service (INS) approved the I-30 visa petitions, 

         allowing Mr. Aguilera and his children to apply for legal permanent residency.

              Mr. Aguilera did not return to Chile after his asylum application was
         denied, and on October 8, 1997, the INS issued a warrant of deportation.  In 

         1998, he was convicted for using a false social security number in violation of 42 

         U.S.C. . 408(a)(7)(B), for which he was sentenced to six months in jail.  Upon 

         his release, the INS agreed to stay his deportation for a year, expiring on 

         February 27, 1999, or until he reopened his deportation proceedings to apply for 

         adjustment of status based on his marriage to a U.S. citizen.  Before the 

         expiration of his sentence, Mr. Aguilera sought to reopen his deportation 

         proceedings under 8 C.F.R. . 3.2(c)(3)(iii), which allows the filing of an 

         untimely motion to reopen if and when the INS jointly files such motion.  The 

         INS did not, however, agree to join his motion to reopen.   

         2.   Petitioners Arman and Skye Singh

              On January 29, 1997, the BIA affirmed an immigration judge's denial of 

         Petitioner Arman Singh's asylum application.  Mr. Singh, a citizen and native of 

         India, then filed a petition for review with this court but withdrew it on May 9, 

         1997 after we refused to grant a stay of deportation while his appeal was 

         pending.  In April 1997, while his case was still pending, Mr. Singh married 

         Petitioner Skye Singh, a U.S. citizen.  A few months later, Mrs. Singh filed an I-

         30 visa petition for her husband.   On September 29, 1997, after the INS 

         approved the petition, Mr. Singh requested the INS join in his motion to reopen 

         his deportation proceedings to apply for adjustment of status.  The following 

         year, in November 1998, the INS declined to jointly file his motion to reopen,
         arresting Mr. Singh two days later but releasing him on his own recognizance. 

         Subsequently, the INS placed Mr. Singh on supervised release and ordered that he 

         deport himself by January 25, 1999.

         3.   Petitioners Lucia Fierro and Richard Schull

              After being denied asylum by INS asylum officers, Petitioner Lucia Fierro, 

         a citizen and native of Mexico, was placed in deportation proceedings.  On 

         November 15, 1996, because Ms. Fierro failed to appear for her deportation 

         hearing, an immigration judge entered an in absentia deportation order.  After 

         Ms. Fierro failed to appeal the order, it became final, and on November 23, 1996, 

         the INS issued a warrant of deportation.  Subsequently, in October 1997, she 

         married Petitioner Richard Schull, a U.S. citizen, who filed an I-30 visa petition 

         for her.  In November 1998, the INS approved the petition.  Around that time, the 

         couple also had their first child.  The following February, Ms. Fierro filed a 

         motion to reopen with the immigration court, requesting the INS join in her 

         motion.  The INS declined to do so.

         B.   Legal and Procedural Background

              Under 8 C.F.R. . 3.2(c)(2), an alien may file a motion to reopen before 

         either the BIA or the immigration judge on or before September 30, 1996, or no 

         later than ninety days after entry of the final administrative decision, whichever 

         date is later.  All the petitioners failed to file motions to reopen within the 

         requisite ninety days, or before the 1996 deadline, so their motions are time
         barred unless they satisfy one of the exceptions listed under 8 C.F.R. . 3.2(c)(3), 

         which includes an exception for motions to reopen joined by the INS, 8 C.F.R. 

         . 3.2(c)(3)(iii).

              Because their motions are otherwise time barred, the petitioners attempted 

         to meet one of the regulation's exceptions, asking the INS to join their motions to 

         reopen under 8 C.F.R. . 3.2(c)(3)(iii).  The INS refused, and the petitioners 

         subsequently filed a habeas corpus petition in federal district court seeking 

         temporary and permanent injunctive and mandamus relief enjoining the INS from 

         applying 8 C.F.R. . 3.2 arbitrarily and capriciously and staying their deportation. 

         Specifically, the petitioners alleged the INS arbitrarily and capriciously applied 8 

         C.F.R. . 3.2 in violation of their due process rights, in particular the citizen-

         petitioners' substantive rights to marry, remain, and work in the United States. 

         They also alleged that the regulation is an unconstitutional delegation of authority 

         to the Attorney General.      

              Defendants moved to dismiss the petitioners' claims for both lack of 

         subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and 

         failure to state a claim under Rule 12(b)(6).  The district court dismissed the 

         petition for lack of jurisdiction, adopting the reasons stated in the defendants' 

         memorandum in support of their motion to dismiss.(1)  Despite the court's

         (1)      The district court granted the petitioners' motion to vacate its initial 
         order, dated October 13, 1999, recognizing its error in relying on Immigrationand Nationality
		  Act (INA) 242(e)(3), 8 U.S.C. 1252(e)(3), in dismissing for 
         lack of jurisdiction.  In its revised order, dated December 21, 1999, the court 
         again dismissed for lack of jurisdiction, adopting the arguments outlined in the 
         defendants' memorandum in support of the motion to dismiss.  The defendants 
         argued that INA 242(g), 8 U.S.C. 1252(g), divests the court of jurisdiction 
         over the petitioners' claims and that, in the alternative, the petitioners fail to state 
         a claim upon which relief can be granted. 
         statement that it dismissed for lack of jurisdiction, its order is ambiguous because 

         it adopts the reasons in the defendants' memorandum without distinguishing those 

         arguments based on jurisdiction from those based on failure to state a claim. 

         Even if we presume, however, that the district court order incorporates only the 

         defendants' jurisdictional arguments, we may nevertheless affirm on the ground 

         that the petitioners fail to state a claim upon which relief can be granted. 

         Remanding the case for dismissal under Rule 12(b)(6) would indeed be a "futile 

         exercise."  Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 

         619 F.2d 231, 239 (3d Cir. 1980) (affirming district's court's dismissal for lack 

         of jurisdiction on ground that plaintiff failed to state a claim under Rule 

         12(b)(6)); accord Chiplin Enters., Inc. v. City of Lebanon, 712 F.2d 1524, 1528-

         29 (1st Cir. 1983); Sacks v. Reynolds Sec., Inc., 593 F.2d 1234, 1239 (D.C. Cir. 

         1978); Carr v. Learner, 547 F.2d 135, 137 (1st Cir. 1976); see also United States 

         v. Sandia, 188 F.3d 1215, 1217 (10th Cir. 1999) (recognizing this court may 

         affirm a district court decision on grounds not relied on by the district court if the 

         record supports conclusions of law).  As such, we hold that, although
		 the district court had subject matter jurisdiction over the petitioners' claims under 28 U.S.C. 

         . 2241, it should have dismissed for failure to state a claim under Rule 12(b)(6). 

         We therefore affirm the district court's dismissal but on the alternative ground 

         that the petitioners fail to state a claim upon which relief can be granted.

                                 II.  Jurisdiction

              On September 30, 1996, Congress enacted the Illegal Immigration Reform 

         and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, 

         amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656.  IIRIRA 

         dramatically changed the Immigration and Nationality Act (INA), in particular 

         limiting the availability of judicial review of removal orders.  Because the 

         petitioners' deportation proceedings were not commenced on or after IIRIRA's 

         effective date, April 1, 1997, most of the new provisions do not apply to them.(2) 

         IIRIRA . 309(c), reprinted in 8 U.S.C. . 1101 note.  The INS argues, however,
         (2)      Because the INS commenced deportation proceedings against Petitioners 
         Singh and Fierro before IIRIRA's effective date, April 1, 1997, and their final 
         orders were entered after October 31, 1996, judicial review of their claims is 
         governed by the pre-IIRIRA rules as amended by IIRIRA's transitional rules.  See 
         IIRIRA  306(c)(1), reprinted as amended in 8 U.S.C.  1252 note; IIRIRA 
         309(a), (c)(1) & (4), reprinted as amended in 8 U.S.C.  1101 note.  Although 
         Petitioner Aguilera's final deportation order was entered before October 31, 
         1996, his request that the INS join his motion to reopen is part of deportation 
         proceedings that commenced before April 1, 1997.  Thus, neither the IIRIRA's 
         permanent "new" rules nor its transitional rules govern his claims related to that 
         request.  See id.  These distinctions do not affect the provision at issue in this 
         case, INA  242(g), because it explicitly applies to claims arising from all past, 
         pending, and future removal proceedings.  IIRIRA  306(c)(1).
         that one jurisdictional provision, INA . 242(g), applies to the petitioners and 

         forecloses any judicial review, including habeas review, in this case.  INA 

         . 242(g) provides: 

              Except as provided in this section and notwithstanding any other 
              provision of law, no court shall have jurisdiction to hear any cause or 
              claim by or on behalf of any alien arising from the decision or action 
              by the Attorney General to commence proceedings, adjudicate cases, or 
              execute removal orders against any alien under this chapter.
         8 U.S.C. . 1252(g).  This provision applies "without limitation to claims arising 

         from all past, pending, or future exclusion, deportation, or removal proceedings." 

         IIRIRA . 306(c)(1), reprinted in 8 U.S.C. . 1252 note.  Because INA . 242(g) 

         applies to past and pending deportation proceedings, it clearly applies to the 

         petitioners' claims.

              The question we must therefore resolve is whether INA . 242(g) precludes 

         judicial review of the petitioners' constitutional claims regarding their motions to 

         reopen under 8 C.F.R. . 3.2(c)(3)(iii).  The INS argues that INA . 242(g) 

         forecloses judicial review because the petitioners' claims concern decisions by 

         the Attorney General to adjudicate cases and execute final deportation orders, 

         two of the "three discrete actions" covered by INA . 242(g).  Reno v. Am.-Arab 

         Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).  The Supreme Court has 

         held, however, that INA . 242(g) is not a "zipper" clause foreclosing all 

         deportation claims.  Id.  Interpreting the provision narrowly, the Court has said 

         that many decisions fall outside the three discrete actions by the Attorney
         General to "commence proceedings, adjudicate cases, or execute removal orders." 

         Id.  The Court provided examples of such decisions, including "the decisions to 

         open an investigation, to surveil the suspected violator, to reschedule the 

         deportation hearing, to include various provisions in the final order that is the 

         product of the adjudication, and to refuse reconsideration of that order."  Id. 

         (emphasis added).

              A decision refusing to reopen a removal order is analogous to a decision 

         refusing reconsideration of that order, which is listed among the Supreme Court's 

         examples of decisions not covered by INA . 242(g).  Both a motion to reconsider 

         and a motion to reopen involve requests for relief from removal decisions 

         rendered by an immigration judge or the BIA.  Indeed, both decisions are covered 

         by the same regulation, 8 C.F.R. . 3.2, which is entitled "Reopening or 

         reconsideration before the Board of Immigration Appeals."  Several of the 

         regulation's subsections establish procedural rules applicable to both kinds of 

         decisions.  See 8 C.F.R. . 3.2(a), (d)-(i).  In light of the two decisions' close 

         relationship and the Supreme Court's narrow interpretation of INA . 242(g), we 

         hold that a decision regarding a motion to reopen falls outside INA . 242(g)'s 

         jurisdictional limitation.  The INA does not therefore preclude our review of the 

         petitioners' claims.  

              Furthermore, our decision in Ho v. Greene, 204 F.3d 1045 (10th Cir. 

         2000), supports our conclusion that we have jurisdiction over the petitioners'
         claims that 8 C.F.R. . 3.2(c)(3)(iii) is unconstitutional.  In determining whether 

         we had habeas jurisdiction, we held that two permanent provisions, including 

         INA . 242(g), precluded judicial review of certain discretionary decisions by the 

         Attorney General but did not preclude review of claims that "challenge the 

         validity and constitutionality of the statutes authorizing the continued detention 

         of removable aliens."  Greene, 204 F.3d at 1052.  Although the petitioners in this 

         case are not being "detained," they are "in custody" for habeas purposes because 

         they are subject to final deportation orders.  Galaviz-Medina v. Wooten, 27 F.3d 

         487, 493 (10th Cir. 1994) ("[T]here is general consensus that an alien whose 

         liberty is restricted pursuant to an order emanating from the INS is `in custody' 

         for purposes of satisfying the prerequisites for habeas review."); Mustata v. Dep't 

         of Justice, 179 F.3d 1017, 1021 n.4 (6th Cir. 1999) (holding a final deportation 

         order places an alien constructively "in custody" because of "the specialized 

         meaning those words have in the context of an immigration-related habeas 

         petition").  Because the petitioners are clearly challenging "the validity and 

         constitutionality of the statutes" governing their final deportation orders, our 

         reasoning in Ho v. Greene is apposite: statutes, such as INA . 242(g), restricting 

         judicial review of discretionary decisions do not preclude review of claims 

         challenging the constitutionality of those statutes.  

              We therefore exercise jurisdiction under the general habeas statute, 28 

         U.S.C. . 2241, which permits the granting of a writ of habeas corpus when a
         petitioner is "in custody in violation of the Constitution or laws or treaties of the 

         United States."  28 U.S.C. . 2241(c)(3); see also Jurado-Gutierrez v. Greene, 190 

         F.3d 1135, 1145 (10th Cir. 1999) (en banc) (noting that alien may seek habeas 

         review under both the INA and 28 U.S.C. . 2241).  In holding we may exercise 

         habeas jurisdiction, we emphasize we do so pursuant to . 2241 and need not 

         therefore grant a certificate of appealability as is required in some habeas cases. 

         Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); accord Ojo v. INS, 106 

         F.3d 680, 681-82 (5th Cir. 1997).

                              II.  Standard of Review

              We review a district court's dismissal for lack of subject matter jurisdiction 

         de novo.  Johnson v. Rodrigues, 226 F.3d 1103, 1107 (10th Cir. 2000) (en banc); 

         U.S. West Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999) (reviewing 

         dismissal under Rule 12(b)(1) de novo).  In addition, because the legal 

         sufficiency of a complaint is a question of law, we review dismissals under Rule 

         12(b)(6) for failure to state a claim de novo.  Sutton v. Utah State Sch. for the 

         Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).  A court considering a Rule 

         12(b)(6) motion will not weigh potential evidence, accepting instead all well-

         pleaded allegations in the complaint as true and viewing them in the light most 

         favorable to the nonmoving party.  Id.  A court should not grant a Rule 12(b)(6) 

         motion "`unless it appears beyond doubt that the plaintiff can prove no set of 

         facts in support of his claim which would entitle him to relief.'"  Id. (quoting
         GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 


                                  III.  Discussion

              The petitioners contend that 8 C.F.R. . 3.2(c)(3)(iii) is unconstitutional for 

         several reasons.  Their first assertion that the Attorney General lacks the 

         authority to promulgate the regulation is clearly without merit.  Congress has 

         explicitly delegated much of its power over immigration to the Attorney General. 

         See, e.g., 8 U.S.C. . 1103(a)(3); Immigration Act of 1990 . 545(d), Pub. L. No. 

         101-649, 104 Stat. 4978 (providing Attorney General shall issue regulations 

         limiting time period for motions to reopen and reconsider), reprinted in 8 U.S.C. 

         . 1252 note.  Their remaining arguments regarding violations of their due process 

         rights fail to state a legally cognizable cause of action because the petitioners 

         have no constitutionally protected interest under either the Fifth Amendment or 

         the regulation itself.

              Courts have long recognized Congress's plenary power over matters of 

         immigration.  Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).  Recognizing that 

         decisions regarding the admission and exclusion of aliens are most appropriately 

         relegated to the political branches of government, courts ensure only that the 

         Executive Branch enforces immigration laws in accordance with the procedural 

         safeguards established by Congress.  Id.  Moreover, the procedural safeguards are 

         minimal because aliens do not have a constitutional right to enter or remain in the
         United States.  Bassett v. INS, 581 F.2d 1385, 1386-87 (10th Cir. 1978) (quoting 

         Harisiades v. Shaughnessy, 342 U.S. 580, 586-89 (1952)).  When facing 

         deportation, however, aliens are entitled to procedural due process, which 

         provides an "`opportunity to be heard at a meaningful time and in a meaningful 

         manner.'" Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994) (internal 

         quotations omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976); 

         Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (acknowledging 

         that "[n]umerous courts have recognized" the Due Process Clause protects an 

         alien's liberty interest in the "fundamental fairness" of a deportation proceeding). 

         Beyond this basic protection guaranteed by the Fifth Amendment, any alleged 

         liberty interest must be created by statute or regulation.  Velasco-Gutierrez v. 

         Crossland, 732 F.2d 792, 796 (10th Cir. 1984).

              The petitioners do not challenge their deportation proceedings.  Each 

         petitioner has had an opportunity to be heard "at a meaningful time and in a 

         meaningful manner" before an immigration judge with the opportunity to appeal 

         to the BIA followed by limited review in this court.  Because their deportation 

         proceedings satisfy the procedural due process required by the Constitution, their 

         protected liberty interest must arise under the regulation itself.  In order for the 

         regulation to create a liberty interest, it must substantively limit the exercise of 

         official discretion through specifically defined criteria that guide official decision 

         making.  Id. (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)).  If the
         government official may deny relief for "`any constitutionally permissible reason 

         or for no reason at all,'" the statute or regulation does not create a protected 

         liberty interest.  Olim, 461 U.S. at 249 (quoting Conn. Bd. of Pardons v. 

         Dumschat, 452 U.S. 458, 467 (1981) (Brennan, J., concurring)). 

              The regulation challenged by the petitioners clearly does not create a 

         liberty interest.  The provision of 8 C.F.R. . 3.2 at issue provides an exception to 

         the time limit for filing a motion to reopen, allowing a petitioner to file a motion 

         "[a]greed upon by all the parties and jointly filed."  8 C.F.R. . 3.2(c)(3)(iii). 

         Because the regulation lacks criteria or standards limiting official discretion, the 

         government has unfettered discretion to deny the requested relief for no reason at 

         all.  The petitioners' failure to receive discretionary relief does not therefore rise 

         to a constitutionally protected interest.  See Velasco-Gutierrez, 732 F.2d at 797 

         (holding no protected liberty interest in deferred action status); Prado v. Reno, 

         198 F.3d 286, 292 (1st Cir. 1999) (holding petitioner's appeal of BIA decision 

         denying her motion to reopen was not justiciable because the regulation contains 

         no standards for the exercise of discretion); Rodriguez, 178 F.3d at 1147-48 

         (holding that remedy of suspension of deportation does not create protected 

         liberty interest); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir. 1985) 

         (holding alien had no liberty interest in reopening deportation proceedings or 

         adjustment of status because statute and regulations did not create any 

         entitlement to relief).

              In addition, the citizen-petitioners argue that the INS's refusal to join in 

         their spouses' motions to reopen violates their substantive right to marry.  This 

         argument clearly fails because we have previously rejected similar claims by 

         family members of deportable aliens, as have our sister circuits.  E.g., Cervantes 

         v. INS, 510 F.2d 89, 91-92 (10th Cir. 1975) (holding family members of deported 

         alien do not have constitutionally protected interest); accord Almario v. Attorney 

         Gen., 872 F.2d 147, 151 (6th Cir. 1989); Garcia v. Boldin, 691 F.2d 1172, 1183 

         (5th Cir.1982).  Furthermore, the citizen-plaintiffs do not have standing under 28 

         U.S.C. . 2241 because they cannot claim to be "in custody in violation of the 

         Constitution or laws of the United States."  The writ of habeas corpus may not 

         extend to them because, unlike their spouses, they are not subject to deportation 

         and therefore not "in custody."

              Because the petitioners fail to state a claim upon which relief can be 

         granted, we AFFIRM the district court's decision to dismiss.


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