Richardson v. INS

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
12/09/98
No. 98-4230
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-3799-CIV-DAVIS
RALPH RICHARDSON,
Plaintiff-Appellee,
versus
JANET RENO, Attorney General of the United States;
DORIS MEISSNER, Commission, Immigration and Naturalization Service;
ROBERT WALLIS, Acting District Director, Immigration and Naturalization
Service; UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE; UNITED STATES DEPARTMENT OF JUSTICE; and
EXECUTIVE OFFICE OF IMMIGRATION REVIEW,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 9, 1998)
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
HULL, Circuit Judge:
TABLE OF CONTENTS
I. FACTS AND PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. RICHARDSON’S HABEAS CORPUS PETITION . . . . . . . . . . . . . . . . . . . . . 8
III. NEW IMMIGRATION LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. “Removal” Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Permanent Resident Criminal Aliens Returning From Abroad
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Supreme Court’s Fleuti Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Detention of Criminal Aliens “Seeking Admission” . . . . . . . . . . . . 19
E. Detention Under TPCRs in IIRIRA § 303(b)(3) . . . . . . . . . . . . . . . 22
F. Detention Under INA § 236(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G. INA § 236(e) Restricts Review of Bond and Parole Decisions . . . . 29
H. Procedures for Removal Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 31
I. IIRIRA Consolidates Judicial Review in the Court of Appeals
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against
Criminal Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration
Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
B. No Constitutional Infirmities to Avoid . . . . . . . . . . . . . . . . . . . . . . . 47
C. Eleventh Circuit’s Boston-Bollers Decision . . . . . . . . . . . . . . . . . . . 51
D. Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
E. Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
F. Suspension Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
G. Second Circuit’s Henderson Decision . . . . . . . . . . . . . . . . . . . . . . . 66
H. Ninth Circuit’s Magana-Pizano Decision . . . . . . . . . . . . . . . . . . . . . 69
I. Seventh Circuit’s Yang Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
J. INA §§ 242(b)(9) and (d) Require Final Removal Order . . . . . . . . . 83
K. Alternative Review Under INA Satisfies Suspension Clause . . . . . 87
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
2
This appeal arises from a district court’s order granting a writ of habeas
corpus to a thirty-year permanent resident alien petitioner with a cocaine-
trafficking conviction who was detained as he attempted to enter the United States
after a two-day trip to Haiti. The INS district director denied bond pending the
outcome of petitioner’s removal proceedings. Petitioner filed his habeas corpus
petition under 28 U.S.C. § 2241 asserting that the INS’ illegal detention, denial of
admission, and denial of a bond hearing violated his constitutional and statutory
rights as a lawful permanent resident alien.
This case presents issues of first impression in this Circuit regarding subject
matter jurisdiction under the Immigration and Nationality Act (“INA”), as
amended by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”). After review, we find the district court lacked jurisdiction over
the habeas corpus petition. We reverse and order the district court to dismiss the
petition.
I. FACTS AND PROCEDURAL HISTORY
Appellee-petitioner Ralph Richardson (“Richardson”) is a native and citizen
of Haiti who has been a lawful permanent resident alien in the United States since
1968. In 1984, Richardson was convicted of carrying a concealed weapon. In
1990, Richardson was convicted of trafficking cocaine and served five years in
3
prison.1 The parties do not dispute that Richardson could have been deported
under the immigration laws in existence in 1990 and could be deported under
current immigration law but that deportation proceedings were never initiated.2
On October 24, 1997, Richardson left the United States and traveled to Haiti.
On October 26, 1997, Richardson attempted to re-enter the United States at the
Miami International Airport, but was not allowed to enter. At the initial
immigration checkpoint, Richardson presented an expired “I-151” card, also called
an Alien Resident Card, and a valid Haitian passport. Richardson’s use of an
expired card caused him to be referred to a secondary immigration inspector for a
more detailed interview regarding his eligibility to enter the United States.
Through this inspection, the INS concluded that Richardson, although a
lawful permanent resident alien, was no longer eligible to enter the United States
under the new immigration laws due to his prior criminal convictions. During the
inspection, Richardson admitted his criminal history including his cocaine-
1
Richardson initially served only three years of his five-year sentence on the drug-
trafficking offense. In 1993, he was arrested for violating his probation by eluding police and
served the remainder of his sentence in prison. He was released from prison on January 11,
1994.
2
8 U.S.C. § 1251(a)(1)(1990); 8 U.S.C. § 1182(a)(10)(1990); 8 U.S.C. § 1227(a)(2)(b)(i)
(Supp. 1998).
4
trafficking conviction, an aggravated felony under INA § 103(a)(43).3 Richardson
was taken to the Krome Detention Center, Miami, Florida, and immediately was
placed in “removal” proceedings under INA § 240.4
On November 13, 1997, Richardson’s attorney sent a letter to the INS
district director in Miami requesting release from custody. On December 4, 1997,
the district director denied Richardson’s request.
On November 18, 1997, while awaiting the district director’s response,
Richardson also sought release on bond with the immigration judge at Krome.
New INA § 101(a)(13)(C)(v)5 provides that a lawful permanent resident alien,
returning from abroad, is not deemed to be seeking an official “admission” to the
United States, and can be admitted summarily, unless the alien has been convicted
of certain crimes. Since Richardson’s conviction for trafficking cocaine is a crime
described in INA § 101(a)(13)(C)(v),6 the immigration judge found that
3
8 U.S.C. § 1101(a)(43) (Supp. 1998). This opinion utilizes the section numbers of the
INA and IIRIRA because the text of those statutes references INA and IIRIRA sections and
because certain parts of IIRIRA are not codified. See footnote 42 infra. At the Miami
International Airport, the immigration inspector prepared a four-page sworn statement signed by
Richardson that outlined his criminal history.
4
8 U.S.C. § 1252 (Supp. 1998). An INS “notice to appear,” dated October 26, 1997 was
served on Richardson alleging that he was an arriving alien who was a citizen of Haiti, not the
United States, and was subject to removal due to his criminal convictions.
5
8 U.S.C. § 1101(a)(13)(C)(v) (Supp. 1998).
6
Id.5
Richardson was “seeking admission” to the United States, that aliens “seeking
admission” at the border can request release only from a district director, and that
immigration judges lack jurisdiction over such requests.7 On November 24, 1997,
the immigration judge denied Richardson’s release request for lack of jurisdiction.8
On November 26, 1997, Richardson filed in the district court a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. Richardson filed an amended
petition on December 10, 1997. Richardson’s petition asserted, inter alia, that he
was being illegally detained and, at a minimum, was entitled to a hearing before an
immigration judge on his release request and not merely consideration by the
district director. The INS moved to dismiss Richardson’s petition for lack of
subject matter jurisdiction.
On December 30, 1997, the magistrate judge issued a report finding
statutory habeas jurisdiction under 28 U.S.C. § 2241 and recommending that
7
See 8 C.F.R. § 103.1(g)(2)(ii)(B) (1997); 62 Fed. Reg. 10312, 10360 (1997) (codified in
8 C.F.R. § 236.1(c)(5) (Jan. 1, 1998)); see footnotes 38 and 40 infra.
8
The proceedings before the immigration judge on Richardson’s release request were not
recorded or transcribed. On November 24, 1997, the immigration judge signed a form bond
order with blanks to check for granting or denying release. The immigration judge checked the
box stating that the request for release was denied and wrote “arriving alien” at the bottom of the
form. Although nothing in the record clearly establishes that the basis of the immigration
judge’s decision was a lack of jurisdiction, both parties agree that the immigration judge did not
conduct a bond hearing, although witnesses were present ready to testify, and that the
immigration judge indicated lack of jurisdiction over Richardson’s release request due to his
status as an alien seeking admission.
6
Richardson be given “an individualized hearing, within 14 days of any order
adopting this recommendation at which time the immigration judge should
considered [sic] whether petitioner is an arriving alien, and if not, whether and
under what circumstances petitioner may be released from custody pending the
completion of deportation proceedings.”
On January 8, 1998, Richardson’s removal proceedings concluded with the
immigration judge’s order that Richardson be removed to Haiti.9 After a hearing
during which Richardson testified and was represented by counsel, the immigration
judge found that, because of his criminal convictions, Richardson was
“inadmissible” under INA §§ 212(a)(2)(A)(i)(I), 212(a)(2)(A)(i)(II), and
212(a)(2)(C)10 and not entitled to cancellation of removal under INA § 240A(a).11
9
In the Matter of Ralph Richardson, Respondent: In Removal Proceedings, Case #A17-
566-876 (Immigration Court, January 1, 1998).
10
8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1182(a)(2)(A)(i)(II), & 1182(a)(2)(C) (Supp. 1998).
11
8 U.S.C. § 1229b (Supp. 1998). Denying cancellation of removal under INA §
240A(a), the immigration judge found that Richardson was statutorily ineligible due to his
cocaine-trafficking conviction, deemed an aggravated felony under INA § 101(a)(43). 8 U.S.C.
§ 1101(a)(43) (Supp. 1998). INA § 240A (a), 8 U.S.C. § 1229b(a) (Supp. 1998), provides that
the “Attorney General may cancel removal in the case of an alien who is inadmissible or
deportable from the United States if the alien – (a) has been an alien lawfully admitted for
permanent resident for not less than five years, (2) has resided in the United States continuously
for seven years after having been admitted in any status, and (3) has not been convicted of any
aggravated felony.” (Emphasis supplied.)
7
Richardson’s appeal of the removal order to the Board of Immigration Appeals
(“BIA”) remains pending.12
On February 19, 1998 and over the INS’ objections, the district court
adopted the magistrate judge’s report and recommendations, denied the INS’
motion to dismiss and granted Richardson’s petition. The district court ordered the
immigration judge to hold “an individualized hearing within eleven (11) days from
the date stamped on the Order, at which time the Immigration Judge should
determine whether Petitioner is an arriving alien, and if not, whether and under
what conditions Petitioner may be released from custody pending the completion
of deportation proceedings.”
This appeal ensued. On February 23, 1998, this Court granted the INS’
motion to stay the district court’s order pending this appeal. Richardson remains in
custody.
II. RICHARDSON’S HABEAS CORPUS PETITION
Before examining the new immigration laws, we outline Richardson’s
claims. In this case, Richardson does not dispute that he is an alien, that he has a
cocaine-trafficking conviction, and that cocaine trafficking is a basis for both
12
Richardson’s brief was filed with the BIA on October 15, 1998, and the INS brief was
due on November 28, 1998.
8
inadmissibility and deportability under the INA.13 Instead, Richardson’s habeas
corpus petition asserts, inter alia, that his constitutional and statutory rights were
violated because:
(1) the INS ignored his thirty-year legal permanent resident alien status,
misinterpreted INA § 101(a)(13)(C)14 in classifying Richardson as an arriving alien
“seeking admission,” unlawfully detained him, and illegally denied him admission,
as opposed to permitting entry into the United States and then initiating removal
proceedings based on “deportability;”
(2) the Attorney General’s detaining and denying a legal permanent resident
alien admission back into the United States and delegating her custody release
authority to only the INS district director, without a bond hearing before an
immigration judge, are ultra vires of the INA and illegal;
(3) the Attorney General’s detaining and denying a legal permanent resident
alien admission and a bond hearing before the immigration judge solely because of
13
In the removal hearing before the immigration judge, Richardson contended that the
INS’ evidence of his criminal conviction for cocaine trafficking was improperly certified, but the
judge admitted this evidence of his conviction. The INS also introduced Richardson’s sworn
statement at inspection that he had a cocaine-trafficking conviction. At the removal hearing,
Richardson testified that while he signed the statement, he did not read it because he was
“confused,” “shocked,” and “upset.” The immigration judge found that the INS had proved a
cocaine-trafficking conviction. This is one of many issues Richardson has raised on appeal to
the BIA; however, this issue was not raised in the district court.
14
8 U.S.C. § 1101(a)(13)(C) (Supp. 1998).
9
his brief trip abroad violates that resident alien’s due process guarantees under the
Due Process Clause of the Fifth Amendment; and
(4) the Attorney General’s allowing a bond hearing before an immigration
judge for legal permanent resident aliens arrested in the United States, but denying
a bond hearing to Richardson only because of his two-day sojourn abroad violates
the equal-protection guarantees of the Due Process Clause of the Fifth
Amendment.
In explaining why he filed his habeas petition while his BIA appeal
remained pending, Richardson contends that exhaustion of administrative remedies
is futile because the INA, as amended by IIRIRA, eliminates judicial review in the
courts of appeals over any prospective BIA final order removing him as a criminal
alien, and forecloses appeal of the INS’ district director’s bond decisions to an
immigration judge. Finally, Richardson asserts that INA § 242(g)’s exclusive-
jurisdiction provision15 does not repeal habeas jurisdiction under 28 U.S.C. § 2241and does not prevent the district court from hearing a permanent resident alien’s
habeas petition alleging unlawful executive detention in violation of the INA and
the Constitution.
15
8 U.S.C. § 1252(g) (Supp. 1998).
10
Since Richardson attempted to enter the United States on October 26, 1997,
IIRIRA’s extensive revisions to the INA undisputedly govern this case.16
III. NEW IMMIGRATION LAWS
In 1996, Congress twice revised the INA. The changes began incrementally
with the enactment of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) in April 1996 and accelerated with IIRIRA’s major structural
revisions to the INA in September 1996.17 Congress’ reconstruction of the INA
includes, inter alia, these key elements applicable to Richardson’s appeal:
(1) new custody rules mandating detention of aliens after a serious criminal
conviction;
(2) new procedures for prompt removal of criminal aliens from the United
States;
(3) new restrictions on judicial review that preclude all judicial involvement
in the administrative agency removal and detention process until after a final
removal order is entered by the BIA;
16
IIRIRA was signed into law on September 30, 1996 and became effective on April 1,
1997.
17
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996).
11
(4) new provisions directing that judicial review shall be exclusively under
the INA and in only the court of appeals after a final BIA removal order; and
(5) new provisions removing all other formerly available federal-court
jurisdiction over the detention and removal of criminal aliens, including repeal of
statutory habeas under 28 U.S.C. § 2241.
Simply put, IIRIRA strips all jurisdiction, including § 2241 habeas, from the
district courts, places exclusive judicial review in the court of appeals, and delays
even that judicial review until after a final administrative agency order. Congress
has reduced judicial review to one time in one place in an effort to expedite the
removal of resident aliens with serious criminal convictions. Since these
legislative revisions to the INA are extensive, complicated, and affect so many
resident aliens with criminal convictions in such a significant manner, we outline
them in detail.
A. “Removal” Proceedings
Upon being denied entry, Richardson was detained and immediately placed
in “removal” proceedings.18 As one of its broad structural changes to the INA,
IIRIRA eliminated some of the distinctions between “deportation” and “exclusion”
18
Before IIRIRA, the INA separated the concepts of exclusion proceedings and
deportation proceedings. Different procedural rules applied to proceedings to exclude an alien
from entering the United States. Compare 8 U.S.C. § 1226 (1996) with 8 U.S.C. § 1252b (1996).
12
proceedings and created a unified set of proceedings in INA § 24019 called
“removal proceedings.”20 New INA § 240(e)(2) defines the term “removable” as
an alien who is “deportable” or an alien who is “inadmissible” (replacing the old
term “excludable”).21 New INA § 240(a)(3) provides that unless specified
otherwise under the INA, a removal proceeding “shall be the sole and exclusive
procedure for determining whether an alien may be admitted to the United States
or, if the alien has been so admitted, removed from the United States.”22
Under the unified framework in INA § 240, many of the procedures in
“removal proceedings” are now the same regardless of whether the alien is seeking
admission to the United States or the alien is being deported from the United
States.23 In contrast, the substantive grounds for determining “inadmissibility” and
19
8 U.S.C. § 1229a (Supp. 1998).
20
8 U.S.C. § 1229a(a)(1) (Supp. 1998). Removal proceedings were created in INA § 240.
Other sections of the INA established the procedures to be employed in removal proceedings.
For example, INA § 239, 8 U.S.C. § 1229 (Supp. 1998), established the procedures for the
initiation of removal proceedings. INA § 240A, 8 U.S.C. § 1229b (Supp. 1998), established the
procedures for the cancellation of removal proceedings.
21
8 U.S.C. § 1229a(e)(2) (Supp. 1998).
22
8 U.S.C. § 1229a(a)(3) (Supp. 1998).
23
Within INA § 240’s framework, certain procedures are still differentiated based on
whether deportability or inadmissibility is the subject of the removal proceeding. 8 U.S.C. §
1229a (Supp. 1998). For example, INA § 240(c)(2)(A) provides that an alien has the burden of
establishing eligibility for admission “clearly and beyond doubt” or “by clear and convincing
evidence that the alien is lawfully present in the United States pursuant to a prior admission;”
whereas, INA § 240(c)(3)(A) provides that the INS has the burden of establishing by clear and
13
“deportability” are still handled in several separate parts of the INA and vary
considerably.24 However, Richardson’s cocaine-trafficking conviction is a
sufficient basis alone for both deportation and inadmissibility under the INA.25
B. Permanent Resident Criminal Aliens Returning From Abroad
IIRIRA also altered the rules for permanent resident aliens returning from
abroad, which is why the INS detained Richardson and immediately initiated
“removal proceedings” against him. Under IIRIRA’s restructuring, most
permanent resident aliens returning from abroad are summarily admitted back into
this country.
In this regard, new INA § 101(a)(13)(c) provides that “an alien lawfully
admitted for permanent residence in the United States shall not be regarded as
seeking an admission into the United States for purposes of the immigration laws
unless the alien”:
convincing evidence “that the alien is deportable.” 8 U.S.C. §§ 1229a(c)(2)(A) (Supp. 1998) &
1229a(c)(3)(A) (Supp. 1998). As discussed infra in footnotes 38 and 40, the INS district director
decides bond requests for arriving aliens detained while seeking admission into the United
States; whereas, aliens being deported may request bond from an immigration judge.
24
Compare admission qualifications for aliens covered by 8 U.S.C. §§ 1181-1189 (Supp.
1998), with the basis for deporting aliens in 8 U.S.C. § 1227 (Supp. 1998).
25
See 8 U.S.C. § 1182(a)(2) (Supp. 1998) (listing criminal inadmissibility grounds); Id. §
1227(a)(2) (listing criminal deportability grounds). A permanent resident alien is “deportable”
for many more crimes than a permanent resident alien is deemed “seeking admission” and
“inadmissible.” Id.
14
(i) has abandoned or relinquished that status
(ii) has been absent from the United States for a continuous period in
excess of 180 days
(iii) has engaged in illegal activity after having departed the United
States
(iv) has departed from the United States while under legal process
seeking removal of the alien from the United States, including
removal proceedings under this Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2) of this
Act [which includes controlled substances], unless since such offense
the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated
by immigration officers or has not been admitted to the United States
after inspection and authorization by an immigration officer.
INA § 101(a)(13)(C) (emphasis supplied).26 Section 101(a)(13)(C)(v) references
offenses in “section 212(a)(2),” which provides that any alien convicted of a
controlled substance offense is inadmissible.27 Because Richardson was a lawful
26
8 U.S.C. § 1101(a)(13) (Supp. 1998). INA §§ 212(a)(2) and (h) are codified in 8 U.S.C.
§ 1182(a)(2) and (h) (Supp. 1998). INA § 240A(a) is codified in 8 U.S.C. § 1229b(a) (Supp.
1998).
27
INA § 212(a)(2)(A)(i)(I) and (II), 8 U.S.C. § 1182(2)(A)(i)(I) and (II) (Supp. 1998),
includes controlled substance offenses as follows:
. . . any alien convicted of . . . a crime involving moral turpitude . .
. or . . . a violation of (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States, or a foreign country
relating to a controlled substance . . . is inadmissible.
Id. Pre-IIRIRA, certain criminal aliens could seek discretionary relief under INA § 212(h), 8
U.S.C. § 1182(h) (1995), or suspension of deportation under INA § 244, 8 U.S.C. § 1254 (1995).
Post-IIRIRA an alien, including a permanent resident alien, convicted of an aggravated felony as
defined under INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (Supp. 1998), is statutorily ineligible for
a waiver under INA § 212(h), 8 U.S.C. § 1182(h) (Supp. 1998), and also statutorily ineligible for
cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a) (Supp. 1998). See footnote
11 supra.
15
permanent resident with a cocaine-trafficking conviction covered by Section
1182(a)(2), the INS treated him as an arriving alien “seeking admission” to the
United States under INA § 101(a)(13)(C) and subjected him to inspection as any
other alien arriving to the United States.28
C. Supreme Court’s Fleuti Doctrine
Immediately upon his detention, the INS initiated removal proceedings
against Richardson. In turn, Richardson filed his § 2241 habeas petition in the
district court. Richardson contended, inter alia, that the INS had interpreted
erroneously new INA § 101(a)(13)(C), illegally considered him an arriving alien
“seeking admission,” and therefore unlawfully detained him and denied him
admission and bond.
Before 1996, INA § 101(a)(13) provided that a returning permanent resident
alien shall not be regarded as making “an entry” into the United States if the alien’s
presence abroad was not “intended or reasonably . . . expected.”29 In Rosenberg v.
28
Since under INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (Supp. 1998), Richardson
was “seeking admission” at a port of entry, the INS treated Richardson an “arriving alien” under
INS regulation 62 Fed. Reg. 10312, 10330 (1997) (currently codified in 8 C.F.R. § 1.1(q)
(1998)), which states: “The term arriving alien means an alien who seeks admission to or transit
through the United States . . .”
29
INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994), provided:
(13) The term “entry” means any coming of an alien into the
United States, from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise, except that an alien
16
Fleuti, 374 U.S. 449 (1964), the Supreme Court interpreted “intended” in former
INA § 101(a)(13) as an intent to depart the country in a manner “meaningfully
interruptive of the alien’s permanent residence.” The Court held that a lawful
permanent resident’s “innocent, casual and brief” excursion was not sufficiently
interruptive of the alien resident’s status to be “intended” and would not be deemed
an “entry.” Id.
Unfortunately for Richardson, IIRIRA replaces former INA § 101(a)(13)
with an entirely new statutory scheme.30 New INA § 101(a)(13)(A) replaces the
term “entry” with the terms “admission” and “admitted,” which are defined as “the
lawful entry of the alien into the United States after inspection and authorization by
an immigration officer.”31 The statute no longer references an alien’s intent.
having a lawful permanent residence in the United States shall not
be regarded as making an entry into the United States for the
purposes of the immigration laws if the alien proves to the
satisfaction of the Attorney General that his departure to a foreign
port or place or to an outlying possession was not intended or
reasonably to be expected by him or his presence in a foreign port
or place or in an outlying possession was not voluntary: Provided,
That no person whose departure from the United States was
occasioned by deportation proceedings, extradition, or other legal
process shall be held to be entitled to such exception.
Id.
30
IIRIRA § 301(a) enacted the new version of INA § 101(a)(13), 8 U.S.C. § 1101(a)(13)
(Supp. 1998).
31
8 U.S.C. § 1101(a)(13)(A) (Supp. 1998).
17
Instead, new INA § 101(a)(13)(C) provides that a lawful permanent resident “shall
not be regarded as seeking admission,” and thus shall be summarily admitted back
into the United States, unless the alien falls under one of the six subparagraphs (i)
through (vi) of INA § 101(a)(13)(C) quoted above. Since Richardson’s cocaine-
trafficking conviction is covered expressly by INA § 101(a)(13)(C)(v), the INS
treated Richardson as an arriving alien “seeking admission.”32
In the district court, the INS stressed that, in another case, the BIA had held
that Fleuti’s “innocent, casual, and brief” rule no longer applies because IIRIRA
repealed the statutory language relied upon in Fleuti.33 The INS emphasized that
INA § 101(a)(13)(C) no longer defines “admission” with reference to an alien’s
intent, thus removes the entire Fleuti concept, and requires the INS to treat
Richardson as “seeking admission.”34 Rejecting the INS’ position, the district
court determined that the INS was not required to treat Richardson as “seeking
32
See footnote 28 supra.
33
See Matter of Collado-Munoz, Int. Dec. No. 3333 (BIA Dec. 18, 1997).
34
Fleuti addressed the harsh result of a legal permanent resident alien suddenly being
excludable from the United States just because he left the country a few days, while not being
deportable for the same conduct. The INS stresses the concern in Fleuti is not applicable here as
Richardson is both inadmissible and deportable for his crimes. 8 U.S.C. § 1182(a)(2) (Supp.
1998); 8 U.S.C. § 1227(a)(2)(B) (Supp. 1998). New INA § 101(a)(13)(C) is also arguably more
favorable for most legal permanent residents as they are able to re-enter the United States
automatically for up to 180 days (as opposed to just after a brief trip abroad under Fleuti), unless
they fall into one of the six categories in INA § 101(a)(13)(C)(i–vi).
18
admission.” The district court interpreted new INA § 101(a)(13)(C) as specifying
only when a returning alien may not be regarded as “seeking admission,” as
opposed to shall be regarded as “seeking admission.” The INS submits that the
language of INA § 101(a)(13)(C) is explicit and nondiscretionary and that the
district court circumvented its plain language.35
The proper construction of INA § 101(a)(13)(C) and the Fleuti issue are
some of the issues Richardson has raised before the BIA in his pending appeal of
the immigration judge’s removal order.
D. Detention of Criminal Aliens “Seeking Admission”
While his BIA appeal proceeds, Richardson’s habeas claims also stem, in
part, from IIRIRA’s new stringent custody rules for aliens with serious criminal
convictions. INA § 235(b)(2)(A) provides that any alien “seeking admission” to
the United States who “is not clearly and beyond a doubt entitled to be admitted”
“shall be detained” for removal proceedings, as follows:
. . . in the case of an alien who is an applicant for
admission, if the examining immigration officer
determines that an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted, the alien shall
35
The INS also asserts that the Attorney General is entitled to deference if her
interpretation of an immigration statute is reasonable, citing Chevron USA v. Natural Resources
Defense Council, 467 U.S. 837 (1984). Perlea-Escobar v. Executive Office for Immigration, 894
F.2d 1292, 1296 (11th Cir. 1990) (quoting Chevron).
19
be detained for a proceeding under section 240 [removal
proceedings].
INA § 235(b)(2)(A) (emphasis supplied).36
An alien so detained may seek parole into the United States temporarily.
INA § 212(d)(5)(A) provides that the Attorney General “may in his discretion . . .
parole into the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit or for reasons deemed strictly in the public interest any
alien applying for admission to the United States.”37 At the time of Richardson’s
attempted entry, the Attorney General’s regulations delegated to the INS district
director the authority to review “parole” requests.38 On December 4, 1997, the
36
8 U.S.C. §1225(b)(2)(A) (Supp. 1998). INA § 240 is codified in 8 U.S.C. § 1229a
(Supp. 1998).
37
8 U.S.C. §1182 (d)(5)(A) (Supp. 1998).
38
8 C.F.R. § 103.1(g)(2)(ii)(B) (1997) stated:
(B) District directors are delegated the authority to grant or deny
any application or petition submitted to the Service, except for
matters delegated to asylum officers pursuant to part 208 and §
253.1(f) of this chapter, or exclusively delegated to service center
directors, to initiate any authorized proceeding in their respective
districts, and to exercise the authorities under § § 242.1(a),
242.2(a) and 242.7 of this chapter without regard to geographical
limitations. District directors are delegated authority to conduct
the proceeding provided for in § 252.2 of this chapter.
Id.
20
district director sent Richardson’s counsel a letter outlining Richardson’s criminal
convictions and denying parole on the basis of no showing of a significant public
benefit or urgent humanitarian reasons.39
After initial custody and release determinations by the INS district director,
aliens may seek release from the immigration judge. However, at the time of
Richardson’s attempted entry, the Attorney General’s regulations provided that
immigration judges lacked jurisdiction over release requests by “arriving aliens”
facing removal proceedings.40
39
Noting that Richardson’s criminal convictions included an aggravated felony as defined
by INA § 101(a)(43), the district director’s letter, dated December 4, 1997, stated: “The release
of Mr. Richardson into the community will be of no significant public benefit. Mr. Richardson
has not shown that his release would be warranted based upon urgent humanitarian reasons.”
40
62 Fed. Reg. 10312 (1997) (currently codified in 8 C.F.R. § 236.1(d)(1) (Nov. 3, 1998)
stated:
Application to immigration judge. After an initial custody
determination by the district director, including the setting of a
bond, the respondent may, at any time before an order under 8
CFR part 240 becomes final, request amelioration of the conditions
under which he or she may be released. Prior to such final order,
and except as otherwise provided in this chapter, the immigration
judge is authorized to exercise the authority in section 236 of the
Act (or section 242(a)(1) of the Act as designated prior to April 1,
1997 in the case of an alien in deportation proceedings) to detain
the alien in custody, release the alien, and determine the amount of
bond, if any, under which the respondent may be released, as
provided in § 3.19 of this chapter. If the alien has been released
from custody, an application for amelioration of the terms of
release must be filed within 7 days of release. Once a removal
order becomes administratively final, determinations regarding
custody and bond are made by the district director.
21
E. Detention Under TPCRs in IIRIRA § 303(b)(3)
IIRIRA enacted new mandatory custody rules for certain criminal aliens in
both INA § 236(c) and the Transition Period Custody Rules (“TPCRs”) in IIRIRA
§ 303(b)(3). When Richardson attempted to enter the United States, the TPCRs
mandated the detention of certain criminal aliens, as follows:
(A) In General - During the period in which this
paragraph is in effect pursuant to paragraph (2), the
Attorney General shall take into custody any alien who -
(i) has been convicted of an
aggravated felony (as defined under section
101(a)(43)) of the Immigration and
Nationality Act, as amended by section 321
of [IIRIRA])
(ii) is inadmissible by reason of
having committed any offense covered in
section 212 (a)(2) of such Act
(iii) is deportable by reason of having
committed any offense covered in section 241
(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act
(before redesignation under this subtitle), or
(iv) is inadmissible under section
212(a)(3)(B) of such act or deportable under
Id. However, 62 Fed. Reg. 10312, 10360 (1997) (codified in 8 C.F.R. § 236.1(c)(5)(i) (Jan. 1,
1998)) stated:
An immigration judge may not exercise the authority provided in
this section, and the review process described in paragraph (d) of
this section shall not apply, with respect to . . . [a]rriving aliens as
described in § 1.1(q) of this chapter. . . .
Id. This provision was subsequently modified in 8 C.F.R. § 236.1(c)(11) (Nov. 3, 1998).
22
section 241 (a)(4)(B) of such act (before
redesignation under this subtitle)
when the alien is released, without regard to whether the
alien is released on parole, supervised release, or
probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.
IIRIRA § 303(b)(3)(A).41 The TPCRs mandated Richardson’s detention because
his cocaine-trafficking conviction is an aggravated felony under the INA42 and thus
falls under subparagraph (i) of the TPCR in IIRIRA § 303(b)(3)(A). Richardson’s
cocaine-trafficking conviction is also an offense covered by INA §§ 212(a)(2),
241(a)(2), 212(a)(3)(B), and 241(a)(4)(B),43 and thus is also covered by the other
three subparagraphs (ii), (iii), and (iv) of the TPCR in IIRIRA § 303(b)(3)(A).
41
The TPCRs are not codified. The text of the TPCRs can be found in the historical notes
following 8 U.S.C. § 1226 (Supp. 1998). Richardson argues that the interim TPCRs apply to
aliens detained while attempting to gain admission to the United States. Whether these rules
apply only to aliens within the United States or to any alien detained by the INS is not material
to the resolution of this appeal. The Court assumes without deciding that the detention and
release provisions of the TPCRs apply to aliens seeking admission and aliens already in the
United States. INA § 101(a)(43) is codified in 8 U.S.C. § 1101(a)(43) (Supp. 1998). INA § 212
is codified in 8 U.S.C. § 1182 (Supp. 1998). INA § 241 is codified in 8 U.S.C. § 1227 (Supp.
1998).
42
Successive definitions of the term “aggravated felony” have been enacted in INA §
101(a)(43), 8 U.S.C. § 1101(a)(43). As initially enacted in 1988, the term covered only a few
serious offenses, such as murder, drug trafficking, and illicit trafficking in firearms. The
definition has expanded continually to include less serious offenses. The adverse immigration
consequences legislated by Congress for permanent resident aliens with an aggravated felony
conviction, as defined under the INA, have likewise continued to expand.
43
8 U.S.C. §§ 1182(a)(2), 1227(a)(2), 1182(a)(3)(B), & 1227(a)(4)(B) (Supp. 1998).
23
The TPCRs also significantly restricted the Attorney General’s release
authority for the criminal aliens subject to the TPCRs’ mandatory detention. The
TPCR in IIRIRA § 303(b)(3)(B) provides that the Attorney General “may release”
an alien but only if the alien is an alien described in subparagraphs (A)(ii) or
(A)(iii) of the TPCR in IIRIRA § 303(b)(3), is lawfully admitted, will not pose a
danger and is likely to appear for any scheduled proceeding.44
Under the TPCRs, the Attorney General could not have released an alien
detained because of an aggravated felony conviction because that alien is in a
category mandatorily detained under the TPCR in IIRIRA § 303(b)(3)(A)(i) and is
not in an (A)(ii) or (A)(iii) category subject to release under the TPCR in IIRIRA §
303(b)(3)(B).45
44
The TPCR in IIRIRA § 303(b)(3)(B) states:
(B) Release. – The Attorney General may release the alien
only if the alien is an alien described in subparagraph (A)(ii) or
(A)(iii) and –
(i) the alien was lawfully admitted to the United
States and satisfies the Attorney General that the alien will
not pose a danger to the safety of other persons or of
property and is likely to appear for any scheduled
proceeding, . . .
Subsections (A)(ii) and (A)(iii) describe aliens inadmissible because of an offense described in
INA § 212(a)(2) or deportable because of an offense described in INA §§ 241 (a)(2)(A)(ii),
(A)(iii), (B), (C), or (D). The TPCR in IIRIRA §§ 303(b)(A)(ii) & 303(b)(A)(iii).
45
Commentators note that since criminal aliens, even if legal permanent resident aliens,
are now clearly removable for certain crimes, the mandatory custody rules for criminal aliens
were intended to insure removal because criminal aliens no longer have incentive to show up
24
When Richardson attempted to enter the country, the Attorney General had
implemented regulations delegating her detention and release authority under the
TPCRs and INA § 236(c). Under those regulations, the INS district director made
an initial determination regarding custody and release of criminal aliens under both
the TPCRs and INA § 236(c).46 After the district director’s initial determination,
an alien could seek release from an immigration judge.47 However, immigration
judges lacked jurisdiction over release requests of “arriving aliens” facing removal
proceedings.48
In addition to denying parole, the INS district director’s letter, dated
December 4, 1997, concluded that Richardson “would have no incentive to appear
for Immigration hearings” and thus in effect denied bond as well. Although
Richardson was subject to mandatory detention and not eligible for release on
bond, it appears that the district director considered release on bond.
F. Detention Under INA § 236(c)
voluntarily for removal proceedings. See, e.g., Peter H. Schuck, INS Detention and Removal: A
“White Paper”, 11 Geo. Immigr. L.J. 667, 671 (1997). Similarly, the INS acknowledged at oral
argument that it is discovering permanent residents convicted of serious crimes when they seek
re-entry in part because of the difficulty of finding them through the myriad state courts.
46
See footnote 40 supra.
47
Id.
48
Id.
25
Although enacted by IIRIRA in 1996, new INA § 236(c) was not in effect
when Richardson attempted to enter the United States on October 24, 1997.49
IIRIRA § 303(b)(2) allowed the Attorney General to delay the implementation of
INA § 236(c) for up to two years by providing notice to Congress that the INS
lacked sufficient space and personnel to accommodate the mandate of INA §
236(c). The Attorney General twice provided such notice and delayed the effective
date of INA § 236(c) until October 10, 1998. During the two-year interim, the
TPCR in IIRIRA § 303(b)(3) supplanted INA § 236(c).50 As of October 10, 1998,
INA § 236(c)(1) also mandates Richardson’s detention, whether he is considered
inadmissible or deportable, for his criminal convictions, as explained below.
New INA § 236 contains some general custody rules for aliens in removal
proceedings and some specific, more stringent, custody rules for certain criminal
aliens. Under INA § 236(a) “[o]n a warrant issued by the Attorney General, an
alien may be arrested and detained pending a decision on whether the alien is to be
removed from the United States.”51 Under INA § 236(a) and (b), the Attorney
49
INA § 236(c), 8 U.S.C. § 1226(c) (Supp. 1998).
50
Id.51
8 U.S.C. § 1226(a) (Supp. 1998) (emphasis supplied).
26
General may grant bond or parole and may revoke bond or parole for an alien so
arrested.52
However, INA § 236(c) provides for mandatory detention of certain criminal
aliens, whether inadmissible or deportable. Subparagraph (1) of new INA §
236(c), entitled “Detention of criminal aliens,” mandates that the Attorney General
shall take into custody a criminal alien who falls into one of these four categories:
(A) is inadmissible by reason of having
committed any offense covered in section
212(a)(2),53
(B) is deportable by reason of having
committed any offense covered in section
237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),54
(C) is deportable under section
237(a)(2)(A)(i)55 on the basis of an offense for
which the alien has been sentence[d] to a term of
imprisonment of at least 1 year, or
52
8 U.S.C. § 1226(a) and (b) (Supp. 1998).
53
INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (Supp. 1998), covers certain crimes involving
“moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit
such a crime,” or “a violation of (or a conspiracy or attempt to violate)” any state, federal, or
foreign law “relating to a controlled substance.”
54
These sections cover certain multiple criminal convictions in INA § 237(a)(2)(A)(ii), an
aggravated felony in § 1227(a)(2)(A)(iii), certain controlled substance offenses in INA §
237(a)(2)(B), certain firearm offenses in INA § 237(a)(2)(C), and other miscellaneous crimes in
INA § 237(a)(2)(D). INA §§ 237(a)(2)(A)(ii), (A)(iii), (B), (C) & (D), 8 U.S.C. §§
1227(a)(2)(A)(ii), (A)(iii), (B), (C) & (D) (Supp. 1998).
55
INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (Supp. 1998), covers crimes
involving moral turpitude committed within a certain time frame after the date of admission and
for which a sentence of one year or longer may be imposed.
27
(D) is inadmissible under section
212(a)(3)(B) or deportable under section
237(a)(4)(B),56
when the alien is released, without regard to whether the
alien is released on parole, supervised release, or
probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.
INA § 236(c)(1).57 Next, subparagraph (2) of new INA § 236(c) provides that the
Attorney General “may release” an alien in one of these four mandatory detention
classes “only if the Attorney General decides” that the alien’s release is necessary
to the protection of someone cooperating in the investigation of major criminal
activity, and the alien satisfies the Attorney General that the alien will not pose a
danger to the safety of others and is likely to appear at any scheduled hearing.58
56
INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (Supp. 1998), and INA § 237(a)(4)(B), 8
U.S.C. § 1227(a)(4)(B) (Supp. 1998), cover certain “terrorist activities.”
57
8 U.S.C. § 1226 (c)(1) (Supp. 1998).
58
INA § 236(c)(2), entitled “Release,” provides:
The Attorney General may release an alien described in
paragraph (1) only if the Attorney General decides pursuant to
section 3521 of Title 18, that release of the alien from custody is
necessary to provide protection to a witness, a potential witness, a
person cooperating with an investigation into major criminal
activity, or an immediate family member or close associate of a
witness, potential witness, or person cooperating with such an
investigation, and the alien satisfies the Attorney General that the
alien will not pose a danger to the safety of other persons or of
property and is likely to appear for any scheduled proceeding. A
decision relating to such release shall take place in accordance
with a procedure that considers the severity of the offense
committed by the alien.
28
Richardson’s cocaine-trafficking offense brings him within several mandatory
detention categories in INA § 236(c)(1), but he does not fall within the
discretionary release option in INA § 236(c)(2).
G. INA § 236(e) Restricts Review of Bond and Parole Decisions
Of particular relevance to Richardson’s situation is INA § 236(e) which
applies to detention and release decisions under both INA § 236(c)59 and the TPCR
in IIRIRA § 303. INA § 236(e) significantly restricts the judicial review of the
Attorney General’s decisions as follows:
(e) Judicial review
The Attorney General’s discretionary judgment
regarding the application of this section [236's custody
rules] shall not be subject to review. No court may set
aside any action or decision by the Attorney General
under this section regarding the detention or release of
any alien or the grant, revocation, or denial of bond or
parole.
INA § 236(c)(2), 8 U.S.C. § 1226(c)(2) (Supp. 1998).
59
8 U.S.C. § 1226(c) (Supp. 1998).
29
INA § 236(e).60 Thus, the INS contends that the district court had no jurisdiction
to review the INS district director’s discretionary decision to grant or deny
Richardson bond or parole.
Richardson responds that INA § 236(e) applies to only final, not interim,
orders, and that historically bond decisions were considered collateral to the
removal proceedings and cognizable under § 2241 habeas in immigration cases.
However, INA § 236(e), by its plain language, bars judicial review of the INS’
discretionary bond and parole decisions. Nonetheless, we note that Richardson is
not actually seeking review of those INS discretionary decisions but instead review
of his constitutional claim that denial of bond without a hearing before an
immigration judge violates his constitutional rights.
60
8 U.S.C. § 1226(e) (Supp. 1998). Richardson contends that INA § 236(e) does not
apply to this case because he was detained while the TPCRs were in place. Although
Richardson correctly argues that the TPCRs (and not INA § 236(c)) applied to his detention from
October 26, 1997 to October 9, 1998, the TPCRs appear to supplant only INA § 236(c) and not
INA § 236(e) for the reasons below.
IIRIRA § 303(b)(2), the effective date provision for IIRIRA § 303(a), allows the
Attorney General to delay for up to two years the effective date of INA § 236(c). During the
period when INA § 236(c) is not in effect, the TPCRs apply instead of INA § 236(c). However,
IIRIRA § 303(b)(2) does not provide that the Attorney General can delay the effective date of
new INA § 236(e). Instead, INA § 236(e) is governed by the effective-date provision in IIRIRA
§ 303(b)(1) which provides the general rule that INA § 236 is effective the same day as the rest
of Title III of IIRIRA. In any event, we need not resolve this issue because the two-year delay
has expired and INA § 236(e) is now clearly effective.
30
H. Procedures for Removal Hearings
While only the INS district director decided Richardson’s request for parole
and bond, IIRIRA did not diminish Richardson’s right to a full hearing before the
immigration judge on the merits of his removal from the United States.61 Before
issuing any removal order, an immigration judge still must hold a hearing62 in
which the alien may be represented by counsel.63 The alien is entitled to present
evidence and cross-examine witnesses presented by the United States.64 A
complete record is required to be kept of all testimony and evidence produced at
the hearing.65 A “criminal alien” subject to removal (either as inadmissible or
deportable) has a right to appeal a removal order to the BIA,66 and the immigration
judge “shall inform the alien of the right to appeal.”67
61
Compare 8 U.S.C. § 1252 (1995) with 8 U.S.C. § 1229a(a)(1) (Supp. 1998).
62
The hearing can take several forms – a hearing with the alien present, a hearing without
the alien’s presence if the alien so consents, through a video conference, or over the telephone if
the alien so consents. INA § 240(b)(2), 8 U.S.C. § 1229a(b)(2) (Supp. 1998).
63
Although an alien subject to removal may secure his or her own counsel, according to
INA § 240(b)(4)(A) the government is not required to provide counsel to the alien. 8 U.S.C. §
1229a(b)(4)(A) (Supp. 1998).
64
INA § 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B) (Supp. 1998).
65
INA § 240(b)(4)(C), 8 U.S.C. § 1229a(b)(4)(C) (Supp. 1998).
66
8 C.F.R. § 3.1(b)(3) (1998).
67
INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (Supp. 1998).
31
Represented by counsel, Richardson received a hearing before an
immigration judge on the merits of his removal from the United States and has
appealed the judge’s removal order to the BIA. As of this date, the BIA has not
issued its decision.
I. IIRIRA Consolidates Judicial Review in the Court of Appeals
IIRIRA also completed the major overhaul of federal-court jurisdiction over
immigration matters begun by the AEDPA. Prior to 1996, INA § 106 set out the
judicial-review scheme for deportation and exclusion orders.68 INA § 106(a)(2)
provided for petition for review in the court of appeals.69 In addition, INA §
106(a)(10) allowed aliens in custody to seek habeas corpus review of final
deportation orders under the INA.70 Aliens also could rely on 28 U.S.C. § 2241habeas corpus to challenge INS detention or deportation proceedings.71
68
See generally 8 U.S.C. § 1105a (1995).
69
8 U.S.C. § 1105a(a)(2) (1995).
70
8 U.S.C. § 1105a(a)(10) (1995). See general discussion of the old scheme of judicial
review and Congress’ attempts as early as 1961 to streamline judicial review of deportations to
avoid “interminable procedural delays” in deportations through overlapping modes of judicial
review. United States, ex rel. Marcello v. District Director, 634 F.2d 964, 967-72 (5th Cir. Jan.
1981) (INA § 106(a)(q) discussed in Marcello became INA § 106(a)(10).)
71
See, e.g., Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990).
32
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”).72 AEDPA § 44073 repealed INA § 106(a)(10),
which had allowed habeas corpus review under the INA. In its place, AEDPA §
440(a) enacted a new INA § 106(a)(10), which states that a final deportation order
against an alien deportable for certain criminal offenses “shall not be subject to
review by any court.”74
Five months after the AEDPA, Congress enacted IIRIRA.75 Section 306 of
IIRIRA repealed the entire judicial-review scheme in INA § 106 and replaced it
with a new judicial-review scheme in INA § 242. IIRIRA did not eliminate all
judicial review. Instead, IIRIRA removed all jurisdiction from the district courts
72
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
73
Id.74
AEDPA § 440(a) amended INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995), to read:
Any final order of deportation against an alien who is deportable
by reason of having committed a criminal offense covered in
section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered
by section 241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i), shall not be subject to review
by any court.
Id. See footnote 83 infra for IIRIRA’s amendments to INA § 106(a)(10). INA § 241 is codified
in 8 U.S.C. § 1227 (Supp. 1998).
75
Pub. L. No. 104-208, 110 Stat. 3009 (1996).
33
and consolidated judicial review into the court of appeals.76 INA § 242(b)(2)
provides that the venue for judicial review is only in the court of appeals.77
More importantly, INA § 242(g), entitled “Exclusive Jurisdiction,” provides
that except as provided in INA § 242, no court shall have jurisdiction over aliens’
claims arising from the Attorney General’s decisions or actions, as follows:
Except as provided in this section [242] and
notwithstanding any other provision of law, no court
shall have jurisdiction to hear 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 under this Act.
INA § 242(g).78
76
As outlined infra at footnote 93, INA § 242(e)(2) does provide for a truncated form of
habeas review for non-resident aliens summarily rejected at ports of entry without any removal
proceedings. 8 U.S.C. § 1252(e)(2) (Supp. 1998). Throughout the remainder of this opinion, we
repeatedly note that IIRIRA consolidates all judicial review into one procedure – a petition for
review in the court of appeals after a final removal order has been issued. We note that INA §
242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp. 1998), remains a narrow exception to our statement
about IIRIRA’s providing for judicial review in only the court of appeals. Since that narrow
exception applies only to non-resident aliens in limited circumstances, it has no applicability
here or to any immigration cases involving resident aliens.
77
INA § 242(b)(2), 8 U.S.C. § 1252(b)(2) (Supp. 1998), provides:
The petition for review shall be filed with the court of appeals for
the judicial circuit in which the immigration judge completed the
proceedings.
Id.78
8 U.S.C. § 1252(g) (Supp. 1998). This Court recently held that INA § 242(g) divests
district courts of jurisdiction over removal orders under former INA § 106(a)(10) and that
34
IIRIRA also mandated the timing of the INA’s exclusive judicial review.
INA § 242(b)(9) proscribes that judicial review shall be only after a final removal
order, as follows:
Judicial review of all questions of law and fact,
including interpretation and application of constitutional
and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United
States under this chapter shall be available only in
judicial review of a final order under this section.
INA § 242(b)(9).79 INA § 242(d)(1) mandates that “a court may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available . . .”80
In these new INA provisions, Congress has abbreviated judicial review to
one place and one time: only in the court of appeals and only after a final removal
order and exhaustion of all administrative remedies. In IIRIRA, Congress strictly
“judicial review of orders of removal may only be initiated in the court of appeals” under the
INA. Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir. 1998). Auguste did not address judicial
review under § 2241 habeas because Auguste, a non-criminal alien in custody, filed a habeas
petition in the district court pursuant to only INA § 106(a)(10) which provided for habeas review
under the old INA. The AEDPA repealed the habeas review in INA § 106(a)(10) and replaced it
with the version of INA § 106(a)(10) that restricted judicial review of deportation orders against
criminal aliens. Thus, whether INA § 242(g) repealed § 2241 was not discussed in Auguste.
79
INA § 242(b)(9), 8 U.S.C. § 1252(b)(9) (Supp. 1998).
80
8 U.S.C. § 1252(d)(1) (Supp. 1998). IIRIRA imposes other timing requirements to
expedite judicial review. The petition for direct review in the court of appeals must be filed 30
days after a final order, as opposed to 90 days under the pre-IIRIRA version of the INA.
Compare INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (Supp. 1998), with former INA § 106a(a)(1), 8
U.S.C. § 1105a(a)(1) (Supp. 1996).
35
regulated the exclusive mode and timing of judicial review in order to remove
overlapping jurisdiction and to prevent dilatory tactics previously used to forestall
departure of aliens.
J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against
Criminal Aliens
Even within the INA’s exclusive judicial-review scheme, Congress further
limited what a court of appeals can review after a final removal order. Of
particular relevance to Richardson is INA § 242(a)(2)(C), which provides that no
court shall have jurisdiction to review “any final order of removal against an alien
who is removable” because of certain criminal convictions, as follows:
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
212(a)(2) [covers certain controlled substance offenses]
or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense
covered by section 237(a)(2)(A)(ii) for which both
predicate offenses are, without regard to their date of
commission, otherwise covered by section
237(a)(2)(A)(i).
INA § 242(a)(2)(C).81 Section 212(a)(2)82 includes Richardson’s cocaine-
trafficking conviction.
81
8 U.S.C. § 1252(a)(2)(C) (Supp. 1998). INA § 212(a)(2) is codified in 8 U.S.C. §
1182(a)(2). INA § 237(a)(2) is codified in 8 U.S.C. § 1227(a)(2) (Supp. 1998).
82
8 U.S.C. § 1182(a)(2) (Supp. 1998).
36
New INA § 242(a)(2)(C) is similar to former INA § 106(a)(10) which also
placed restrictions on judicial review of deportation orders against criminal
aliens.83 As detailed later, this Court has upheld the judicial review restrictions in
former INA § 106(a)(10) as constitutional. Boston-Bollers v. INS, 106 F.3d 352(11th Cir. 1997).
K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions
IIRIRA also limits other aspects of the exclusive judicial review remaining
for aliens under the INA. INA § 242(a)(2)(B)(ii) limits judicial review of the
Attorney General’s discretionary decisions, as follows:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review–
83
See footnotes 74 and 176 in order to compare INA § 106(a)(10), as amended by the
AEDPA, with INA § 242(a)(2)(C), as amended by IIRIRA. IIRIRA made two amendments to
INA § 106(a)(10). First, IIRIRA § 306(d) eliminated the phrase “any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)” and
replaced it with the phrase “any offense covered by section 241(a)(2)(A)(ii) for which both
predicate offenses are, without regard to the date of their commission, otherwise covered by
section 241(a)(2)(A)(i).” IIRIRA § 306(d). This amendment was effective immediately and has
been applied by several circuits. Id.
IIRIRA’s second amendment to INA § 106(a)(10) included more substantial changes,
although the end result – new INA § 242(a)(2)(C) – is overall very similar to its predecessor. As
a technical matter, IIRIRA repealed INA § 106(a)(10) and replaced it with new INA §
242(a)(2)(C). Altering the language of INA § 106(a)(10) in several respects, IIRIRA added the
introductory phrase “Notwithstanding any other provision of law, no court shall have jurisdiction
to review . . . .” and replaced INA § 106(a)(10)’s reference to a final order of “deportation” with
a reference to a final order of “removal.” Similarly, IIRIRA changed the citations listing the
criminal offenses that precluded judicial review to the citations corresponding to the sections
amended under IIRIRA. The cumulative result of the two amendments enacted by IIRIRA is
new INA § 242(a)(2) which limits the judicial review of removal orders based on certain
criminal convictions with language similar to that in former INA § 106(a)(10).
37
...
(ii) any other decision or action of the Attorney
General the authority for which is specified under this
title to be in the discretion of the Attorney General, other
than the granting of relief under section 208(a).
INA § 242(a)(2)(B)(ii).84
IV. DISCUSSION
Against this backdrop, Richardson filed his habeas petition in the district
court under 28 U.S.C. § 2241. Given IIRIRA’s overhaul of the judicial-review
scheme in immigration cases, the first question we must address is whether INA §
242(g), as enacted by IIRIRA, has eliminated federal jurisdiction under § 2241
over Richardson’s habeas petition.85
84
8 U.S.C. § 1252(a)(2)(B)(ii) (Supp. 1998). INA § 208(a) is codified in 8 U.S.C. §
1158(a) (Supp. 1998). The INS asserts that INA § 242(a)(2)(B)(ii) is a complete bar to judicial
review of any discretionary decision to deny bond and parole to Richardson. Even if that
position is well founded, Richardson points out that he is not seeking review of the discretionary
denial of bond and parole or the discretionary authority to delegate bond decisions to the INS
district director. Instead, Richardson seeks review of his constitutional claims that denial of a
bond by the INS district director, without a bond hearing before an immigration judge, violated
his constitutional rights under the Due Process Clause of the Fifth Amendment. See footnote
179 infra.
85
28 U.S.C. § 2241 (1994) states:
(a) Writs of habeas corpus may be granted by the Supreme Court,
any justice thereof, the district courts and any circuit judge within
their respective jurisdictions. The order of a circuit judge shall be
entered in the records of the district court of the district wherein
the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge
may decline to entertain an application for a writ of habeas corpus
38
A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration
Decisions
We begin by recognizing and applying established cannons of statutory
construction applicable to immigration statutes. First, ambiguities in the law are to
be interpreted in favor of the alien.86 Second, restrictions on jurisdiction are to be
read narrowly, courts should not assume that jurisdiction is repealed unless the
statute says so explicitly, and repeals by implication of jurisdictional statutes are
disfavored.87
Although guided by these same principles, courts are divided on whether the
new INA § 242(g) abrogates statutory habeas, as provided in § 2241, over an
alien’s petition challenging detention or a final removal order. See Hose v. INS,
141 F.3d 932, 934-35 (9th Cir. 1998) (holding that INA § 242(g) deprives district
court of habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241);88 Cabrera v.
and may transfer the application for hearing and determination to
the district court having jurisdiction to entertain it.
Id.86
INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Fong Haw Tan v. Phelan, 333 U.S.
6, 9-10 (1948).
87
See McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496 (1991); Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 670-72 (1986).
88
Although Hose v. INS held that INA § 242(g) repealed § 2241 habeas over a non-
criminal alien’s claims for discretionary relief, the Ninth Circuit subsequently held that INA §
242(g) is unconstitutional when applied to certain criminal aliens who cannot obtain judicial
review under INA § 242(a)(2)(C). Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998).
39
Reno, 5 F. Supp. 2d 244, 245-46 (D.N.J. 1998) (same); Ray v. Reno, 3 F. Supp. 2d
1249, 1251 (D. Utah 1998) (same); Rusu v. Reno, 999 F. Supp. 1204, 1209-10
(N.D. Ill. 1998) (same); Mendez-Tapia v. Sonchick, 998 F. Supp. 1105, 1107 (D.
Ariz. 1998) (same); Marriott v. Ingham, 990 F. Supp. 209, 213-14 (W.D.N.Y.
1998) (same); Mustata v. United States Dep’t of Justice, 979 F. Supp. 536, 539
(W.D. Mich. 1997) (same); Mayers v. Reno, 977 F. Supp. 1457, 1461 (S.D. Fla.
1997) (same); Udenze v. Strapp, 977 F. Supp. 418, 421 (N.D. Tex. 1997) (same);
Moore v. District Director, INS, 956 F. Supp. 878, 882 (D. Neb. 1997) (same); see
also Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.) (stating in dicta that “effective
April 1, 1997, § 306(a) of the IIRIRA [INA § 242] abolishes even review under §
2241, leaving only the constitutional writ, unaided by statute”), cert. denied sub
nom, Katsoulis v. INS, 118 S. Ct. 624 (1997). But see Goncalves v. Reno, 144
F.3d 110, 113, 120-21 (1st Cir. 1998) (holding that IIRIRA did not eliminate §
2241 habeas corpus jurisdiction); Jean- Baptiste v. Reno, 144 F.3d 212, 218-20 (2d
Cir.1998)89 (same); Tam v. INS, 14 F. Supp. 2d 1184, 1187-88 (E.D. Cal. 1998)
Therefore, the Ninth Circuit concluded that INA § 242(g) does not repeal § 2241 in its entirety
but that criminal aliens may proceed in the district court under § 2241, whereas the non-criminal
alien in Hose could not proceed under § 2241.
89
A subsequent Second Circuit decision in Henderson v. Reno, 157 F.3d 106, 119 n.9 (2d
Cir. 1998), followed Jean-Baptiste but noted that “[w]ere we not bound by Jean-Baptiste, the
members of the panel would be strongly inclined to find that the proper mechanism for judicial
review is by petition for review in the courts of appeals, rather than by § 2241 habeas in the
district courts.”
40
(same); Lee v. Reno, 15 F. Supp. 2d 26, 37 (D.D.C. 1998) (same); Barrett v. INS,
997 F. Supp. 896, 900 (N.D. Ohio 1998) (same); Gutierrez-Martinez v. Reno, 989
F. Supp. 1205, 1209 (N.D. Ga. 1998) (same); Morisath v. Smith, 989 F. Supp.
1333, 1338 (W.D. Wash. 1997) (same); Mojica v. Reno, 970 F. Supp. 130, 157
(E.D.N.Y. 1997) (same).
After review, we conclude that INA § 242(g) abrogates jurisdiction over
Richardson’s § 2241 habeas corpus petition for several reasons. First, the language
of INA § 242(g) is plain and clear. INA § 242(g)’s language that “[e]xcept as
provided in this section [242] . . . no court shall have jurisdiction” clearly and
unequivocally precludes any jurisdiction in the district court except that provided
in INA § 242.90 INA § 242 does not permit the kind of habeas corpus review in the
district court Richardson sought. Instead, INA § 242 provides for judicial review
for aliens only in the court of appeals and only after a final removal order.
More importantly, INA § 242(g)’s broad admonition that it applies
“notwithstanding any other provision of law” sufficiently and clearly encompasses
90
See Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir. 1998), and footnote 78 supra.
41
other provisions of law, such as § 2241.91 When Congress says “any,” it means
“any” law, which necessarily includes § 2241.92
In addition, while INA § 242 consolidates judicial review in the court of
appeals for aliens, there is another section within INA § 242 that does permit
limited habeas corpus review under INA § 242(e)(2)93 for certain non-resident
91
8 U.S.C. § 1252(g) (emphasis supplied). See, e.g., United States v. Gonzales, 117 S. Ct.
1032, 1035 (1997) (“Read naturally the word ‘any’ has an expansive meaning, that is ‘one or
some indiscriminately of whatever kind.’”) (citation omitted); Merritt v. Dillard Paper Co., 120
F.3d 1181, 1185 (11th Cir. 1997) (“‘Congress did not add any language limiting the breadth of
that word,’ so ‘any’ means all.”) (quoting in part Gonzales, supra).92
On other occasions, this Court found that “notwithstanding any other provision of law”
means precisely “notwithstanding any other provision of law,” especially where the Court’s
jurisdiction is involved. Allen v. David, 334 F.2d 592, 597-98 (5th Cir. 1964); United States v.
C.E. Sykes, 310 F.2d 417, 419-20 (5th Cir. 1962).
93
INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp. 1998), provides for habeas review for
non-resident arriving aliens subject to expedited and summary removal under 8 U.S.C. §
1225(b)(1):
(2) Habeas corpus proceedings
Judicial review of any determination made under section 235(b)(1)
is available in habeas corpus proceedings, but shall be limited to
determinations of –
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such
section, and
(C) whether the petitioner can prove by a preponderance of
the evidence that the petitioner is an alien lawfully admitted for
permanent residence, has been admitted as a refugee under section
207, or has been granted asylum under section 208 of this title,
such status not having been terminated, and is entitled to such
further inquiry as prescribed by the Attorney General pursuant to
Section 235(b)(1)(C).
INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp. 1998). INA § 235(b)(1) is codified in 8 U.S.C. §
1225(b)(1) (Supp. 1998). INA § 207 is codified in 8 U.S.C. § 1157 (Supp. 1998). INA § 208 is
42
arriving aliens. INA § 235(b)(1) permits a single immigration officer to remove
summarily a non-resident arriving alien without a removal hearing or review,
unless the alien indicates an intention to apply for asylum or indicates fear of
persecution.94 Therefore, INA § 242(e)(2) provides for statutory habeas review
under the INA in this narrowly limited situation.95 This evidences Congress’
ability to create statutory habeas review under the INA when it so desires.
Congress’ express provision of some limited habeas review within § 242 of the
INA underscores Congress’ clear intent in INA § 242(g) that no court shall have
jurisdiction over immigration decisions except as provided under INA § 242.96
Second, in addition to the sweeping language of new INA § 242(g), the
elimination of INA § 106(a)(10)’s habeas corpus review by the AEDPA further
evidences congressional intent to preclude statutory habeas corpus review over
immigration decisions. AEDPA § 440 first eliminated the specific habeas review
codified in 8 U.S.C. § 1158 (Supp. 1998). This procedure, originally called “summary
exclusion,” was created by the AEDPA but modified by IIRIRA before taking effect.
94
INA § 235(b)(1), 8 U.S.C. § 1255(b)(1) (Supp. 1998).
95
See footnote 93.
96
See, e.g., United States v. White, 118 F.3d 739, 742 (11th Cir. 1997) (“The selection of
the statutes set forth [in the Act] reflects an intent to omit all others.”); United States v. Koonce,
991 F.2d 693, 698 (11th Cir. 1993) (“The canon of statutory construction that the inclusion of
one implies the exclusion of others is well-established.”).
43
granted under former INA § 106(a)(10).97 Then IIRIRA enacted the broad
language of INA § 242(g) that “notwithstanding any other provision of law, no
court shall have jurisdiction except as provided under INA § 242.”98 Thus, the
AEDPA and IIRIRA reflect Congress’ clear intent to avoid unduly protracted
litigation over removal orders against resident aliens by consolidating all judicial
challenges in the courts of appeals under INA § 242(b)(2) after a final removal
order, and by removing all district-court jurisdiction, including § 2241 habeas
jurisdiction, over immigration decisions.99 Accordingly, we conclude that INA §
242(g) repeals any statutory jurisdiction over immigration decisions other than that
conferred by INA § 242. That repeal includes § 2241 habeas jurisdiction over
immigration decisions by the Attorney General under the INA.
Richardson’s main argument is that § 2241 habeas corpus jurisdiction
survives IIRIRA’s enactment of new INA § 242(g) because INA § 242(g) fails to
97
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
98
8 U.S.C. § 1252(g) (Supp. 1998).
99
See, e.g., H. Rep. No. 104-469(I) (1996). Indeed, INA § 242(g), along with INA §
242(b)(9), should be properly understood not as an attempt to divest the courts of jurisdiction
they previously possessed, but as Congress’ effort to make absolutely clear what should have
been apparent under the INA and AEDPA all along: that review of INS’ conduct of deportation
proceedings is available only after the entry of a final order of deportation, and only under the
INA provisions specifically provided for that purpose.
44
mention § 2241 expressly.100 Richardson emphasizes the presumption against
implied repeal of habeas corpus jurisdiction addressed in Felker v. Turpin, 518
U.S. 651 (1996).
However, the jurisdictional repeal at issue in Felker was much narrower than
the repealing language of INA § 242(g). AEDPA § 106(b)(3)(E) repealed a narrow
class of Supreme Court jurisdiction – the Court’s review of a court of appeals
decision denying or granting authorization to file a second or successive habeas
corpus petition.101 In addition, AEDPA § 106(b) specifically cited § 2244(b) as the
statute it amended. In Felker, the Supreme Court determined that this express
prohibition of a specific, limited form of judicial review of second or successive
habeas corpus petitions, did not also repeal by implication the Supreme Court’s
original jurisdiction to entertain habeas petitions.102
100
Richardson also asserts that INA § 242(g) affects only final removal orders and that the
INS ignores the critical distinction between review of interim detention orders – denying
admission, bond and parole – and review of final removal orders. We disagree. The INS’
interim orders and actions are not collateral proceedings but are inextricably part of the removal
proceedings and covered by the broad language of INA § 242(g). See, e.g., United States v.
Chada, 462 U.S. 919, 938 (1983); Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996).
101
Felker, 518 U.S. at 661. Specifically, AEDPA § 106(b)(3)(E) states “the grant or
denial of an authorization by a court of appeals to file a second or successive application shall
not be appealable and shall not be the subject of a petition for rehearing or for writ of certiorari.”
28 U.S.C. § 2244(b)(3)(E) (Supp. 1998).
102
Felker, 518 U.S. at 660.
45
Conversely, the repeal of jurisdiction under INA § 242(g) is much broader.
INA § 242(g) does not address a limited set of statutory provisions. Instead, the
jurisdiction-repealing language in INA § 242(g) states comprehensively that
“[e]xcept as provided in this section and notwithstanding any other provision of
law, no court shall have jurisdiction” over the specified claims.103 INA § 242(g)
expressly repeals any and all jurisdiction except that conferred by INA § 242.
Unlike Felker, the language of INA § 242(g) does not require repeal by
implication. Indeed, Congress could hardly have chosen broader language to
convey its intent to repeal any and all jurisdiction except that provided by INA §
242.
Based on the foregoing, we conclude that INA § 242(g) repealed § 2241
habeas jurisdiction over Richardson’s claims challenging his executive detention
without bond and removal order and that the district court erred in exercising
jurisdiction under § 2241.
B. No Constitutional Infirmities to Avoid
Richardson asserts that IIRIRA’s elimination of § 2241 jurisdiction means
he has no judicial review of his executive detention. Although conceding many
aliens can still obtain judicial review in the court of appeals under the INA,
103
8 U.S.C. § 1252(g) (Supp. 1998).
46
Richardson stresses that other limitations within the INA’s judicial-review scheme
result in his having no judicial review whatsoever. Richardson contends, for
example, that INA § 242(a)(2)(C) adds other limits to the judicial review available
to criminal aliens and thus he has no judicial review under the INA. Richardson
argues that no judicial review whatsoever of his executive detention violates the
Due Process Clause, Article III, and the Suspension Clause. For those reasons,
Richardson submits INA § 242(g) cannot repeal § 2241 habeas.
The INS responds that INA § 242(g)’s repeal of § 2241 habeas jurisdiction
over immigration decisions creates no constitutional infirmities because the INA
does not eliminate all judicial review for Richardson. According to the INS, these
new INA provisions, enacted by IIRIRA, do not “operate to bar the court of
appeals from redressing substantial claims of constitutional error as part of the
petition for review” of any final removal order against criminal aliens. The INS
and Richardson vigorously dispute how much judicial review is required under the
INA to avoid constitutional infirmities arising from the INA’s repeal of § 2241
habeas jurisdiction over immigration decisions. The INS concedes only that any
constitutionally required judicial review of administrative agency decisions must
occur under the INA and in the form of a petition for review in the court of appeals
after a final removal order.
47
Richardson rejoins that the other circuits have held that INA § 242(g) does
not repeal § 2241 habeas, in large part, to avoid what the Second Circuit described
as “serious constitutional issues” in Jean-Baptiste104 or what the First Circuit
termed “serious, novel and complex constitutional issues” in Goncalves, stating:
Finally, our refusal to find express repeal of § 2241 in
new INA § 242(g) eliminates the need to address serious,
novel and complex constitutional issues. We would be
loathe to find a repeal where that repeal creates serious
constitutional problems. We note these constitutional
concerns briefly to underscore the wisdom of avoiding
them.
Goncalves, 144 F.3d at 122.105 Similarly, in Jean-Baptiste, the Second Circuit
outlined how historically habeas was available to aliens, why permanent resident
aliens enjoy procedural due process rights, and avoided what it foresaw as “serious
constitutional issues” under the Suspension Clause and Due Process Clause. Jean-
104
144 F.3d at 219.
105
Goncalves was a 25-year permanent resident alien subject to a deportation order
because of certain criminal convictions. 144 F.3d at 114. His application for discretionary relief
under former INA § 212(c), 8 U.S.C. § 1182(c), was denied by the INS because the AEDPA
made him ineligible for such relief. Id. AEDPA § 440(d) greatly expanded the category of
criminal convictions rendering an alien ineligible to apply for INA § 212(c) relief. Id.
Goncalves filed a § 2241 habeas, rather than a petition for direct review in the court of appeals.
Id. at 115. The First Circuit held that jurisdiction existed under § 2241 habeas, that § 2241
habeas encompassed legal issues based on statutory construction as well as constitutional claims,
and that the AEDPA § 440(d) did not apply retroactively to Goncalves. Id. at 123. But compare
Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997) (holding AEDPA § 440(d), effective April
24, 1996, applies retroactively and listing six other circuits reaching same result). See footnote
110 infra.
48
Baptiste, 144 F.3d at 219. The Second Circuit worried that without § 2241 habeas,
a permanent resident criminal alien would lack a forum in which to vindicate
substantial constitutional rights. Id.106 We agree with Richardson that both the
First and Second Circuits’ holdings that INA § 242(g) did not repeal § 2241,
stemmed from their adopting a principle of “constitutional avoidance,” as opposed
to following the plain language of INA § 242(g).
We reject this “constitutional avoidance” approach for two reasons. First,
although courts wisely prefer avoiding thorny constitutional issues, the language of
INA § 242(g), in our view, is plain, unambiguous, and yields only one permissible
statutory construction. See United States v. Locke, 471 U.S. 84, 96 (1985)
(“[c]ourts cannot press statutory construction ‘to the point of disingenuous
106
In Jean-Baptiste, two permanent resident aliens and one conditional permanent resident
alien faced deportation under INA §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) for criminal
convictions involving controlled substances. 144 F.3d at 214. Alleging that the INS’
deportation procedures deprived them of due process, the aliens filed a proposed class action in
district court in which they sought to enjoin their deportation proceedings. Id. The district court
dismissed the aliens’ complaint for failure to state a claim upon which relief could be granted
under Fed. R. Civ. P. 12(b)(6), and the aliens appealed. Id.
Holding that INA § 242(g) eliminated the district court’s jurisdiction over the aliens’
proposed class action, the Second Circuit affirmed the district court’s dismissal of the complaint.
Id. at 218-220. Nevertheless, the court held that INA § 242(g) did not repeal § 2241 jurisdiction
over petitions for habeas relief by aliens facing removal from the United States. Id. at 220. The
Second Circuit still dismissed the aliens’ complaint because they “sought federal court
jurisdiction under 28 U.S.C. § 1331, not habeas jurisdiction under U.S.C. § 2241.” Id. at 220.
However, the court noted that “in finding that § 2241 habeas review remains available for aliens
deemed deportable under certain circumstances to raise constitutional questions, we express no
opinion on the permissible scope of that review.” Id.
49
evasion’ even to avoid a constitutional question.”); American-Arab Anti-
Discrimination Comm. v. Reno, 132 F.3d 531, 532-33 (9th Cir. 1997)
(O’Scannlain, J., dissenting from the denial of rehearing en banc) (“Whatever the
merits of constitutional avoidance might be, no court may ‘avoid’ a perceived
conflict when the text is unambiguous, as it is here. The avoidance canon, invoked
with such abandon, amounts to nothing less than rewriting the statute.”), cert.
granted, 118 S. Ct. 2059 (June 1, 1998).107
Second, examining, not avoiding, Richardson’s constitutional concerns, we
find that INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration
decisions does not violate the Due Process Clause and Article III because neither
provision mandates judicial review of immigration decisions. This repeal also does
not violate the Suspension Clause because Richardson still has adequate and
effective judicial review available under the INA. In light of these significant
constitutional issues, we outline why in considerable detail.
C. Eleventh Circuit’s Boston-Bollers Decision
This Circuit already has upheld as constitutional the similar, restricted
judicial review afforded criminal aliens under former INA § 106(a)(10), enacted by
the AEDPA. Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997). Although
107
See footnote 169 infra.
50
decided before the effective date of IIRIRA’s repeal of § 2241108 and involving a
slightly different statute, Boston-Bollers is our necessary starting point because it
held that INA § 106(a)(10)’s precluding judicial review of a deportation order
against a permanent resident criminal alien109 did not violate the Due Process
Clause or Article III.110
Quoting from Reno v. Flores, 507 U.S. 292, 305 (1993), this Court
recognized that the “responsibility for regulating the relationship between the
United States and our alien visitors has been committed to the political branches of
the Federal Government,” and that “over no conceivable subject is the legislative
108
Boston-Bollers was decided on February 5, 1997. Although Congress enacted IIRIRA
on September 30, 1996, with some limited technical amendments thereafter in October 1996,
IIRIRA § 309(a) provided for a general effective date of April 1, 1997. Although there is some
dispute over whether certain parts of IIRIRA were effective immediately on September 30, 1996,
or only after April 1, 1997, Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir. 1997), that question
is of no continuing significance because both dates have now passed.
109
Paul Boston-Bollers entered the United States as a lawful permanent resident in
January 1987. 106 F.3d at 353. In 1992, Boston-Bollers pled guilty to second-degree murder
which made him deportable under INA § 241(a)(2)(A)(iii) for a conviction of an “aggravated
felony” as defined under the INA. Id.
110
In holding that AEDPA applied retroactively to Boston-Bollers’ pending appeal, this
Court found that INA § 106(a)(10), as enacted by AEDPA § 440(d), did not impair Boston-
Bollers’ substantive rights but was a jurisdiction-eliminating statute. Therefore, this Court
declined to apply the Supreme Court’s presumption against the retroactive application of statutes
which impair substantive rights, citing Landgraf v. USI Film Prod., 511 U.S. 244, 265 (1994).
Boston-Bollers, 106 F.3d at 354 (listing six other circuits reaching same result). See footnote
105 supra.
51
power of Congress more complete.” Boston-Bollers, 106 F.3d at 355.111
Accordingly, this Court determined that INA § 106(a)(10) did not violate the Due
Process Clause because deportation is not a criminal proceeding or punishment and
no judicial review is guaranteed by the Due Process Clause, stating:
This restriction of federal court jurisdiction does not
violate the Due Process Clause. As the Supreme Court
stated in Carlson v. Landon, “[t]he power to expel aliens,
being essentially a power of the political branches of
government, the legislative and executive, may be
exercised entirely though executive officers, with such
opportunity for judicial review of their action as congress
may see fit to authorize or permit.” 342 U.S. 524, 537,
72 S. Ct. 525, 532-33, 96 L.Ed. 547 (1952) (internal
quotation omitted). And since “[d]eportation is not a
criminal proceeding and has never been held to be
punishment . . . [n]o judicial review is guaranteed by the
Constitution.” Id. at 537, 72 S. Ct. at 533 (footnote
omitted). Because the Constitution does not give aliens
the right to judicial review of deportation orders, section
440(a)(10) does not violate the Due Process Clause.
106 F.3d at 355.112
111
See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (noting
that this Court’s decisions “have long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government’s political departments largely
immune from judicial control.”); Fiallo v. Bell, 430 U.S. 787, 794-95 (1977); Kleindienst v.
Mandel, 408 U.S. 753, 765-67 (1972); Harisiades v. Shaughnessy, 342 U.S. 580, 588-90 (1952).
112
In Carlson v. Landon, 342 U.S. 524, 528-29 (1952), the alien brought a habeas corpus
petition alleging his detention without bond violated the Due Process Clause of the Fifth
Amendment and the Eighth Amendment. Because the alien had access to a petition for habeas,
there was no claim of conflict with the Suspension Clause. Id. at 528. The Supreme Court found
no Due Process Clause or Eighth Amendment violation for the reasons quoted above in Boston-
Bollers. Carlson, 342 U.S. at 537. However, in between these quotations about the executive
52
In addition, this Court concluded that former INA § 106(a)(10) did not
offend Article III because Congress and the executive branch exercise plenary
authority over immigration regulation. Id. at 355. We also recognized that “the
federal appellate courts have ‘jurisdiction to review certain final orders of
deportation and exclusion against aliens only because Congress has conferred it.’”
106 F.3d at 354 (quoting Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir. 1996).
Accordingly, this Court concluded that INA § 106(a)(10)’s restricting judicial
review of deportation orders against criminal aliens “not only does not violate
Article III, it is illustrative of the concept of separation of powers envisioned by the
Constitution.” Id.
Boston-Bollers would resolve Richardson’s constitutional concerns were it
not for two facts: (1) when this Court interpreted former INA § 106(a)(10) in
Boston-Bollers, IIRIRA’s repeal of § 2241 was not yet effective, and (2) in a
footnote, this Court in Boston-Bollers expressly recognized that whether INA §
106(a)(10) precluded judicial review of deportation orders against criminal aliens
“via a writ of habeas corpus” was not presented in that appeal. Id. at 354 n.1.113
and legislative power over expelling aliens, the Supreme Court also stated: “This power is, of
course, subject to judicial intervention under the ‘paramount law of the Constitution.’” Carlson,
342 U.S. at 537 n.27 (citing a long line of Supreme Court precedent).
113
Boston-Bollers was before this Court on a petition for direct review of a final
deportation order. Both parties agreed “that the issue of whether section 440(a)(10) precludes
53
While Boston-Bollers informs our analysis, we recognize that it was decided
under INA § 106(a)(10) as enacted by the AEDPA, was not colored by the same
constitutional concerns created by IIRIRA’s repeal of § 2241 habeas in INA §
242(g), and did not address the restrictions now in INA § 242(a)(2)(C) on judicial
review of deportation orders against criminal aliens. Nonetheless, we find that
these additional circumstances still do not create constitutional infirmities in
IIRIRA’s new judicial-review scheme. We reach this conclusion not only for the
reasons outlined in Boston-Bollers but also because Congress clearly has the
authority (a) to repeal § 2241 jurisdiction over immigration decisions, (b) to
legislate that all judicial review of immigration decisions must be exclusively
under the INA, and (c) to regulate the exclusive mode and precise timing of that
judicial review within the INA’s provisions. As shown below, Congress’ repeal of
§ 2241 and its enactment of the requirement that all judicial review now be
exclusively under the INA, in the court of appeals, and after a final removal order
judicial review of deportation orders via a writ of habeas corpus is not presented in this appeal.”
106 F.3d at 354 n.1. In Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.), cert. denied sub nom,
Katsoulis v. INS, 118 S. Ct. 624 (1997), the Seventh Circuit noted that four courts of appeal have
rejected contentions that INA § 106(a)(10) violates the Constitution but the Yang court pointed
out that “they observe that limited opportunity to apply for a writ of habeas corpus may remain,”
citing Kolster v. INS, 101 F.3d 785, 790-91 (1st Cir. 1996); Hincepie-Nicto v. INS, 92 F.3d 27,
30-31 (2d Cir. 1996); Duldulao v. INS, 90 F.3d 396, 399-400 & n.4 (9th Cir. 1996). See also
Morel v. INS, 144 F.3d 248, 251 (3d Cir. 1998); Mansour v. INS, 123 F.3d 423, 426 (6th Cir.
1997); Williams v. INS, 114 F.3d 82, 83-84 (5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151,
1154 (10th Cir. 1997).
54
do not violate the Due Process Clause, Article III, or the Suspension Clause. We
now examine each such constitutional provision in turn.
D. Due Process Clause
Permanent resident aliens are protected by the Due Process Clause of the
Fifth Amendment which provides that “[n]o person shall be . . . deprived of life,
liberty or property, without due process of law . . .” U.S. Const. amend. V.
Although the political branches exercise plenary control over the admission and
removal of aliens, INS v. Chadha, 462 U.S. 919 (1983), this plenary authority is
subject to the limits of the Constitution. See, e.g., Galvan v. Press, 347 U.S. 522,
531 (1954); Carlson v. Landon, 342 U.S. 524, 533 (1952).
While an alien seeking initial admission to the United States has no
constitutional rights regarding an application for admission, United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), “once an alien gains admission
to our country and begins to develop the ties that go with permanent residence his
constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). The
Supreme Court has held that a permanent resident alien “continuously present” in
the United States has a right to procedural due process in any proceedings to
55
remove that alien from the country.114 See, e.g., Reno v. Flores, 507 U.S. 292(1993); Landon v. Plasencia, 459 U.S. at 21.115 At the core of the alien’s due
process rights is the right to notice of the nature of the charges and a meaningful
opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590,
596-98 (1953).
Removal proceedings under the INA are not criminal proceedings and are
not summary ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th
Cir. 1997). Instead, removal proceedings are imbued with procedural safeguards
that satisfy the Due Process Clause. The alien has the right to notice, the
114
Although Richardson’s leaving the United States may have changed his legal status
under INA § 101(a)(13)(C) to an arriving alien “seeking admission” due to his criminal
convictions, we assume solely for purposes of this case that it did not change his constitutional
status in light of his thirty-year permanent residency in the United States.
Specifically, the Supreme Court instructs that “[w]e do not regard the constitutional
status which petitioner indisputably enjoyed prior to his voyage as terminated by that voyage.
From a constitutional point of view, he is entitled to due process without regard to whether or
not, for immigration purposes, he is to be treated as an entrant alien.” Kwong Hai Chew v.
Colding, 344 U.S. 590, 600 (1953). The alien in Chew was a lawful permanent resident who
worked on an American ship. Id. at 592. He was on a voyage to the Far East for about four
months. Id. at 594. Upon his return, he was denied entry to the United States under an
immigration regulation which allowed the Attorney General to exclude certain aliens without a
hearing when information relating to the exclusion would “be prejudicial to the public interest.”
Id. Thus, not only was Chew excluded and detained, he also was denied any notice of the
reasons for his exclusion and any opportunity to challenge those reasons. In contrast,
Richardson has been afforded extensive procedural safeguards in his removal proceedings.
115
In Landon v. Plasencia, 459 U.S. 21, 31 (1982), the Supreme Court stated: “although
we have only rarely held that the procedures provided by the executive were inadequate, we
developed the rule that a continuously present permanent resident alien has a right to due process
. . . ,” citing United States ex rel. Vajtauer v. Comm’r of Immigration, 273 U.S. 103, 106 (1927);
Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903); United States ex rel. Tisi v. Tod, 264
U.S. 131, 133 (1924); Low Wah Suey v. Backus, 225 U.S. 460 (1912).
56
opportunity to present evidence and cross examine witnesses, and the right to do so
with the assistance of counsel at a hearing before an immigration judge.116 Given
these procedural safeguards, no judicial review is required to provide the process
due to a permanent resident alien facing removal. See, e.g., Carlson v. Landon,
342 U.S. 524, 537 (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 109
F.3d 1185, 1196-97 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct.
624 (1997).117 Therefore, the fact that IIRIRA repeals § 2241 habeas jurisdiction
over immigration decisions, provides for exclusive judicial review under the INA,
and within that INA scheme further limits the mode, timing and types of issues for
which Richardson can seek judicial review under the INA, does not violate the Due
Process Clause.
We recognize that Richardson also asserts that the INA’s limiting his bond
requests in these removal proceedings to written request to the INS district
director, without any judicial review by an immigration judge, deprives him of due
process. We disagree. The sufficiency of that process is evaluated under the three
factors outlined in Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976): (1) a
116
See footnotes 62-67 supra.
117
“The role of the judiciary is limited to determining whether the procedures meet the
essential standard of fairness under the Due Process Clause and does not extend to imposing
procedures that merely displace congressional choices of policy.” Landon v. Plasencia, 459 U.S.
21, 32-33 (1982) (emphasis supplied).
57
petitioner’s interest in additional procedures; (2) the “risk” of the procedure; and
(3) the government’s interest in the procedure. Richardson’s “liberty interest”
under the Due Process Clause is weighty, although slightly attenuated given his
resident alien status.118 However, the “risk” factor is low, as Richardson’s counsel
was able to make written bond and parole requests to the INS district director,
supported by evidence, which here included several documents and affidavits on
Richardson’s behalf.
In contrast, the INS’ interest is fairly high in its district director’s being able
to make parole and bond decisions for arriving aliens facing removal proceedings
in that district without a subsequent hearing before an immigration judge. Given
the volume of arriving aliens and numerous ports of entry, it simplifies the
procedures, expedites consideration, and reduces costs, while still giving the alien
an opportunity to request bond and parole.119 Being the initial step in the removal
118
See, e.g., Matthews v. Diaz, 426 U.S. 67, 80 (1976) (“Congress regularly makes rules
that would be unacceptable if applied to citizens.”).
119
Congress acts well within its plenary power in mandating detention of a criminal alien
with an aggravated felony conviction facing removal proceedings. See INA § 236(c), 8 U.S.C. §
1226(c) (Supp. 1998); TPCRs in IIRIRA § 303(b)(3). This poses no constitutional issue, for the
Supreme Court already has stated that “[t]he Eighth Amendment has not prevented Congress
from defining the classes of cases in which bail shall be allowed . . .” Carlson v. Landon, 342
U.S. at 545. The Supreme Court has determined that bail need not be provided in all
immigration cases. Id. at 546. More importantly, Richardson does not challenge the INS district
director’s denial of his release request as incorrect under the INS regulations or show why the
opportunity to be heard by the regulations governing bond and parole was inadequate.
58
proceedings, the INS’ bond and parole procedures also must be evaluated in light
of the many procedural safeguards in the overall removal proceedings. Indeed,
Richardson received a plenary removal hearing before an immigration judge.
Richardson has shown no due process violation.
E. Article III
IIRIRA’s repeal of § 2241 habeas over INS decisions also does not violate
Article III. While § 2 of Article III extends the judicial power to “all cases . . .
arising under the Constitution,” § 1 of Article III provides that this judicial power
shall be vested “in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.” U.S. Const. art. III §§ 1, 2. Even if
Richardson had no judicial review available in the district court under § 2241 or in
the court of appeals under the INA, Article III does not mandate the judicial review
of immigration decisions in any inferior court. Instead, Congress possesses the
sole authority to establish the jurisdiction of the inferior federal courts.120
120
See Morel v. INS, 144 F.3d 248, 251 (3d Cir. 1998); Chow v. INS, 113 F.3d 659, 668
(7th Cir. 1997); Yang v. INS, 109 F.3d 1185, 1196 (7th Cir.) cert. denied sub nom, Katsoulis v.
INS, 118 S. Ct. 624 (1997). In finding lack of jurisdiction under former INA § 106(a)(10) over
Morel’s appeal of a final deportation order, the Third Circuit stated that “we do not see any
deprivation of his rights which is of constitutional proportion,” noting “the INS concedes that §
440(a) [INA § 106(a)(10)] does not preclude Article III court review of claims of substantial
Constitutional error.” Morel, 144 F.3d at 251. Finding Morel’s appeal raised only a “question of
law,” the Third Circuit concluded that “relevant Supreme Court authority does not mandate
judicial review by an Article III court of questions of law underlying legislatively-created public
rights such as immigration. See Crowell v. Benson, 285 U.S. 22 (1932) (drawing a distinction
between public and private rights and listing immigration as an exemplar of a public right).”
59
The jurisdiction of the inferior federal courts are created by statute and
jurisdiction does not exist except to the extent conferred by statute. Sheldon v. Sill,
49 U.S. (8 How.) 441, 449 (1850). Therefore, inferior federal courts must have
some statutory basis upon which to retain jurisdiction regardless of the character of
Richardson’s claims. Similar to many congressionally enacted limits on federal
jurisdiction, Article III does not preclude Congress from removing all judicial
review over immigration decisions from the inferior courts.121
F. Suspension Clause
Contending that he has no judicial review available under the INA,
Richardson asserts that the Suspension Clause entitles him to judicial review, and
thus Richardson argues INA § 242(g) cannot be read to repeal § 2241 habeas. The
Morel, 144 F.3d at 252.
121
Congress has established significant limits on federal jurisdiction throughout history
and continuing today. For example, during the first century of the nation’s existence, the inferior
courts lacked federal-question jurisdiction; and, until 1976 the federal-question jurisdiction
remained restricted by an amount-in-controversy requirement. Yang v. INS, 109 at 1195. The
Seventh Circuit in Chow v. INS, 113 F.3d 659, 668 (7th Cir. 1997), also outlined the following
reasons why the AEDPA’s enacting INA § 106(a)(10), restricting judicial review of deportation
orders against criminal aliens, does not offend Article III. Although Article III enumerates cases
over which the judicial power shall extend, Article III, however, grants Congress the power “to
ordain and establish” such lower federal courts and courts of appeal. Keene Corp. v. United
States, 508 U.S. 200, 207 (1993); Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458
U.S. 50, 57-60 (1982); Chow, 113 F.3d at 670. The Constitution does not prescribe how much
judicial power must vest in the inferior courts and leaves it to Congress to make that decision.
Id. Thus, the Seventh Circuit found that the INA, that limits the lower courts’ jurisdiction, is not
unconstitutional unless it confers powers not enumerated in the Constitution. Sheldon, 49 U.S.
(8 How.) at 449. Therefore, the court concluded that the INA does not offend Article III or the
separation of powers. Id.60
Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.” U.S. Const. art. I § 9. Since “the traditional Great Writ was
largely a remedy against executive detention,”122 the INS concedes that the
Suspension Clause requires some limited judicial review of Richardson’s executive
detention. The INS emphasizes, however, that any constitutionally required
judicial review (a) must be found under the INA and not § 2241 habeas, and (b) is
limited to only “substantial constitutional claims” or “substantial claims of
constitutional error.”123
122
Swain v. Pressley, 430 U.S. at 386 (Burger, C.J., concurring). The Second Circuit also
emphasized that “[t]he primary historical use of the writ of habeas corpus was precisely against
executive detention. See Felker, 518 U.S. at 663 (noting that the writ originally only extended to
prisoners in federal custody who were not “detained in prison by virtue of the judgment of a
court” (citation and internal quotation marks omitted)).” Henderson, 157 F.3d at 120; see also
Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring) (“[T]he historic purpose of
the writ has been to relieve detention by executive authorities without judicial trial.”).
123
The Second Circuit in Henderson observed that “the government itself does not argue
that the 1996 amendments completely forbid judicial review of deportation against criminal
aliens . . . . In its view, the courts are only empowered to examine petitions presenting
‘substantial’ or ‘colorable’ constitutional claims, and not petitions involving ‘mere’ questions of
statutory law.” Henderson, 157 F.3d at 119. As the Second Circuit also noted, “[a]nd well [the
INS] might concede this point, for the Supreme Court decided more than seventy-five years ago
that the Constitution required judicial review of the executive’s decision that a person facing
deportation was a non-citizen.” Henderson, 157 F.3d at 122 n.14 (citing Ng Fung Ho v. White,
259 U.S. 276 (1922)). In Ng Fung Ho, the Supreme Court stated that the precise question in that
habeas petition was whether a claim of citizenship by a resident entitles him to judicial review of
his claim. 259 U.S. 276, 282 (1922). The Court held that “[j]urisdiction in the executive to
order deportation exists only if the person arrested is an alien. The claim of citizenship is thus a
denial of an essential jurisdictional fact.” Id. at 284.
61
The Supreme Court has not defined the level of judicial review preserved by
the Suspension Clause, unaided by § 2241 or its precursor statutes, because
statutory habeas review historically has been available since 1789.124 Both parties
repeatedly cite Heikkila v. Barber, 345 U.S. 229 (1953), in which the Supreme
Court held that “the 1917 Immigration Act . . . clearly had the effect of precluding
judicial intervention in deportation cases except insofar as it was required by the
Constitution.” Id. at 234-35. The Supreme Court upheld the preclusion of judicial
review in the 1917 Act, but in the context of statutory habeas remaining available,
stating:
124
The United States Constitution became effective on March 4, 1789. In September
1789, the First Congress passed the Judiciary Act of 1789. Section 14 of the Judiciary Act
granted the federal courts jurisdiction to issue writs of habeas corpus. 1 Stat. 81 (1789).
In 1867, Congress significantly expanded federal jurisdiction to issue writs of habeas
corpus. 14 Stat. 385 (1867). The Supreme Court has recognized that this amendment to federal
habeas jurisdiction increased the scope of habeas review beyond the “bare legal review” of the
common-law writ. Johnson v. Zerbst, 304 U.S. 458, 466 (1938); see also McClesky v. Zant 499
U.S. 467, 477 (1991) (noting inter alia that the 1867 amendments expanded availability of the
writ in federal court to people held in state custody). Accordingly, the Court has concluded that
this revision to habeas jurisdiction conferred on federal courts the ability to determine the
legality and constitutionality of a person’s detention even if “the proceedings resulting in
incarceration may be unassailable on the face of the record.” United States v. Hayman, 342 U.S.
205, 212 (1952).
Over the years, Congress amended habeas jurisdiction several times. For the most part,
these amendments have related to the form and procedure for seeking the writ and to the
codification of federal statutes in 1874 and 1948. Rev. Stat. §§ 751-766 (1874); 62 Stat. 869(1948). However, the Supreme Court has recently recognized that the Judiciary Act of 1789 is
the “direct ancestor” of 28 U.S.C. § 2241(a) and the 1867 amendments to the Judiciary Act are
the “direct ancestor” of 28 U.S.C. § 2241(c). Felker, 518 U.S. at 659 n. 1 & 2; see also Hayman,
342 U.S. at 211 n. 11 (noting that the 1867 Act is [n]ow incorporated in 28 U.S.C. (Supp. IV) §
2241 et seq.”
62
The rule which we reaffirm recognizes the legislative
power to prescribe applicable procedures for those who
would contest deportation orders. Congress may well
have thought that habeas corpus, despite its apparent
inconvenience to the alien, should be the exclusive
remedy in these cases in order to minimize opportunities
for repetitious litigation and consequent delays as well as
to avoid possible venue difficulties connected with any
other type of action.
Id. at 237. Thus, Heikkila does not resolve the issue here of whether IIRIRA’s
repeal of § 2241 habeas would violate the Suspension Clause if Richardson has no
judicial review under the INA.125
Unguided by direct Supreme Court precedent, the Second, Seventh, and
Ninth Circuits have thoughtfully addressed and reached different conclusions about
what level of judicial review is protected by the Suspension Clause, what scope of
125
Both Richardson and the INS cite Webster v. Doe, 486 U.S. 592, 603 (1988), which
involved a discharge of a government employee based on sexual preference. Chief Justice
Rehnquist’s majority opinion in Webster states it reached certain conclusions “to avoid the
‘serious constitutional question’ that would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim.” (quoting Bowen v. Michigan Academy of
Family Physicians, 476 U.S. 667, 681 n.12 (1986)). Since we find that certain judicial review
remains under the INA, as outlined infra, this case also does not present a denial of all judicial
review.
Also, two dissents stated that judicial review is not required over constitutional claims
challenging the validity of employment decisions by the Central Intelligence Agency. In his
dissent, Justice Scalia pointed out that “the denial of all judicial review is not at issue,” but
“merely the denial of review in United States district courts.” Id. at 611. Since Article III, § 1
provides that the judicial power shall be vested “in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish,” Justice Scalia stressed that
“[w]e long ago held that the power not to create any lower federal courts at all includes the
power to invest them with less than all the judicial power.” Id. His dissent concluded that
Congress can prescribe that for certain jobs, the dismissal decision is “committed to agency
discretion by law” and “that not all constitutional claims require a judicial remedy.” Id. at 614.
63
judicial review the INA provides, and whether constitutional infirmities are created
by INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration decisions.
The Second and Ninth Circuits have outlined in great detail the two-hundred year
history of the Suspension Clause and why the Great Writ protected by the
Suspension Clause (whether under an originalist approach as it existed in 1789 or
today) requires judicial review of an alien’s executive detention that is the
equivalent of § 2241 habeas. Magano-Pizano v. INS, 152 F.3d 1213, 1217-21 (9th
Cir. 1998); Henderson v. INS, 157 F.3d 106, 112-21 (2d Cir. 1998). In Magano-
Pizano, the Ninth Circuit concluded that INA § 242(g)’s repeal of § 2241 habeas
violated the Suspension Clause. In Jean-Baptiste, 141 F.3d 212 (2d Cir. 1998), the
Second Circuit, in order to avoid the Suspension Clause issue, held that INA §
242(g) did not repeal § 2241 habeas. A subsequent panel of the Second Circuit in
Henderson followed yet questioned the correctness of the Jean-Baptiste decision.
The Seventh Circuit took a different approach. After outlining the history of
§ 2241 habeas and the Suspension Clause, the Seventh Circuit agreed that “[a]liens
may seek the writ that Art. I § 9 cl. 2 preserves against suspension.” Yang v. INS,
109 F.3d 1185, 1195 (7th Cir. 1997). However, the Seventh Circuit found that “28
U.S.C. § 2241 offers an opportunity for collateral attack more expansive than the
Great Writ preserved in the Constitution.” Id. While Yang’s direct holding
64
involved the restrictions on a criminal alien’s judicial review under former INA §
106(a)(10), the Seventh Circuit noted that “effective April 1, 1997, § 306(a) of the
IIRIRA [INA § 242] abolishes even review under § 2241, leaving only the
constitutional writ, unaided by statute.” Id. The Seventh Circuit found that the
particular errors of law and discretionary INS decision of which Yang, a criminal
alien in custody, sought judicial review were simply not protected by the “Great
Writ.” Id. Similarly, the Seventh Circuit noted there is a “vast gulf between the
non-suspendable constitutional writ” and certain other forms of judicial review,
such as under the Administrative Procedures Act. Id.
Below we first discuss the different approaches of these three circuits in
considerable detail. Second, we address IIRIRA’s clear mandate that judicial
review be exclusively after a final removal order – a factor we find not given
sufficient weight by our sister circuits. Third, we outline why we find INA §
242(g)’s repeal of § 2241 habeas and its requirement of exclusive judicial review
under the INA do not conflict with the Suspension Clause.
G. Second Circuit’s Henderson Decision
When it decided Henderson, the Second Circuit in Jean-Baptiste already had
held that INA § 242(g) did not repeal § 2241 habeas. Jean-Baptiste v. Reno, 144
F.3d 212, 218-19 (2d Cir. 1998); Henderson v. INS, 157 F.3d 106, 119 (2d Cir.
65
1998). Subsequently, in Henderson the Second Circuit revisited whether
constitutional issues under the Suspension Clause are actually implicated by
IIRIRA’s repeal of § 2241 habeas. Noting that it was bound by Jean-Baptiste, the
Second Circuit in Henderson held that INA § 242(g) did not repeal § 2241.126
However, in a footnote, the Second Circuit in Henderson expressly
acknowledged that “[w]ere we not bound by Jean-Baptiste, the members of this
panel would be strongly inclined to find that the proper mechanism for judicial
review is by petition for review in the courts of appeals, rather than by § 2241
habeas in the district courts.”127 The Henderson panel noted that Congress
“clearly” meant to streamline judicial review and concluded that “it seems perverse
to find that the new laws [IIRIRA] actually added a layer of review in the district
courts that did not generally exist before.”128
The Second Circuit in Henderson noted that Jean-Baptiste expressly had
reserved the question of the extent and nature of judicial review remaining
available under the INA post-IIRIRA.129 The Henderson panel rejected the INS’
contention that judicial review under IIRIRA is limited to “substantial
126
Henderson, 157 F.3d at 119.
127
Id. at 119 n.9.
128
Id. (emphasis supplied).
129
Henderson, 157 F.3d at 119.
66
constitutional issues.”130 Instead, the Second Circuit indicated that judicial review
post-IIRIRA “‘is much like it was prior to the enactment of the INA’ and is similar
to that which existed under the early statutes that were ‘intended to make these
administrative decisions nonreviewable to the fullest extent possible under the
Constitution.’”131 The Second Circuit then noted that the Attorney General’s
position that no court has power to review her interpretation of immigration laws
“is, to put it mildly, not only at war with the historical record described earlier in
this opinion – for at least a hundred years, the courts have reviewed the executive
branch’s interpretation of the immigration laws, and have deemed such review to
be constitutionally mandated – it is also hard to square with the core conception of
habeas corpus as it has been applied over many centuries.”132
Ultimately, the Second Circuit in Henderson concluded only that whatever
the remaining parameters of § 2241 relief in the immigration context, the claims
130
Id. at 120. The Second Circuit also noted that the INS borrowed this standard from the
standard for reviewing successive habeas petitions but observed that this standard arose in an
entirely different context than presented under the immigration laws. Id. Specifically, the
Second Circuit recognized that the substantial-constitutional-question standard applied to
petitioners in state custody who had necessarily enjoyed several opportunities to challenge their
detention before in a judicial forum. Id. (citing Goncalves, 144 F.3d at 118 n.8). Conversely,
according to the Henderson panel, aliens detained pending removal from the country are
detained by the executive with no prior judicial review of their detention. Henderson, 157 F.3d
at 120.
131
Id. at 119.
132
Id.67
presented by the Henderson aliens facing deportation fell within the remaining
scope of § 2241.133 As its holding, the Second Circuit stated “federal courts have
jurisdiction under § 2241 to grant writs of habeas corpus to aliens when those
aliens are ‘in custody in violation of the Constitution or laws or treaties of the
United States.’”134 But, the Second Circuit immediately qualified that holding by
stating that “[t]his is not to say that every statutory claim that an alien might raise
is cognizable on habeas.”135 Instead, the court concluded that the range of claims
available under § 2241 consisted of “the sort that the courts have secularly
enforced . . . in the face of statutes seeking to limit judicial jurisdiction to the
fullest extent constitutionally possible.”136
H. Ninth Circuit’s Magana-Pizano Decision
Two recent Ninth Circuit decisions also address INA § 242(g)’s repeal of §
2241 habeas. In Hose v. INS, 141 F.3d 932, 935 (9th Cir. 1998), the Ninth Circuit
first held that INA § 242(g) repealed § 2241 jurisdiction, noting that the non-
133
Id. at 122. The aliens in Henderson presented questions of pure law. The Second
Circuit also noted, almost in passing, that judicial review under the INA as long as “the
equivalent of habeas” would avoid any conflict with the Suspension Clause. Henderson, 157
F.3d at 119 n.10.
134
Id. at 122 (quoting 28 U.S.C. § 2241).
135
Id.136
Id.68
criminal alien in that case still could seek judicial review of the BIA’s final
deportation order under INA § 242(b)(2) in the court of appeals.137 Subsequently,
in Magana-Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir.), modified, ___ F.3d ___
(9th Cir. Nov. 13, 1998), the Ninth Circuit held that, unlike the alien in Hose, a
criminal alien cannot obtain full judicial review in the court of appeals due to INA
§ 242(a)(2)(C), that INA § 242(g)’s repeal of § 2241 jurisdiction as applied in that
different context violated the Suspension Clause, and thus, § 2241 jurisdiction still
existed over Magano-Pizano’s deportation order.
137
In Hose, after receiving a final exclusion order on April 25, 1997, the alien filed a §
2241 habeas petition in the district court which was dismissed for lack of jurisdiction under INA
§ 242(g). 141 F.3d at 933-34. The alien appealed the district court’s dismissal, but did not file a
petition for direct review in the court of appeals and, importantly, did not request that the court
of appeals treat her appeal of the district court’s order as a petition for review. Id. at 934.
Affirming the district court’s dismissal for lack of jurisdiction, the Ninth Circuit first
noted that IIRIRA channeled judicial review to the court of appeals and that the language of INA
§ 242(g) was “clear” and sufficiently broad to convey congressional intent to repeal § 2241
jurisdiction. Id. at 935. The court reasoned that the rule disfavoring implicit repeals of
jurisdictional statutes was followed in Felker v. Turpin, 518 U.S. 651 (1996), because it was
interpreting the AEDPA’s repeal of a “specific avenue for review” (appellate jurisdiction over a
successive habeas petition) and that repeal did not implicitly repeal another separate and distinct
avenue for review (the Supreme Court’s original habeas jurisdiction) which was not mentioned
in the AEDPA. Hose, 114 F.3d at 935.
Conversely, the court in Hose found the clear language of INA § 242(g) provided that
unless jurisdiction otherwise existed under INA § 242, no court could exercise jurisdiction to
review a removal order. Id. Finally, the court in Hose concluded that the Suspension Clause did
not prohibit this repeal because no suspension of the writ occurs if a substitute procedure exists
that is “neither inadequate nor ineffective to test the legality of a person’s detention.” Id. at 936
(citing Swain, 430 U.S. at 381). Since judicial review of exclusion orders remained available
under IIRIRA in the form of direct review in the court of appeals, the court held that Ms. Hose
had failed to demonstrate how such review was either inadequate or ineffective to contest her
detention.
69
In light of Hose’s holding that INA § 242(g) repealed § 2241, the Ninth
Circuit could not construe INA § 242(g) to avoid constitutional issues. The Ninth
Circuit found that Heikkila established the minimum constitutionally permissible
level of judicial review in immigration cases and required the conclusion that,
when Congress limits judicial review over immigration matters to the extent
permitted by the Constitution, habeas remains available. In other words, the Ninth
Circuit found that “[s]imply put, elimination of all judicial review of executive
detention violates the Constitution.”138 Based on this premise, the Ninth Circuit
concluded that, as interpreted in Hose and applied to cases for which no judicial
review is available, INA § 242(g)’s repeal of § 2241 was invalid under the
Suspension Clause.139
The Ninth Circuit thus has adopted a hybrid approach to whether INA §
242(g) repeals § 2241. For cases where judicial review remains in the court of
appeals under the INA, the Ninth Circuit has interpreted INA § 242(g) as repealing
§ 2241 jurisdiction.140 Conversely, for cases in which the Ninth Circuit finds that
there is no judicial review under the INA, the Ninth Circuit has concluded that INA
138
Magana-Pizano, 152 F.3d at 1220.
139
Id.140
Hose, 141 F.3d at 936.
70
§ 242(g) cannot constitutionally repeal § 2241 habeas and that some form of
habeas relief remains available.141
I. Seventh Circuit’s Yang Decision
Although involving former INA § 106(a)(10),142 the Seventh Circuit’s
decision in Yang v. INS, 109 F.3d 1185, 1187 (7th Cir.), cert. denied sub nom,
Katsoulis v. INS, 118 S. Ct. 624 (1997), also contains an instructive analysis of the
Suspension Clause and Congress’ plenary power to remove judicial review over
immigration decisions to the full extent permitted by the Constitution. The specific
facts and legal issues in Yang are an important background to its holding that the
INA does not preclude all judicial review of deportation orders against criminal
aliens.
After finding that Yang’s conviction for concealing stolen firearms was a
deportable offense under INA § 241(a)(2)(C), the immigration judge ordered Yang
deported because of this conviction, among other reasons.143 On his petition for
direct review in the court of appeals, Yang argued, inter alia, that he was not
141
Magano-Pizano, 152 F.3d at 1220.
142
The Seventh Circuit in Yang interpreted INA § 106(a)(10) as it existed following
IIRIRA’s first amendment, but before it was amended the second time and moved to INA §
242(a)(C)(2). See footnotes 74 and 83 supra and 176 infra.
143
Id. at 1189.
71
deportable under INA § 241(a)(2)(C) because his conviction for concealing stolen
firearms was not a crime involving the “possession” of a firearm.144 Although
prior to IIRIRA’s repeal of § 2241 habeas, Yang was still faced with a similar
judicial review bar in former INA § 106(a)(10) which provided that “[a]ny final
order of deportation against an alien who is deportable by reason of having
committed a criminal offense covered in section [designated sections omitted] . . .
shall not be subject to review by any court.”145
According to the INS, Yang was not entitled to judicial review of his final
deportation order because the BIA already had determined that he was an alien
deportable based on one of the sections referenced in INA § 106(a)(10).146 Like
Boston-Bollers, the Seventh Circuit held that INA § 106(a)(10)’s restrictions on
judicial review of Yang’s deportation order did not violate the Due Process Clause
144
Id. at 1191.
145
INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995).
146
Id. at 1192. The Yang case actually involved petitions for review by four aliens in
separate deportation proceedings. Id. According to the Seventh Circuit, in three of these four
consolidated cases, the INS contended that the court lacked jurisdiction if the BIA determined
that an alien was deportable based on one of the referenced criminal offenses. Id. Conversely,
the court noted that in one of these cases, the INS adopted a different position. Id. Specifically,
in the fourth case, the INS argued that the court retained jurisdiction over whether the alien
facing deportation was actually an alien deportable for an enumerated offense. Id.
72
or Article III.147 The Seventh Circuit also discussed how the review protected by
the Suspension Clause is not co-extensive with § 2241 habeas as follows:
Aliens may seek the writ that Art. I § 9 cl. 2 preserves
against suspension. But we are reluctant to place weight
on its availability, because the Supreme Court long ago
made it clear that this writ does not offer what our
petitioners desire: review of discretionary decisions by
the political branches of government. [Citations
omitted.] There is a vast gulf between the non-
suspendable constitutional writ and the Administrative
Procedure Act. [Citations omitted.] Similarly, in cases
under 28 U.S.C. § 2254, “[a] a federal court may not
issue the writ on the basis of a perceived error of state
law.” Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871,
875, 79 L.Ed. 29 (1984). [Citations omitted.] Likewise
with errors of federal law. See United States v. Caceres,
440 U.S. 741, 752, 99 S. Ct. 1465, 1472, 59 L.Ed. 2d 733(1979) (error “by an executive agency in interpreting its
own regulations surely does not raise any constitutional
concerns”); Czerkies, 73 F.3d at 1443 (“The government
does not violate the Constitution every time it mistakenly
denies a claim for benefits.”). As a practical matter, the
right to obtain review, in any court, on the theories our
petitioners advance is gone. That is the point of the
legislation. Congress wanted to expedite the removal of
criminal aliens from the United States by eliminating
judicial review, not to delay removal by requiring aliens
to start the review process in the district court rather than
the court of appeals.
Yang, 109 F.3d at 1195 (emphasis supplied). The Seventh Circuit in Yang
recognized, as did the Second Circuit in Henderson, that Congress wanted to
147
Id. at 1197.
73
eliminate review in the district courts and allow review only in the court of
appeals.
In addition to its Suspension Clause discussion, the Seventh Circuit in Yang
explained how the INA does not abrogate all judicial review for criminal aliens
because courts always have jurisdiction to determine whether a jurisdictional bar
applies and to consider constitutional attacks on any such jurisdictional bar.148 The
Seventh Circuit explained succinctly that “a court has jurisdiction to determine
whether it has jurisdiction.”149 The Seventh Circuit found that the language of INA
§ 106(a)(10) did not condition its restriction on judicial review merely on the
Attorney General’s saying that an alien is deportable for one of the enumerated
criminal offenses.150 Instead, the language of INA § 106(a)(10) conditioned its
restriction on judicial review on there being “an alien” “who is deportable” “by
reason of having committed a criminal offense” enumerated in the statute.151 The
Seventh Circuit noted that “[w]hen judicial review depends on a particular fact or
148
Id. at 1192.
149
Id.
150
Id.
151
Id.
74
legal conclusion, then a court may determine whether that condition exists.”152
Therefore, the Seventh Circuit held that INA § 106(a)(10) permitted courts to
exercise jurisdiction to determine these three threshold issues in order to decide
whether the jurisdictional bar in INA § 106(a)(10) applies: (1) whether the person
is an alien, (2) whether the alien is deportable, and (3) whether deportation is based
on an enumerated criminal offense.153
Without as extensive a discussion as in Yang, the Fifth Circuit in Anwar v.
INS, 116 F.3d 140, 144 (5th Cir. 1997), likewise concluded that even under INA §
106(a)(10)’s restrictions on judicial review, it could still exercise some jurisdiction
over the alien’s petition for review.154 The Fifth Circuit noted that under INA §
152
Id. at 1192 (citing Land v. Dollar, 330 U.S. 731 (1947), for the proposition that the
court retains jurisdiction to determine its own jurisdiction).
153
Id. at 1191-92.
154
As did the Ninth Circuit in Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997),
the Fifth Circuit in Anwar applied the pre-IIRIRA version of INA § 106(a)(10). 116 F.3d at
144. However, unlike in Coronado-Durazo, the fact that the pre-IIRIRA version of INA §
106(a)(10) applied in Anwar meant that the court could exercise jurisdiction over the alien’s
petition for review. Specifically, the court in Anwar noted that prior to IIRIRA, INA §
106(a)(10) precluded the judicial review of a deportation order of an alien who was deportable
under INA § 212(a)(2)(A)(ii) (i.e. for multiple criminal convictions of crimes involving moral
turpitude) only if both “predicate offenses” were also covered by INA § 212(a)(2)(A)(i). Id. An
alien was deportable under INA § 212(a)(2)(A)(i) only if the alien had been convicted of a crime
involving moral turpitude which crime occurred within five years of when the alien entered the
United States and for which the alien was sentenced to confinement for one year or more. Id.
Because one of Anwar’s crimes had occurred more than five years after he entered the United
States, the court concluded that his multiple convictions did not fall under INA § 212(a)(2)(A)(i)
and thus did not fall under the jurisdictional bar of the pre-IIRIRA INA § 106(a)(10). Id.
We note that the Fifth Circuit has recognized an inconsistency between an earlier Fifth
75
106(a)(10), “unamended by IIRIRA,” judicial review was precluded if deportation
was based on two convictions for a crime involving moral turpitude only if both of
the convictions occurred within five years of when the alien entered the United
States.155 Because one of Mr. Anwar’s criminal convictions occurred more than
five years after he entered the United States, the Fifth Circuit concluded that the
jurisdictional bar of INA § 106(a)(10) did not apply.156 Accordingly, the Fifth
Circuit proceeded to review the alien’s petition.157
Despite its lack of extensive discussion, the Anwar decision illustrates the
same concept followed in Yang. The Fifth Circuit did not simply decline to
exercise jurisdiction based on the INS’ asserted grounds for deportation. Instead,
Circuit decision, Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997), and a portion of the Anwar
decision that is not at issue in this case. Okoro v. INS, 125 F.3d 920, 924-25 (5th Cir.
1997)(noting the inconsistency between these two decisions); Anwar, 116 F.3d at 143 n.2. In
Pichardo, the Fifth Circuit applied the version of INA § 106(a)(10) that included IIRIRA’s first
amendment to this section - the amendment adding the phrase “without regard to the date of their
commission” to INA § 106(a)(10). However, the court in Anwar applied INA § 106(a)(10)
“unamended by IIRIRA.” 116 F.3d 143. The court in Okoro decided to follow the earlier
decision of Pichardo. Okoro, 125 F.3d at 925. Nevertheless, neither Pichardo nor Okoro
diminish the aspect of the Anwar decision that illustrates the jurisdictional analysis discussed in
Yang. Indeed, as was the case in Anwar and Yang, the court in Pichardo also exercised its
jurisdiction to the extent necessary to determine whether it could exercise further jurisdiction.
104 F.3d 758-59. In addition, as discussed below, Okoro expressly adopts a holding that is very
similar to the holding in Yang. Okoro, 125 F.3d 925.
155
Id. at 143-44.
156
Id.157
Id. at 144.
76
the Fifth Circuit conducted its own review of the allegations supporting deportation
to determine whether these allegations prohibited further judicial review. Finding
that the judicial-review limiting provisions of INA § 106(a)(10) did not apply, the
Fifth Circuit proceeded to entertain the alien’s claims.158
Moreover, in a subsequent decision, the Fifth Circuit expressly adopted the
aspect of the Yang decision holding that the court of appeals can exercise
jurisdiction in order to determine whether a jurisdictional bar precludes further
jurisdiction. Okoro v. INS, 125 F.3d 920, 925 (5th Cir. 1997). Okoro involved a
158
Likewise, the First Circuit in Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997), found the
jurisdictional bar in INA § 106(a)(10) did not apply because the deportation order was based on
a criminal offense not covered by that section. Although the alien had other criminal offenses
which were not charged in the deportation proceedings, the court held “that the INS cannot,
consistent with due process and the statutory and regulatory requirements governing its own
proceedings, substitute new grounds for deportation at this stage of the proceedings, solely for
the purposes of depriving the federal courts of jurisdiction.” 129 F.3d at 40.
Also, without extensive discussion, the Ninth Circuit reached a similar conclusion in
Coronado-Durazo v. INS, 108 F.3d 210, withdrawn by 123 F.3d 1322, 1323 (9th Cir. 1997).
The alien facing deportation in Coronado-Durazo claimed that the immigration judge and BIA
had erroneously concluded that the alien’s conviction for solicitation to possess cocaine was a
deportable offense under INA § 241(a)(2)(B)(i) as an offense “relating to a controlled
substance.” 123 F.3d at 1324. In both of its opinions in Coronado-Durazo, the Ninth Circuit
began with the premise that if the alien’s conviction constituted a deportable offense, the court
“lack[s] jurisdiction to review the final order of deportation issued by the INS” because of INA §
106(a)(10) as amended by the AEDPA. 108 F.3d at 211; 122 F.3d at 1323. Without discussing
the issue, in both opinions, the Ninth Circuit proceeded on the premise that, under the terms of
INA § 106 (10), it could review whether the offense upon which deportation was based was a
deportable offense. 108 F.3d at 211; 123 F.3d at 1323. See also Mendez-Morales v. INS, 119
F.3d 738, 739 (8th Cir. 1997) (finding that the petitioner was deportable for conviction of an
aggravated felony and therefore jurisdiction was barred); Perez v. INS, 116 F.3d 405, 408 (9th
Cir. 1997) (reversing agency’s findings that the petitioner’s crime made him deportable and
rendered judicial review unavailable).
77
petition for review by an alien facing deportation under INA § 241(a)(2)(A)(ii),159
which provided for the deportation of any alien with two or more convictions of
crimes involving moral turpitude.160 As a “threshold matter,” the Okoro court
examined its own jurisdiction in light of INA § 106(a)(10), as amended by IIRIRA,
which precluded judicial review of any final deportation order “against an alien
who is deportable by reason of having committed . . . any offense covered by
[INA] section 241(a)(2)(A)(ii)161 for which both predicate offenses are covered by
[INA] section 241(a)(2)(A)(i)162.”163 Thus, the court held that its jurisdiction
depended on whether the alien was deportable based on convictions covered by
INA § 241(a)(2)(A)(i) & (ii), as follows:
To determine whether this jurisdictional bar applies to
[the alien’s] petition for review, we must examine
whether the underlying offenses relied on by the INS to
deport [the alien] are (1) crimes involving moral
turpitude, (2) not arising out of a single scheme of
criminal misconduct, and (3) for which [the alien] was
159
8 U.S.C. § 1251 (a)(2)(A)(i) (Supp. 1996).
160
125 F.3d at 922-23.
161
8 U.S.C. § 1251 (a)(2)(A)(ii) (Supp. 1996).
162
This section is the same jurisdictional bar interpreted by the court in Yang. Compare
Okoro, 125 F.3d at 925 with Yang, 109 F.3d at 1188. For a discussion of the amendments to
INA § 106 (a)(10) by both the AEDPA and IIRIRA and the successor to INA § 106(a)(10) now
found in INA § 242(a)(2), see footnote 83 supra.
163
125 F.3d at 923.
78
sentenced to one year or more of imprisonment,
regardless of actual confinement.
Id. at 925 (citing Yang, 109 F.3d at 1192). After determining that all three of these
elements applied to the alien, the court concluded that it lacked jurisdiction over
the alien’s petition for review.164
In this same vein, this Court’s decision in Boston-Bollers also exercised
jurisdiction both over the legal issue of whether AEDPA § 440(a)(10)’s enactment
of INA § 106(a)(10) applied retroactively and over whether that retroactive
application violated Mr. Boston-Bollers’ constitutional rights. This Court in
Boston-Bollers was not required to determine the three threshold issues that the
courts did in Yang or Anwar, because the permanent resident alien facing
deportation in Boston-Bollers conceded his alien status, criminal conviction, and
deportability.165 The parties did not dispute that the alien’s petition for direct
review fell within the expressed jurisdiction-limiting language of INA §
106(a)(10). Nevertheless, in Boston-Bollers this Court exercised jurisdiction over
the alien’s petition for direct review in the court of appeals attacking the
constitutionality of the judicial review restrictions in INA § 106(a)(10).
164
125 F.3d at 927.
165
Boston-Bollers, 106 F.3d at 353.
79
Before we conclude our discussion of the Yang decision, we note that the
Tenth Circuit in Berehe v. INS, 114 F.3d 159, 161 (10th Cir. 1997), declined to
follow the Yang approach. In Berehe, the court applied IIRIRA § 309(c)(4)(G),
which is a transitional rule restricting the judicial review of the deportation of
certain criminal aliens, as follows:
[T]here shall be no appeal permitted in the case of an
alien who is inadmissible or deportable by reason of
having committed a criminal offense covered in section
212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of
the Immigration and Nationality Act . . . or any offense
covered by section 241(a)(2)(A)(ii) of such Act . . . for
which both predicate offenses are, without regard to their
date of commission, otherwise covered by section
241(a)(2)(A)(i) of such Act . . . .
IIRIRA § 309(c)(4)(G).166 Rejecting the Yang approach, the court concluded that
this language did not “permit the court to review the merits of whether an alien is
166
According to the court in Berehe, the transitional rule found in IIRIRA § 309(c)(4)(G)
applied when deportation proceedings were commenced before IIRIRA’s general effective date
of April 1, 1997 but the final order of deportation or exclusion was entered more than thirty days
after IIRIRA’s September 30, 1996 date of enactment. 114 F.3d at 161. Because the
proceedings to deport the alien in Berehe commenced before April 1, 1997 and the order of
deportation was issued after October 30, 1996, the court concluded that the transitional rule
governed the judicial review of the alien’s deportation order. Id.
IIRIRA § 309(c)(4)(G) is similar to both INA § 106(a)(10) as amended by IIRIRA and
new INA §242(a)(2)(C). See footnotes 74 and 83 supra and 170 infra. Since 1996, the
following four distinct statutes have restricted the judicial review of orders deporting, excluding
or removing certain criminal aliens from the United States: (1) INA § 106(a)(10) as enacted by
the AEDPA § 440(d), (2) INA § 106(a)(10) as first amended by IIRIRA § 309(d), (3) INA §
242(a)(2)(C) as enacted by IIRIRA § 306(a)(2), and (4) the transitional rule in IIRIRA §
309(c)(4)(G) which was applied in Berehe. See footnote 83 supra for a discussion of the
amendments to INA § 106(a)(10).
80
validly deportable by reason of having committed one of the enumerated criminal
offenses.” Berehe, 114 at 161. In reaching this conclusion the court specifically
reasoned that:
To permit judicial review into the validity of the INS's
determination that an alien is deportable by reason of
having committed one of the listed crimes, in the guise of
making a determination as to the court's jurisdiction, is to
permit review of the very fact or condition that the statute
appears on its face to be precluding from review. We
conclude that such review is contrary to Congress's intent
to expedite deportation of criminal aliens.
Id. at 162.
However, we observe two additional points about the Tenth Circuit’s
holding in Berehe. First, although professing to follow Berehe, the Tenth Circuit
in a subsequent case reviewed constitutional and statutory claims raised by an alien
who had been found deportable for a reason enumerated in INA § 106(a)(10)
before the court dismissed the case for lack of jurisdiction. Wittgenstein v. INS,
124 F.3d 1244, 1245 (10th Cir. 1997). Second, in Berehe, the Tenth Circuit did
not discuss IIRIRA’s elimination of § 2241 habeas jurisdiction to review
immigration matters, the fact that jurisdiction to review immigration matters
remains under only the INA, and the consequent effect of criminal aliens being
deprived of all judicial review under the INA. The Seventh Circuit in Yang
recognized these aspects of the problem and analyzed in considerable detail the
81
potential constitutional issues arising from the limitations placed on its jurisdiction.
Accordingly, in addition to being persuaded by the Seventh Circuit’s construction
of INA §106(a)(10), we are convinced that the court in Yang reached its
conclusion after giving appropriate consideration to the issues arising from such
severe restrictions on judicial review.
J. INA §§ 242(b)(9) and (d) Require Final Removal Order
Before outlining our conclusions, we discuss another important IIRIRA
mandate that our sister circuits, in our view, have not given sufficient weight.
Prior to IIRIRA, judicial review of the INS’ deportation decisions was unavailable
before the entry of a final deportation order. That result was implicit in former
INA § 106(a)167 which provided that review in the courts of appeal was the “sole
and exclusive procedure” for challenging a final deportation order, and which
required exhaustion of administrative remedies as a prerequisite to obtaining
judicial review.168 IIRIRA strengthened these pre-existing limitations on judicial
review. In addition to retaining a mandatory exhaustion provision, IIRIRA added
167
8 U.S.C. § 1105a (1994).
168
See Massieu v. Reno, 91 F.3d 416, 421 (3d Cir. 1996); see also INS v. Chadha, 462
U.S. 919, 938 (1983).
82
INA § 242(b)(9) which now expressly provides that judicial review is available of
only “a final order.”169
Congress has chosen to delay federal court review of all claims of aliens
against whom removal proceedings have been instituted until the conclusion of the
administrative proceedings. Neither the district court nor this Court can override
that decision. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (stating
“where Congress specifically mandates, exhaustion is required”); Alexander v.
Hawk, ___ F.3d ___ (11th Cir. Nov. 5, 1998). This exhaustion requirement is
statutorily mandated by the INA and not judicially created. Although judicially
developed exhaustion requirements might be waived for discretionary reasons by
courts, statutorily created exhaustion requirements bind the parties and the courts.
When a statute requires exhaustion, a petitioner’s failure to do so deprives this
court of jurisdiction. Importantly, mandatory statutory exhaustion is not satisfied
by a judicial conclusion that the requirement need not apply due to futility.
169
8 U.S.C. § 1252(b)(9). The judges dissenting to the denial of rehearing en banc in the
Ninth Circuit’s decision of Reno v. American-Arab concluded that IIRIRA unambiguously
foreclosed all judicial review of the non-criminal alien’s claims until the entry of a final
deportation order, and that the INA § 242(g) so construed creates no genuine constitutional
difficulty. Reno v. American-Arab Anti-Discrimination Comm., 132 F.3d 531 (9th Cir. 1998)
(allowing aliens post-IIRIRA to seek an injunction in district court before a final removal order),
cert. granted, 118 S. Ct. 2059 (June 1, 1998) (granting certiorari on “[w]hether, in light of the
Illegal Immigration Reform and Immigrant Responsibility Act, the courts below had jurisdiction
to entertain respondents’ challenge to the deportation proceedings prior to the entry of a final
order of deportation”).
83
Weinberger v. Salfi, 422 U.S. 749, 766 (1975) (holding that where exhaustion is a
statutorily specified jurisdictional prerequisite, “the requirement . . . may not be
dispensed with merely by a judicial conclusion of futility”).170
IIRIRA’s mandate is consistent with the long-established administrative law
principle that courts should not intervene in an ongoing administrative agency
process to reach potential constitutional issues.171 Deferring Richardson’s claims
until the entry of a final order of deportation does not raise substantial
constitutional concerns. Congress has broad latitude to regulate the mode and
timing of judicial review of administrative agency decisions, even where
constitutional claims are involved. It is a familiar feature of administrative law that
170
In McCarthy, the Supreme Court noted that where Congress specifically mandates, a
plaintiff must exhaust the administrative remedies available to him before he may file in federal
court, but held that there was no specific mandate in the pre-PLRA section 1997e(a) context.
503 U.S. at 144.
171
See, e.g., FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-45 (1980) (holding
agency’s issuance of an administrative complaint was not subject to review until final agency
action despite its evident assumption that the propriety of the initial charging decision would not
be subject to administrative review); United States v. Hollywood Motor Car Co., 458 U.S. 263,
268-70 (1982) (holding that criminal defendants could not immediately appeal the denial of
motion to dismiss indictment based on prosecutorial vindictiveness); Massieu v. Reno, 91 F.3d
416, 424-26 (3d Cir. 1996) (holding “[a]lthough the immigration judge is not authorized to
consider the constitutionality of the statute, this court can hear that challenge upon completion of
the administrative proceedings” and dismissing alien’s complaint alleging irreparable selective
enforcement in retaliation for an exercise of First Amendment rights).
84
a litigant may be required to obtain a final agency decision on all claims before
being able to seek judicial review.172
This final-decision requirement avoids enmeshing courts in constitutional
litigation about the scope of judicial review left under INA that might prove to be
unnecessary. For example, Richardson raises numerous statutory issues before the
BIA about INA § 101(a)(13)(C) and the Fleuti doctrine that, if decided in his favor,
would remove certain constitutional issues. This requirement also avoids
piecemeal review by consolidating all challenges to the deportation process into a
single judicial proceeding. Richardson’s contentions that the INA, especially INA
§ 242(a)(2)(B), unconstitutionally restricts his judicial review can be made in his
direct petition for review in the court of appeals, just as the alien did in Boston-
Bollers. Richardson does not need § 2241 habeas to do that.173
172
See Weinberger v. Salfi, 422 U.S. 749, 757 (1975).
173
Although the immigration judge is not authorized to consider the constitutionality of
INA § 242(a)(2)(C), the court of appeals can hear such a challenge upon completion of the
administrative proceedings. See INS v. Chadha, 462 U.S. 919, 938 (1983). Ramallo v. Reno,
114 F.3d 1210 (D.C. Cir. 1997). See footnote 178 infra.
Contrary to Richardson’s arguments, the potential for an incomplete record on appeal
regarding alleged constitutional violations does not preclude any such violations from being
presented during review in the court of appeals. Pursuant to 28 U.S.C. § 2347(b)(3) (Supp.
1998), an appellate court can transfer a case to district court in order to develop a more complete
factual record if deemed necessary. Accordingly, in the absence of a factual record of an alleged
constitutional violation due to an immigration judge's inability to rule on such matters, the court
of appeals can upon proffer transfer the case to the district court. See e.g. Coriolan v. INS, 559
F.2d 993, 1003 (5th Cir. 1977) (Tuttle, J.) (applying the procedures in § 2347 in the immigration
context). In Richardson’s particular case, we note that the facts in his case are basically
undisputed and that his constitutional claims raise primarily legal questions, such as the scope of
85
K. Alternative Review Under INA Satisfies Suspension Clause
We are not required to resolve the circuits’ ongoing debate about whether
judicial review under the Suspension Clause approximates § 2241 habeas
jurisdiction. This is so because the Supreme Court has held that the Suspension
Clause permits Congress to replace habeas corpus with another avenue of judicial
review as long as that alternative vehicle is adequate and effective. Swain v.
Pressley, 430 U.S. 372, 383-84 (1977); see also Lonchar v. Thomas, 116 S. Ct.
1293, 1298 (1996). Congress had done just that in enacting IIRIRA. We find that
the repeal of § 2241 habeas does not violate the Suspension Clause because the
INA, as amended by IIRIRA, still provides adequate and effective judicial review.
In most immigration cases, non-criminal aliens, and even certain criminal
aliens, facing removal orders can seek adequate and effective judicial review under
the INA by a petition for direct review in the court of appeals after a final removal
order. INA §§ 242(b)(2), 242(b)(9), & 242(d)(1).174 INA § 242(b)(9) expressly
provides that this judicial review covers “all questions of law and fact, including
interpretation and application of constitutional and statutory provisions.”175
judicial review required by the Suspension Clause, that are not fact intensive or necessarily in
need of record development.
174
8 U.S.C. §§ 1252(b)(2), 1252 (b)(9), & 1252(d)(1) (Supp. 1998).
175
8 U.S.C. § 1252(b)(9) (Supp. 1998).
86
A complication arises for Richardson only because the INA, within the
confines of the INA, places additional restrictions on the INA-proscribed judicial
review for criminal aliens with certain enumerated serious criminal offenses.
Richardson asserts that INA § 242(a)(2)(C) precludes all judicial review of
removal orders against criminal aliens, and thus INA § 242(g)’s repeal of § 2241
habeas unconstitutionally removes his only remaining vehicle for judicial review.
Alternatively, Richardson argues that the INS’ proposition – that INA §
242(a)(2)(C) still permits review of “substantial constitutional claims” – does not
satisfy the Suspension Clause’s requirement of adequate and effective review
which, Richardson says, means judicial review of all constitutional and statutory
errors.
For several reasons, we reject Richardson’s contention that he will not have
adequate and effective review under the INA. First, Congress clearly has the
power to repeal § 2241 habeas jurisdiction over immigration decisions in the
inferior courts and to provide for judicial review of immigration decisions
exclusively under a different jurisdictional statute, to wit: the INA. Congress has
the power to remove all immigration decisions from the jurisdiction of the district
courts, which is exactly what Congress has done. Second, in enacting the INA,
Congress has the power to outline the mode and timing of judicial review under the
87
INA, to wit: only by direct petition for review in the court of appeals and only after
a final removal order.
Third, Congress has the power to mandate detention and removal of aliens
with serious criminal convictions and to expedite their removal by limiting judicial
review over their detention and removal to the fullest extent allowed under the
Constitution. This is why Congress enacted, within the INA’s judicial-review
scheme, the additional restriction on judicial review found in INA §
242(a)(2)(C).176
While INA § 242(a)(2)(C) significantly restricts Richardson’s judicial
review, we disagree with Richardson’s contention that this INA provision leaves
him without any judicial review in violation of the Suspension Clause. Courts of
appeal retain jurisdiction under INA § 242(a)(2)(C) to determine whether the
176
INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (Supp. 1998) (emphasis supplied),
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 212(a)(2) [covers certain controlled
substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any
offense covered by section 237(a)(2)(A)(ii) for which both
predicate offenses are, without regard to their date of commission,
otherwise covered by section 237(a)(2)(A)(i).
Id. INA § 237 is codified in 8 U.S.C. § 1227 (Supp. 1998). INA § 212 is codified in 8 U.S.C. §
1182 (Supp. 1998).
88
jurisdictional bar in that section applies. See Yang, 109 F.3d at 1192; Okorov v.
INS, 125 F.3d at 925; Anwar, 116 F.3d at 144; Coronado-Durazo, 123 F.3d at
1323. But cf., Berehe v. INS, 114 F.3d at 161. INA § 242(a)(2)(C) does not state
that judicial review is prohibited if the Attorney General finds that the person being
removed is an alien and removable for a reason covered in INA § 242(a)(2)(C). To
the contrary, jurisdiction is prohibited if such conditions actually exist. Under the
language of INA § 242(a)(2)(C), in order to decide whether the jurisdictional bar
applies, courts must determine that the removal order: (1) “is against an alien” (2)
“who is removable” (3) “by reason of having committed a criminal offense
covered” in certain enumerated sections.177
In addition to these three jurisdictional facts, a court of appeal retains
jurisdiction to entertain a constitutional attack on this INA statute as part of an
alien’s petition for review of a final order under the INA.178 If judicial review of a
177
See full text of INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), at footnote 176 supra.
178
See Morel v. INS, 144 F.3d 248 (3d Cir. 1998); Mansour v. INS, 123 F.3d 423, 426
(6th Cir. 1997); Boston-Bollers, 106 F.3d 352 (11th Cir. 1997); Okorov v. INS, 125 F.3d 920,
923 (5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154 (10th Cir. 1997) (noting the
government conceded judicial review was available for “substantial” constitutional errors); Yang
v. INS, 109 F.3d 1185 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997);
Yeung v. INS, 76 F.3d 337 (11th Cir. 1995); Massieu v. Reno, 91 F.3d 416, 420-24 (3d Cir.
1996) (district court lacked jurisdiction to entertain constitutional challenge to deportation order,
which court of appeals had exclusive jurisdiction to entertain); Perez-Oropeza v. INS, 56 F.3d
43, 45-46 (9th Cir. 1995); Raya-Ledesma v. INS, 42 F.3d 1263, 1265 (9th Cir.), modified by 55
F.3d 418 (9th Cir. 1994). But compare Chow v. INS, 113 F.3d 659, 667 (7th Cir. 1997)
(deciding jurisdictional bar itself, in INA § 106(a)(10) enacted by AEDPA § 440(a), did not
89
constitutional attack on a jurisdiction-stripping statute in this court of appeals was
not foreclosed by INA § 106(a)(10), Boston-Bollers, 106 F.3d at 352, it is not
foreclosed by INA § 242(a)(2)(C). This approach is consistent with the
admonition in Heikkila v. Barber, 345 U.S. 229, 234 (1953), that “Congress . . .
intended to make these administrative decisions non-reviewable to the fullest
extent possible under the Constitution.”
Thus, we find that the INA still assures Richardson a significant degree of
judicial review in the court of appeals after a final removal order, despite INA §
242(a)(2)(C). While that review is definitely restricted, INA § 242(a)(2)(C) does
not remove all judicial review. Any constitutional infirmities Richardson perceives
in that INA-proscribed judicial review must be raised in an attack on the
constitutionality of INA § 242(a)(2)(C) only in the court of appeals and only after a
violate Article III or Due Process Clause but declining to find sufficient jurisdiction under that
jurisdictional bar to consider the alien’s other constitutional claims that procedures in the BIA
proceedings violated his constitutional rights because Chow still had other potential avenues for
relief remaining open for those constitutional claims such as a writ pursuant to 28 U.S.C. § 2241or 28 U.S.C. § 1651 or Art. I, § 9 cl.2); Turkhan v. INS, 123 F.3d 487, 489 (7th Cir. 1997)
(following Chow, and noting other avenues of habeas review were still available and therefore
INA § 106(a)(10) is unlike other “true door-closing statutes – [where] the constitutional claims .
. . would be reviewed either pursuant to the statutes at issue or not at all”). Lerma de Garcia v.
INS, 141 F.3d 215, 217 (5th Cir. 1998) (holding INA § 106(a)(10) forecloses all judicial review
including constitutional claims in the context raised as “criminal deportees retain some
opportunity to apply for writs of habeas corpus”). Williams v. INS, 114 F.3d 82, 83-84 (5th Cir.
1997); Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997). The courts strictly foreclosing all
review under INA § 106(a)(10) did so in large part because § 2241 habeas jurisdiction remained
available. That is no longer the case.
90
final removal order.179 If review of such questions under INA § 242(a)(2)(C) does
not satisfy the Suspension Clause and INA § 242(a)(2)(C) is held to be
unconstitutional, then at worst Richardson will be left with the INA’s underlying
general judicial review of “all questions of law and fact” available under INA §§
242(b)(2) and 242(b)(9) in the court of appeals. Such judicial review clearly
satisfies the Suspension Clause.
179
In addition to his claim that INA § 242(a)(2)(C) conflicts with the Suspension Clause,
we recognize that Richardson also alleges that he has been denied equal protection guaranteed
under the Due Process Clause of the Fifth Amendment. An alien facing removal from the United
States as inadmissible can request review of bond/release decisions only from the INS district
director, but an alien being removed based on deportability can seek review from an immigration
judge. Richardson contends that this disparate treatment constitutes a violation of equal
protection.
As a permanent resident alien, Richardson enjoys equal-protection rights. Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886). Classifications in the immigration context are subject to the
rational-basis standard under which a classification is valid if rationally related to a legitimate
government purpose. Yeung v. INS, 76 F.3d 337, 339 (11th Cir. 1995) (addressing waivers
under former INA § 212(h)). An arguable fatal defect in Richardson’s equal-protection
argument is that most resident aliens returning to the United States can re-enter summarily.
Thus, it is returning aliens with serious criminal convictions, not all returning aliens, that are
deemed “seeking admission,” detained, and restricted to seeking bond from the INS district
director. The INS has a valid interest in using ports of entry as a screening mechanism for
removing criminal aliens expeditiously and restricting bond decisions to review by the district
director, as opposed to admitting them and then instituting deportation proceedings. The
Supreme Court has recognized that although a permanent resident alien who is returning from a
brief trip abroad enjoys rights to procedural due process, such aliens do not have a right to
“identical treatment” to a permanent resident alien who has not left the country. Landon v.
Plasencia, 459 U.S. 21, 31 (1982).
Although we briefly comment on the merits of Richardson’s equal-protection claim, this
claim is precisely the type of claim that Richardson must raise on a petition for review after a
final removal order has been issued. Thus, we do not resolve the equal-protection issue or
whether review of this type of constitutional claim is permitted under INA § 242(a)(2)(C), or, if
not, whether INA § 242(a)(2)(C) violates the Suspension Clause.
91
IIRIRA expressly provides for the severability of its numerous provisions.180
Therefore, even if a court of appeals were to find INA § 242(a)(2)(C) does not
satisfy the Suspension Clause, this does not mean that INA § 242(g)’s repeal of §
2241 habeas is unconstitutional. What it means is that without INA §
242(a)(2)(C)’s specific additional limitations on judicial review under the INA,
Richardson then could avail himself of the general judicial review provided under
INA §§ 242(b)(2) and 242(b)(9). Thus, Richardson’s concerns at most boil down
to whether INA § 242(a)(2)(C) is unconstitutional, and not whether INA § 242(g)’s
repeal of § 2241 is constitutional. IIRIRA mandates that constitutional claims
about the INA’s provisions be made in only one place and one time: in the court of
appeals and after a final removal order.181
180
IIRIRA Title VI subtitle E specifically provides for severability:
SEVERABILITY. – If any provision of this division or the
application of such provision to any person or circumstances is
held to be unconstitutional, the remainder of this division and the
application of the provisions of this division to any person or
circumstance shall not be affected thereby.
181
This applies not only to Richardson’s claims about INA § 242(a)(2)(C) but also to
Richardson’s constitutional claims regarding the effect of INA § 236(e) (restricted judicial
review of bond and parole decisions) and INA § 242(a)(2)(B)(ii) (restricted judicial review of
discretionary decisions). Similar to footnotes 179 and 182, we do not address whether INA §
242(a)(2)(C) permits, or whether the Suspension Clause requires, the judicial review of all
constitutional claims or only “substantial constitutional claims” as the INS contends. We do
know, however, from Boston-Bollers and Yang that, at a minimum, judicial review exists under
INA § 242(a)(2)(C) to determine whether that jurisdictional bar applies and whether that
jurisdictional bar violates the Suspension Clause.
92
We pause to observe that Richardson’s removal order is based on his having
a cocaine-trafficking conviction, which is deemed an aggravated felony conviction
under the INA and is a basis for both inadmissibility and deportation under the
INA. We also note that Richardson does not dispute that he is an alien. Making
sure that the BIA record establishes the jurisdictional facts under INA §
242(a)(2)(C) – that the criminal alien: (1) is “an alien,” not a citizen; (2) “who is
removable”; (3) “by reason of having committed a criminal offense covered” in
certain enumerated sections – goes a long way, and very well may be sufficient in
this particular type case, to provide an adequate and effective collateral judicial
review of the validity of Richardson’s executive detention and removal order. This
is so at least where the sole basis of an alien’s being detained and removed is one
fact: his having committed an aggravated felony conviction as defined by the
93
INA.182 This is especially true since discretionary relief from, and cancellation of,
that type of removal is no longer allowed under the INA.183
182
Judicial review of statutory and legal errors is expressly provided for under INA §§
242(b)(2) and 242(b)(9). In this case, we do not address whether INA § 242(a)(2)(C) permits, or
whether the Suspension Clause requires, the judicial review of statutory or legal errors other than
to the extent necessary to determine whether a jurisdictional bar to judicial review exists.
Several courts have addressed this issue and reached different conclusions.
The Second Circuit reasoned, albeit in dicta, that the nature of the Suspension Clause
suggests that it preserves a writ which encompasses statutory claims. In Henderson, the Second
Circuit observed that “before the Constitution was enacted, the writ could only have been
granted based on errors of law, since there was no such thing as a constitutional error.” 157 F.3d
at 121 n.13. The court also noted that, especially since the Bill of Rights was not adopted until
1791, it would not “have made much sense for the framers to have intended the writ . . . to be
available just for the enforcement of rights protected by the new Constitution.” Id. Thus,
according to the Second Circuit “the Constitution itself inevitably seems to mandate habeas
corpus review of some statutory questions.” Id. Perhaps as further support for this
interpretation, statutory errors in executive detention historically have been reviewed under §
2241 and its precursor statutes. See, e.g., Felker, 518 U.S. at 661; Delgadillo v. Carmichael, 332
U.S. 388, 390-91 (1947); Bridges v. Wilson, 326 U.S. 135, 149 (1945); Kessler v. Streckler, 307
U.S. 22, 35 (1939); Mahler v. Eby, 264 U.S. 32, 46 (1924); Gegiow v. Uhl, 239 U.S. 3 (1915);
Gonzales v. Williams, 192 U.S. 1 (1904); The Japanese Immigrant Case, 189 U.S. 86 (1903);
Ekiu v. United States, 142 U.S. 651 (1892). The precursor statute to § 2241 did not specifically
mention that constitutional claims could support the issuance of a writ of habeas corpus until
1867. See Felker, 518 U.S. at 659-60.
Conversely, other courts have concluded that the judicial review under § 2241 is
significantly broader than the judicial review available in the writ protected by the Suspension
Clause. The Seventh Circuit noted that “28 U.S.C. § 2241 offers an opportunity for collateral
attack more expansive than the Great Writ preserved in the Constitution.” Yang v. INS, 109
F.3d at 1195. In this same vein, the Seventh Circuit also noted that “[t]here is a vast gulf
between the non-suspendable constitutional writ and the Administrative Procedures Act.” Id.;
see also Felker, 518 U.S. at 663 (“The class of judicial actions reviewable by the writ [as known
to the Framers] was more restricted as well.”).
We recognize that Richardson asserts other legal or statutory errors, such as the Fleuti
issue, but no court should decide whether jurisdiction exists either under or despite INA §
242(a)(2)(C) to address those errors until after a final removal order. This is what IIRIRA
mandates. We need not enter this debate about what the Suspension Clause requires and whether
INA § 242(a)(2)(C)’s limitations on judicial review violate the Suspension Clause; even if that
section were held unconstitutional, Richardson still has adequate and effective review under INA
§§ 242(b)(2) and 242(b)(9).
183
See footnotes 11 and 27 supra.
94
In summary, Congress through IIRIRA indisputably intended to remove all
jurisdiction in the district courts and to abbreviate the judicial review of removal
orders against criminal aliens to the fullest extent allowed by the Constitution.
Preserving judicial review in the court of appeals under the INA, to the extent
necessary to pass constitutional muster, more closely approximates congressional
intent than the anomalous situation of disregarding the plain language of INA §
242(g) and preserving a layer of additional judicial review in the district courts for
criminal aliens for whom Congress intended to expedite removal by restricting
judicial review to the extent it could.184
V. CONCLUSION
After careful consideration, we conclude that INA § 242(g) repeals § 2241
habeas jurisdiction over immigration decisions. Even if this repeal leaves
Richardson with no judicial review of his detention or removal, the repeal of §
2241 does not violate the Due Process Clause or Article III. The Due Process
184
Whether Richardson may seek a writ pursuant to the All Writs Act, 28 U.S.C. § 1651,
or an Art. I § 9, cl.2 writ in the Supreme Court is an issue we need not address as Richardson
sought only § 2241 habeas jurisdiction. Because we find, to the extent required by the
Constitution, Richardson’s claims can be sufficiently reviewed under INA §§ 242(b)(2),
242(b)(9), and 242(a)(2)(C), we also do not address the INS’ alternative contention that INA §
242(g)’s repeal of § 2241 habeas does not violate the Suspension Clause because some form of
“residual” habeas exists under a constitutional writ, unaided by statute, to address “fundamental
miscarriage of justice” and that Richardson’s constitutional and legal claims do not rise to a
“fundamental miscarriage of justice.”
95
Clause is not violated because Richardson’s constitutional rights as a permanent
resident alien are fully met by the INA’s extensive procedures for bond decisions,
parole decisions, and removal proceedings. Article III is not violated because
Article III does not mandate the judicial review of immigration matters but instead
leaves establishing the jurisdiction of the inferior federal courts to Congress.
This repeal also does not violate the Suspension Clause. INA § 242(a)(2)(C)
does not remove all judicial review. At a minimum, judicial review remains
available to Richardson under INA § 242(a)(2)(C) to determine if the specific
conditions exist that would bar jurisdiction. If the bar applies, jurisdiction remains
to consider whether the level of judicial review remaining in INA § 242(a)(2)(C) in
a particular case satisfies the Suspension Clause. If not, Richardson can pursue
adequate and effective judicial review of statutory and constitutional issues under
INA §§ 242(b)(2) and 242(b)(9). However, IIRIRA mandates the mode and timing
of any constitutional attack on INA § 242(a)(2)(C) or any other INA provisions:
only in the court of appeals, only after a final removal order has been issued, and
only after Richardson has exhausted all administrative remedies.
In enacting IIRIRA, Congress has mandated the detention and expedited the
removal of aliens, including long-term permanent resident aliens, who commit
serious criminal offenses while in the United States. Richardson correctly points
96
out many harsh consequences created by these new immigration laws, but those
consequences are not the result of constitutional violations but are the result of
political decisions made by Congress exercising its plenary power to regulate
immigration.185 As outlined in this decision, the Supreme Court has recognized
repeatedly that immigration decisions present peculiarly political issues to be
decided by the executive and legislative branches. Our judicial task is not to
rewrite these new immigration laws, but to apply these laws as written by Congress
to the full extent permitted by the Constitution. We have done so.
Accordingly, we REVERSE the decision of the district court, VACATE the
stay entered by this Court on February 23, 1998, and direct the district court to
dismiss Richardson’s petition for lack of subject matter jurisdiction.
REVERSED AND VACATED.
185
See, e.g., S. Rep. No. 104-48 at 2-6 (1995) (discussing the presence of at least
“450,000 criminal aliens in the United States who are currently incarcerated or under some form
of criminal justice supervision,” the fact that “the Federal Bureau of Prisons confines about
22,000 criminal aliens – 25 percent of the total Federal prison population,” the “confinement of
criminal aliens in state and federal prisons costs . . . approximately $724,000,000 in 1990,” that
the “INS is overwhelmed by the criminal alien problem,” and that “criminal aliens are . . . a
growing drain on scarce criminal justice resources.”).
97