In the context of an illegal reentry case arising under 8 U.S.C.S. § 1326, the United States Court of Appeals for the Fifth Circuit has determined that a removable alien's eligibility for discretionary relief under former § 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C.S. § 1182(c) (repealed), does not merit constitutional due process protection. The court expressly approves the application of its prior decision to a case where an alien challenges his removal in a collateral civil proceeding.
The alien left Vietnam to live with his American father. He was never legally adopted, and he never applied for American citizenship. Removal proceedings were commenced after the alien pleaded guilty to two counts of sexual assault on a child. The immigration judge determined that the alien was removable and was ineligible for relief from removal under former 8 U.S.C.S. § 1182(c) (repealed). The alien and his American father also filed a habeas corpus petition. The trial court entered summary judgment against them and dismissed their petition for habeas corpus. Thus, the petitioner's amended their habeas petition, claiming that the denial of the motion to reopen deprived the alien of due process of law and denied the father of his right to enjoy his son's companionship.
Did the denial of the court for the alien's discretionary relief threaten his due process rights?
The Court found that petitioners were not entitled to equitable relief and that eligibility for relief under § 1182(c) did not vest the alien with a property or liberty interest that was subject to due process protection. The removal proceedings were not fundamentally unfair, and the denial of the possibility of discretionary relief did not threaten the alien's due process rights.