DAVID BRIONES, U.S. District Judge
On this day, the Court sua sponte considered the above-captioned cause, in which Petitioner Domingo Flores-Rodriguez filed a "Petition for Writ of Habeas Corpus[,] Complaint for Declaratory and Injunctive Relief, and Request for Stay of Deportation" ("Petition") on April 26, 2000. The Government did not file a response.
After due consideration, the Court is of the opinion that the Petition must be dismissed for lack of subject matter jurisdiction
Background
Here, the Court simply echos the scant facts set forth in the Petition.
Petitioner is a native and citizen of the Republic of Mexico and a lawful permanent resident of the United States.
On October 27, 1999, Petitioner was convicted of driving while intoxicated ("DWI"), a felony under Texas law, in the District Court of Lubbock County, Texas. His third such conviction, Petitioner was sentenced to confinement for eight years.
The Petition also states, which the Court believes to be in error, that Petitioner was "convicted of a violation of a law or regulation relating to possession of a controlled substance, to wit: methamphetamine."
Thereafter, the Immigration and Naturalization Service ("INS") commenced proceedings to remove Petitioner from the United States and an immigration judge issued a final order of deportation on January 6, 2000. Petitioner did not file an appeal with the Board of Immigration Appeals ("BIA"). Rather, Petitioner filed his Petition in this Court.
DISCUSSION
No matter the merits of his underlying immigration case, Petitioner cannot proceed in this Court without demonstrating the Court's jurisdiction, and he bears the burden of doing so. See B, Inc. v. Miller Brewing Co., 663 F.2d 594, 595 [ 663 F.2d 545] (5th Cir. 1981). Petitioner claims that the Court has habeas corpus jurisdiction under 28 U.S.C. § 2241 and under the Court's power to issue the "Great Writ." The Court disagrees and is of the opinion that the Petition must be dismissed.
Petitioner should take a good long look at the Fifth Circuit's recent opinion in Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000). There, the Fifth Circuit for the first time examined the jurisdiction-stripping provisions Congress made to the INA via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"). See Max-George, 205 F.3d at 197. As it pertains to individuals whose deportation proceedings commenced after April 1, 1997, see id. at 197 n. 3, 8 U.S.C. § 1252(a)(2)(C) provides: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) . . . of this title. . . ." Based on its reading of that provision, the court in Max-George stated clearly, "[w]e hold that IIRIRA's permanent provisions eliminate § 2241 habeas corpus jurisdiction for those cases that fall within § 1252(a)(2)(C)." Id. at 199 (emphasis added).
Here, Max-George controls the Court. Because Petitioner was convicted of an aggravated felony, which makes Petitioner removable under 8 U.S.C. § 1227(a)(2)(A)(iii), the Court finds that 8 U.S.C. § 1252(a)(2)(C) eliminates the Court's habeas corpus jurisdiction under 28 U.S.C. § 2241 in this cause.
Felony DWI is a crime of violence and, hence, an aggravated felony as that term is defined in 8 U.S.C. § 1101(a)(43). See Camacho-Marroquin v. Immigration Naturalization Svc., 188 F.3d 649, 652 (5th Cir. 1999).
Max-George also addresses Petitioner's claim that the "Great Writ" gives this Court jurisdiction to review his deportation order. "When faced with petitions for review from criminal aliens . . . which appear barred by § 1252(a)(2)(C), courts must make three specific inquiries. Only if all of them are answered affirmatively must the petition for review be dismissed for lack of jurisdiction." Id. at 199. The Court must consider (1) whether "specific considerations exist that bar jurisdiction;" (2) "whether the particular provision classifying the petitioner under the jurisdiction-stripping provision [is] being constitutionally applied;" and (3) whether "jurisdiction remains to consider whether the level of judicial review remaining in a particular case satisfies the Constitution." Id. at 199-200 (brackets removed in third quotation).
Here, Petitioner was convicted of an aggravated felony under Texas law and thereby rendered deportable under 8 U.S.C. § 1227(a)(2)(A)(iii). As such, as the Court found above, 8 U.S.C. § 1252(a)(2)(C) bars this Court's jurisdiction. Moreover, there are no facts in the record to indicate that § 1227(a)(2)(A)(iii) is being applied to Petitioner in an unconstitutional manner. Petitioner admittedly was convicted of felony DWI under Texas law. Hence, the Court finds that such classification was applied to Petitioner constitutionally. Finally, the Court finds that, especially because Petitioner apparently did not appeal the January 6, 2000, deportation order to the BIA, the level of judicial review in this case is constitutionally sound. Petitioner might have sought BIA review of the deportation order and, thereafter, petitioned the Fifth Circuit to review the BIA's determination. See id. at 198.
Accordingly, the Court is of the opinion that, because all three of the Max-George inquiries yield an affirmative answer, the Great Writ does not supply jurisdiction and the Petition must be dismissed for lack of jurisdiction.
Moreover, the Court finds that Petitioner's unexplained failure to seek BIA review constitutes failure to exhaust administrative remedies and, hence, provides an additional jurisdictional bar. See Camacho-Marroquin, 188 F.3d at 651.
Accordingly, IT IS HEREBY ORDERED that Petitioner Domingo Flores-Rodriguez's "Petition for Writ of Habeas Corpus[,] Complaint for Declaratory and Injunctive Relief, and Request for Stay of Deportation" is DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION.