Petitioners-Appellants Tuan Anh Nguyen and Joseph Boulais (collectively, “Petitioners”) appeal the grant of summary judgment to the Government and the denial of Nguyen’s 28 U.S.C. § 2241 petition for writ of habeas corpus. Petitioners argue the lower court erred in its determination that: (1) Nguyen did not have a due process right to discretionary relief from a *257 removal order; (2) equitable estoppel was unavailable because the Immigration Naturalizаtion Service (“INS”) did not purposefully delay the commencement of removal proceedings; and (3) Nguyen failed to show the INS’s action- prejudiced him. For the following reasons, we AFFIRM.
I.
Nguyen was born in Vietnam on Septembеr 11, 1969, to unmarried parents: Boulais, an American citizen, and a woman who was a Vietnamese citizen. Nguyen came to the United States with his father in June 1975 as a refugee and became a lawful permanent resident. Although Boulais raised Nguyen in Texas, he never legally adopted Nguyen; nor did Nguyen ever apply for naturalized citizenship.
On August 28; 1992, Nguyen pleaded guilty to two counts of sexual'assault on a child and was sentenced to eight years on each count. 1 On April 4, 1995, the INS initiated removal proceedings, by issuance of an Order to Show Cause, against Nguyen as an alien convicted of two crimes involving moral turpitude and an aggravated felony, pursuant to § 241 (a)(2)(A)(ii)(iii) оf the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C § 1251(a)(2)(A)(ii)-(iii). ‘ The order to show cause was not filed, however, until over a year later in August 1996. In the interim, immigration laws were amended, and the relevant regulations resulting were less favorable to Nguyen.
Subsequently, two hearings occurred where Nguyen appeared before an immigration judge (“IJ”) within Texas state prison. The ’first hearing took place on November 22, 1996; and there Nguyen, represented by counsel, assertеd a claim to United States citizenship. The second hearing occurred on January 3, 1997. There, Nguyen permitted the withdrawal of his counsel. Representing himself, Nguyen testified that he was a national or citizen of Vietnam and thаt he was convicted of two separate assault offenses in Harris County, as described above and in the April 4, 1995, Order to Show Cause, and sentenced for those convictions to eight years. Based upon Nguyen’s testimony, the IJ determined Nugyen to be removable as charged and ineligible,- due to the nature of his criminal offenses, to apply for relief from removal. The parties now agree that under
INS v. St Cyr,
Nguyen unsuccessfully appealed several issues to the Board of Immigration Appeals (“BIA”), including whether the IJ erred in denying the opportunity to apply for § 212(c) relief. Other issues raised in Nguyen’s appeal ultimately proceеded to consideration by a panel of this Court,
see Nguyen v. INS,
During the pendency of the appeal to our Court and review by the Supreme Court, on July 2,1998, Petitioners filed the habeas corpus petition that forms the basis of this review. The habeas action was held in abeyance pending the disposition of the appeal to this Circuit and review by the Supreme Court. Nguyen then moved, on December 12, 2001, to reopen his removal proceedings on the grounds that relief was available to him under § 212(c) of the INA, 8 U.S.C. § 1182(c), and St. Cyr. Nguyen argued that equity required his motion to reopen be granted, despite its untimely filing under 8 C.F.R. § 3.23(b)(4)(iii) аnd that his eligibility for § 212(c) relief should be determined, because of fundamental fairness, as of “the day when the immigration judge wrongly pronounced him ineligible for relief from deportation.” The BIA denied his motion on January 24, 2002, finding him ineligible for relief because, during the time between the IJ’s removal order and the dismissal of Nguyen’s appeal in 1998, he had served over five years for an aggravated felony offense, as a result of Nguyen’s guilty pleas. Under the relevant, pre-AEDPA provision of the INA, an alien was barred from seeking § 212(c) relief if he was “convicted of one or more aggravated felonies and ha[d] served for such felony or felonies a term of imprisonment of at lеast 5 years.” 8 U.S.C. § 1182(c) (1994).
Petitioners amended their habeas corpus petition on February 28, 2002, arguing that the BIA’s order denying the motion to reopen deprived Nguyen of due process of law and denied Boulais’s right to enjoy his son’s companionship. The parties stipulated to proceed before a Magistrate Judge for all purposes, and the court entered its Memorandum and Order on the Government’s motion for summary judgment and its Final Judgment on Petitioners’ writ on September 29, 2003. Nguyen claims that his liberty is restrained, in violation of his Fifth Amendment right to due process, by the Government’s action in denying his claim to relief from removal. Nguyen argues that he was erroneously denied a heаring on his request for discretionary relief from removal. The Magistrate Judge denied both Nguyen’s and Boulais’s claims, finding that this Circuit’s case law,
see United States v. Lopez-Ortiz,
II.
We review
de novo
a dismissal of a 28 U.S.C. § 2241 petition for writ of
*259
habeas corpus.
Kinder v. Purdy,
In the context of an illegal reentry case arising under 8 U.S.C. § 1326, this Circuit has determined that a removable alien’s eligibility for discretionary relief under § 212(c) does not merit constitutional due process protection.
Lopez-Ortiz,
To challenge a removal, an alien must show: (1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review; and (3) the proсedural deficiencies caused the alien actual prejudice.
Lopez-Ortiz,
Petitioners argue the district court erred in characterizing Nguyen’s claim as one for a due process right to discretionary relief from a removal order, when to the contrary he claims a due process right to a hearing on whether he warrants the discretionary § 212(c) waiver.
See Arevalo v. Ashcroft,
Petitioners have failed to show that Nguyen’s removal hearing was fundamentally. unfair. The record reveals Nguyen was afforded notice of the charges against him, a hearing before an executive or administrative tribunal, and a fair opportunity to be heard.
See Lopez-Ortiz, 313 F.3d
at 230 (citing
Kwong Hai Cheto v. Colding,
*260 III.
Petitioners claimed before the Magistrate Judge and again raise on appeal extensive arguments grounded in equity. The Government argues that the Magistrate Judge lacked subjеct matter jurisdiction to reach these issues. Although the Government concedes this jurisdictional challenge was not raised below, the question of a federal court’s subject matter jurisdiction may be properly raised at any stage in litigation, including for the first time on appeal.
See In re Canion,
In this case, however, we need not reach the remaining issues raised by either party. Petitioners proceed subject to 28 U.S.C. § 2241, which provides for the grant of the writ of habeas corpus on the application of a prisoner if,
inter alia,
he is held “in custody in violation of the Constitution or the laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3);
see also St. Cyr,
CONCLUSION
Having carefully reviewed the submissions of bоth parties and the complete record of proceedings below, the Magistrate Judge’s dismissal of Petitioners’ claims and the petition for writ of habeas corpus under 28 U.S.C. § 2241(c) is
AFFIRMED.
Notes
. The two assaults occurred on Deсember 1, 1990, and December 12, 1990, and involved two different minors.
. Petitioners failed to address subject matter jurisdiction in their brief and failed to reply to the Government's arguments. But the issue of subject matter jurisdiction cannot be waived.
See, e.g., Clinton v. New York,