04-9593 -- McGregor v. Ashcroft -- 10/05/2004

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CLEO ANTHONY McGREGOR,

Petitioner,

JOHN ASHCROFT,

Respondent.

No. 04-9593

(BIA No. A44-845-104-Aurora)

(Petition for Review)

ORDER AND JUDGMENT^(*)

Before, SEYMOUR, HENRY, and TYMKOVICH, Circuit Judges.

Petitioner Cleo McGregor, a native and citizen of Jamaica appearing pro se, has filed a paper styled "Detained Alien: Notice of Appeal, Immediate Action Requested," which we construe as a petition for review, a motion for a stay of removal pending review, and a request for release from immigration custody. The immigration judge found, and petitioner concedes, that he is removable because he was convicted of an aggravated felony. He argues that his conviction should be vacated, but he has only just filed a motion to withdraw his guilty plea in the trial court on September 30, 2004.

Congress has removed judicial review of an order of removal of an alien who has committed an aggravated felony. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C). As a result, this court does not have jurisdiction over petitioner's appeal. Khalayleh v. INS, 287 F.3d 978, 979 (10th Cir. 2002); 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C).

Petitioner's request for release on bond is denied without prejudice. That request should be raised in the district court in a petition for writ of habeas corpus under 28 U.S.C. § 2241.

The motion for a stay of removal is denied, the request for immediate release is denied without prejudice, and the petition for review is DISMISSED.

ENTERED FOR THE COURT

PER CURIAM

FOOTNOTES
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^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court 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. 36.3.

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