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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20486
Summary Calendar
_______________
AMBERTO GARCIA,
Petitioner-Appellant,
VERSUS
JANET RENO,
ATTORNEY GENERAL OF THE UNITED STATES,
AND
RICHARD V. CRAVENER,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
November 22, 2000
Before SMITH, BENAVIDES, and
ernment"), raise substantive and procedural
DENNIS, Circuit Judges.
objections to the appeal. We affirm.
JERRY E. SMITH, Circuit Judge:
I.
Garcia is a national of Mexico who married
Amberto Garcia appeals the dismissal, for
a U.S. citizen in 1978 and consequently
want of jurisdiction, of his petition for writ of
attained lawful permanent residency in the
habeas corpus. The respondents, Attorney
United States. After he received at least his
General Janet Reno and Richard Cravener,
third conviction of driving while intoxicated
Director of the Immigration and Naturalization
Service ("INS") (collectively, the "gov-

("DWI") under Texas law,1 the INS instituted
clude DWI, resulting in the removal order.3
deportation proceedings under 28 U.S.C.
The government argues that the proper forum
§ 1227(a)(2)(A)(iii), which renders deportable
for such a challenge is not via habeas petition
any resident alien convicted of an aggravated
under § 2241, but instead by petition for direct
felony. After a removal hearing, an
review, as specified in 8 U.S.C. § 1252(b)(9).
immigration judge found Garcia removable
We review de novo the dismissal of a § 2241
and ordered his removal to Mexico.
petition on the pleadings. See Kinder v. Pur-
dy, 222 F.3d 209, 212 (5th Cir. 2000).
Garcia reserved appeal to the Board of Im-
migration Appeals (the "BIA") but ultimately
This matter is controlled by Max-George v.
failed to perfect the appeal.2 He did not file an
Reno, 205 F.3d 194 (5th Cir. 2000), in which
appeal to this court for direct review of the re-
we held that 8 U.S.C. § 1152(b)(9) denies all
moval order but, instead, filed a habeas
federal habeas jurisdiction under § 2241 for
petition in district court under 28 U.S.C. §
certain criminal aliens, including those
2241. The district court dismissed the
removed under § 1227(a)(2)(A)(iii), as Garcia
petition, concluding that 8 U.S.C. § 1252
was. See id. at 201. We further held that any
rest ricts jurisdiction over such appeals to
habeas jurisdiction remaining under the
direct review in the court of appeals.
Constitution was insufficient to encompass the
Alternatively, the court held that it lacked
petitioner's claim in that case, "`because the
subject matter jurisdiction because Garcia had
Supreme Court long ago made it clear that this
failed to exhaust his statutory and
writ does not offer what [petitioner] desire[s]:
administrative remedies, is not in the custody
review of a discretionary decision[] by the
of the government for habeas corpus purposes,
political branches of government.'" Id. at 202
and failed to file the petition timely.
(citing Yang v. INS, 109 F.3d 1185 1195 (7th
Cir. 1997)) (modifications in original).
II.
Garcia argues on appeal, as he did before
At first glance, § 1252(b)(9) might raise
the district court, that the BIA improperly in-
concerns under the Suspension Clause, given
terpreted the term "crime of violence" to in-
that 8 U.S.C. § 1252(a)(2)(C) prohibits direct
review of any final removal order under
3 Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien
1 The record is murky with respect to Garcia's
who commits an aggravated felony is rendered de-
conviction record. While he admits, in his habeas
portable. Title 8 U.S.C. § 1101(a)(43)(F) defines
petition, to only three convictions, the
"aggravated felony" to include a "crime of vio-
government's motion to dismiss references nine
lence," as defined in 18 U.S.C. § 16, which defines
separate DWI convictions between 1984 and 1997.
"crime of violence" as "a felony . . . that, by its
nature, involves substantial risk that physical force
2 In reference to the failure to appeal, Garcia's
against the person or property of another may be
habeas petition describes the "negligence and mal-
used in the course of committing the offense."
practice" of his former counsel. The petition raises
Because we have no jurisdiction to review the
no issues regarding ineffective assistance of
BIA's interpretation in a habeas posture, see infra,
counsel, however, and we will not raise the issue
we express no view on whether DWI can
sua sponte.
reasonably be termed a "crime of violence."
2

§ 1227(a)(2)(A)(iii). As we noted, however,
Responsibility Act. See id. at 195. The
in Max-George, 205 F.3d at 199, even under
difference in the challenges does not present a
§ 1252(a)(2)(C), a court of appeals has
valid basis on which to distinguish Max-
jurisdiction to determine its own jurisdiction.
George, however. The provision that barred
When confronted with a petition for review
habeas jurisdiction in Max-George applies to
from a criminal alien, a court of appeals must
"[j]udicial review of all law and fact, including
make three specific inquiries before dismissing
interpretation and application of constitutional
the petition as barred by § 1252(a)(2)(C): (1)
and statutory provisions, arising from any
whether specific conditions act to bar jur-
action taken or proceeding brought to remove
isdiction over the petition for review;
an alien from the United States under this
(2) whether the conditions that bar jurisdic-
subchapter . . . ." 8 U.S.C. § 1252(b)(9).
tionSSfor example, as in this case, deportation
for an aggravated felonySShave been
Thus, § 1252(b)(9) plainly applies to Gar-
"constitutionally applied"; and (3) if the jur-
cia's habeas challenge, which deals with the
isdictional bar applies, whether the remaining
BIA's interpretation of "crime of violence" as
quantum of judicial review satisfies the
defined by 18 U.S.C. § 16. For this reason,
Constitution. See Max-George, 205 F.3d
the district court was without jurisdiction to
at 199-201.
entertain Garcia's appeal, so that court's dis-
missal for want of jurisdiction is AFFIRMED.
Garcia's challengeSSwhether his crime is a
ground for removal under § 1227(a)(2)-
(A)(iii)SSwould properly be heard on direct
review. In that posture, this court, in de-
termining whether § 1252(a)(2)(C) applies to
deny us jurisdiction to review the removal or-
der, necessarily would inquire into whether
DWI is a crime of violence.
Unfortunately, Garcia failed to petition for
judicial review of his removal order; instead,
he merely filed a habeas petition under § 2241.
Unless his claim falls within the scope of the
constitutionally-protected writ, the district
court was without jurisdiction.
Garcia's claim is different from Max-
George's, because he challenges the BIA's in-
terpretation of "crime of violence," while Max-
George challengedSSon due process
groundsSSthe retroactive application of
§ 1227(a)(2)(A)(iii) to cover a crime
committed before the enactment of the Illegal
Immigration Reform and Immigrant
3