Nysus v. Ashcroft, et al

United States Court of Appeals
Fifth Circuit
F I L E D
October 19, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50304
Summary Calendar
MYRVIN NYSUS,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U. S. ATTORNEY GENERAL; BUREAU OF IMMIGRATION
AND CUSTOMS ENFORCEMENT; VINCENT J. CLAUSEN, Director
Detention and Removal;
Respondents-Appellees.
----------------------------------------------------------
MYRVIN NYSUS,
Petitioner-Appellant,
versus
DEPARTMENT OF HOMELAND SECURITY; VINCENT J. CLAUSEN;
ALFREDO CAMPOS; GLEN SHALEEN; CORRECTION CORPORATION
OF AMERICA, (CCA); LANE BLAIR,
Respondents-Appellees.
-----------------------------------------------------------
MYRVIN NYSUS,
Petitioner-Appellant,
versus
VINCENT J. CLAUSEN, Director in charge of Bureau of Immigration
and Customs Enforcement; TOM RIDGE, Secretary of Homeland
Security,
Respondents-Appellees.

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* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
--------------------------------------------------------------
MYRVIN NYSUS,
Petitioner-Appellant,
versus
TOM RIDGE, SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
BUREAU OF CUSTOMS AND IMMIGRATION ENFORCEMENT; DETENTION
& REMOVAL; VINCENT J. CLAUSEN, Director U.S. Field Office,
El Paso Division,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. EP-03-CV-256-FM
EP-03-CV-428-FM
EP-03-CV-503-FM
EP-03-CV-361-FM
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Myrvin Nysus seeks leave to proceed in forma pauperis (IFP)
on appeal and the appointment of counsel. The district court
dismissed Nysus’s 28 U.S.C. § 2241 petition and certified that
his appeal was not taken in good faith.
Nysus, who has been deported pursuant to an order of
removal, argues that the conviction forming the basis for his
removal is not an aggravated felony, was not a final conviction,
and should not have been used to detain him. He contends that he
was denied due process in the immigration proceedings because his

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attorney abandoned him and the judge was not impartial. He seeks
to have the order of removal reversed and to be returned to the
United States.
Nysus also asserts that his Eighth Amendment rights were
violated while he was confined at the Correctional Corporation of
America Federal Detention Facility in Estancia, New Mexico (CCA).
In particular, he asserts that, despite voicing safety concerns,
he remained detained at CCA where he was attacked by three
inmates and suffered serious head injuries. He also contends,
for the first time on appeal, that there was a delay of an hour
after the attack before he received medical treatment.
To proceed IFP, a litigant must be economically eligible,
and his appeal must not be frivolous. Carson v. Polley, 689 F.2d
562, 586 (5th Cir. 1982). Nysus was ordered removed pursuant to
8 U.S.C. § 1227(a)(2)(E)(E)(i), which provides for deportation of
an alien convicted of a stalking crime. Therefore, his assertion
that he should not have been deported for having committed an
aggravated felony is misplaced. Nysus’s stalking conviction was
final for immigration purposes at the time he was detained. See
Moosa v. INS, 171 F.3d 994, 1009-10 (5th Cir. 1999).
Nysus’s attorney in the immigration proceedings was allowed
to withdraw after Nysus expressed his dissatisfaction with the
attorney’s representation. Nysus has not shown any prejudice
from the lack of representation during the remainder of his

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immigration proceedings. See Goonsuwan v. Ashcroft, 252 F.3d
383, 385 n. 2 (5th Cir. 2001).
Nysus does not address the district court’s denial of his
Federal Tort Claim Act (FTCA) claims for failure to exhaust his
administrative remedies. Therefore, he has abandoned any FTCA
claims on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). Additionally, Nysus has failed to specify any
acts of named individual respondents that would state a claim for
the alleged Eighth Amendment violations under Bivens v. Six
Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971). See Affiliated Prof’l Home Health Care Agency v.
Shalala, 164 F.3d 282, 286 (5th Cir. 1999).
Because Nysus has not raised any nonfrivolous issues for
appeal, his motions for leave to proceed IFP and the appointment
of counsel are DENIED, and his appeal is DISMISSED AS FRIVOLOUS.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2.

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