Petition for Writ of Certiorari — Obajuluwa v. Ashcroft

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00-523 OCT 5 _ ony

No. GEEICE OF IKE CLERK

IN THE

Supreme Court of the United States

EMANUEL OBAJULUWA,

Petitioner,

JANET RENO, Attorney General, United States of America;

IMMIGRATION AND NATURALIZATION SERVICE; ARTHUR E.

STRAPP, District Director,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID |. SCHILLER

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

1717 Main Street, Ste. 5400

Dallas, Texas 75201-7390

(214) 698-3100

SETH M.M. STODDER

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

(202) 955-8500

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the permanent rules of the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”) repealed the jurisdiction of the federal

courts under 28 U.S.C. § 2241 to consider on a petition for a

writ of habeas corpus constitutional and statutory claims as-

serted by aliens convicted of crimes specified in the

Immigration and Nationality Act (“INA”).

pS Whether any such repeal of habeas corpus ju-

risdiction under 28 U.S.C. § 2241 violates Article I, § 9, cl. 2

(the “Suspension Clause”) or Article III of the United States

Constitution, or the Due Process Clause of the Fifth Amend-

ment to the United States Constitution.

PARTIES TO THE PROCEEDING

All parties below are named in the caption.

Petitioner Emanuel Obajuluwa was __ the peti-

tioner/appellant below.

Respondents Janet Reno, Immigration and Naturalization

Service, and Arthur E. Strapp were the respondents/appellees

below.

ill

TABLE OF CONTENTS

Page

PF SO PIRI TD on ccccccnscecesnsesesneneaveccecosevncoensenees 1

PARTIES TO THE PROCEEDING ..........c.ccccccssccssesesesesesees ll

OPINIONS AND ORDERS BELOW...........cccecccccscscscsesesees 1

SEE Re ee ne ae ]

CONSTITUTIONAL AND STATUTORY PROVI-

I I oi scinosicin.cnincvivenetenssonereiassavesencaeedenestacess 2

STATEMENT OF THE CASE ...........ccccccsssssscesocccececececscssees 3

A. PROCEEDINGS IN THE DISTRICT

I aie scien talaga scpcnnentcsn 4

B. PROCEEDINGS IN THE COURT OF

intr tithe tinliaiselacs aasschsinestnnakeidcsbinensteions 5

REASONS FOR GRANTING THE WRIT ...0....c.ccccseseseseeees 7

A. THE DECISION BELOW DIRECTLY

CONFLICTS WITH THIS COURT’S

CLEAR RULE THAT REPEALS OF HA-

BEAS CORPUS JURISDICTION MUST BE

EXPLICIT, AND CANNOT BE BY IMPLI-

Sie ates nevaulicbkccsadamigsicttisanamidesnexkcaniuhsnsesaanires 9

B. THE DECISION OF THE COURT OF AP-

PEALS SQUARELY CONFLICTS WITH

CONTRARY DECISIONS OF THE FIRST,

SECOND, THIRD, AND NINTH CIRCUITS ....... 14

C. RESOLUTION OF THE QUESTIONS PRE-

SENTED IS OF VITAL IMPORTANCE TO

THE INTERPRETATION AND _ EN-

FORCEMENT OF THE IMMIGRATION

TABLE OF AUTHORITIES

CASES Page(s)

Battaglia v. General Motors, 169 F.2d 254 (2d

Cir.), cert. denied, 335 U.S. 887 (1948).........cccceesseeees 17

Calcano-Martinez v. INS, ___ F.3d ___, 2000

WL 1336611 (2d Cir. Sept. 1, 2000). 8, 10, 15, 17, 18, 19

Commodity Futures Trading Comm'n v. Schor,

SF Ue ee CE si tities nla 18

Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868)............. 8,9, 10

Felker v. Turpin, 518 U.S. 651 (1996)... .ceccsseseseeeseeeeees 8,9

Finley v. INS, 210 F.3d 556 (Sth Cir. 2000)................ 6, 7, 10

Flores-Miramontes vy. INS, 212 F.3d 1133 (9th

aR Bie nsiccisicinssuciomcesieviactasenqnenabaandaneiidn 12, 16, 19

Garnica-Vasquez v. Reno, 210 F.3d 558 (Sth

Goncalves v. Reno, 144 F.3d 110 (lst Cir.

1998), cert. denied, 526 U.S. 1004 (1999)... 11

Heikkila v. Barber, 345 U.S. 229 (1953)... cceessesseeeeseeeees 12

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998)

cert. denied, 526 U.S. 1004 (1999) oo... eececceeeseeeteeeee 12

In re Jung Ah Lung, 25 F. 141 (D. Cal. 7385)... 12

United States vy. Jung Ah Lung, 124 US. 621

FRIIID vsiciodssecaschrepoictesbicpoaiaschadbhcinoaiictatecbaicabteacmnsiies 9,12, 17

Kwong Hai Chew vy. Colding, 344 U.S. 590

EINE acicidissabinesneecebbaceaiwaidaniamaaannconiceiatistadisiaiinadiedics 17

Lerma de Garcia v. INS, 141 F.3d 215 (Sth Cir.

iii iaciicttisiseici siti sicansteciiiglia nucditiginecidacaeaaeaeabacnibmanas 6

Lewis v. INS, 194 F.3d 539 (4" Cir. 1999) .....ccccssesesseeseseees 19

Liang v. INS, 206 F.3d 308 (3d Cir. 2000).... 8, 15, 16, 18, 19

Mahadeo yv. Reno, F.3d ___, 2000 WL

1257273 (1st Cir. Sept. 11, 2000)... 8,10, 11, 14

Marbury v. Madison, 5 U.S. 137 (1803) .......cceceeceseeeseeaeees 18

Max-George v. Reno, 205 F.3d 194 (Sth Cir.

FD iiss esinnstiniitinbtigsileicaenieetdaisedtabtadinisdataiimibct elope passim

Ng Fung Ho v. White, 259 U.S. 276 (1922) ..ccccsssssssesseseeees 17

Nguyen v. INS, 117 F.3d 206 (Sth Cir. 1997) 00... ccceceeeees 6

Nishimura Ekiu v. United States, 142 U.S. 651

CITE cours tncsscissiiejuiiadcessiassibeliadiesaipiinlabaionpinaisneniaiiens 9, 12, 13

Reno v. American-Arab Anti Discrimination

Committee, 525 U.S. 471 (1999) .....cccccceseestectseeeseeeees 5,6

Richardson v. Reno, 180 F.3d 1311 (11th Cir.

1999), cert. denied, 120 S. Ct. 1529 (2000)........ 8, 14, 15

Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999) 10, 11, 12, 13

Sousa v. INS, ___ F.3d ___, 2000 WL 1358469-

(1st Cir, Sept. 22, 2000) ......csssccccessssseseeeseee 14, 15, 18, 19

Spector Motor Serv., Inc. v. McLaughlin, 323

RFR, TARE CE vceecinsssiecnisinicsossisnidepitailiilvidatetaidbionsstiniit 18, 19

Swain v. Pressley, 430 U.S. 372 (1977) ....cccccsccsesseessseeeeeees 17

United States v. Hayman, 342 U.S. 205 (1952) ............ee 17

United States v. Jung Ah Lung, 124 US. 621

CI IUUE siccniasenscsnksncincatacacabtotiaesiguecpabca canepaledasiaiiapdua sabia 9

United States v. Nixon, 418 U.S. 683 (1974) ........eeeeeeeeees 18

Williams v. INS, 114 F.3d 82 (Sth Cir. 1997) .......cececseeeeeees 6

Yamataya v. Fisher, 189 U.S. 86 (1903) ........ccccecseesseeeeeees 12

CONSTITUTION AND STATUTES

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ot Re, ic cassdansecineicahiscisnanesnaiininiieslhiadinailanndaeadan ies .. 2,6

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-

MON IN La ANNO MES BT 3, 6

Pamaabey Aik OF UTED, © GAME. Td veecesnsnnessvsccteserncnvinntzvvenionsanns 9

1917 Immigration Act, 54 Stat. 1238 00.0... eceeeseeeeeeeees 12

Immigration Act of 1891, 26 Stat. 1084.00.00... ceeeeeeeeees 12

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DIAS. © Rae sesescinaninisincsccvegustntanabiciiameiuabeaennaee 5

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MISCELLANEOUS

Hiroshi Motomura, /mmigration Law After a

Century of Plenary Power: Phantom Consti-

tutional Norms and Statutory Interpretation,

100 YALE L.J. 545 (1990) .................0000. aubiicaaaeaniaabin

Gerald L. Neuman, Habeas Corpus, Executive

Detention, and the Removal of Aliens,

Se CR SIE, Fc BR Be Ce ceca centesiccsenesnsictsisnsininstnes

IN THE

Supreme Court of the Hnited States

No.

EMANUEL OBAJULU'WA,

Petitioner,

JANET RENO, Attorney General, United States of America;

IMMIGRATION AND NATURALIZATION SERVICE; ARTHUR E.

~ STRAPP, District Director,

Respondents.

On Petition For A Wnt Of Certiorari

To The United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Emanuel Obajuluwa respectfully petitions this

Court for a writ of certiorari to review a decision of the

United States Court of Appeals for the Fifth Circuit.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals (App., infra, 1a-Sa)

is not reported. The judgment and order of the district court

(id. at 6a-7a) are not reported. The Findings and Recom-

mendations of the United States Magistrate Judge (id. at 8a-

12a) are not reported.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered on July 7, 2000. Mr. Obaju-

luwa did not seek rehearing. This petition is being timely

filed within 90 days of that date. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article I, § 9, cl. 2 of the United States Constitution

provides: “The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion or Inva-

sion the public Safety may require it.”

2. The Due Process Clause of the Fifth Amendment

provides, in pertinent part: “No person shall be . . . deprived

of life, liberty, or property, without due process of law[.]”

3. Article III of the United States Constitution provides,

in pertinent part: “The judicial Power of the United States,

shall be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain and es-

tablish. ... The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be made,

under their Authority[.]”

4. INA § 242(a)(2)(C), added to the Immigration and

Nationality Act by IIRIRA and codified at 8 U.S.C.

§ 1252(a)(2)(C), provides, in pertinent part:

Notwithstanding any other provision of law, no

court shall have jurisdiction to review any final or-

der of removal against an alien who is removable by

reason of having committed a criminal offense cov-

ered in section [1182(a)(2) or 1227(a)(2)(A)(i11),

(B), (C), or (D)], or any offense covered by section

[1227(a)(2)(A)(ii)] for which both predicate of-

fenses are, without regard to their date of commis-

sion, otherwise covered by section

[1227(a)(2)(A)()].

5. INA § 242(b)(9), added to the Immigration and Na-

tionality Act by JIRIRA and codified at 8 US.C.

§ 1252(b)(9), provides, in pertinent part:

Judicial review of all questions of law and fact, in-

cluding interpretation and application of constitu-

EN ee ee eT eee ee eT

tional and statutory provisions, arising from any ac-

tion taken or proceeding brought to remove an alien

from the United States under this title shall be avail-

able only in judicial review of a final order under

this section.

6. 28U.S.C. § 2241 provides, in pertinent part:

(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. .. .

* *

prisoner unless —

* * *

(3) He is in custody in violation of the Constitution

or laws or treaties of the United States[.]

STATEMENT OF THE CASE

Petitioner Emanuel Obajuluwa (“Mr. Obajuluwa”) is a

Nigerian citizen who has lived in the United States for almost

20 years, and as a lawful permanent resident since 1990. On

August 18, 1994, Mr. Obajuluwa pled guilty to credit card

fraud and conspiracy to commit wire fraud, money launder-

ing, and credit card fraud, and was sentenced to 56 months in

prison. At the time he entered his 1994 guilty plea, Mr. Oba-

juluwa was eligible to seek relief from deportation under

INA § 212(c) (8 U.S.C. § 1182(c)), which permits the Attor-

ney General to grant relief from deportation for humanitarian

reasons.

On April 24, 1996, however, Congress enacted the Anti-

terrorism and Effective Death Penalty Act of 1996

(“AEDPA”’) (Pub. L. No. 104-132, 110 Stat. 1214), which, at

§ 440(d), eliminated the ability of so-called “aggravated fel-

ons” to obtain discretionary relief under INA § 212(c). On

September 30, 1996, Congress enacted the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”) (Pub. L. No. 104-208, 110 Stat. 3009), which,

among other things, repealed INA §212(c) altogether,

replacing it with a new, similar section, INA § 240A (8

U.S.C. § 1229b). As with INA § 212(c) after AEDPA, INA

§ 240A bars the granting of discretionary “cancellation” of

removal for aggravated felons.

On April 22, 1997, almost three years after Mr. Obaju-

luwa’s 1994 guilty plea, the Immigration and Naturalization

Service (“INS”) commenced removal- proceedings against

Mr. Obajuluwa. See R. 46.1 On September 28, 1998, the

Board of Immigration Appeals (“BIA”) affirmed an immigra-

tion judge’s previous determination that Mr. Obajuluwa was

subject to removal, and further denied Mr. Obajuluwa’s re-

quest for relief under INA § 212(c), finding that such relief

had been “repealed and replaced by [INA § 240A],” and that

Mr. Obajuluwa was not eligible for “cancellation of removal”

under INA § 240A, because he had been convicted of “ag-

gravated felonies.” See R. 47-48. The BIA also declined to

address Mr. Obajuluwa’s objections to the constitutionality

of the INS’s applying INA § 240A’s bar on relief for “aggra-

vated felons” retroactively by using Mr. Obajuluwa’s 1994

guilty plea to disqualify him from any such relief. Jd. The

BIA denied reconsideration on November 25, 1998. See R.

50-51.

A. Proceedings In The District Court

On February 9, 1999, Mr. Obajuluwa filed a Petition for a

Writ of Habeas Corpus (the “Petition”) in the United States

1 Cites to “R.” refer to the record on appeal.

District Court for the Northern District of Texas.2 In the Pe-

tition, Mr. Obajuluwa challenges the legality of the BIA’s

removal order, asserting that its retroactive application of the

1996 IIRIRA provisions to his 1994 guilty plea was contrary

to the INA, and violated the Due Process Clause of the Fifth

Amendment and the Ex Post Facto Clause of the United

States Constitution (U.S. ConsT., art. I, § 9, cl. 3). R. 1-51.

The jurisdictional bases for the Petition are 28 U.S.C. § 2241

and Article I, § 9, cl. 2 of the United States Constitution (the

Suspension Clause). Jd.

On April 27, 1999, the United States Magistrate Judge is-

sued his Findings and Recommendations, dismissing Mr.

Obajuluwa’s Petition for lack of subject matter jurisdiction.

See App. 3a. The Magistrate Judge’s ruling rested primarily

upon the view that INA § 242(g), enacted by ITIRIRA and

codified at 8 U.S.C. § 1252(g), had repealed 28 U.S.C.

§ 2241. Jd. at 1la-12a. On May 10, 1999, Mr. Obajuluwa

filed Objections to the Magistrate Judge’s Findings and Rec-

ommendations. See R. 156-87. On May 24, 1999, United

States District Judge Jorge A. Solis adopted the Magistrate

Judge’s Findings and Recommendations and dismissed the

Petition “for lack of jurisdiction.” App. 7a. The district

court did not reach the merits of the constitutional and statu-

tory claims raised in Mr. Obajuluwa’s Petition. Jd.

B. Proceedings In The Court Of Appeals

On July 19, 1999, Mr. Obajuluwa filed his Notice of Ap-

peal. R. 204. In his appeal, Mr. Obajuluwa argued that the

district court’s dismissal of his Petition was error for several

reasons: Pe,

First, Mr. Obajuluwa argued that, in light of this Court’s

ruling in Reno v. American-Arab Anti Discrimination Com-

2 Venue was proper in Texas, because of Mr. Obaju-

luwa’s continued detention by the INS in the Northern Dis-

trict.

mittee, 525 U.S. 471, 482 (1999) (“AADC”), 8 U.S.C.

§ 1252(g) could not be construed as repealing habeas corpus

jurisdiction under 28 U.S.C. § 2241.

Second, Mr. Obajuluwa argued that AEDPA § 401(e)

could not be construed as eliminating habeas corpus jurisdic-

tion under 28 U.S.C. § 2241.

Third, Mr. Obajuluwa argued that neither 8 U.S.C.

§ 1252(a)(2)(C) nor 8 U.S.C. § 1252(b)(9) could properly be

construed as repealing habeas corpus jurisdiction under 28

U.S.C. § 2241.

Fourth, Mr. Obajuluwa argued that, to the extent that any

provisions of AEDPA or IIRIRA could be read to eliminate

habeas corpus jurisdiction, they violate Article I, § 9, cl. 2

(the “Suspension Clause’’) and Article III of the United States

Constitution, and the Due Process Clause of the Fifth

Amendment to the United States Constitution.

Fifth, Mr. Obajuluwa argued that, to the extent the Court

of Appeals determined that habeas corpus jurisdiction had

been eliminated, it should apply this rule prospectively, given

Mr. Obajuluwa’s reliance on prior contrary holdings by the

Court of Appeals interpreting virtually identical language.

See Lerma de Garcia v. INS, 141 F.3d 215 (Sth Cir. 1998)

(IIRIRA § 309(c)(4)(G) eliminates petition-for-review juris-

diction, but habeas corpus jurisdiction under 28 U.S.C.

§ 2241 is still available); Nguyen v. INS, 117 F.3d 206 (Sth

Cir. 1997) (same); Williams v. INS, 114 F.3d 82 (Sth Cir.

1997) (AEDPA § 440(a) prohibits aggravated felon from

bringing direct petition for review, but does not preclude ha-

beas corpus jurisdiction under 28 U.S.C. § 2241).

On July 7, 2000, the Court of Appeals affirmed the district

court’s dismissal of Mr. Obajuluwa’s Petition for lack of sub-

ject matter jurisdiction. In its unpublished per curiam opin-

ion, the Court of Appeals followed its previous published

decisions in Max-George v. Reno, 205 F.3d 194 (Sth Cir.

2000), Garnica-Vasquez v. Reno, 210 F.3d 558 (Sth Cir.

2000), and Finlay v. INS, 210 F.3d 556 (Sth Cir. 2000), and

ruled that “the IIRIRA permanent rules removed federal ha-

ee ee ee

PO LE eT ee a ee

beas jurisdiction under 28 U.S.C. § 2241 over challenges to

orders removing certain criminal aliens under 8 U.S.C.

§ 1252(a)(2)(C).” App. 3a-4a. The Court of Appeals further

ruled that “any remaining habeas jurisdiction under the Con-

stitution did not encompass the claims petitioner raised, in-

cluding the claim that he had a nght to be considered for dis-

cretionary relief from removal, which his status as an

aggravated felon precluded.” Jd. at 4a (citing Max-George,

205 F.3d at 202).

The Court of Appeals further ruled that “[a]n alien con-

victed of an aggravated felony and subject to a final order of

removal on that basis must file a petition for review in the

court of appeals.” Jd. (citing Max-George, 205 F.3d at 202).

As stated by the Court of Appeals, “[i]f a petition for review

is filed, then the court of appeals must determine whether

‘(1) the specific conditions that bar jurisdiction in the court of

appeals exist, (2) the conditions barring jurisdiction are con-

stitutionally applied to the petitioner, and (3) the level of ju-

dicial review remaining is constitutionally adequate ....

Id. (quoting Max-George, 205 F.3d at 202). The Court of

Appeals further stated that “unless ‘a petitioner proves that

his or her claims are within the wnt constitutionally protected

(a situation which, as the Seventh Circuit has noted, is

unlikely), we must summarily dismiss for lack of jurisdic-

tion.’” Jd. (quoting Garnica-Vasquez, 210 F.3d at 560).

The Court of Appeals then ruled that “(t]he record in this

case discloses no basis for finding that Obajuluwa raised

claims within the constitutional writ, which is narrower than

under section 2241.” Jd. at 4a. The Court of Appeals stated

that “[t}his court has held that a retroactively applied criminal

categorization in the immigration context is not a due process

violation, see Max-George, 205 F.3d at 200, and that denial

of consideration for discretionary relief from removal is not a

constitutional violation, see Finlay, 210 F.3d at 557.” Td. at

4a-Sa.

Thus, the Court of Appeals ruled that the district court had

“correctly dismissed Obajuluwa’s habeas petition for lack of

jurisdiction.” Jd. at Sa.

299 2

Mr. Obajuluwa did-not seek rehearing of the per curiam

ruling of the Court of Appeals.

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari for three reasons:

First, the determination by the Court of Appeals that 8

U.S.C. §§ 1252(a)(2)(C) and 1252(b)(9), enacted by ITRIRA,

repealed habeas corpus jurisdiction, squarely conflicts with

this Court’s clear holdings in Felker v. Turpin, 518 U.S. 651

(1996), and Ex parte Yerger, 75 U.S. (8 Wall.) 85, 105-06

(1868), that habeas corpus jurisdiction cannot be repealed

“by implication.” Felker, 518 U.S. at 660-6'. A repeal of

habeas corpus jurisdiction can only be effected by clear con-

gressional command. Because neither 8 U.S.C.

§ 1252(a)(2)(C) nor 8 U.S.C. § 1252(b)(9) even mention ha-

beas corpus jurisdiction under 28 U.S.C. § 2241, let alone

explicitly provide for its repeal, the ruling by Court of Ap-

peals clearly conflicts with the Felker / Yerger rule. This

Court should grant certiorari to resolve this conflict and cor-

rect the erroneous determination by the Court of Appeals.

Second, the ruling by the Fifth Circuit in this case, in

Max-George v. Reno, 205 F.3d 194 (Sth Cir. 2000), and in

other cases, squarely conflicts with contrary rulings in the

First, Second, Third, and Ninth Circuits. Contrary to the

Fifth Circuit, the First, Second, Third, and Ninth Circuits uni-

formly follow the Felker / Yerger rule and hold that the per-

manent provisions of IIRIRA did not repeal habeas corpus

jurisdiction under 28 U.S.C. § 2241. See Mahadeo v. Reno,

__ F.3d ___, 2000 WL 1257273 (ist Cir. Sept. 11, 2000) (fol-

lowing Felker and Yerger to hold that ITRIRA did not repeal

habeas jurisdiction under 28 U.S.C. § 2241); Calcano-

Martinez v. INS, __ F.3d __, 2000 WL 1336611 (2d Cir.

Sept. 1, 2000) (same); Flores-Miramontes v. INS, 212 F.3d

1133 (9th Cir. 2000) (same); Liang v. INS, 206 F.3d 308 (3d

Cir. 2000) (same); contra Richardson v. Reno, 180 F.3d 1311

(11th Cir. 1999) (ruling that IIRIRA did repeal habeas corpus

jurisdiction under 28 U.S.C. § 2241, in accord with the Fifth

Circuit’s ruling in this case and in Max-George), cert. denied,

120 S. Ct. 1529 (2000). This Court should grant certiorari to

resolve this clear conflict among the lower courts.

Third, this Court should grant certiorari because this peti-

tion presents constitutional and statutory questions of excep-

tional importance to the Nation’s enforcement of its immigra-

tion laws. The question of whether federal courts have

habeas corpus jurisdiction to consider claims by aliens seek-

ing to challenge removal orders is recurring, and the continu-

ing lower court conflict over the issue has led to dramatically

different results in identical cases. The Court should grant

certiorari to put to rest the uncertainty pervading this impor-

tant area of the law.

A. The Decision Below Directly Conflicts With This

Court’s Clear Rule That Repeals Of Habeas Cor-

pus Jurisdiction Must Be Explicit, And Cannot Be

By Implication

1. Section 2241 of Title 28 of the United States Code,

which provides that federal courts have jurisdiction to grant

writs of habeas corpus to persons “in custody in violation of

the Constitution or laws or treaties of the United States,”

traces its lineage to § 14 of the Judiciary Act of 1789 (1 Stat.

73, 81-82). See Felker, 518 U.S. at 661 (describing this pro-

vision of the Judiciary Act as the direct ancestor of the cur-

rent 28 U.S.C. § 2241). As far back as its decision in United

States v. Jung Ah Lung, 124 U.S. 621 (1888), this Court has

recognized that, under § 2241, federal district courts have

habeas corpus jurisdiction to consider the legality of deporta-

tion or exclusion orders entered against aliens. As stated by

the Court in Nishimura Ekiu v. United States, 142 U.S. 651,

660 (1892), “[a]n alien immigrant, prevented from landing by

any such officer claiming authority to do so under an act of

Congress, and thereby restrained of his liberty, is doubtless

entitled to a writ of habeas corpus to ascertain whether the

restraint is lawful.”

In Ex parte Yerger, this Court ruled emphatically that re-

peals of habeas corpus jurisdiction “by implication are not

favored.” Yerger, 75 U.S. at 105. Thus, the Court ruled that

Congress’s 1867 repeal of the Court’s appellate jurisdiction

over habeas corpus petitions did not operate to repeal the Su-

preme Court’s general habeas corpus jurisdiction under the

1789 Judiciary Act. As stated by the Court:

[T]here are no repealing words in the [A]ct of 1867.

If it repealed the [A]ct of 1789, it did so by implica-

tion.... Repeals by implication are not favored.

They are seldom admitted except on the ground of

repugnancy; and never, we think, when the former

[A]ct can stand together with the new [A]ct.

Yerger, 75 U.S. at 105.

In the 1996 Felker decision, the Court interpreted AEDPA

§ 106(b) (codified at 28 U.S.C. § 2244(b)(3)(E)) in light of

the Yerger rule. This provision bars state prison inmates

from filing “second or successive’ habeas corpus petitions

without first obtaining permission from a three-judge panel

_ of the relevant court of appeals. The statute provides that a

panel’s grant or denial of authorization to file “shall not be

appealable and shall not be the subject of a petition for ...

writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). Noting that

“{njo provision of Title I [of AEDPA] mentions our authority

to entertain original habeas petitions,” the Court ruled that

because repeals of habeas corpus jurisdiction by implication

are not favored, AEDPA § 106(b) did not preclude the Court

from exercising its orginal habeas jurisdiction under 28

U.S.C. § 2241. Felker, 518 U.S. at 660.

Read together, Felker and Yerger “establish the proposi-

tions that courts should not lightly presume that a congres-

sional enactment containing general language effects a repeal

of a jurisdictional statute, and, consequently, that only a plain

statement of congressional intent to remove a particular

statutory grant of jurisdiction will suffice.” Sandoval v.

Reno, 166 F.3d 225, 232 (3d Cir. 1999) (emphasis added).

See also Calcano-Martinez, 2000 WL 1336611, at *10

(declining to “strain to infer that Congress radically repealed

the federal courts’ habeas jurisdiction to review final orders

of removal,” holding that under Felker and Yerger, “a court

i i LE Eg Be ee Or

cannot presume that a congressional enactment effects a re-

peal of a jurisdictional statute when it does not explicitly

mention the jurisdictional statute or the general type of juris-

diction by name.”); Mahadeo, 2000 WL 1257273, at *5

(“‘any repeal of the federal courts’ historic habeas jurisdic-

tion .. . must be explicit and make express reference specifi-

cally to the statute granting jurisdiction”) (quoting Gon-

calves v. Reno, 144 F.3d 110, 120 (lst Cir. 1998), cert.

denied, 526 U.S. 1004 (1999)).

2. No provision of IIRIRA contains an “express statement

of congressional intent” to repeal habeas corpus jurisdiction

under 28 U.S.C. § 2241. Sandoval, 166 F.3d at 236-37. In-

deed, the provisions relied upon by the court below — 8

U.S.C. § 1252(a)(2)(C) and 8 U.S.C. § 1252(b)(9) — do not

even mention habeas corpus jurisdiction at all, let alone ha-

beas jurisdiction under § 2241.

Thus, under the Felker / Yerger rule against repeals of ha-

beas corpus jurisdiction “by implication,” ITRIRA cannot be

construed to repeal habeas corpus jurisdiction under 28

U.S.C. § 2241.

3. The language in 8 U.S.C. § 1252(a)(2)(C) providing

that “no court shall have jurisdiction to review any final order

of removal,” and in § 1252(b)(9) providing that “{j]udicial

review ... shall be available only in judicial review of a final

order under this section,” does not require a contrary conclu-

sion.

As numerous courts have held, the term “judicial review,”

as it is used in such jurisdiction-limiting statutes as 8 U.S.C.

§§ 1252(a)(2)(C) and 1252(b)(9), does not include habeas

corpus jurisdiction under 28 U.S.C. § 2241. As the Third

Circuit in Sandoval has emphasized:

[I]n the immigration context, the [Supreme] Court

has historically drawn a sharp distinction between

“judicial review” — meaning APA review — and the

court’s power to entertain petitions for writs of ha-

beas corpus.

«72

Sandoval, 166 F.3d at 235 (citing Heikkila v. Barber,

345 U.S. 229, 235-36 (1953)); see also Flores-

Miramontes, 212 F.3d at 1140 (same).

Based on this fundamental distinction, and in accord with

the Felker / Yerger rule against repeals of habeas jurisdiction

by implication, this Court has repeatedly found jurisdiction to

consider habeas corpus petitions challenging deportation or-

ders, despite statutory provisions (such as 8 U.S.C.

§ 1252(a)(2)(C)) purportedly barring all “judicial review.”

Indeed, the initial recognition of such habeas corpus jurisdic-

tion by the Court, in Jung Ah Lung, 124 U.S. 621, stemmed

from an attempt by the government to argue that this power

had been eliminated by an Act of Congress — the Chinese

Exclusion Act. Rejecting this argument, the district court

emphasized that “[s]uch an abrogation of the writ of habeas

corpus, which has always been considered among English-

speaking peoples the most sacred muniment of personal free-

dom, must be unmistakably declared by congress before any

court could venture to withhold its benefits from any human

being[.]” Jn re Jung Ah Lung, 25 F. 141, 142-43 (D. Cal.

1885). This ruling was affirmed by the Court in Jung Ah

Lung, 124 U.S. at 628-30; see also Gerald L. Neuman, Ha-

beas Corpus, Executive Detention, and the Removal of

Aliens, 98 COLUM. L. REV. 961, 1004-06 (1998) (discussing

the Jung Ah Lung decision).

From that point forward, federal courts have consistently

utilized the writ of habeas corpus to review the legality of

deportation or exclusion orders, despite express congres-

sional efforts to restrict judicial review. Indeed, courts did

this, despite a provision in the 1891 Immigration Act provid-

ing that “(a]ll decisions made by the inspection officers or

their assistants touching the right of any alien to land, when

adverse to such right, shall be final unless appeal be taken to

the superintendent of immigration, whose action shall be sub-

ject to review by the Secretary of the Treasury” (Immigration

Act of 1891, ch. 551, § 8 (26 Stat. 1084, 1085) (emphasis

added)) and a similar provision in the 1917 Immigration Act

(see § 19, 29 Stat. 874). Indeed, in Nishimura Ekiu, the first

case to interpret the “finality” provision of the 1891 Act, the

Court declared that “[a]n alien immigrant, prevented from

landing by any such officer claiming authority to do so under

an act of Congress, and thereby restrained of his liberty, is

doubtless entitled to a writ of habeas corpus to ascertain

whether the restraint is lawful.” Nishimura Ekiu, 142 U.S. at

660. Accord Yamataya v. Fisher, 189 U.S. 86 (1903) (simi-

larly considering habeas corpus petition, despite 1891 Act’s

“finality” provision); see generally Henderson v. INS, 157

F.3d 106, 112-17 (2d Cir. 1998) (discussing history of habeas

corpus jurisdiction, despite statutory provisions restricting

judicial review), cert. denied, 526 U.S. 1004 (1999).

In Heikkila v. Barber, 345 U.S. 229 (1953), the Court ex-

plicitly rejected the view that “habeas corpus itself repre-

sented judicial review.” Jd. at 235. In that case, the Court

held that the enactment of the Admimstrative Procedure Act

of 1946 did not supercede federal courts’ habeas corpus ju-

risdiction to consider challenges to deportation orders. The

Court further emphasized that although the 1917 Act was a

“statute precluding judicial review,” an alien could still main-

tain a habeas corpus petition. /d. In so doing, the Court ob-

served that despite Congress’s effort to make deportation de-

cisions “nonreviewable to the fullest extent possible under

the Constitution,” habeas corpus jurisdiction still existed to

consider challenges to such orders. Jd. at 234; see also

Sandoval, 166 F.3d at 235 (noting that in Heikkila, the Court

has “expressly rejected the conclusions of three courts of ap-

peals that had ‘taken the position that habeas corpus itself

represented judicial review.’”) (citation omitted).

Under these authorities, and consistent with the Felker /

Yerger clear statement rule, it is clear that the restriction on

“Judicial review” contained in 8 U.S.C. §§ 1252(a)(2)(C) and

(b)(9) does not preclude habeas corpus jurisdiction under

§ 2241. Thus, the contrary determination by the Court of

Appeals in this case and in Max-George squarely conflicts

with the well-established law of this Court.

4. For similar reasons, the phrase “notwithstanding any

other provision of law,” as used in 8 U.S.C. § 1252(a)(2)(C),

also does not mandate a contrary conclusion. This additional

phrase does not provide 8 U.S.C. §§ 1252(a)(2)(C) or

. 259(b)(9) any additional scope, such that the statute would

satisfy the Felker / Yerger rule against repeals of habeas ju-

risdiction by implication. Moreover, the phrase does not ne-

gate this Court’s traditional distinction between “judicial re-

view” and habeas corpus, discussed above. The statute is,

thus, indistinguishable from the statutes at issue in Heikkila,

Nishimura Ekiu, and other cases in which the Court ruled that

despite statutory provisions explicitly precluding “judicial

review,” habeas corpus jurisdiction still existed.

Thus, the determination by the Court of Appeals flatly

contradicts this Court’s holdings in Felker and Yerger, as

well as the past century of precedents concluding that limita-

tions on “judicial review” do not constitute implied repeals of

habeas corpus jurisdiction. For this reason, the Court should

grant certiorari.

B. The Decision Of The Court of Appeals Squarely

Conflicts With Contrary Decisions Of The First,

Second, Third, And Ninth Circuits

The decision below conflicts not only with this Court’s

precedents, but also with decisions of the First, Second,

Third, and Ninth Circuits — all uniformly holding that

IIRIRA did not repeal habeas corpus jurisdiction under 28

U.S.C. § 2241. For this additional reason, the Court should

grant certiorari to resolve this split in lower court authority.

Indeed, the ruling of the Court of Appeals reveals a pro-

found circuit split on this issue. For example, in Mahadeo v.

Reno, _ F.3d __, No. 99-1687, 2000 WL 1257273 (ist Cir.

Sept. 11, 2000), ti the First Circuit followed Felker and Yerger

to hold unequivocally that because “IIRIRA’s permanent

rules — like the transitional rules before them — lack a clear

statement of intent to repeal § 2241 jurisdiction,” ITRIRA

could not be construed to repeal such jurisdiction. Jd., 2000

WL 1257273, at *9; see also Sousa v. INS, _ F.3d __, No.

99-2049, 2000 WL 1358469, at *6 (Ist Cir. Sept. 22, 2000)

(following Mahadeo, dismissing for lack of jurisdiction the

———

——aaEaE—aIE

alien’s petition for review, and holding that the alien could

seek “habeas relief in the district court” under 28 U.S.C.

§ 2241). :

In Calcano-Martinez v. INS, __ F.3d _, Nos. 98-4033,

98-4214, 98-4246, 2000 WL 1336611 (2d Cir. Sept. 1, 2000),

the Second Circuit similarly followed Felker and Yerger to

hold that IIRIRA had not repealed habeas corpus jurisdiction

under 28 U.S.C. § 2241. As stated by the court, “there is . . .

nothing in IIRIRA’s permanent provisions that constitutes a

sufficiently clear statement of congressional intent to repeal

the habeas jurisdiction granted Article III courts by 28 U.S.C.

§ 2241.” Jd., 2000 WL 1336611, at *11. The Second Circuit

also followed Heikkila and other authorities and further

stated that “[w]e will not infer that Congress meant to repeal

habeas corpus review under 28 U.S.C. § 2241 when it men-

tioned only judicial review, a distinct and separate concept

from habeas.” Jd. In reaching these conclusions, the Second

Circuit expressly rejected the contrary rulirigs of the Fifth

Circuit (in Max-George) and the Eleventh Circuit (in

Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999), cert.

denied, 120 S. Ct. 1529 (2000)). See id., 2000 WL 1336611,

*9-10.

In Liang v. INS, 206 F.3d 308 (3d Cir. 2000), the Third

Circuit also followed Felker and Yerger to hold that ITIRIRA

did not repeal habeas corpus jurisdiction under 28 U.S.C.

§ 2241. In so doing, the court also explicitly rejected the

view of the Fifth and Eleventh Circuits. As stated by the

court:

The holdings of both Richardson cases and Max-

George that Congress need not mention habeas or

§ 2241 to repeal the district courts’ habeas jurisdic-

tion are at odds not only with our reasoning in

.-Sandoval but with the reasoning of the other courts

of appeals that have read the Supreme Court’s

precedent in Yerger and Felker to require explicit

statutory reference to habeas or § 2241 to effect

_ congressional repeal of habeas jurisdiction.

Liang, 206 F.3d at 320.

Finally, in Flores-Miramontes v. INS, 212 F.3d 1133 (9th

Cir. 2000), the Ninth Circuit similarly ruled that IRIRA had

not repealed jurisdiction under 28 U.S.C. § 2241. Jd. at

1136. ;

These decisions of the First, Second, Third, and Ninth

Circuits all squarely conflict with those of the Fifth Circuit

(not only the decision below, but in Max-George) and the

Eleventh Circuit (in Richardson). Moreover, these cases are

indistinguishable from each other. All of these cases were

presented with the same question for review — whether an

alien could seek habeas corpus relief under 28 U.S.C. § 2241,

despite IIRIRA’s permanent provisions. The First, Second,

Third, and Ninth Circuits have said yes, and the Fifth and

Eleventh Circuits have said no. This is a clear conflict in au-

thority calling out for resolution.

For this additional reason, the Court should grant certio-

rari.

C. Resolution Of The Questions Presented Is Of Vital

Importance To The Interpretation And Enforce-

ment Of The Immigration Laws

It is beyond peradventure that resolving the question of

whether IIRIRA repealed habeas corpus jurisdiction under 28

U.S.C. § 2241 is of vital importance to the fair and orderly

application of our Nation’s immigration laws. Indeed, the

current situation — in which some circuits have determined

that jurisdiction under § 2241 exists and some have not — is

clearly untenable, given that the degree to which the legality

of a removal order can be challenged is entirely dependent

upon the physical location of the alien. Certiorari is clearly

warranted to resolve this important conflict.

Moreover, the question of whether IIRIRA repealed

§ 2241 raises serious and complex questions of both statutory

interpretation and constitutional law that should be resolved

as quickly as possible. Indeed, if the Court determines that

IIRIRA repealed § 2241, it must face the question of whether

such a repeal — essentially eliminating the ability of aliens

convicted of certain crimes to challenge the legality of their

removal orders in Article III courts — violates the Constitu-

tion.

And, given that under 8 U.S.C. § 1252(a)(2)(C), aliens

convicted of aggravated felonies are precluded from _bring-

ing a petition for review in the court of appeals, see Calcano-

Martinez, 2000 WL_ 1336611, *14 (holding _ that

§ 1252(a)(2)(C) eliminates petition-for-review jurisdiction

for aliens convicted of certain crimes), such a repeal would

be unconstitutional.

First, such a repeal would violate Article I, § 9, cl. 2 of the

Constitution (the “Suspension Clause”). At a minimum, this

Clause requires that Congress provide a means of judicial

scrutiny that is “neither inadequate nor ineffective to test the

legality of a person’s detention ....” Swain v. Pressley, 430

U.S. 372, 381 (1977) (citing United States v. Hayman, 342

U.S. 205, 223 (1952)). Since Jung Ah Lung, this Court has

extended that constitutional night to require judicial scrutiny

of deportation orders. Jung Ah Lung, 124 U.S. at 628-30; see

also Heikkila, 345 U.S. at 234 (interpreting the “finality”

clauses of the 1891 and 1917 Immigration Acts as making

deportation decisions “nonreviewable to the fullest extent

possible under the Constitution”). Given the clear bar on the

review of removal orcers against aggravated felons under °

U.S.C. § 1252(a)(2)(C), the Suspension Clause is clearly vio-

lated if ITRIRA is construed to repeal habeas corpus jurisdic-

tion under 28 U.S.C. § 2241.

Second, if IIRIRA were construed to repeal habeas corpus

jurisdiction under 28 U.S.C. § 2241, this would violate the

Fifth Amendment’s guarantee of due process. It is well es-

tablished that, given the consequences of deportation, see Ng

Fung Ho v. White, 259 U.S. 276, 284 (1922) (deportation and

the resulting separation from home and family can deprive a

person of “all that makes life worth living”), lawful perma-

nent residents have constitutional due process rights in depor-

tation proceedings. See Kwong Hai Chew v. Colding, 344

U.S. 590, 596-97 (1953). These due-process guarantees

would, of course, be meaningless if judicial scrutiny of the

legality of removal orders were deemed entirely eliminated

by IIRIRA. See Battaglia v. General Motors, 169 F.2d 254,

257 (2d Cir.), cert. denied, 335 U.S. 887 (1948) (“while

Congress has the undoubted power to give, withhold, and

restrict the jurisdiction of courts other than the Supreme

Court, it must not so exercise that power as to deprive any

person of life, liberty, or property without due process of

law’’). Thus, any repeal of habeas corpus jurisdiction, com-

bined with the elimination of petition-for-review jurisdiction,

would violate fundamental due process.

Finally, repeal of 28 U.S.C. § 2241 would violate the

Separation of Powers principles embodied in Article III of

the Constitution, for it would eliminate the “essential func-

tion” of the judiciary (United States v. Nixon, 418 U.S. 683,

707 (1974)) — i.e., to provide “independent and impartial ad-

judication ... of matters within the judicial power of the

United States[,]” Commodity Futures Trading Comm'n yv.

Schor, 478 U.S. 833, 848 (1986), and to “say what the law

is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

In ruling that ITRIRA did not repeal 28 U.S.C. § 2241, the

First, Second, Third, and Ninth Circuits expressly avoided

these serious and complex constitutional questions. See, e.g.,

Calcano-Martinez, 2000 WL 1336611, *10 (“our preserva-

tion of habeas jurisdiction under the permanent rules avoids

the novel and profound constitutional questions that would

arise were we to find that ITRIRA eliminates habeas jurisdic-

tion over final immigration decisions”); Liang, 206 F.3d at

321 (ruling that ITRIRA did not repeal § 2241 jurisdiction

“obviates the serious constitutional problems that would arise

were we to ... read the permanent rules to strip the district

courts of habeas jurisdiction”). This avoidance of a constitu-

tional confrontation is consistent with the basic principle that

courts should construe statutes to avoid constitutional con-

frontations or “doubt.” Hiroshi Motomura, Jmmigration Law

After a Century of Plenary Power: Phantom Constitutional

Norms and Statutory Interpretation, 100 YALE L.J. 545, 561

(1990). Accord Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101, 105 (1944) (“If there is one doctrine more

deeply rooted than any other in the process of constitutional

adjudication, it is that we ought not to pass on questions of

constitutionality ... unless such adjudication is unavoid-

able.”).

The court below’s attempt to avoid the unconstitutional

implications of its ruling — by interpreting 8 U.S.C.

§ 1252(a)(2)(C) as permitting limited petitions for review by

aliens convicted of aggravated felonies — is plainly unpersua-

sive and inadequate, and utterly conflicts with the plain lan-

guage of the statute. Indeed 8 U.S.C. § 1252(a)(2)(C)

plainly states that “no court shall have jurisdiction to review

any final order” (emphasis added). For these reasons, the

First, Second, Third, Fourth, and Ninth Circuits have all uni-

formly rejected the Fifth Circuit’s counter-textual reading of

§ 1252(ay(2)(C). See Sousa, 2000 WL 1358469, *6 (INA

section 242(a)(2)(C) precludes our review of any final order

of removal by an alien removable because he is an aggra-

vated felon”); Calcano-Martinez, 2000 WL 1336611, *13

(same); Flores-Miramontes, 212 F.3d at 1136 (same); Liang,

206 F.3d at 322 (same); Lewis v. INS, 194 F.3d 539, 541 (4th

Cir. 1999) (same). ©

Thus, the serious constitutional consequences of the lower

court’s ruling are inescapable, and require attention by th’s

Court. For this additional reason, certiorari is warranted in

order to resolve and clarify this important area of the law.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition for wnt of certiorari.

Respectfully submitted,

October 5, 2000

DAVID I. SCHILLER

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

1717 Main Street, Ste. 5400

Dallas, Texas 75201-7390

(214) 698-3100

SETH M.M. STODDER

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306

(202) 955-8500

Counsel for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10831

EMANUEL OBAJULUWA,

Petitioner — Appellant,

VS.

JANET RENO, Attorney General, United States of America;

IMMIGRATION AND NATURALIZATION SERVICE;

ARTHUR E. STRAPP, District Director,

Respondents-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(3: 99-CV-285)

July 7, 2000

Before WIENER and STEWART, Circuit Judges; and

ROSENTHAL, District Judge.*

PER CURIAM:**

Emanuel Obajuluwa appeals this district court’s dismissal

of his habeas corpus petition challenging an Immigration and

*District Judge of the Southern District of Texas, sitting

by designation.

**Pursuant to 5TH Cir. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in STH CIR.

R. 47.5.4.

ark nameieemnesa arian earadiitn ene i

Naturalization Service final order removing him from this

country. The district court held that it lacked jurisdiction

over Obajuluwa’s petition. Applying this circuit’s recent

holding in Max-George v. Reno, 205 F.3d 194 (Sth Cir.

2000), we affirm.

I. BACKGROUND

Obajuluwa is a Nigerian citizen who entered the United

States in December 1981. He became a lawful permanent

resident on December 27, 1990. On August 18, 1994, Obaju-

luwa was convicted of credit card fraud and conspiracy to

commit wire fraud, money laundering, and credit card fraud.

The district court sentenced Obajuluwa to two concurrent

terms of 56 months of imprisonment.

On April 22, 1997, the Immigration and Naturalization

Service (“INS”) initiated removal proceedings against Obaju-

luwa under 8 U.S.C. § 1227(a)(2)(A)(iii) (West Supp. 1998),

based on his felony conviction. An immigration judge or-

dered Obajuluwa removed to Nigeria on March 6, 1998.

Obajuluwa appealed to the Board of Immigration Appeals

(“BIA”); the BIA dismissed Obajuluwa’s appeal on Septem-

ber 28, 1998. The removal order became final on November

25, 1998, the date the BIA denied Obajuluwa’s motion to

reconsider.

Under the Illegal Immigration Reform and Immigrant Re-

sponsibility Act of 1996 (IIRIRA), which limited federal

court jurisdiction over certain removal orders, an alien has

thirty days to appeal an order of removal and must pursue

that appeal in the court of appeals, not the district court.

Obajuluwa did not file a petition for review in the court of

appeals within the thirty days permitted. Instead, Obajuluwa

filed a petition for a writ of habeas corpus in the United

States District Court for the Northern District of Texas. In

that petition, Obajuluwa asserted that the retroactive applica-

tion of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) and IIRIRA to eliminate eligibility for discre-

tionary relief under section 212(c) of the Immigration and

Naturalization Act denied him due process and violated the

Ex Post Facto Clause. He also alleged that the INS illegally

delayed beginning removal proceedings against him until

1997, in violation of 8 U.S.C. § 1229(d).

The district court, adopting the magistrate judge’s recom-

mendation, dismissed Obajuluwa’s habeas petition for lack of

jurisdiction. On this appeal, Obajuluwa first claims that the

permanent provisions of IIRIRA, as codified at 8 U.S.C. §

1252(a)(2)(C), did not strip the district court of habeas juris-

diction to review the order to remove him as an alien con-

victed of an aggravated felony. He also argues that if section

1252(a)(2)(C) does eliminate habeas jurisdiction in the dis-

trict court, this provision should be applied prospectively;

that his habeas petition should be treated as a petition for re-

view under section 1252(b); or that this court should allow

him to submit an out-of-time petition for review.

Il. ANALYSIS

This case is controlled by this circuit’s recent decisions in

Max-George v. Reno, 205 F.3d 194 (Sth Cir. Feb. 24, 2000);

Garnica-Vasguez v. Reno, 210 F.3d 558 (Sth Cir. May 4,

2000); and Finlay v. INS, 210 F.3d 556 (Sth Cir. May 4,

2000). In those cases, as here, a resident alien convicted of

an offense characterized as an aggravated felony raised a ha-

beas challenge to an INS final removal order. The underly-

ing claims in those cases bear substantial similarity to the

claims Obajuluwa raises here: the petitioner in Max-George

“claimed that the ‘retroactive’ application of the ‘aggravated

felon’ classification deprived him of due process[,]” Max-

George, 205 F.3d at 196, and the petitioner in Finlay claimed

that “Ex Post Facto law denied him the chance to obtain dis-

cretionary relief from removal.” Jd., 210 F.3d at 557. Obaju-

luwa makes only one argument not addressed in these earlier

cases: his claim that the INS unreasonably delayed begin-

ning deportation proceedings against him, in violation of 8

U.S.C. §1229(d).

In Max-George, the court held that the IRIRA permanent

rules removed federal habeas jurisdiction under 28 U.S.C. §

2241 over challenges to orders removing certain criminal

aliens under 8 U.S.C § 1252(a)(2)(C). The court held that

any remaining habeas jurisdiction under the Constitution did

not encompass the claims petitioner raised, including the

claim that he had a right to be considered for discretionary

relief from removal, which his status as an aggravated felon

precluded. Max-George, 205 F.3d at 202.

An alien convicted of an aggravated felony and subject to

a final order of removal on that basis must file a petition for

review in the court of appeals. Max-George, 205 F.3d at

202. If a petition for review is filed, then the court of appeals

must determine whether “(1) the specific conditions that bar

jurisdiction in the court of appeals exist, (2) the conditions

barring jurisdiction are constitutionally applied to the peti-

tioner, and (3) the level of judicial review remaining is con-

stitutionally adequate .. . .” Jd. This circuit has held that

unless ““a petitioner proves ‘that his or her claims are within

the writ constitutionally protected (a situation which, as the

Seventh Circuit has noted, is unlikely), we must summarily

dismiss for lack of jurisdiction.”” Garnica-Vasguez, 210

F.3d at 560 (quoting Max-George, 205 F.3d at 202); see also

Finlay, 210 F.3d at 558 (same). The constitutionally pro-

tected writ of habeas corpus is not suspended unless a peti-

tion for review would be “inadequate or ineffective to test the

legality of detention.” Molo v. Johnson, 207 F.3d 773, 775

(Sth Cir. 2000) (quoting Miller v. Marr, 141 F.3d 976, 977

(10th Cir. 1998)) (internal quotation marks omitted).

Where, as here, the petitioner did not file a petition for re-

view in the court of appeals, but instead sought habeas relief

in district court, this circuit has held that the district court

lacked habeas jurisdiction. See Garnica-Vasques, 210 F.3d

at 560; Finlay, 210 F.3d at 558. The record in this case dis-

closes no basis for finding that Obajuluwa raised claims

within the constitutional writ, which is narrower than under

section 2241. This court has held that a retroactively applied

criminal categorization in the immigration context is not a

due process violation, see Max-George, 205 F.3d 200, and

that denial of consideration for discretionary relief from re-

moval is not a constitutional violation, see Finlay, 210 F.3d

at 557. Obajuluwa’s claim of delay based on a violation of 8

U.S.C. § 1229(d) does not fall within the ambit of the consti-

tutionally protected writ. The district court correctly dis-

missed Obajuluwa’s habeas petition for lack of jurisdiction.

Obajuluwa also asks this court to apply the denial of ha-

beas prospectively, or, in the alternative, to allow him to pur-

sue an out-of-time petition for review in this court. He ar-

gues that when the BIA issued the final removal order, the

jurisdictional questions were so unclear that he should be

“given the benefit of the jurisdictional doubt .. . .” (Appel-

lant’s Brief, p.42). The law is clear that ‘“[a] court lacks dis-

cretion to consider the merits of a case over which it is with-

out jurisdiction, and thus, by definition, a jurisdictional ruling

may never be made prospective only.”” United States v.

Holmberg, 19 F.3d 1062, 1065 (Sth Cir. 1994) (quoting Fire- .

stone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379

(1981)), abrogated on other grounds, Henderson v. United

States, 517 U.S. 654 (1996). Given the statute, and this

court’s precedent, the district court’s dismissal of Obaju-

luwa’s habeas petition for lack of jurisdiction is

AFFIRMED.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EMANUEL OBAJULUWA §

Petitioner,

VS. § NO. 3-99-CV-0285-P

JANET RENO, ET AL. ;

Respondents. §

[May 21, 1999]

JUDGMENT

This action came on for consideration by the Court, and

the issues having been duly considered and a decision duly

rendered,

It is ORDERED, ADJUDGED and DECREED that:

1. The petition for writ of habeas corpus is dismissed

for lack of jurisdiction.

2. The Clerk shall transmit a true copy of this Order

and the Order adopting the Findings and Recommendation of

the United States Magistrate Judge to all parties.

SIGNED this 21st day of May, 1999.

/s/

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EMANUEL OBAJULUWA §

Petitioner, :

VS. § NO. 3-99-CV-0285-P

| §

JANET RENO, ET AL. ;

Respondents. §

[May 21, 1999]

ORDER

After making an independent review of the pleadings,

files and records in this case, and the Findings and Recom-

mendation of the United States Magistrate Judge, I am of the

opinion that the Findings and Recommendation of the Magis-

trate Judge are correct and they are adopted as the Findings

of the Court.

SIGNED this 21st day of May, 1999.

/s/

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EMANUEL OBAJULUWA §

Petitioner,

VS. § NO. 3-99-CV-0285-P

JANET RENO, ET AL.

Respondents. §

[April 27, 1999]

FINDINGS AND RECOMMENDATIONS OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate

judge pursuant to 28 U.S.C. § 636(b) and a standing order of

reference from the district court. The findings and recom-

mendation of the magistrate judge are as follows:

This is a habeas case brought under 28 U.S.C. § 2241. Pe-

titioner Emanuel Obajuluwa is in federal custody pursuant to

an order of removal. Respondents are Attorney General

Janet Reno and INS District Director Arthur E. Strapp.

Petitioner entered the United Stats as an non-immigrant

visitor on December 16, 1981 for a period not to exceed six

months. He became a lawful permanent resident on Decem-

ber 27, 1990. Thereafter, petitioner was convicted of money

laundering, credit card fraud, conspiracy to commit wire

fraud, and forgery. Punishment was assessed at 56 months

confinement. An immigration judge ordered petitioner re-

moved to Nigeria based on these convictions.! Petitioner

appealed this decision to the Board of Immigration Appeals.

The appeal was dismissed. Petitioner then filed this action in

federal court.

Il.

Petitioner challenges his detention and removal on three

grounds. He contends that: (1) the three-year delay in bring-

ing removal proceedings is unreasonable and contrary to fed-

eral law; (2) he was denied due process; and (3) the retroac-

tive application of the new immigration law violates the ex

post facto clause of the United State Constitution.

Respondent argues that this Court lacks jurisdiction to re-

view any immigration matter pursuant to the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009. Alternatively,

respondent maintains that petitioner is not entitled to habeas

relief. The Court will address the jurisdictional issue first.

Il.

Historically, federal judicial review of a deportation order

was available either through direct appeal or habeas corpus.

8 U.S.C. §§ 1105a(a)(2) & (10) (repealed 1996). The scope

of review in both types of proceedings was the same.

1The Immigration and Nationality Act provides, in rele-

vant part:

“Any alien who—

(I) is convicted of a crime involving moral turpitude

committed within five years . . . after the date of admission,

and

(II) is convicted of a crime for which a sentence of one

year or longer may be imposed, is deportable.”

8 U.S.C. § 1227(a)(2)(i).

10a

Marcelio v. District Director, 634 F.2d 964, 972 (Sth Cir.),

cert. denied, 101 S. Ct. 3052 (1981). The standard was

whether “reasonable, substantial, and probative evidence on

the record considered as a whole supports the [deportation]

order.” Jd.

The IIRIRA effectively precludes judicial review of re-

moval orders.2 This statute provides, in relevant part:

Except as provided in this section and notwithstanding

any other provision of law, no court shall have jurisdic-

tion to hear any cause or claim by or on behalf of any

alien arising from the decision or action by the Attor-

ney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien un-

der this chapter.

8 U.S.C. § 1252(g). Review is limited to a petition filed in

the court of appeals following a final order of removal. Jd.

§ 1252(a)(1) & (b)(9)3 The statute specifies that decisions

made at the discretion of the Attorney General, and removal

based on the commission of specified criminal offenses, are

not subject to judicial review. Jd. § 1252(a)(2)(C) (“[N]o

court shall have jurisdiction to review any final order of re-

moval against an alien who is removable by reason of having

committed a [covered] criminal offense . . .”). These provi-

sions govern removal proceedings commenced after April 1,

1997. Henderson v. INS, 157 F.3d 106, 117 n.2 (2d Cir.

1998), cert. denied, 119 S. Ct. 1141 (1999).

Courts are split in their interpretation of the draconian re-

strictions created by this new legislation. Compare Sandoval

2The IIRIRA uses the term “removal” instead of “depor-

tation.”

3Decisions regarding the exclusion of aliens seeking

admission to the United States are still subject to habeas re-

view under the statute. See 8 U.S.C. § 1252(e)(2).

lla

v. Reno, 166 F.3d 225, 237 (3d Cir. 1999) (statute does not

expressly repeal, limit, or eliminate federal habeas jurisdic-

tion under section 2241); Jean Baptiste v. Reno, 144 F.3d

212, 219 (2d Cir. 1998) (same); Goncalves v. INS, 144 F.3d

110,123 (1st Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999)

(same); Mansour v. INS, 123 F.3d 423, 426 (6th Cir. 1997)

(same); Ramallo v. Reno, 114 F.3d 1210, 1213 (D.C. Cir.

1997), cert. denied, 119 S. Ct. 1139 (1999) (same), with

LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1999) (IRIRA

precludes habeas review of constitutional claims); Richard-

son v. Reno, 162 F.3d 1338, 1378 (11th Cir. 1998), pet. for

cert. filed, 67 USLW 3561 (February 23, 1999) (same). See

also Williams v. INS, 114 F.3d 82, 84 (Sth Cir. 1997) (noting

in dicta that “limited opportunity to apply for writ of habeas

corpus may remain”); Fernandez v. INS, 113 F.3d 1151,

1154-55 & n.3 (10th Cir. 1997) (leaving open possibility of

habeas review or other review for “substantial” constitutional

errors). Indeed, the Supreme Court has acknowledged this

split among the circuits. Reno v. American-Arab Anti-

Discrimination Committee, 119 S. Ct. 936, 942 n.7 (1999).4

The most exhaustive review of this issue is provided by

the Eleventh Circuit in Richardson. After a detailed histori-

cal discussion, the court concluded that IIRIRA repealed ha-

beas jurisdiction over immigration decisions. Richardson,

162 F.3d at 1378. Since most petitioners can seek adequate

and effective judicial review from the court of appeals, there

is no constitutional violation. /d. at 1379: The Court finds

this opinion persuasive. See also Abangwu v. Reno, ___ F.

Supp.__, 1999 WL 76788 *1 (N.D. Tex. February 3, 1999)

4]t appears that the Supreme Court has finally agreed to

tackle this jurisdictional issue by granting a petition for writ

of certiorari in Magana-Pizano v. INS, 152 F.3d 1213 (9th

Cir. 1998), cert. granted and jmt. vacated, 119 S. Ct. 1137

(1999). Hopefully, this will resolve the split among the cir-

cuits.

12a

(Fitzwater, J.) (holding that district court lacks jurisdiction

under 28 U.S.C § 2241 to review immigration decisions).

This petition should be dismissed.°

RECOMMENDATION

Petitioner’s application for writ of habeas corpus should

be dismissed for lack of jurisdiction.

DATED: April 27, 1999.

/s/

JEFF KAPLAN

UNITED STATES MAGISTRATE JUDGE

5The magistrate judge acknowledges that he reached a

contrary result in three prior cases. See Tesfazghi v. Strapp,

No. 3-98-CV-1378-X (N.D. Tex. November 5, 1998); Say-

yed v. Deportation Officer Bunderson, No. 3-98-CV-1390-D

(N.D. Tex. November 5, 1998); Aziza v. United States of

America, No. 3-98-CV-1631-H (N.D. Tex. November 5,

1998). The presiding judge in this case also ruled differently

in at least one other habeas proceeding. Philip v. District Di-

rector, 1998 -WL 241272 *2 (N.D. Tex. April 30, 1998)

(Solis, J.). However, all those cases were decided before

Richardson.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.