Francisco Tomas Lopez appeals the district court’s 2 denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2241 (2000), in which he asserted that the removal reinstatement provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. § 1231(a)(5) (Supp. II 1996), had a retroactive effect when applied to him and violated his due process rights. The district court first concluded that it had jurisdiction to consider Lopez’s habeas petition and then rejected Lopez’s claims on the merits. We transfer this action which should have been brought directly in this court, construe it as a petition for review, and deny the petition.
I.
Lopez, a citizen of Guatemala, illegally entered the United States on or about January 3, 1993. The Immigration and Naturalization Service (hereinafter “the INS”) instituted deportation proceedings, charging him with entering the United States without inspection. See 8 U.S.C. § 1251(a)(1)(B) (1994) (transferred to § 1227(a)(1)(B) (Supp. II 1996)). The INS sent a notice of hearing, informing Lopez of the scheduled date, March 28, 1997, for a hearing before the immigration court. Athough Lopez signed for and received this notice on March 5, 1997, he failed to appear at the scheduled hearing. The immigration judge found Lopez deportable and issued an order of deportation to Guatemala on March 28, 1997. Lopez never sought judicial review of that deportation order. The INS sent Lopez a notice warning him that, because he had been found to be deportable, he was prohibited from entering the United States for a period of ten years from the date of his removal.
*510 On April 1, 1997, the reinstatement provision of IIRIRA became effective. 8 U.S.C. § 1281(a)(5) (Supp. II 1996) (authorizing the Attorney General to reinstate automatically a prior order of deportation against an alien who illegally reenters the United States after being deported). On September 22, 2000, Lopez was deported, but he illegally reentered the United States in June 2001. On August 2, 2001, the INS automatically reinstated Lopez’s prior removal order 3 pursuant to 8 U.S.C. § 1231(a)(5).
Lopez filed a § 2241 petition for a writ of habeas corpus on August 17, 2001, challenging the reinstatement. The district court denied habeas relief, and Lopez was deported to Guatemala once again on February 28, 2002. Lopez now appeals the denial of his habeas petition.
II.
A. Jurisdiction
The INS asserts that we lack jurisdiction to address this appeal. The INS argues that Lopez cannot satisfy the “in custody” requirement under habeas corpus jurisprudence. Alternatively, the INS asserts that a final order of removal or its reinstatement may be challenged only in the appropriate court of appeals through a petition for review filed within thirty days of the date of the order.
We first note that the “in custody” requirement of the habeas statute is satisfied as long as the petitioner was in custody at the time he filed his habeas petition.
Carafas v. LaVallee,
We agree with the INS, however, that pursuant to the statutory scheme set forth by Congress, Lopez should have filed a petition for review in this court to challenge the § 1231(a)(5) order of reinstatement.
See
8 U.S.C. § 1252(a), (b)(1), (2) (providing for judicial review of a final order of removal in the court of appeals if the petition for review is filed within thirty days of the date of the order);
see also Alvarez-Portillo v. Ashcroft,
Although habeas jurisdiction remains available to deportees who raise questions of law and who have no other available judicial forum,
see INS v. St. Cyr,
*511
We nevertheless decline to dismiss for lack of jurisdiction in this instance, because the interests of justice warrant a transfer to this court. Federal courts are authorized to transfer an action to the proper federal court in order to cure a want of jurisdiction. 28 U.S.C. § 1631 (2000). Pursuant to § 1631, this court has the power to transfer to the proper federal court a case in which we lack jurisdiction, provided that the case would have been timely filed had it been filed in the proper court in the first instance.
Park,
The notice of appeal filed in this court would not have been a timely filed petition for review, but the action filed in district court was timely for purposes of 8 U.S.C. § 1252(b)(1). Therefore, while we lack direct authority under § 1631 to transfer this case to ourselves, the district court did and does have authority to transfer it to us.
See Park,
It would be a curious procedure to remand this case to the district court so that the district judge could decide whether or not to officially transfer it back to us. Nor is such a convoluted procedure necessary to a fair decision: it appears from the record that all the considerations relevant' to the interest of justice are within our plain view.
In re McCauley,
*512 B. Retroactive Effect
Lopez argues that the § 1231(a)(5) reinstatement of his removal order has an impermissible retroactive effect because the initial removal order was entered prior to the enactment of the statute which now authorizes the reinstatement of it. He relies on
Castro-Cortez,
Lopez argues that the statute is retroactive because his initial deportation order was entered prior to the enactment of IIRIRA. We disagree. “No illegally reentering alien has a reasonable expectation that his prior deportation order will not be reinstated for purposes of effecting a second removal.”
Alvarez-Portillo,
We determined in Alvarez-Portillo that there could be an impermissible retroactive effect arising from IIRIRA’s provision that an alien subject to reinstatement “ ‘may not apply for any relief under this chapter.’ ” Id. (quoting § 1231(a)(5)). We acknowledged that a new statute may not be applied retroactively to deprive a criminal defendant of a defense that was available at the time his alleged crime was committed. Id. at 867. Again, however, retroactivity is not in play here because IIRIRA was in effect at the time of Lopez’s actual deportation and his illegal reentry. Thus, Lopez has not been deprived of any substantive defenses that were available at the time of his illegal reentry conduct. Because IIRIRA was in effect at the time of his reentry conduct, its provisions appropriately define his rights.
C. Due Process
Lopez argues that he was deprived of due process when he was not provided a new hearing before an immigration judge prior to his present deportation. The Supreme Court has long recognized that deportable aliens are entitled to constitutional protections of due process.
See Yamataya v. Fisher,
To demonstrate a violation of due process, an alien must demonstrate both a fundamental procedural error and that the error resulted in prejudice.
United States v. Torres-Sanchez,
The regulations provide that an alien is subject to automatic reinstatement of a prior removal order upon a determination that the alien has been subject to a prior deportation order, the alien is correctly identified as an alien who was removed under a prior order, and the alien unlawfully reentered the United States after his removal. 8 C.F.R. § 241.8(a) (2001). Lopez admits to all of these predicate fíndings his identity, his prior order of removal, and his illegal reentry. Thus, there is no doubt his deportation order would have been reinstated, and he would be statutorily ineligible for any relief even if he had been granted a new hearing before an immigration judge. Absent a showing of prejudice, Lopez cannot establish a due process violation.
See Ojeda-Terrazas v. Ashcroft,
III.
We construe Lopez’s habeas petition as a petition for review. Having considered and rejected his arguments, we deny relief.
Notes
. The Honorable Ronald E. Longstaff, Chief Judge, United States District Court for the Southern District of Iowa.
. We make no distinction between the terms "deportation” and "removal.”
See Omar v. INS,