Tercero v. HolderTercero v. Holder
Case Information
*2 Before HARTZ , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument.
These two appeals are resolved together, inasmuch as they involve the identical Mexican national, Roque Aranda Tercero, proceeding pro se , who seeks relief in various ways from the deportation proceedings to which he is subject. We nonetheless address each appeal separately because each has distinct issues.
Appeal No. 12-2193
Mr. Tercero, proceeding pro se , seeks a certificate of appealability (“COA”) to enable him to appeal the district court’s order dismissing his petition under 28 U.S.C. § 2254. He also appeals the dismissal of his 28 U.S.C. § 2241 petition. We deny Mr. Tercero a COA and dismiss this matter with respect to his *3 § 2254 claims, and affirm the district court’s dismissal of Mr. Tercero’s other claims.
As indicated, Mr. Tercero is a Mexican citizen subject to a final order of deportation. He is no stranger to our judicial system: “He has a long history of criminal activity and of abusive litigation in many courts. See Tercero v. Holder, No. CV 12-0246 RB/KBM Doc. 56 (D.N.M. Oct. 4, 2012).” Mem. Op. & Order at 1. In the instant petition, brought pursuant to 28 U.S.C. § 2254 and § 2241, Mr. Tercero challenged a Texas criminal conviction because, as he stated in his own petition, “I.C.E. [Immigration and Customs Enforcement] is using that same conviction to remove [him] for a second time.” Mem. Op. & Order at 1-2 (quoting Pet. at 6).
The district court noted that Mr. Tercero was seeking relief in district court
in our circuit (the Tenth Circuit) because he has received unfavorable rulings in
removal proceedings and judicial proceedings in Texas and in the Fifth Circuit.
After acknowledging that Texas would provide the more convenient forum for
Mr. Tercero’s claims, the court then applied the factors set out in Trujillo v.
Williams,
The district court then considered Mr. Tercero’s claims under § 2241 and deemed them barred by the doctrine of abuse of the writ. The court stated as follows:
Here, Petitioner already had a pending proceeding under § 2241 when he filed this petition. See Tercero v. Gonzales, No. CV 11-1035 JH/SMV. He has thus filed at least one prior petition challenging his deportation, and the instant claims could have been brought in the earlier proceeding. After filing the instant petition, Petitioner then filed a third petition, see Tercero v. Holder, No. CV 12-0246 RB/KBM, which the Court dismissed for lack of jurisdiction. And in his memorandum in support of his petition, Petitioner states that he has previously challenged deportation orders “at least 4 times pursuant to § 2241.”
Mem. Op. & Order at 3-4. [1] The district court observed that a second or successive § 2241 petition raising a claim which could have been presented in an earlier petition but was not, should be dismissed as abusive absent a showing of either cause and prejudice or a fundamental miscarriage of justice. Noting that Mr. Tercero has made no showing of cause and prejudice or a fundamental *5 miscarriage of justice, the court dismissed his § 2241 claims as barred by the doctrine of abuse of the writ.
In summary, the district court denied a COA for his § 2254 claims and dismissed them and it dismissed without prejudice his § 2254 claims to the extent he sought to have them resolved in the incorrect jurisdiction. The court dismissed his § 2241 claims as an abuse of the writ. This appeal followed.
On appeal, Mr. Tercero makes a number of arguments, not all of which are
clear. One point he repeatedly makes is that he would like to “drop the challenge
against the Texas conviction in part since he is not trying to invalidate the state
conviction.” Appellant’s Op. Br. at 2. He also objects to any reference to his
extensive history of criminal activity and abusive litigation because, he claims,
that is irrelevant to his “new credible fear of persecution or torture [claim under]
. . . the United Nations’ Convention Against Torture . . . ‘CAT’ claim.” Id.
Mr. Tercero then identifies as a major concern the “bar issued by the district court
imposing the doctrine of abuse of the writ.” Id. Finally, he assesses error in the
district court’s failure to liberally construe his pleadings, in accordance with the
Supreme Court’s directive in Haines v. Kerner,
With respect to his claim that any reference to his extensive litigation history is irrelevant to his current CAT claim, he misses the point that his *6 extensive litigation is very relevant to the court’s determination that Mr. Tercero has abused the writ. He fails to understand that he does not have an endless supply of habeas petitions available to him. Thus, his history of having already filed many such petitions is relevant to any further petitions he files.
Mr. Tercero’s argument about the abuse of the writ is not completely clear,
but he seems to primarily take issue with the district court’s reference to the
“cause and prejudice” and “fundamental miscarriage of justice” exceptions to the
determination that the writ has been abused. As the district court noted, “[A]
second or subsequent § 2241 petition which raises a new claim, which could have
been raised in an earlier petition, should be dismissed as abusive under § 2244(a),
absent a showing of either cause and prejudice or a fundamental miscarriage of
justice.” Lambros v. Booker,
Mr. Tercero states that his “third and last issue” appears to be a combination of all of his prior issues, although it is not clear how they coalesce to make an argument that the district court erred. He repeats his arguments that the district court erred in dismissing his case with prejudice, in declaring that he is *7 barred by the doctrine of abuse of the writ and in stating that he is not the subject of a final order of deportation.
The relief Mr. Tercero seeks is to have his case remanded to a different district court judge, and remanded to a magistrate judge for a new analysis, including an evidentiary hearing, if needed, and to require the Warden of the processing center in which Mr. Tercero is held to file a response.
As indicated above, Mr. Tercero, in part, seeks a COA to enable him to
appeal the district court’s dismissal of his § 2254 claims. Pursuant to 28 U.S.C.
§ 2253 (c)(2), a prisoner seeking a COA must make a “substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell,
*8 The district court’s order was thorough and precise. It explained why a COA would not issue, it explained why his § 2254 claims would be dismissed rather than transferred, and it explained why his § 2241 claims would be dismissed under the doctrine of abuse of the writ. We cannot improve on its analysis. Accordingly, for substantially the reasons set forth in that decision, we agree that a COA should not issue and the other claims should be dismissed.
Appeal No. 12-2175
In this appeal, Mr. Tercero seeks permission to proceed on appeal in forma pauperis to challenge the dismissal of his action under 28 U.S.C. § 2241. In his petition, filed purportedly on behalf of himself and other aliens detained in Chaparral, New Mexico, Mr. Tercero alleged violations of due process based on (1) “forum shopping” by the Department of Homeland Security due to its decision to conduct deportation proceedings in El Paso, Texas, rather than Chaparral, New Mexico, where the aliens were detained; and (2) the failure of the DHS to obtain consent from detainees to attend hearings by videoconference. The district court observed that Mr. Tercero was trying to bring his claims in the District of New Mexico, within the Tenth Circuit, because he had already received unfavorable rulings from the Fifth Circuit and from Texas courts. The court ultimately dismissed Mr. Tercero’s claims for lack of jurisdiction because Mr. Tercero was either challenging discretionary decisions of the Attorney General, non-final *9 orders, or other decisions and actions by the Attorney General over which the court lacked jurisdiction.
While that is the essence of the district court’s decision, a more detailed explanation provides background to Mr. Tercero, who is no stranger to the courts in our circuit and in the Fifth Circuit. The court quoted from another decision involving Mr. Tercero as follows:
Aranda-Tercero is no stranger to federal litigation, having filed over
170 suits, petitions, or appeals in our federal court between 1999 and
2006, not counting the four cases he recently filed in this Court.
Aranda-Tercero is a fifty-eight year old Mexican citizen who
illegally entered this country by the age of twelve, where he was
educated; married and had seven children who were all born here;
and became a one-man crime wave with over twenty arrests and
convictions for various crimes, including drug crimes, in California,
Texas, and Mexico. Tercero-Aranda v. Abbott, No. 03-06-00740-
CV,
Order Dismissing Habeas Petition at 2 (quoting Tercero v. Comisario , No. 11-cv-00982 MCA/LAM at 1-2 (D.N.M. Feb. 13, 2012) (dismissing complaint and imposing filing restrictions), appeal dismissed, No. 12-2034 (10th Cir.
May 17, 2012) (dismissing appeal as “wholly frivolous”). [2]
As the district court further recounted, after Mr. Tercero was released from a Mexican prison in 2011, he again attempted to illegally reenter the United States and was placed back in detention for another round of deportation proceedings in El Paso, Texas. Mr. Tercero apparently again seeks asylum, claiming (again) he was tortured in Mexico. Despite his efforts to have his removal proceedings (and those of other detainees) removed from El Paso, the Bureau of Immigration Appeals has ordered them continued in El Paso.
The district court characterized Mr. Tercero’s instant habeas petition as follows: “Tercero generally alleges as the basis of his habeas petition that his and the other detainees’ constitutional rights to due process are being violated for two *11 reasons. First, he contends that the INS is ‘forum shopping’ and that [he has] a right for [his] deportation proceedings to be held in Chaparral, NM, where [he] is detained, instead of in El Paso, Texas.” Order at 4. [3] “Second he makes a general statement that ‘most aliens . . . are never asked if they consent to the available options’ of appearing for a hearing by video teleconferencing, and asserts that an alien must consent to the option.” Id.
The district court then concluded that it had no jurisdiction to consider Mr. Tercero’s arguments or to grant him habeas relief. Under applicable immigration statutes, “The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C. § 1231(g)(1). Accordingly, the Attorney General’s discretionary decision to detain Mr. Tercero and others in New Mexico is not reviewable by way of a habeas petition. The court also explained why judicial review could only follow a final order and why no court has jurisdiction to hear claims arising from “the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal proceedings.” 8 U.S.C. § 1252(g).
The district court’s explanation as to why it lacked jurisdiction over Mr. Tercero’s habeas petition was succinct and clear. We cannot improve on its analysis. Accordingly, for substantially the reasons stated in the district court’s *12 order, we affirm the dismissal of Mr. Tercero’s habeas petition. We deny Mr. Tercero’s request to proceed on appeal in forma pauperis .
For the foregoing reasons, we DENY a COA and DISMISS the other claims in Appeal No. 12-2193; and we AFFIRM the DISMISSAL of Appeal No. 12-2175.
ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge
Notes
[*] (...continued) generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
[1] The district court’s reference to Mr. Tercero’s petition No. CV 12-0246 RB/KBM is the petition whose appeal we address in this order and judgment as Appeal No. 12-2175.
[2] The district court further observed that the “federal courts in the Western District of Texas have recently dismissed all of Tercero’s numerous recent filings for his failure to comply with filing restrictions and orders to pay sanctions.” Order at 3 n.1 (citing six additional cases failed by Mr. Tercero and dismissed by the federal courts of Texas).
[3] He seeks removal from El Paso, Texas, because the numerous court decisions rendered in his cases in Texas have been unfavorable.