holding that IIRI-RA’s repeal of Section 2241 jurisdiction is not unconstitutional because IIRIRA does not eliminate all judicial review of immigration matters and expressly noting “Congress had 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.”
How later courts described this case
- holding that IIRI-RA’s repeal of Section 2241 jurisdiction is not unconstitutional because IIRIRA does not eliminate all judicial review of immigration matters and expressly noting “Congress had 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.”
- holding that the INA’s “broad admonition that it applies ‘notwithstanding any other provision of law’ sufficiently and clearly encompasses other provisions of law.”
- reasoning that a broad jurisdictional limitation can satisfy the requirements of Felker v. Turpin, 518 U.S. 651 , 116 S.Ct. 2333 , 135 L.Ed.2d 827 (1996)
- noting that "Congress strictly 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”
Written by the judges who cited it.
The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 98-4230.
Ralph RICHARDSON, Petitioner-Appellee,
v.
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, Respondents-Appellants.
Dec. 22, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 97-3799-CIV-
EBD), Edward B. Davis, Chief Judge.
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.
HULL, Circuit Judge:
The Court VACATES and WITHDRAWS the previous opinion dated December 9, 1998 and
substitutes the following opinion. While the remainder of the opinion stays the same, the Court has
revised footnotes 88, 137, and the third paragraph in Section IV(H) and added the following
subsequent history to the citations of Hose v. INS, 141 F.3d 932 (9th Cir.1998): withdrawn and
reh'g en banc granted, --- F.3d ----, No. 97-15789, (9th Cir. December 2, 1998). Although the
Ninth Circuit's order granting the rehearing en banc was dated December 2, 1998, the order did not
appear in the on-line subsequent history of Hose until December 10, 1998—the date after the Court
published its original decision in this case.
TABLE OF CONTENTS
I. FACTS AND PROCEDURAL HISTORY 933
II. RICHARDSON'S HABEAS CORPUS PETITION 936
III. NEW IMMIGRATION LAWS 937
A. "Removal" Proceedings 937
B. Permanent Resident Criminal Aliens Returning From Abroad 938
C. Supreme Court's Fleuti Doctrine 939
D. Detention of Criminal Aliens "Seeking Admission" 940
E. Detention Under TPCRs in IIRIRA § 303(b)(3) 942
F. Detention Under INA § 236(c) 943
G. INA § 236(e) Restricts Review of Bond and Parole Decisions 945
H. Procedures for Removal Hearings 945
I. IIRIRA Consolidates Judicial Review in the Court of Appeals 946
J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal
Aliens 948
K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions
949
IV. DISCUSSION 949
A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration
Decisions 949
B. No Constitutional Infirmities to Avoid 953
C. Eleventh Circuit's Boston-Bollers Decision 954
D. Due Process Clause 957
2
E. Article III 959
F. Suspension Clause 960
G. Second Circuit's Henderson Decision 962
H. Ninth Circuit's Magana-Pizano Decision 963
I. Seventh Circuit's Yang Decision 965
J. INA §§ 242(b)(9) and (d) Require Final Removal Order 970
K. Alternative Review Under INA Satisfies Suspension Clause 971
V. CONCLUSION 976
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
3
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 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 cocainetrafficking conviction, an aggravated felony under INA § 103(a)(43).3
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).
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
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 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
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.
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
5
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 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),
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.
9
In the Matter of Ralph Richardson, Respondent: In Removal Proceedings, Case # A17-566-
876 (Immigration Court, January 1, 1998).
6
and 212(a)(2)(C)10 and not entitled to cancellation of removal under INA § 240A(a).11 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
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.)
12
Richardson's brief was filed with the BIA on October 15, 1998, and the INS brief was due
on November 28, 1998.
7
cocaine trafficking is a basis for both 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 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
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).
8
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. § 2241 and
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.
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;
15
8 U.S.C. § 1252(g) (Supp.1998).
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).
9
(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;
(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" proceedings and created a unified set of
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).
10
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 "deportability" are still handled in several separate parts of
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
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.
11
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":
(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
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.
12
(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 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
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.
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 ..."
13
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. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10
L.Ed.2d 1000 (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.
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 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.
14
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. 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
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).
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
15
determined that the INS was not required to treat Richardson as "seeking 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 be detained for a proceeding under section 240 [removal
proceedings].
INA § 235(b)(2)(A) (emphasis supplied).36
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).
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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Perlera-Escobar v. Executive Office for
Immigration, 894 F.2d 1292, 1296 (11th Cir.1990) (quoting Chevron ).
36
8 U.S.C. § 1225(b)(2)(A) (Supp.1998). INA § 240 is codified in 8 U.S.C. § 1229a
(Supp.1998).
16
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 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
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.
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."
17
Attorney General's regulations provided that immigration judges lacked jurisdiction over release
requests by "arriving aliens" facing removal proceedings.40
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—
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.
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).
18
(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 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
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.
19
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).
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
43
8 U.S.C. §§ 1182(a)(2), 1227(a)(2), 1182(a)(3)(B), & 1227(a)(4)(B) (Supp.1998).
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
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
20
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)
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
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.
49
INA § 236(c), 8 U.S.C. § 1226(c) (Supp.1998).
21
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 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
50
Id.
51
8 U.S.C. § 1226(a) (Supp.1998) (emphasis supplied).
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."
22
(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
(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
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.
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
23
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.
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.
INA § 236(c)(2), 8 U.S.C. § 1226(c)(2) (Supp.1998).
59
8 U.S.C. § 1226(c) (Supp.1998).
24
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.
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
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.
61
Compare 8 U.S.C. § 1252 (1995) with 8 U.S.C. § 1229a(a)(1) (Supp.1998).
25
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
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
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).
68
See generally 8 U.S.C. § 1105a (1995).
26
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. § 2241 habeas
corpus to challenge INS detention or deportation proceedings.71
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
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).
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).
27
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 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
75
Pub.L. No. 104-208, 110 Stat. 3009 (1996).
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 "judicial
28
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 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
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).
29
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.
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
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).
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 (4)27" 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).
30
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—
...
(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:
31
A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions
We begin by recognizing and applying established canons 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.) (holding that
INA § 242(g) deprives district court of habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241),
withdrawn and reh'g en banc granted, --- F.3d ----, No. 97-15789, (9th Cir. December 2, 1998);88
(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 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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Fong
Haw Tan v. Phelan, 333 U.S. 6, 9-10, 68 S.Ct. 374, 92 L.Ed. 433 (1948).
87
See McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005
(1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-72, 106 S.Ct.
2133, 90 L.Ed.2d 623 (1986).
88
This Court notes two points relevant to the Hose decision. First, 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
32
Cabrera v. 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. Sonchik, 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, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605
(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) (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);
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). 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.
Second, this Court notes that the Ninth Circuit has granted a rehearing en banc and withdrawn its
published decision in Hose. Nevertheless, this Court still finds persuasive the reasoning in Hose
and the Ninth Circuit's subsequent discussion of Hose in Magana-Pizano.
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."
33
Morisath v. Smith, 988 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 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
90
See Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir.1998), and footnote 78 supra.
91
8 U.S.C. § 1252(g) (emphasis supplied). See, e.g., United States v. Gonzales, 520 U.S. 1,
117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (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).
34
§ 242(e)(2)93 for certain non-resident 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
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 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.
35
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 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
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.").
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.
36
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 mention § 2241 expressly.100
Richardson emphasizes the presumption against implied repeal of habeas corpus jurisdiction
addressed in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (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., I.N.S. v. Chadha,
462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Massieu v. Reno, 91 F.3d 416 (3d
Cir.1996).
101
Felker, 518 U.S. at 661, 116 S.Ct. 2333. 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, 116 S.Ct. 2333.
37
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, 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.
103
8 U.S.C. § 1252(g) (Supp.1998).
38
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.
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.
104
144 F.3d at 219.
39
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-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
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.
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.
40
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, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) ("[c]ourts cannot press statutory
construction "to the point of disingenuous 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, --- U.S. ----, 118 S.Ct. 2059, 141 L.Ed.2d 137
(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
107
See footnote 169 infra.
41
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 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, 113 S.Ct. 1439, 123 L.Ed.2d 1 (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 power of Congress more complete." Boston-
Bollers, 106 F.3d at 355.111 Accordingly, this Court determined that INA § 106(a)(10) did not
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, 114 S.Ct. 1483,
128 L.Ed.2d 229 (1994). Boston-Bollers, 106 F.3d at 354 (listing six other circuits reaching
same result). See footnote 105 supra.
111
See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97
L.Ed. 956 (1953) (noting that this Court's decisions "have long recognized the power to expel or
42
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
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
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, 97
S.Ct. 1473, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765-67, 92 S.Ct. 2576,
33 L.Ed.2d 683 (1972); Harisiades v. Shaughnessy, 342 U.S. 580, 588-90, 72 S.Ct. 512, 96
L.Ed. 586 (1952).
112
In Carlson v. Landon, 342 U.S. 524, 528-29, 72 S.Ct. 525, 96 L.Ed. 547 (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, 72
S.Ct. 525. 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, 72 S.Ct. 525. However,
in between these quotations about the executive 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, 72 S.Ct. 525 (citing a
long line of Supreme Court precedent).
43
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
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
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 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, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (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); Hincapie-Nieto
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).
44
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 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, 103 S.Ct. 2764, 77 L.Ed.2d 317
(1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press,
347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72
S.Ct. 525, 96 L.Ed. 547 (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, 70 S.Ct. 309, 94 L.Ed. 317 (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, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Supreme Court has held that
a permanent resident alien "continuously present" in the United States has a right to procedural due
45
process in any proceedings to remove that alien from the country.114 See, e.g., Reno v. Flores, 507
U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Landon v. Plasencia, 459 U.S. at 21, 103 S.Ct.
321.115 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, 73 S.Ct. 472, 97 L.Ed. 576 (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
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, 73 S.Ct. 472, 97
L.Ed. 576 (1953). The alien in Chew was a lawful permanent resident who worked on an
American ship. Id. at 592, 73 S.Ct. 472. He was on a voyage to the Far East for about
four months. Id. at 594, 73 S.Ct. 472. 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, 103 S.Ct. 321, 74 L.Ed.2d 21 (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, 47 S.Ct. 302, 71 L.Ed. 560 (1927); Japanese Immigrant Case, 189 U.S. 86, 100-
101, 23 S.Ct. 611, 47 L.Ed. 721 (1903); United States ex rel. Tisi v. Tod, 264 U.S. 131, 133, 44
S.Ct. 260, 68 L.Ed. 590 (1924); Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed.
1165 (1912).
46
proceedings are imbued with procedural safeguards that satisfy the Due Process Clause. The alien
has the right to notice, the 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, 72 S.Ct. 525, 96
L.Ed. 547 (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, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (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 Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976):(1) a 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
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, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (emphasis supplied).
47
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
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
118
See, e.g., Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (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, 72 S.Ct. 525. The Supreme Court has determined that bail need not be provided in all
immigration cases. Id. at 546, 72 S.Ct. 525. 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.
48
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
The jurisdiction of the inferior federal courts is 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, 12 L.Ed.
1147 (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
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, --
- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (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, 52
S.Ct. 285, 76 L.Ed. 598 (1932) (drawing a distinction between public and private rights and
listing immigration as an exemplar of a public right)." 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
49
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 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,
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, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Northern Pipeline Constr.
Co. v. Marathon Pipeline Co., 458 U.S. 50, 57-60, 102 S.Ct. 2858, 73 L.Ed.2d 598 (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.
122
Swain v. Pressley, 430 U.S. at 386, 97 S.Ct. 1224 (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, 116 S.Ct. 2333 (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, 73 S.Ct. 397, 97 L.Ed.
469 (1953) (Jackson, J., concurring) ("[T]he historic purpose of the writ has been to relieve
detention by executive authorities without judicial trial.").
50
and (b) is limited to only "substantial constitutional claims" or "substantial claims of constitutional
error."123
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, 73 S.Ct.
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, 42 S.Ct. 492, 66 L.Ed. 938 (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, 42 S.Ct. 492, 66 L.Ed. 938 (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, 42 S.Ct. 492.
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,
58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see also McCleskey v. Zant, 499 U.S. 467, 477,
111 S.Ct. 1454, 113 L.Ed.2d 517 (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, 72 S.Ct. 263, 96 L.Ed.
232 (1952).
Over the years, Congress amended habeas jurisdiction several times. For the
51
603, 97 L.Ed. 972 (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, 73 S.Ct. 603. The Supreme Court upheld the
preclusion of judicial review in the 1917 Act, but in the context of statutory habeas remaining
available, stating:
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, 73 S.Ct. 603. 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
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, 116 S.Ct. 2333; see also Hayman, 342 U.S. at 211 n.
11, 72 S.Ct. 263 (noting that the 1867 Act is [n]ow incorporated in 28 U.S.C. (Supp.IV) §
2241 et seq.)
125
Both Richardson and the INS cite Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100
L.Ed.2d 632 (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, 106 S.Ct. 2133, 90 L.Ed.2d
623 (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
52
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 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. Magana-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 Magana-
Pizano, the Ninth Circuit concluded that INA § 242(g)'s repeal of § 2241 habeas violated the
Suspension Clause. In Jean-Baptiste, 144 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,
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,
108 S.Ct. 2047. 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, 108 S.Ct. 2047.
53
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
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.1998). Subsequently, in Henderson the Second Circuit
revisited whether constitutional issues under the Suspension Clause are actually implicated by
54
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 constitutional issues."130 Instead, the Second Circuit indicated that
126
Henderson, 157 F.3d at 119.
127
Id. at 119 n. 9.
128
Id. (emphasis supplied).
129
Henderson, 157 F.3d at 119.
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.
55
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 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
131
Id. at 119.
132
Id.
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.
56
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.), withdrawn and reh'g en banc granted, 159 F.3d 1217, No.
97-15789 (9th Cir. December 2, 1998), the Ninth Circuit first held that INA § 242(g) repealed §
2241 jurisdiction, noting that the noncriminal 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
136
Id.
137
Again, we note that although the Ninth Circuit has withdrawn its published opinion in
Hose, this Court still finds persuasive the analysis used by the Ninth Circuit in Hose.
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, 116 S.Ct. 2333, 135 L.Ed.2d 827 (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, 141 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
57
Magana-Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir.), modified, 159 F.3d 1217 (9th Cir.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.
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
Prior to granting rehearing en banc, the Ninth Circuit thus had adopted a hybrid approach
to whether INA § 242(g) repeals § 2241. For cases where judicial review remains in the court of
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, 97 S.Ct. 1224). 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.
138
Magana-Pizano, 152 F.3d at 1220.
139
Id.
58
appeals under the INA, the Ninth Circuit had 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 concluded that INA § 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, --- U.S. ----, 118 S.Ct.
624, 139 L.Ed.2d 605 (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 deportable under INA § 241(a)(2)(C) because his conviction for concealing
140
Hose, 141 F.3d at 936.
141
Magana-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.
59
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 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.2d 29 (1984). [Citations omitted.] Likewise with errors of
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.
147
Id. at 1197.
60
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 [v. U.S. Dept. of Labor], 73 F.3d
[1435] at 1443 [(7th Cir.1996)] ("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 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.
61
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
152
Id. at 1192 (citing Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (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 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 at 143.
62
Fifth Circuit noted that under INA § 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, 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
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 at 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 at 925.
155
Id. at 143-44.
156
Id.
157
Id. at 144.
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
63
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 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
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 (9th Cir.1997), 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, 123 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).
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).
64
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 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
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.
164
125 F.3d at 927.
165
Boston-Bollers, 106 F.3d at 353.
65
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).
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 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:
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).
66
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 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
67
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 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, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (stating "where Congress specifically
mandates, exhaustion is required"); Alexander v. Hawk, 159 F.3d 1321 (11th Cir.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
167
8 U.S.C. § 1105a (1994).
168
See Massieu v. Reno, 91 F.3d 416, 421 (3d Cir.1996); see also I.N.S. v. Chadha, 462 U.S.
919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).
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 American-Arab v. Reno 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. American-Arab Anti-Discrimination Comm. v. Reno, 132 F.3d 531 (9th Cir.1997)
(allowing aliens post-IIRIRA to seek an injunction in district court before a final removal order),
cert. granted, --- U.S. ----, 118 S.Ct. 2059, 141 L.Ed.2d 137 (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").
68
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. Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (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 Richa
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