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Click here for the full text of this decision FACTS:Adrian Rosales is a Mexican national who became a permanent resident in the United States in 1989. Eleven years later, he was convicted in Texas of aggravated kidnapping. The Immigration and Naturalization Service, known now as the Bureau of Immigration and Customs Enforcement, served Rosales with a notice stating that it believed Rosales was in the country illegally, that he was entitled to a hearing and legal representation to contest this belief and that he could consult with the consulate. Rosales signed and initialed the form and an INS officer signed the return form indicating that Rosales had read and signed the form. While Rosales was in prison on the kidnapping charge, the INS charged Rosales with being removable from the United States as an aggravated felon. At an immigration hearing, the immigration judge advised Rosales of his right to legal representation, which Rosales waived and said he wished to be removed to Mexico. After Rosales admitted that he was subject to removal, the immigration judge ordered him deported. Rosales appealed to the Bureau of Immigration Affairs, saying his due process rights were violated because the IJ did not inform him of his right to contact his consulate under the Vienna Convention on Consular Relations. The BIA dismissed the claim for lack of jurisdiction over constitutional claims. Rosales then filed a petition for habeas corpus under 28 U.S.C. �2241. The district court dismissed the case for lack of jurisdiction because Rosales was not “in custody,” for purposes of �2241. This court affirmed in an unpublished opinion. The U.S. Supreme Court vacated the case after the government conceded that Rosales should be considered to be “in custody.” The case was remanded back to this court. HOLDING:Petition denied. The court joins with the 2nd, 6th, 9th and 10th U.S. Circuit Courts of Appeals in holding that an alien like Rosales, who is subject to a deportation order, is “in custody” for purposes of �2241, as the government’s order places significant restraint on his liberty. After he is released from prison, Rosales will be detained and then removed. The court notes, however, that �2241 no longer applies. It was supplanted by the REAL ID Act, which was passed in May 2005 and which was to take effect immediately and retroactively. Under the REAL ID Act, federal courts have been divested of jurisdiction over �2241 petitions that attack removal orders. Though this court is now the exclusive forum for direct challenges to a removal order, the court can no longer do so within the context of a habeas petition. The court further notes, though, that the REAL ID Act does not specify what is to happen to habeas petitions like Rosales’ that were already on appeal when the REAL ID Act was enacted. The court joins the 3rd and 9th U.S. Circuit Courts of Appeals in holding that, despite Congress’ silence on the issue, habeas petitions on appeal as of May 11, 2005, when the REAL ID Act passed, are properly converted into petitions for review. Consequently, this court has jurisdiction over Rosales’ petition under Immigration and Nationality Act �1252(b)(2)(C). Thus reviewing the merits of Rosales’ petition, the court finds it unclear whether rights afforded under the Vienna Convention are rights protected by the Due Process Clause. The court says that Rosales was not clear on which rights exactly were violated, further clouding the issue. The court, however, holds that it need not resolve the issues under the Vienna Convention because here Rosales has not shown any prejudice from the IJ’s failure to inform him of his right to contact his consulate. Rosales admitted to being removable; he does not argue that he is eligible for any relief from deportation. Consequently, he is not entitled to relief on due process grounds. OPINION:Per curiam; Reavley, Jolly and Higginbotham, JJ.

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