F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 10 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    GUILLERMO SALAZAR,

                Petitioner-Appellant,

    v.                                                    No. 03-2273
                                                (D.C. No. CIV-03-175-LH/ACT)
    JOHN ASHCROFT,                                         (D. N.M.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, MURPHY , Circuit Judge, and         CAUTHRON , **
Chief District Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
       Petitioner Guillermo Alfonso Salazar Velasquez, appearing pro se, appeals

the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition challenging

the final order of removal entered by the Board of Immigration Appeals (BIA).

The district court dismissed some of petitioner’s claims and transferred two others

to the Ninth Circuit.   1
                            We review the district court’s dismissal of a § 2241 habeas

petition de novo.   See Patterson v. Knowles , 

, 575 (10th Cir. 1998).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Petitioner is a native of Colombia who entered the United States as a lawful

permanent resident in 1975. In 1983, petitioner was convicted in federal court of

importing cocaine, an aggravated felony,       see 8 U.S.C. § 1101(a)(43)(B), and


1
       Petitioner asserted a claim in his § 2241 petition that he is a naturalized
citizen because he served in the United States Army from February 1977 to April
1978. The exclusive means of asserting such a nationality claim is to file a
petition for review with the court of appeals for the judicial district in which the
immigration judge completed the proceedings, which, in this case, is the Ninth
Circuit Court of Appeals.    See 8 U.S.C. § 1252(b)(5). Thus, the magistrate judge
concluded the district court lacked jurisdiction over this claim, as well as
petitioner’s related claim that he is entitled to withholding of removal as a
naturalized citizen. The magistrate judge recommended these claims be
transferred under 28 U.S.C. § 1631 to the Ninth Circuit, for resolution as a
petition for review in accordance with § 1252(b)(5). The district court adopted
the magistrate judge’s recommendation, and, in the same order dismissing
petitioner’s § 2241 claims, it transferred the petitioner’s nationality claim and the
related withholding of removal claim to the Ninth Circuit. Although the district
judge did not expressly sever these claims under Fed. R. Civ. P. 21, the transfer
order clearly indicates that the district court intended to sever these claims and
create two separate actions. Thus, we conclude this court has jurisdiction to hear
this appeal without a Rule 54(b) certification.   See FDIC v. McGlamery , 

, 222 (10th Cir. 1996).

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failure to appear at trial, and was sentenced to thirty-nine months’ imprisonment.

In 1989, petitioner was convicted in federal court of conspiring to possess cocaine

with the intent to distribute and with possessing six kilograms of cocaine with

intent to distribute, both aggravated felonies, which subjected him to removal.

See 8 U.S.C. § 1227(a)(2)(A)(iii); § 1101(a)(43)(B). He was sentenced to twenty

years’ imprisonment.

      The Immigration and Naturalization Service (INS)     2
                                                               commenced removal

proceedings in California in 1999.   3
                                         Following numerous hearings, the

immigration judge (IJ) denied petitioner’s application for asylum, withholding of

removal, and protection under the Convention Against Torture, and ordered him

removed to Colombia or Spain. In a reasoned decision, the BIA dismissed

petitioner’s appeal. The Ninth Circuit dismissed his petition for review because it

lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(C) (barring courts from reviewing




2
       On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security.     See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 (2002). Because the majority of the events
at issue here predate that reorganization, we continue to refer to the INS in this
order and judgment.
3
      Because removal proceedings were commenced after April 1, 1997, the
permanent provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 apply.  Tapia Garcia v. INS , 

, 1218 n.2
(10th Cir. 2001).

                                            -3-
final removal orders of aliens who have been convicted of certain aggravated

felonies).

      Petitioner, who is incarcerated in New Mexico, then filed his § 2241 habeas

petition in New Mexico district court. He asserted numerous arguments in

support of his claim that his Fifth Amendment rights were violated during the

removal proceedings. Many of petitioner’s claims challenged factual findings by

the IJ and the BIA. The district court correctly ruled it lacked jurisdiction over

these claims because “[o]nly questions of pure law will be considered on § 2241

habeas review.”   Latu v. Ashcroft , 

, 1019 (10th Cir. 2004) (quoting

Bowrin v. INS , 

, 490 (4th Cir. 1999)). Petitioner also asserted very

generally that the proceedings violated his due process rights, but he articulated

no alleged procedural defect other than his complaint that the proceedings were

conducted before different immigration judges and agency counsel. This claim is

without merit. The BIA issued a detailed and reasoned determination and,

therefore, our review is limited to the BIA’s decision, not that of the immigration

judge. See Rivera-Jimenez v. INS , 

, 1216 (10th Cir. 2000).

      Finally, the district court considered petitioner’s claim that the loss of his

military retirement benefits which will result from his removal violates his due

process and double jeopardy rights. We conclude, for substantially the same

reasons stated in the magistrate judge’s September 24, 2003 recommendation,


                                          -4-
adopted by the district court on October 9, 2003, that petitioner’s constitutional

rights have not been denied because any loss of benefits is neither a taking

without just compensation, nor a form of criminal punishment.

      The judgment of the district court is AFFIRMED. Petitioner’s motions for

appointment of counsel, for oral argument, and to supplement the record are

DENIED. The mandate shall issue forthwith.

                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Chief Judge




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