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--------------------------------------------------------------------------------
Case Name:
CRUZ-AGUILERA V INS 
Case Number: Date Filed: 
99-71032 04/04/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JUAN ANTONIO CRUZ-AGUILERA,
Petitioner-Appellant,                                 No. 99-71032

v.                                                    INS No.
                                                     A37-001-671
IMMIGRATION AND NATURALIZATION
SERVICE,                                              ORDER
Respondent-Appellee.

On Petition for Review of an Order
of the Board of Immigration Appeals

Argued and Submitted
February 6, 2001--Pasadena, California

Filed April 4, 2001

Before: Harry Pregerson, William C. Canby, Jr., and
David R. Thompson, Circuit Judges.
_________________________________________________________________
COUNSEL

Carolyn Chapman, Coronado, California, for the petitioner-
appellant.

Papu Sandhu (argued) and Douglas E. Ginsburg (brief),
Office of Immigration Litigation, U.S. Dept. of Justice, Wash-
ington, D.C., for the respondent-appellee.
_________________________________________________________________
ORDER

This case involves an appeal by a lawful permanent resi-
dent of the denial of cancellation of removal. We conclude

                               4261
that we lack jurisdiction under the Immigration and National-
ity Act ("INA") S 242(a)(2)(C), 8 U.S.C.S 1252(a)(2)(C). We
also determine that transfer of this case to the district court is
in the interest of justice. Accordingly, we transfer this case to
the district court for further proceedings.

I.

Juan Antonio Cruz-Aguilera, a native and citizen of Mex-
ico, entered the United States in 1977 at age sixteen, and has
been a lawful permanent resident since 1982. In 1995, he was
convicted of one count of possession of a controlled sub-
stance, methamphetamine, in violation of Cal. Health &

Safety Code S 11377(a). On January 27, 1999, the Immigra-
tion and Naturalization Service ("INS") sent Cruz-Aguilera a
notice to appear, charging him with removability under INA
S 237(a)(2)(B)(i), 8 U.S.C. S 1227(a)(2)(B)(i) based upon his
1995 conviction.

At his removal hearing, Cruz-Aguilera conceded the factual
allegations for removal under INA S 237(a)(2)(B)(i) and
sought cancellation of removal under INA S 240A(a), 8
U.S.C. S 1229b(a). To qualify for cancellation of removal
under S 240A(a), an alien must demonstrate: (1) that she has
been a legal permanent resident for five years; and (2) that she
has resided continuously in the United States for a period of
seven years after admission. INA S 240A(a). INA
S 240A(d)(1) provides that the period of continuous physical
residence shall be deemed to end when the alien commits an
offense enumerated in INA S 212(a)(2), 8 U.S.C. S 1182(a)(2)
that renders the alien inadmissible or removable. INA
S 212(a)(2)(A)(i)(II) includes violations of controlled sub-
stance laws.

During his deportation hearing, Cruz-Aguilera testified that
he used and possessed methamphetamine in 1988. The Immi-
gration Judge (IJ) concluded that Cruz-Aguilera was statu-
torily ineligible for cancellation of removal because he was

                               4262
unable to establish the requisite seven years of continuous
physical presence, because of his conceded use of metham-
phetamine in 1988.

Cruz-Aguilera appealed the denial of relief to the Board of
Immigration Appeals ("BIA"). Cruz-Aguilera argued that he
was entitled to cancellation of removal and raised a number
of statutory and constitutional arguments. He contended that
his admission of use of methamphetamine did not constitute
an admission of the essential elements of a crime relating to
a controlled substance. He argued that allowing admissions,
rather than proof of convictions, to form the basis of denial of
cancellation of removal violated his right to substantive due
process. He also challenged the retroactive application of the
new cancellation of removal procedures to his case, rather
than the criteria formerly available under INA S 212(c).

The BIA dismissed Cruz-Aguilera's appeal on July 26,
1999. The BIA affirmed the IJ's ruling that Cruz-Aguilera is
not entitled to cancellation of removal, and noted that it does
not have the power to rule on the constitutionality of congres-
sional laws. Cruz-Aguilera petitions for review of the BIA's
decision, alleging that denial of discretionary relief based on
his admission of drug use violated his rights to due process
and equal protection.

II.

This court's jurisdiction over Cruz-Aguilera's petition for
direct review is governed by INA S 242(a)(2)(C), which states
that "no court shall have jurisdiction to review any final order
of removal against an alien who is removable by reason of
having committed a criminal offense covered in . . .[INA
S 237] (a)(2)(A)(iii), (B), (C) or (D) . . . ." Pursuant to this
section, we have jurisdiction to determine whether Cruz-
Aguilera has committed a deportable offense, but we must
dismiss his petition for direct review for lack of jurisdiction
if we conclude that he has. Flores-Miramontes v. INS, 212

                               4263
F.3d 1133, 1135 (9th Cir. 2000). Because we conclude that
Cruz-Aguilera committed a deportable offense covered by
INA S 237(a)(2)(B)(i) -- possession of a controlled substance
-- we dismiss his petition for direct review. See, e.g., Castro-
Baez v. Reno, 217 F.3d 1057, 1059-60 (9th Cir. 2000) (con-
cluding that petitioner fell within the scope of INAS 242(a)
(2)(C), and dismissing petition).

In his appeal to this court, Cruz-Aguilera requested that we
convert his petition for review to a petition for writ of habeas
corpus, pursuant to 28 U.S.C. S 2241, if we concluded that we
lack jurisdiction on direct review. In Flores-Miramontes, we
held that although the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 ("IIRIRA") removed our
jurisdiction to consider petitions for review on direct appeal,
IIRIRA's permanent rules did not repeal the statutory habeas
remedy available via 28 U.S.C. S 2241. Flores-Miramontes,
212 F.3d at 1136-38.1 The scope of habeas review under
S 2241 extends to both constitutional and statutory questions.
Id. at 1143. Accordingly, habeas review is available to Cruz-
Aguilera. See, e.g., Alvarenga-Villalobos v. Reno, No. C-00-
4291 VRW, 2000 WL 1897302, at *2 (N.D. Cal. Dec. 22,
2000) (retaining jurisdiction over habeas petition in light of
Flores-Miramontes where review in the circuit court is
unavailable under INA S 242(a)). We grant, therefore, Cruz-
Aguilera's request that we treat his petition alternatively as a
habeas petition.2
_________________________________________________________________
1 The Supreme Court recently granted certiorari in two Second Circuit
cases holding that federal courts retain habeas review under INA
S 242(a)(2)(C), even though direct review is foreclosed. See St. Cyr v. INS,
229 F.3d 406 (2d Cir. 2000), cert. granted, _______ U.S. _______, 121 S. Ct. 848,
148 L. Ed. 2d 733 (2001); Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir.
2000), cert. granted, _______ U.S. _______, 121 S. Ct. 849 (Mem), 148 L. Ed. 2d
733 (2001).
2 Necessary amendments to perfect the form of the habeas petition can
be made in the district court upon transfer.

                               4264
This court cannot review Cruz-Aguilera's habeas petition,
however, because the court of appeals does not have jurisdic-
tion to entertain an original petition for a writ of habeas cor-
pus. See Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992)
(en banc). We next consider whether we should transfer Cruz-
Aguilera's case to the district court to correct our lack of
jurisdiction.

III.

The transfer of civil actions among federal courts to cure
jurisdictional defects is governed by 28 U.S.C.S 1631. The
statute provides,

      [w]henever a civil action is filed in a court as defined
      in section 610 of this title or an appeal, including a
      petition for review of administrative action, is
      noticed for or filed with such a court and that court
      finds that there is a want of jurisdiction, the court
      shall, if it is in the interest of justice, transfer such
      action or appeal to any other such court in which the
      action or appeal could have been brought at the time
      it was filed or noticed, and the action or appeal shall
      proceed as if it had been filed in or noticed for the
      court to which it is transferred on the date upon
      which it was actually filed in or noticed for the court
      from which it is transferred.

28 U.S.C. S 1631 (2000).

The federal transfer statute is applicable in habeas proceed-
ings. See Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.
1990) (citing J. Liebman, FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE S 10.2(c) (1988)). Because the stat-
ute's language is mandatory, federal courts should consider
transfer without motion by the parties. See General Atomics
v. United States Nuclear Regulatory Comm'n, 75 F.3d 536,
539-40 (9th Cir. 1996); Miller, 905 F.2d at 262.

                               4265
Transfer is appropriate under S 1631 if three conditions are
met: (1) the transferring court lacks jurisdiction; (2) the trans-
feree court could have exercised jurisdiction at the time the
action was filed; and (3) the transfer is in the interest of jus-
tice. See Kolek v. Engen, 869 F.2d 1281,1284 (9th Cir. 1989).

"Normally transfer will be in the interest of justice because
normally dismissal of an action that could be brought else-
where is `time consuming and justice-defeating.' " Miller, 905
F.2d at 262 (quoting Goldlawr, Inc. v. Heiman , 369 U.S. 463,
467 (1962)). When determining whether transfer is in the
interest of justice, courts have considered whether the failure
to transfer would prejudice the litigant, whether the litigant
filed the original action in good faith, and other equitable fac-
tors. See Liriano v. United States, 95 F.3d 119, 122 (2d Cir.
1996) (weighing the litigant's good faith where new habeas
statute imposed new procedural requirements and concluding
transfer warranted); Janicki Logging Co. v. Mateer, 42 F.3d
561, 567 (9th Cir. 1994) (finding that the bad faith actions of
the litigant militated against transfer); Kolek , 869 F.2d at 1284
(finding transfer in the interest of justice because litigant was
pro se, was not fluent in English, and had limited access to
legal research materials in prison).

Cruz-Aguilera's case meets all three conditions. This court
lacks jurisdiction to hear an original habeas petition. The fed-
eral district court, the transferee court, has jurisdiction under
28 U.S.C. S 2241 to hear Cruz-Aguilera's habeas petition.
Transfer in this case would serve the interest of justice by pre-
venting unnecessary delay caused by requiring Cruz-Aguilera
to re-file. Furthermore, we should not fault Cruz-Aguilera's
decision to file his appeal/habeas petition with this court
given the complicated jurisdictional questions created by
IIRIRA regarding the avenues of direct and habeas review
that remain available under INA S 242(a)(2)(C). Compare
Mahadeo v. Reno, 226 F.3d 3, 9-10 (1st Cir. 2000) (conclud-
ing that S 242(a)(2)(C) forecloses direct review except over
the narrow question whether the statute applies, but upholding

                               4266
habeas review), with Richardson v. Reno, 180 F.3d 1311,
1316 n.5 (11th Cir. 1999) (finding that S 242(a)(2)(C) pro-
vides judicial review over statutory interpretation and consti-
tutional questions). These difficult questions continue to
divide the federal courts of appeals; applicants to this court
should not be penalized for the uncertain and complex nature
of judicial review in this new post-IIRIRA era.

IV.

Under INA S 242(a)(2)(C), we lack jurisdiction to consider
Cruz-Aguilera's petition for direct review because of his 1995
conviction. We also lack jurisdiction over Cruz-Aguilera's
habeas petition because the district court alone has jurisdic-
tion over an original habeas petition. Transfer to the district
court of Cruz-Aguilera's habeas petition satisfies the require-
ments of 28 U.S.C. S 1631 because it will cure the jurisdic-
tional defect and is in the interest of justice. Accordingly, we
dismiss Cruz-Aguilera's petition for direct review for want of
jurisdiction and transfer Cruz-Aguilera's habeas petition to
the district court for further proceedings pursuant to 28 U.S.C.
S 1631.

TRANSFER ORDERED.
                               4267

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