Berrios v. USCIS

United States Court of Appeals
for the Fifth Circuit

No. 20-40380
Summary Calendar

Roberto Fredis Berrios,

Plaintiff—Appellant,

versus

United States Immigration and Naturalization
Department,

Defendant—Appellee.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:20-CV-56

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Robert Fredis Berrios appeals the district court’s dismissal of his
petition for a due process hearing. Berrios is currently being held on a state
conviction at the Willacy County State Jail in Raymondville, Texas. He

*
Pursuant to 5TH CIRCUIT Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5
TH CIRCUIT Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 31, 2020

Lyle W. Cayce
Clerk
Case: 20-40380 Document: 00515547066 Page: 1 Date Filed: 08/31/2020

No. 20-40380
2
alleges that he is subject to an unconstitutional immigration detainer, and he
argues that he is eligible for a waiver of inadmissibility under 8 U.S.C. §
1182(h). Construing his petition as a habeas petition pursuant to 28 U.S.C. §
2241, the district court held that it lacked jurisdiction and dismissed his
petition without prejudice. We AFFIRM.
Since the passage of the REAL ID Act, federal courts lack jurisdiction
over § 2241 petitions attacking removal orders. See Rosales v. Bureau of
Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005). In
the event that a final order of removal is entered against Berrios, “the sole
and exclusive means for judicial review” of the order is to file a petition with
“an appropriate court of appeals.” 8 U.S.C. § 1252(a)(5); see also Rosales, 426
F.3d at 736. Berrios does not allege that he is subject to a final order of
removal, nor does he allege that he has unsuccessfully sought a waiver of
inadmissibility. Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538, 541
(5th Cir. 2003).
Case: 20-40380 Document: 00515547066 Page: 2 Date Filed: 08/31/2020