Morales-Ramirez, A. v. Reno, Janet , 209 F.3d 977 ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2065
Alejandro Morales-Ramirez,
Petitioner-Appellant,
v.
Janet Reno, Attorney General of the
United States; Doris Meissner, Commissioner
of the Immigration, Naturalization Service;
Brian R. Perryman, Chicago District Director
of the Immigration and Naturalization Service,
and the Immigration and Naturalization Service,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 7067--Blanche M. Manning, Judge.
Argued February 11, 2000--Decided April 13, 2000
Before Posner, Chief Judge, and Manion and Kanne,
Circuit Judges.
Kanne, Circuit Judge. In 1997, the INS ordered
Alejandro Morales-Ramirez to be removed to Mexico
as a result of a 1993 conviction for importation
of marijuana. Morales-Ramirez sought habeas
corpus review of his removal in district court,
claiming that he was denied due process as a
result of the INS’s failure to institute timely
exclusion proceedings against him. The district
court dismissed his petition on the basis of our
holding in LaGuerre v. Reno, 164 F.3d 1035 (7th
Cir. 1998), which limits review of removal
proceedings to the appellate courts. Morales-
Ramirez appeals this dismissal, but we find that
Morales-Ramirez has not raised a substantial
constitutional claim and dismiss his complaint.
I. History
Alejandro Morales-Ramirez is a native and
citizen of Mexico. Since 1976, he has also been
a lawful permanent resident of the United States.
In February 1993, Morales-Ramirez attempted to
enter the United States with about 350 pounds of
marijuana in his car. He was stopped at the
border and arrested. Following his arrest, the
INS "paroled" Morales-Ramirez into the United
States for criminal prosecution.
"Parole" into the United States allows an
individual physically to enter the country, but
it is not equivalent to legal entry into the
United States. Upon his parole into the country,
the INS served Morales-Ramirez with a "Notice of
Exclusion Proceedings," which informed him that
his actions may have rendered him inadmissable to
the United States. Under immigration procedures
at that time, Morales-Ramirez would have been
compelled to enter into "exclusion" proceedings,
in which the immigration court had the discretion
to determine whether his exclusion might be
waived. See 8 U.S.C. sec. 1226(a) (1995). However
the INS never sought officially to commence
proceedings by filing the appropriate charging
document, the "Notice of Exclusion Proceedings,"
with the district court, as required by 8 C.F.R.
sec. 240.30 (1999).
In June 1993, Morales-Ramirez pleaded guilty to
importation of a controlled substance and was
sentenced to sixty months imprisonment, followed
by forty-eight months supervised release. In
August 1993, the INS issued a warrant of detainer
on Morales-Ramirez, which ensured that he would
be transferred to INS custody upon his release
from prison. Morales-Ramirez was released after
serving fifty-two months in prison.
During the course of Morales-Ramirez’s
incarceration, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub. L. 104-208 (1996),
and the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub. L. 104-132 (1996),
which changed the nature of proceedings against
immigrants alleged to have violated the
Immigration and Naturalization Act of 1952
("INA"), 8 U.S.C. sec. 1101 et seq. One among the
many amendments to the INA instituted therein was
the replacement of exclusion and deportation
proceedings with removal proceedings. In removal
proceedings, unlike exclusion proceedings,
aggravated felons such as Morales-Ramirez are no
longer eligible to apply for relief from
deportation, now entitled "cancellation of
removal." See 8 U.S.C. sec. 1229b(a) (1996).
These amendments took effect on April 1, 1997,
and apply to all aliens eligible to be removed
after that date. However, all aliens previously
in deportation or exclusion proceedings as of
April 1, 1997, were to remain in deportation or
exclusion proceedings, rather than in removal
proceedings. See IIRIRA sec. 309(c)(1)(A),
enacted as 8 U.S.C. sec. 1101; 8 C.F.R. sec.sec.
240.30, 240.40 (1997).
On August 4, 1997, Morales-Ramirez finished his
prison sentence and was taken into INS custody.
Instead of initiating exclusion proceedings
against Morales-Ramirez, the INS initiated
removal proceedings against him. At his removal
hearing, Morales-Ramirez moved to terminate the
removal proceedings, claiming that the INS had
previously commenced exclusion proceedings
against him by serving him with the "Notice of
Exclusion Proceedings." By commencing removal
proceedings, he claimed that the INS had
terminated his exclusion proceedings without
authority. However, the immigration judge found
that proceedings had never commenced because the
"Notice of Exclusion Proceedings" had never been
filed with the immigration court. Therefore the
court denied Morales-Ramirez’s motion and ordered
him removed to Mexico. Morales-Ramirez appealed
to the Board of Immigration Appeals ("BIA"), but
in August 1998, the BIA affirmed the decisions of
the immigration court on the grounds that the
charging document had never been filed.
On November 4, 1998, Morales-Ramirez filed a
petition for writ of habeas corpus with the
district court, claiming that the INS had
violated his due process rights by impermissibly
terminating the exclusion proceedings that it had
brought against him. On December 22, 1998, we
issued LaGuerre, 164 F.3d at 1039, in which we
held that sec.sec. 440(a) and 401(e) of the AEDPA
precluded district courts from reviewing habeas
corpus petitions presented to receive judicial
review of the removal orders of deportees. On
this basis, the district court dismissed Morales-
Ramirez’s petition for lack of subject matter
jurisdiction.
II. Analysis
As a threshold matter, we must determine
whether the district court correctly dismissed
Morales-Ramirez’s petition. Morales-Ramirez
originally challenged his order of removal by
habeas corpus petition filed in district court.
However, section 306(f)(1)(g) of IIRIRA, enacted
as 8 U.S.C. sec. 1252(g), restricts review of
"any cause or claim by or on behalf of any alien
arising from the decision or action by the
Attorney General to commence proceedings,
adjudicate cases, or execute removal orders
against any alien." 8 U.S.C. sec. 1252(g). In
LaGuerre, we held that the 1996 amendments to the
INA eliminate habeas corpus jurisdiction in all
cases after the effective date of the statutes.
LaGuerre, 164 F.3d at 1040; see also Singh v.
Reno, 182 F.3d 504, 508 (7th Cir. 1999). However,
in Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999) (hereinafter
"AADC"), the Supreme Court recognized that sec.
1252(g) only bars district court review of the
explicitly listed discretionary decisions of the
Attorney General: to commence proceedings,
adjudicate cases and execute removal orders,
which potentially limited the scope of LaGuerre.
After AADC, in Singh v. Reno, 182 F.3d at 509, we
relied on the reasoning of LaGuerre to conclude
that sec. 1252(g) applies whenever an alien makes
an adjudicatory challenge to an order of removal,
and for this reason, the district court has no
jurisdiction to hear a petition for writ of
habeas corpus.
Several other circuits have interpreted AADC to
preserve an alien’s right to petition for habeas
corpus in cases where sec. 1252(g) does not
apply. See Magana-Pizano v. INS, 200 F.3d 603,
608 (9th Cir. 1999); Pak v. Reno, 196 F.3d 666,
671 (6th Cir. 1999); Requena-Rodriguez v.
Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999);
Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1143
(10th Cir. 1999); Shah v. Reno, 184 F.3d 719, 724
(8th Cir. 1999); but see Richardson v. Reno, 180
F.3d 1311, 1315 (11th Cir. 1999). Moreover,
LaGuerre also left open the possibility that the
Suspension Clause, see U.S. Const. art. I, sec.
9, cl. 2, may leave open habeas corpus
jurisdiction for the limited purpose of
determining whether a deportee was detained by a
valid order issued by an authority with
appropriate jurisdiction. See LaGuerre, 164 F.3d
at 1038. However, as in Singh, Morales-Ramirez
does not challenge the validity of his order of
detention or that it was issued by the
appropriate authority, so we need not address the
potential availability of habeas corpus relief in
those circumstances. See Singh, 182 F.3d at 509.
Instead, Morales-Ramirez challenges the
administrative adjudication of his removal order,
which we have found to be governed by sec.
1252(g). See id. Therefore, Singh and LaGuerre
control, and we conclude that the district court
lacked subject matter jurisdiction to hear
Morales-Ramirez’s petition for writ of habeas
corpus.
Morales-Ramirez concedes that the district court
lacked jurisdiction to entertain his habeas
corpus petition. Nonetheless, he contends that
his due process claim raises substantial
constitutional issues that we should address
directly. In LaGuerre, we proposed that, rather
than seek habeas corpus review, when a deportee
raises constitutional claims "the deportee can
seek review of constitutional issues in the court
of appeals directly." LaGuerre, 164 F.3d at 1040.
This procedure was intended to provide "a safety
valve . . . to enable judicial correction of
bizarre miscarriages of justice." Id. In Singh,
we developed this "safety valve" approach of
direct appellate court review of constitutional
claims, allowing us to consider whether the
deportee in that case raised substantial
constitutional claims. Singh, 182 F.3d at 510.
Morales-Ramirez also seeks to classify his
predicament as a bizarre miscarriage of justice,
which may only be rectified by our direct review.
The traditional procedure for review of
constitutional claims under the INA allows a
deportee to seek review by filing a claim with us
"not later than 30 days after the date of the
final order of removal." 8 U.S.C. sec.
1252(b)(1); see Singh, 182 F.3d at 509. By
mistakenly filing its writ of habeas corpus with
the district court instead of appealing directly
to us, Morales-Ramirez has missed this deadline.
The government argues that, for this reason, we
should decline to address the arguments presented
by Morales-Ramirez. However, Morales-Ramirez
filed his petition for habeas corpus with the
district court on November 4, 1998, more than a
month before we issued LaGuerre.
At that time, Morales-Ramirez claims that he
followed the directives of two prior cases, which
suggested that the appropriate avenue for review
of removal proceedings was by habeas petition
made to the district court. See Turkhan v. INS,
123 F.3d 487, 490 (7th Cir. 1997) (hereinafter
"Turkhan I"); Chow v. INS, 113 F.3d 659, 668-69
(7th Cir. 1997). In Singh, we faced the issue
whether to review the claims of a petitioner who
filed for relief in the district court before
LaGuerre. We stated that "we think it unfair that
[the deportee] be prejudiced for failing to seek
review in this court within the statutory 30-day
deadline" because our case law seemed to prohibit
it. Singh, 182 F.3d at 511. In Turkhan v.
Perryman, 188 F.3d 814, 824 (7th Cir. 1999)
("Turkhan II"), we applied the "safety valve"
exception provided in LaGuerre in the "extremely
rare" case of a deportee who had twice sought our
direct review before seeking habeas corpus review
in the district court. As in these prior cases,
Morales-Ramirez filed his habeas corpus petition
with the district court on the basis of our prior
opinions Turkhan I and Chow, instead of seeking
direct review with this court. Morales-Ramirez
did not endure the "homeric odyssey" that beset
Singh, nor did he twice petition this court
successfully to receive direct review, as in
Turkhan I. Nonetheless, because Morales-Ramirez’s
decision to file for habeas corpus review was
based on the case law at that time and predated
the release of LaGuerre, we believe that it would
be unfair to prejudice him for relying on our
precedent in seeking habeas corpus relief in the
district court. For this reason, assuming that
Morales-Ramirez raises substantial constitutional
claims, we will assume jurisdiction to hear this
appeal./1 See Turkhan II, 188 F.3d at 824;
Singh, 182 F.3d at 509.
To retain jurisdiction under the "safety valve"
exception created in LaGuerre, Morales-Ramirez
must raise substantial constitutional claims. See
LaGuerre, 164 F.3d at 1040; Singh, 182 F.3d at
509. Morales-Ramirez contends that his due
process rights were violated by the INS when it
terminated exclusion proceedings against him to
commence removal proceedings. He claims that
exclusion proceedings originally commenced at the
time the INS served him with its "Notice of
Exclusion Proceedings," in March 1993. At that
time, sec. 212(c) of the INA vested in the
Attorney General, or her delegates, the authority
to grant a waiver of exclusion to certain aliens,
thereby allowing them legally to re-enter and
remain in the country. See 8 U.S.C. sec. 1182(c)
(1995); see also, e.g., Henry v. INS, 8 F.3d 426(7th Cir. 1993) (reviewing denial of sec. 212(c)
application for waiver of exclusion). In 1996,
however, sec. 304(b) of IIRIRA repealed sec.
212(c), discontinuing the eligibility of criminal
aliens to apply for waiver of exclusion. See 8
U.S.C. sec. 1182(c) (1997). For this reason,
Morales-Ramirez claims that by commencing removal
proceedings, the INS, in effect, terminated
"pending" exclusion proceedings and deprived him
of his substantive right to apply for waiver of
exclusion.
The government claims that proceedings did not
commence until it filed a charging document with
the immigration court in August 1997, because its
regulations condition the commencement of
proceedings on the filing--not service. See 8
C.F.R. sec. 240.30 (1999) ("An exclusion
proceeding is commenced by the filing of [the
charging document] with the Immigration Court,
and an alien is considered to be in exclusion
proceedings only upon such filing."). Because the
charging documents were not filed until 1997,
after the effective date of the repeal of sec.
212(c) by IIRIRA sec. 304(b), the government
claims that Morales-Ramirez’s case was not
"pending" before the effective date of sec.
304(b), and he was never eligible for waiver of
exclusion. For this reason, at the time that the
INS commenced removal proceedings, Morales-
Ramirez had no substantive right to apply for
waiver of exclusion and cannot raise a
constitutional claim on these grounds.
Morales-Ramirez disputes the government’s
contention that 8 C.F.R. sec. 240.30 should
control our analysis of when proceedings
commence. He claims that proceedings commenced
when he was served with the "Notice of Exclusion
Proceedings," in March 1993. Had proceedings
against Morales-Ramirez commenced in 1993, his
exclusion proceedings would have been "pending"
in 1997, when IIRIRA came into force. In such
case, Morales-Ramirez’s case would fall within
the pending cases exception of IIRIRA sec.
309(c)(1)(A), which applies to "an alien who is
in exclusion or deportation proceedings before
[April 1, 1997]." If his exclusion proceedings
were "pending" as of that date, sec. 212(c) would
still apply to such proceedings, and Morales-
Ramirez would remain eligible to apply for waiver
of exclusion.
The question whether to apply 8 C.F.R. sec.
240.30, which pegs the commencement of
proceedings on the filing of a charging document
in immigration court to determine when
proceedings commence is a question of first
impression in this circuit. Morales-Ramirez
places great emphasis on decisions of other
circuits that determined the commencement of
proceedings to have occurred when the charging
document was served on individuals. See Wallace
v. Reno, 194 F.3d 279, 287 (1st Cir. 1999);
Henderson v. INS, 157 F.3d 106, 130 n.30 (2d Cir.
1998). However, the First Circuit’s holding in
Wallace v. Reno focused on the commencement of
proceedings for the purpose of determining
whether sec. 440(d) of the AEDPA should be
applied retroactively. Wallace, 194 F.3d at 287.
In that case, the court determined that sec.
440(d) should not be applied retroactively to
"pending" proceedings, and based its
determination whether proceedings were actually
"pending" on the reliance interests of aliens
involved in the process. See id. Thus, in
Wallace, the First Circuit did not directly
confront the question of when to consider
proceedings to have commenced; the court faced
the question whether retroactivity is appropriate
in circumstances where aliens may have relied on
a "Notice of Exclusion Proceedings." In Alanis-
Bustamante v. Reno, the Eleventh Circuit adopted
the First Circuit’s determination in the context
of sec. 440(d) retroactivity analysis and also
based its conclusions on the reasonable reliance
of aliens. 201 F.3d 1303, 1309-10 (11th Cir.
2000). In these cases, the courts concluded that
the relevant inquiry lay not in when proceedings
actually commenced, but when the reliance
interests of aliens should be considered for the
purposes of determining whether sec. 440(d)
should be retroactively applied.
In LaGuerre and Turkhan II, we acknowledged the
importance of an alien’s reliance interests, but
we reached the opposite conclusion on the
question whether sec. 440(d) should be applied
retroactively. We concluded that criminal aliens
rarely relied on sec. 212(c) waivers in such a
way that retroactive application of the statute
would "pull the rug out from under [them]."
LaGuerre, 164 F.3d at 1041; see also Turkhan II,
188 F.3d at 827. We believe that unless criminal
aliens rely on the availability of sec. 212(c)
discretionary waiver to the extent that they
might have "decided not to commit drug crimes, or
. . . resisted convictions more vigorously," see
LaGuerre, 164 F.3d at 1041, sec. 440(d) primarily
affects the jurisdictional or procedural rights
of aliens. For this reason, the provision could
be applied retroactively unless an alien actually
had conceded deportability despite a colorable
defense to deportability. See id. Because we
require actual reliance on sec. 212(c), rather
than a mere reasonable expectation of reliance,
see id., we do not consider whether an alien may
have reasonably relied on proceedings as
"pending" in consideration of when proceedings
have commenced. Moreover, we do not face a
question of retroactivity today. Instead, we must
decide at what point proceedings against a
criminal alien commence. On this limited
question, we receive no guidance from the cases
cited by Morales-Ramirez.
The regulations cited by the government, 8
C.F.R. sec.sec. 3.14 and 240.30, indicate that
proceedings have not commenced until a charging
document has been filed in immigration court.
Congress has explicitly restricted our ability to
review the decision by the Attorney General’s
delegates to commence proceedings, see 8 U.S.C.
sec. 1252(g), so our review is limited to the
question whether this discretion to commence
proceedings empowered the Attorney General to
issue regulations on when proceedings must be
adjudged to have commenced. Morales-Ramirez does
not question whether the Attorney General had the
appropriate discretion to promulgate these
regulations, and owing to the deference that
courts generally show to regulations of
procedural rules which govern administrative
practice, see, e.g., Chevron U.S.A., Inc. v.
Natural Resources Def. Council, Inc., 467 U.S.
837, 843-44 (1984), we do not seriously entertain
this question either. The purpose of the filing
requirement is to allow immigration courts to
manage the vast number of cases that are
litigated before them each year. Allowing
proceedings to commence at whatever point the INS
decides to serve a charging document on an alien
would frustrate this purpose and further ensnarl
the bureaucratic web of immigration proceedings.
Morales-Ramirez instead attempts to analogize his
case to Singh, in which the alien who sought
waiver from exclusion was prevented from applying
for relief because of the untimely dismissal of
his case, which ultimately was reinstated after
the 1996 amendments to the INA. Singh, 180 F.3d
at 507.
Singh presented an unusual case in which the
alien’s deportation hearing was clearly "pending"
during the period before the passage of AEDPA and
IIRIRA, even if actual proceedings in that case
had not yet been re-calendared. Morales-Ramirez
presents us with no unusual circumstances that
could lead us to conclude that his claim was
"pending" prior to the commencement of
proceedings as measured by 8 C.F.R. sec. 240.30.
He was served with a "Notice of Exclusion
Proceedings" in 1993, and in the same year, the
INS obtained a warrant of detainer to ensure that
he be returned to INS custody on release from his
period of federal incarceration. However, during
the period of his incarceration, Morales-Ramirez
made no effort, unlike the petitioner in Singh,
to apply for discretionary waiver under sec.
212(c), and the INS made no effort to initiate
proceedings against him. Morales-Ramirez presents
no arguments or evidence that he relied on sec.
212(c); he simply claims that failing to commence
proceedings at the appropriate time cost him the
opportunity to apply for discretionary waiver. We
agree that the failure to commence proceedings
cost him the opportunity to apply for waiver, but
we fail to perceive a protected liberty or
property interest at stake in the INS’s
discretionary decision when to commence
proceedings. Lacking any protected liberty or
property interest, Morales-Ramirez cannot meet
the threshold test to establish a due process
violation. See Board of Regents v. Roth, 408 U.S.
564, 569 (1972); Garcia v. INS, 7 F.3d 1320, 1326
(7th Cir. 1993) (finding asylum claimants’ due
process claim fails because claimants have no
protected interest in asylum hearing when the
decision to grant asylum is at the discretion of
the Attorney General). We find that proceedings
against Morales-Ramirez did not commence until
the INS filed the appropriate charging document
with the immigration court.
The INS did not file the appropriate charging
document with the immigration court until after
April 1, 1997. Therefore, exclusion proceedings
were not "pending" against Morales-Ramirez at the
time that the relevant provisions of IIRIRA came
into force. Because his case was not "pending"
before April 1, 1997, Morales-Ramirez had no
protected interest in retaining the ability
guaranteed by sec. 212(c) to apply for
discretionary waiver of exclusion. For this
reason, the immigration court did not violate
Morales-Ramirez’s due process rights by denying
his motion to terminate removal proceedings and
commence exclusion proceedings. Morales-Ramirez
does not raise any substantial constitutional
issues regarding the decision of the Attorney
General to issue an order of removal against him.
Because his claim fails to present any
substantial constitutional claims, we lack
subject matter jurisdiction to review his claim.
III. Conclusion
Under LaGuerre, the district court lacked
subject matter jurisdiction over Morales-
Ramirez’s petition for writ of habeas corpus. In
addition, Morales-Ramirez has not stated a claim
that implicates any constitutional rights, so we
also lack subject-matter jurisdiction to review
it. For these reasons, the case is DISMISSED.
/1 In considering whether Morales-Ramirez states a
substantial constitutional claim, we need not
assert jurisdiction to hear his claim. Instead,
we merely assert jurisdiction to consider whether
we have jurisdiction to hear his claim. See Xiong
v. INS, 173 F.3d 601, 604 (7th Cir. 1999); Yang
v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997).