874 F. 2d 816 - Mada-Luna v. Fitzpatrick

MEMORANDUM*

Miguel Mada-Luna ("Luna") appeals from the denial of an F.R.C.P. 59(e) motion to amend or alter the dismissal of his petition for Habeas Corpus relief. This court had held that the district court was without jurisdiction to hear Luna's original petition. The district court, in response to our jurisdictional ruling, dismissed the petition. Luna contends that deportation is violative of his substantive due process rights. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

For a complete recitation of the facts of this case, attention is directed to our prior opinion in Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir.1987), in which we found the district court was without jurisdiction to review the Immigration and Nationalization Service's ("INS") denial of deferred status in deportation cases. On remand, the district court denied Habeas relief. Petitioner thereupon moved to amend or alter the judgment, according to Fed.R.Civ.P. 59(e). When the district court denied the motion, this appeal followed.

As the Supreme Court explained, "one illegally present in the United States who wishes to remain already has a substantial incentive to prolong litigation in order to delay physical deportation as long as possible." INS v. Rios-Pineda, 471 U.S. 444 (1985). That appears to describe the activity taken in this case.

The district court was without jurisdiction to review the denial of deferred status by INS. Mada-Luna, 813 F.2d at 1011. Obviously, since the original petition for Habeas relief must be dismissed for lack of jurisdiction, a collateral attack on the dismissal under Rule 59(e) must be denied.

Even were there jurisdiction to hear the case, Luna has shown no substantive due process rights which are violated by his deportation. His sole claim is that he will be killed by Mexican drug runners if this country deports him to Mexico. But the immigration policies of the United States threaten him with no harm; it will be the responsibility of another sovereign, Mexico, to furnish him protection. We have no reason to challenge Mexico's ability to act.

"Congress has broad authority over the status of aliens, and there is no substantive due process right not to be deported. [citations]." Linnas v. INS, 790 F.2d 1924, 1031 (2nd Cir.1986). The judgment of the district court is AFFIRMED.