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Theodoropoulos v. INS

United States Court of Appeals for the Second Circuit

June 21, 2002, Submitted ; December 18, 2002, Decided

Docket No. 01-2715

Opinion

 [*164]  AMENDED OPINION

F.I. PARKER, Circuit Judge, and WALKER, Chief Judge: 1 

 [**3]  The Immigration and Naturalization Service ("INS") appeals from the September 21, 2001 judgment of the United States District Court for the Western District of New York (Richard J. Arcara, District Judge), which denied the INS's motion to dismiss petitioner-appellee Athanasios Theodoropoulos's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, and granted the writ for the limited purpose of remanding Theodoropoulos's case to the Board of Immigration Appeals ("BIA") for further proceedings. In his petition, Theodoropoulos sought release from detention, a stay of deportation, and an order vacating his deportation order, claiming that because he was convicted before the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), and the Illegal Immigration  [*165]  Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 ("IIRIRA"), he should have been eligible for consideration of discretionary relief pursuant to § 212(c) of the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1101 et seq. ("INA"). See 8 U.S.C. § 1182(c) (West 1996) [**4]  (codification of former § 212(c)) (repealed as of April 1, 1997 by IIRIRA § 304(b)).

We conclude that Theodoropoulos failed to exhaust his administrative remedies and, thus, that the district court lacked jurisdiction to entertain the petition under 8 U.S.C. § 1252(d). Accordingly, we reverse the judgment of the district court in its entirety and remand for entry of judgment dismissing the petition.

I. FACTUAL BACKGROUND 

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358 F.3d 162 *; 2002 U.S. App. LEXIS 28159 **

ATHANASIOS THEODOROPOULOS, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.

Subsequent History:  [**1]  As Amended December 20, 2002. Superseded January 12, 2004.

US Supreme Court certiorari denied by Theodoropoulos v. Ins, 2004 U.S. LEXIS 5709 (U.S., Oct. 4, 2004)

Prior History: The Immigration and Naturalization Service ("INS") appeals from the September 21, 2001 judgment of the United States District Court for the Western District of New York (Richard J. Arcara, District Judge), which denied the INS's motion to dismiss petitioner-appellee Athanasios Theodoropoulos's petition for a writ of habeas corpus and granted the writ for the limited purpose of remanding Theodoropoulos's case to the Board of Immigration Appeals ("BIA") for further proceedings. This court finds that Theodoropoulos failed to exhaust his administrative remedies, and, thus, that the district court lacked jurisdiction to entertain the petition under 8 U.S.C. § 1252(d). Accordingly, we reverse the judgment of the district court in its entirety and remand for entry of judgment dismissing the petition.

Theodoropoulos v. INS, 313 F.3d 732, 2002 U.S. App. LEXIS 26134 (2d Cir. N.Y., 2002)

Disposition: REVERSED and REMANDED FOR ENTRY OF JUDGMENT OF DISMISSAL.

CORE TERMS

required to exhaust, district court, alien, Immigration, exhaust, proceedings, deportation, habeas petition, repeal, administrative remedy, convicted, removal, waived, habeas review, habeas corpus, judicial review, provisions, federal court, constitutional question, notice of appeal, final order, jury trial, futile, motion to dismiss, right to appeal, limitations, retroactive, corpus, felony

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Criminal Law & Procedure, Clearly Erroneous Review, Habeas Corpus, De Novo Review, General Overview, De Novo Review, Review, Immigration Law, Judicial Proceedings, Judicial Review, Scope of Review, Subject Matter Jurisdiction, Jurisdiction Over Actions, Administrative Law, Reviewability, Exhaustion of Remedies, Justiciability, Exhaustion of Remedies, Failure to Exhaust, Habeas Corpus, Jurisdiction, Administrative Remedies, Appellate Jurisdiction, Lower Court Jurisdiction, Deportation & Removal, Administrative Appeals, Writs, Standing, Environmental Law, Administrative Proceedings & Litigation, Judicial Review, Preliminary Considerations, Governments, Legislation, Interpretation, Deference to Agency Statutory Interpretation