Appendix — Rodriguez v. Immigration & Naturalization Service

C)* iLED

00 753 NV =6 2m)

No. 00-__ OFF)

Supreme Court of the United States

CARMELO JOSE RODRIGUEZ, ca

Petitioner,

—V.——

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Kerry W. Bretz Lucas Guttentag

Jules E. Coven Counsel of Record

Alan Michael Strauss Lee Gelernt

BRETZ & COVEN AMERICAN CIVIL LIBERTIES UNION

305 Broadway - FOUNDATION

Suite 100 Immigrants’ Rights Project

New York, New York 10007 125 Broad Street

(212) 267-2555 New York, New York 10004

(212) 549-2621

RECEIVED

NOV: (7. 000 Attorneys for Petitioner

SUPREME COURT, U.S.

TABLE OF CONTENTS

PAGE

Appendix A (court of appeals’ opinion,

Be ee kee on epee la

Appendix B (court of appeals’ judgment,

LD oad che een eke er oe ad es 34a

Appendix C (order of the immigration judge,

i i ED wk 5 05 eRe as ee 37a

Appendix D (decision of the Board of

Immigration Appeals, Dec. 29, 1998)........ 40a

Appendix E (court of appeals’ order denying

SOMORTIMNG, FONG DF, DOGO) oc oi kc ica cacckccsess 43a

Appendix F (district court’s opinion in

Petitioner's habeas petition) ................. 46a

Appendix G (district court’s order dismissing

NE II is cen sa bdbaccs reabe she cnnsee 59a

Appendix H (constitutional and statutory

oN SIRI 6.x dss Niwxdis neddacsxess 6la

la

Appendix A

Filed March 9, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5053

XU CHENG LIANG,

Petitioner

—_v.—

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

Petition for Review of a Decision of the

Immigration & Naturalization Service

(A40 278 218)

No. 99-5327

GIOACCHINO CINQUEMANI,

Petitioner

2a

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

Petition for Review of a Decision of the

Immigration & Naturalization Service

(A35 098 342)

No. 99-6039

CARMELO JOSE RODRIGUEZ,

Petitioner

an Y

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

Petition for Review of a Decision of

the Immigration & Naturalization Service

(A38 502 331)

Argued December 20, 1999

Before:

SLOVITER, ROTH and COWEN, Circuit Judges

3a

(Filed March 9, 2000)

Theodore N. Cox

New York, NY 10013

Counsel for Petitioner

Xu Cheng Liang, No. 99-5053

Martin A. Kascavage

Schoener & Kascavage

Philadelphia, PA 19106

Counsel for Petitioner

Gioacchino Cinquemani,

No. 99-5327

Kerry William Bretz

Alan Michael Straus (Argued)

Matthew L. Guadagno

Bretz & Coven

New York, NY 10007

Counsel for Petitioner

Carmelo Jose Rodriguez,

No 99-6039

Christopher C. Fuller

Alison M. Igoe (Argued)

Michael P. Lindemann

John M. McAdams, Jr.

David W. Ogden

Terri J. Scadron

John D. Williams

United States Department of Justice

Office of Immigration Litigation

Washington, DC 20044

C: nsel for Respondent INS

4a

Lee Gelernt (Argued)

Lucas Guttentag

American Civil Liberties Union Foundation

New York, NY 10004-2400

Counsel for Amicus

American Civil Liberties Union

Foundation

Jeffrey Heller

Brooklyn Law School

Counsel for Amici

Law Professors

Michael J. Wishnie

Washington Square Legal Services, Inc.

New York, NY 10012

Counsel for Amicus

Citizens and Immigrants

for Equal Justice

OPINION OF THE COURT |

SLOVITER, Circuit Judge.

I.

INTRODUCTION

In several opinions handed down in the last two years,

this court has had occasion to consider the effect of var-

ious provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,

110 Stat. 1214 (1996), and the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546

5a

(1996), on the jurisdiction of the federal courts over

issues raised by aliens with respect to deportation pro-

ceedings commenced by the Immigration and Natural-

ization Service (“INS”). Judicial review of cases in

which the INS commenced deportation proceedings

against the alien prior to April 1, 1997 is governed by

the transitional rules of IIRIRA, whereas judicial review

of those commenced thereafter are governed by the per-

manent judicial review amendments of IIRIRA (“per-

manent rules”).

The three cases before us today arise under the per-

manent rules, which we have not previously interpreted.

In particular, they require us to decide whether this court

has jurisdiction over a petition for review filed by an

alien who has been ordered deported because s/he has

been convicted of one or more crimes specified in the

Immigration and Nationality Act (“INA”) (hereafter

referred to as an alien with a criminal conviction).' As a

necessary component of that decision we must also

decide whether the permanent judicial review amend-

ments of IIRIRA divest the federal courts of their habeas

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

In our earlier decisions, we held that AEDPA and the

transitional rules of IIRIRA deprived us of jurisdiction

over a petition for review from a final order of removal

entered against an alien convicted of certain crimes

listed in the statutes, see Catney v. INS, 178 F.3d 190 (3d

Cir. 1999); Morel v. INS, 144 F.3d 248 (3d Cir. 1998),

but thai the district courts retain jurisdiction under the

i We use the term “alien with a criminal conviction” to refer

to an alien who has been convicted of one or more crimes listed in

INA § 242(a)(2)(C), AEDPA § 440(a), or transitional rule IIRIRA

§ 309(c)(4)(G). The covered crimes include aggravated felonies, con-

trolled substance convictions, certain firearm offenses, miscellaneous

national security or defense crimes, or two convictions for crimes

involving moral turpitude.

6a

general statutory grant of habeas corpus jurisdiction, 28

U.S.C. § 2241, to review statutory and constitutional

challenges to the deportation order, see Sandoval v.

Reno, 166 F.3d 225 (3d Cir. 1999); DeSousa v. Reno, 190

F.3d 175 (3d Cir. 1999).

In the cases currently before us, three permanent legal

residents, Gioacchino Cinquemani, Carmelo Jose

Rodriguez, and Xu Cheng Liang (collectively “peti-

tioners”), have filed petitions for review challenging the

final orders of removal entered against them by the

Board of Immigration Appeals (“BIA”). Rodriguez has

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

district court of New Jersey, Rodriguez v. Reno, Civ. No.

99-4300, which is pending. The INS filed a motion to

dismiss for lack of jurisdiction in each case before us.

We directed that petitioners’ cases be expedited and

consolidated. The American Civil Liberties Union

(“ACLU”) filed an amicus brief on the jurisdictional

issues, as did a group of twenty-six law professors. The

Citizens and Immigrants for Equal Justice filed an ami-

cus brief on the merits of petitioners’ claims. We focus

on the jurisdictional issue, as we cannot consider the

merits of the petitioners’ claims until that is resolved.

II.

BACKGROUND

Gioacchino Cinquemani, a native and citizen of Italy,

entered the United States as a lawful permanent resident

in 1975. He is married and has two United States citizen

children. He pled guilty on December 4, 1997 in the

2 A fourth case also consolidated with them arose under the

transitional rules and was dismissed for lack of jurisdiction. Vergara-

Hernandez v. INS, 205 F.3d 1331, No. 98-3175 (3d Cir. Dec. 27,

1999) (unpublished memorandum opinion).

7a

United States District Court for the Eastern District

of New York to conspiracy to engage in the business

of dealing in firearms in violation of 18 U.S.C. § 371

and conspiracy to distribute and possess with intent

to distribute heroin and morphine in violation of 21.

U.S.C. §§ 846 and 841(b)(1)(B), conduct which took

place in 1994 and for which he was arrested in 1994.

In March 1998, the INS issued an order to show cause

why Cinquemani should not be deported based on the

convictions.

Carmelo Jose Rodriguez, a native and citizen of the

Dominican Republic, entered the United States as a law-

ful permanent resident in 1983. He also is married and

has two United States citizen children. He pled guilty in

1993 in New Jersey state court to two counts of receiv-

ing stolen property and to one count of possession of

cocaine, pled guilty in 1994 in Ohio state court to

receiving stolen property, and pled guilty in 1995 in New

Jersey state court to one count of receiving stolen prop-

erty. He was released from prison for the latter crime on

March 5, 1997. On July 1, 1997, the INS initiated

removal proceedings against Rodriguez on the basis of

his criminal convictions.

Xu Cheng Liang, a native and citizen of China,

entered the United States as a lawful permanent resident

in 1987. He also has two United States citizen children.

He was allegedly convicted in 1989 in New York state

court of attempted robbery in the second degree and in

May 1997 in federal court of conspiracy to distribute

heroin and of possession with intent to distribute heroin

in violation of 21 U.S.C. § 846. On February 3, 1998, the

INS instituted removal proceedings against Liang on the

basis of his convictions.

At their immigration hearings, both Cinquemani and

Rodriguez conceded that they were removable aliens

based on their criminal convictions, but argued that they

8a

should be permitted to seek waiver of deportability

under former INA § 212(c). Rodriguez also requested the

discretionary relief of cancellation of removal under new

INA § 240A, 8 U.S.C. § 1229b, and adjustment of status

in conjunction with waiver of inadmissibility under INA

§ 212(h), 8 U.S.C. § 1182(h). At his immigration hear-

ing, Liang denied the alleged convictions. The Immi-

gration Judge found the government had not met its

burden of showing that Liang had been convicted in

1989, but found that it had met its burden as to the 1997

conviction, which still qualified Liang as an aggravated

felon subject to removal. Liang then sought discretionary

relief under former INA § 212(c).

Under former § 212(c), codified at 8 U.S.C. § 1182(c),

the Attorney Genera! or her delegates, such as the BIA,

had discretionary authority to waive the deportation of

a deportable alien because of extraordinary hardship to

the deportee or his family, or other exceptional circum-

stances.’ Although the statutory provision itself referred

only to aliens in exclusion proceedings, it had been

interpreted also to apply to aliens in deportation pro-

ceedings. See Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.

1993); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).

3 Section 212(c) provided, in pertinent part:

Aliens lawfully admitted for permanent residence who tem-

porarily proceeded abroad voluntarily and not under an order

of deportation, and who are returning to a lawful unrelin-

quished domicile of seven consecutive years, may be admit-

ted in the discretion of the Attorney General [despite being

otherwise excludable]... . The first sentence of this sub-

section shall not apply t alien who has been convicted of

one or more aggravated icionies and has served for such

felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (1994) (repealed 1996).

4 IIRIRA eliminated any statutory distinctions between

deportable and excludable aliens. Prior to IIRIRA, deportable aliens

9a

aa

In 1996, § 212(c) was amended by § 440(d) of AEDPA to

preclude deportable aliens who had been convicted of an

aggravated felony or two crimes of moral turpitude from

receiving waivers, regardless of the prison term served

for such crimes. See DeSousa v. Reno, 190 F.3d 175 (3d

Cir. 1999) (rejecting equal protection challenge to

AEDPA § 440(d) because of the distinction made

between deportable and excludable aliens).

When, effective April 1, 1997, INA § 212(c) was

repealed in its entirety by § 304(b) of IIRIRA, it was

replaced with another discretionary relief provision, INA

§ 240A. See IIRIRA § 304(a) (adding new INA § 240A,

codified at 8 U.S.C. § 1229b). That section permits the

Attorney General or her delegates in her discretion to

cancel removal in certain circumstances, but not when

the alien has been convicted of an aggravated felony as

defined by the INA, making each of the petitioners inel-

igible for relief under that section. As a result of these

statutory changes the BIA affirmed the decisions of the

Immigration Judges that the petitioners were ineligible

for relief under former § 212(c).

Petitioners, relying on the principles set forth in Land-

graf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483,

511 U.S. 244 (1994), and elaborated in Lindh v. Murphy,

521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997),

and Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144

L.Ed.2d 347 (1999), argue that the BIA erred by inter-

preting IIRIRA § 304(b) to apply retroactiveiy to crim-

inal conduct and convictions that occurred before the

effective date of the section. Thus, petitioners are chal-

lenging the BIA’s legal interpretation of the statute as

depriving it of discretion rather than the exercise of any

were defined in 8 U.S.C. § 1251(a) as those aliens who resided within

the United States but who could be deported for certain reasons. In

contrast, excludable aliens were defined in 8 U.S.C. § 1182(a) as

those aliens who could be denied entry into the United States.

10a

discretion by the BIA. Rodriguez also argues that if

IIRIRA § 304(b) does apply to him, then the section is

unconstitutional because it violates his constitutional

rights to due process and equal protection.°

With these statutory and constitutional claims in mind,

we turn to the jurisdictional issue presented in these

cases.

III.

DISCUSSION

A.

Scope of Jurisdictional Inquiry

Although the government’s motions to dismiss are

directed to the pending petitions for review, determina-

tion of our jurisdiction over the petitions for review is

inextricably intertwined with the question whether the

district courts have continued habeas jurisdiction. The

imperative to avoid a constitutional crisis that might

arise were the writ of habeas corpus effectively sus-

5 Rodriguez also argues, for the first time in his reply brief,

that IIRIRA § 304(b) does not apply to him because the INS issued a

detainer notice prior to April 1, 1997, and therefore that his case was

pending when § 304(b) became effective. See Sandoval v. Reno, 166

F.3d 225, 239-42 (3d Cir. 1999) (holding that AEDPA § 440(d) does

not apply retroactively to cases pending on the date of AEDPA’s

enactment); cf. Wallace v. Reno, 194 F.3d 279 (ist Cir. 1999) (hold-

ing that case was commenced for retroactivity purposes when the INS

issued an order to show cause even though the INS did not file that

order to show cause with the immigration court until after AEDPA’s

enactment). Because of our ultimate disposition of this matter, we do

not consider whether Rodriguez has waived this claim. See Republic

of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 71 n.5 (3d Cir.

1994) (noting requirement that appellants raise issues in opening

brief).

lla

pended or were there no viable means for judicial review

of constitutional claims necessarily affects, even if indi-

rectly, the construction of the relevant statutory provi-

sions. The viability of habeas jurisdiction is not a mere

hypothetical issue, as petitioner Rodriguez has filed, in

addition to the petition for review before us, a petition

for habeas corpus in the district court presenting the

same or similar issues, which that court has not yet

decided.

Indeed, recently, in Max-George v. Reno, 205 F.3d 194

(Sth Cir. 2000), the Court of Appeals for the Fifth Cir-

cuit declined to consider the tension its reading of the

permanent rules as stripping the district courts of habeas

corpus jurisdiction created with the Suspension Clause

because the issue was raised on an appeal from the

denial of habeas corpus rather than on a petition for

review, as here. The court stated, “had Max-George filed

a petition for review, we would have to decide whether

the preclusion of habeas review to him can be reconciled

both with the constitutional limitation on the ‘suspen-

sion’ of habeas corpus and the constitutional guarantee

of due process.” Jd. at 200-201.

Rodriguez has attempted to invoke the courts’ juris-

diction both through filing a petition for review in this

court and filing a petition for a writ of habeas corpus in

the district court. He did move in this court to stay brief-

ing on the petition for review until the habeas matter was

decided, but we proceeded to hear the pending consoli-

dated petitions for review. Counsel advised us at the oral

argument that there has been no action taken in the dis-

trict court, presumably because that court is awaiting a

decision on the jurisdictional issue in this case. The

interrelationship between the issues is therefore evident.

The ultimate question in these cases is one of forum:

a determination of which federal court, if any, has juris-

diction to hear petitioners’ claims.

12a

B.

AEDPA and the Transitional Rules of IIRIRA

The jurisdictional issue arose with Congress’s enact-

ment of AEDPA on April 24, 1996. That statute included

two judicial review provisions relevant to immigration

cases. Section 401(e) of AEDPA repealed § 106(a)(10)

of the INA, which had expressly provided for habeas

review of immigration cases in the federal courts;

§ 440(a) of AEDPA substituted the following language in

its place: “Any final order of deportation against an alien

who is deportable by reason of having committed a crim-

inal offense [covered in the deportation provisions of the

INA] shall not be subject to review by any court.”

8 U.S.C. § 1105a(a)(10) (repealed by IIRIRA § 306(b)

with respect to deportation proceedings commenced after

April 1, 1997). On September 30, 1996, Congress enacted

IIRIRA, which, as noted above, changed many of the

amendments that AEDPA had made.

In Morel v. INS, 144 F.3d 248 (3d Cir. 1998), we held

that AEDPA § 440(a) removed our jurisdiction to review

a claim of legal error on petition for review brought

by an alien with a criminal conviction. /d. at 250-51. In

that case, we did not reach the issue of whether the dis-

trict courts continued tc have habeas jurisdiction over

those claims under AEDPA or the transitional rules of

IIRIRA.

In Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), we

were faced with that issue. Sandoval had filed a petition

for review of the BIA’s entry of a final order of depor-

tation against him. In addition, he had filed a petition for

a writ of habeas corpus in the district court. He argued

that AEDPA’s amendment of § 212(c) to permit discre-

tionary waiver of removal for aliens in exclusion pro-

ceedings but not for aliens in deportation proceedings

13a

did not apply to cases pending on the date of enactment

of AEDPA, and that if it did apply to him § 212(c)

as amended by AEDPA violated equal protection. The

district court agreed with Sandoval’s Statutory con-

struction and granted the writ on the ground that AEDPA

§ 440(d) did not apply to cases that were pending when

the statute was enacted. The government appealed, and

that appeal was consolidated with Sandoval’s petition for

review.

The government argued that AEDPA and the transi-

tional rules of IIRIRA divested the district courts of

habeas jurisdiction. In forwarding that position, it relied

on the following statutory provisions: AEDPA §§ 401(e)

and 440(a), referred to above; IIRIRA § 309(c)(4)(G), a

transitional rule which provides that “there shall be no

appeal permitted in the case of an alien who is inad-

missible or deportable by reason of having committed a

criminal offense [covered in the deportation provisions

of the INA],” and IIRIRA § 306(a), which amended INA

§ 242(g) to provide:

Exclusive Jurisdiction. Except as provided in this

section 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 exe-

cute removal orders against any alien under this

Act.

8 U.S.C. § 1252(g). The government contended that

AEDPA and the transitional rules of IIRIRA stripped the

district courts of their habeas jurisdiction over all immi-

gration cases and placed exclusive jurisdiction in the

courts of appeals. Further, to avoid a jurisdictional

scheme that provided no judicial review of constitutional

claims brought by aliens with criminal convictions, the

14a

government encouraged us to read an exception for those

claims into transitional rule § 309(c)(4)(G).

We relied on the “longstanding doctrine disfavoring

repeal of jurisdictional statutes by implication” as

recently articulated by the Supreme Court in Felker v.

Turpin, 518 U.S. 651, 116 S.Ct. 2333, 125 L.Ed.2d 827

(1996), to hold, contrary to the government’s position,

that neither AEDPA nor the transitional rules of IRIRA

divested the district courts of habeas jurisdiction because

none of the applicable provisions expressly stated that

Congress sought to preclude habeas jurisdiction as

it exists under 28 U.S.C. § 2241. Sandoval, 166 F.3d

at 231. We examined the Supreme Court’s age-old

decisions in Ex parte McCardle, 74 U.S. (7 Wall.) 506,

19 L.Ed. 264 (1868), and Ex parte Yerger, 75 U.S.

(8 Wall.) 85, 19 L.Ed. 332 (1868), together with Felker,

and concluded:

Read together, McCardle, Yerger, and Felker estab-

lish the propositions that courts should not lightly

presume that a congressional enactment containing

general language effects a repeal of a jurisdictional

statute, and, consequently, that only a plain state-

ment of congressional intent to remove a particular

statutory grant of jurisdiction will suffice.

Sandoval, 166 F.3d at 232.

Applying these propositions to the provisions of

AEDPA and the transitional rules of IIRIRA, we deter-

mined that “since AEDPA § 401(e) does not manifest an

intent to repeal the original grant of habeas corpus juris-

diction, currently embodied in 28 U.S.C. § 2241, the

elimination of INA’s reference to habeas jurisdiction

does not overcome the presumption against finding a

repeal of habeas corpus:by implication.” Jd. at 234-35.

Similarly, in analyzing the effect of IIRIRA transitional

rule § 309(c)(4)(G) and AEDPA § 440(a) on the district

1Sa

courts’ habeas jurisdiction, we stated that “[nJeither of

these provisions specifically mentions jurisdiction under

§ 2241. Hence, under Felker and Yerger, we do not find

a sufficiently clear statement of congressional intent to

repeal the general grant of habeas jurisdiction.” Jd. at

235. And finally, in analyzing the effect of IIRIRA

§ 306(a), amending INA § 242(g), we determined that

“[a]s there is no express reference to jurisdiction under

28 U.S.C. § 2241 in this provision, the rule disfavoring

implied repeals requires us to conclude that jurisdiction

under § 2241 is preserved. . . .” Jd. at 236.

We held that no repeal would be implied in light of

the absence of an express revocation of the district

courts’ habeas jurisdiction. Further, we concluded that

Sandoval’s statutory claim, as well as any constitutional

claim, was cognizable in a habeas corpus proceeding,

“[iJnasmuch as the language of the habeas corpus statute

encompasses claims that one ‘is in custody in violation

of the Constitution or laws or treaties of the United

States,” 28 U.S.C. § 2241(c)(3).” Id. at 238. In doing so,

we left open the question whether substantial constitu-

tional questions might still be brought by an alien with

a criminal conviction on petition for review. See id. at

238 n.6 (“Because of our conclusion that [habeas juris-

diction] covers statutory, as well as constitutional

claims, we need not decide whether the claimed exis-

tence of jurisdiction in the courts of appeals to review

substantial constitutional claims, but not Statutory

claims, would be an adequate alternative.”).

Shortly after our decision in Sandoval, the Supreme

Court decided Reno v. American-Arab Anti-Discrimi-

nation Committee, 525 U.S. 471, 119 S.Ct. 936, 142

L.Ed.2d 940 (1999), in which it rejected the govern-

ment’s position that the limitation of court jurisdiction

in the new INA § 242(g) covered all or nearly all depor-

tation claims. Instead, the Court held that § 242(g),

l6a

which applies to cases under both the permanent and

transitional rules, covers only three discrete actions of

the Attorney General: “her ‘decision or action’ to ‘com-

mence proceedings, adjudicate cases, or execute removal

orders.’ ” Id. at 482, 119 S.Ct. 936.

After American-Arab, we held in Catney v. INS, 178

F.3d 190 (3d Cir. 1999), that under AEDPA and the tran-

sitional rules of IIRIRA any challenge by a criminal

alien to the BIA’s interpretation of the immigration laws

or to the constitutionality of those laws, even a claim

involving substantial constitutional issues, must be made

through a habeas petition rather than through a petition

for review. By answering the question left open in San-

doval, we foreclosed any exception to the bar on petition

for review jurisdiction over criminal aliens under the

transitional rules.

Finally, in DeSousa v. Reno, 190 F.3d 175 (3d Cir.

1999), the most recent decision of our series on this

issue, we upheld the jurisdictional analysis of Sandoval

as consistent with the Supreme Court’s decision in

American-Arab. We rejected the government’s assertion

that constitutional and statutory challenges fall within

the scope of INA § 242(g), and concluded that “Ameri-

can-Arab did not affect the remainder of Sandoval’s rul-

ings.” Id. at 183.

The vast majority of the other courts of appeals have

- adopted principles similar to those erunciated in

Sandoval and have also found that district courts retain

habeas jurisdiction after the enactment of AEDPA

and IIRIRA’s transitional rules. See Magana-Pizano

v. INS, 200 F.3d 603, 609 (9th Cir. 1999) (holding

that 28 U.S.C. § 2241 “remains an available remedy to

those challenging executive detention” under AEDPA

and the transitional rules of IIRIRA); Pak v. Reno, 196

F.3d 666, 673 (6th Cir. 1999) (following reasoning of

Sandoval and Goncalves v. Reno, 144 F.3d 110 (1st Cir.

17a

1998), and concluding that neither AEDPA amendments

nor transitional rules of IIRIRA divest district courts of

habeas jurisdiction because the applicable sections “[{do]

not refer to § 2241”); Bowrin v. INS, 194 F.3d 483, 489

(4th Cir. 1999) (per curiam) (“Finding no. . . specific

reference to § 2241, we apply the long-standing rule dis-

favoring repeal of jurisdictional provisions by implica-

tion.”); Jurado-Gutierrez v. Greene, 190 F.3d 1135,

1145-46 (10th Cir. 1999) (holding that “the lack of any

mention of § 2241 habeas review in the plain language

of the statute, combined with the long historical prece-

dent surrounding habeas corpus review in immigration

cases, establishes that traditional habeas review under

§ 2241 survived the enactment of AEDPA § 440(d) and

IIRIRA § 309(c) [the transitional rules]”) cert. denied,

— U.S. __, 120 S.Ct. 1539, ____ L.Ed.2d ___ (2000):

Shah v. Reno, 184 F.3d 719, 724 (8th Cir. 1999) (“In

sum, we hold that Congress in enacting AEDPA and

IIRIRA in 1996, did not clearly and expressly repeal 28

U.S.C. § 2241.”); Mayers v. INS, 175 F.3d 1289, 1301

(11th Cir. 1999) (holding that AEDPA’s repeal of INA

§ 106(a)(10) did not repeal district courts’ habeas juris-

diction for cases falling under the transitional rules of

IIRIRA); Henderson v. INS, 157 F.3d 106, 118-22 (2d

Cir. 1998) (relying on earlier decision in Jean-Baptiste

v. Reno, 144 F.3d 212 (2d Cir. 1998), and concluding

that without express reference to § 2241 it would not

find bar on federal courts’ habeas jurisdiction), cert.

denied, 526 U.S. 1004, 119 S.Ct. 1141, 143 L.Ed.2d 209

(1999); Goncalves v. Reno, 144 F.3d 110, 119-23 (1st

Cir. 1998) (concluding that repeal of INA § 106(a)(10)

did not repeal habeas jurisdiction because there is no

explicit reference in AEDPA to habeas jurisdiction under

§ 2241), cert. denied, 526 U.S. 1004, 119 S.Ct. 1140,

143 L.Ed.2d 208 (1999); ef. Requena-Rodriguez v.

Pasquarell, 190 F.3d 299 (Sth Cir. 1999) (holding that

18a

habeas jurisdiction exists under transitional rules but

implying that the court might conclude in a case under

the permanent rules that language in § 242(g) and

§ 242(b)(9) is sufficiently express to preclude habeas

jurisdiction). Only the Court of Appeals for the Seventh

Circuit, interpreting AEDPA and the transitional rules,

has held to the contrary. See La Guerre v. Reno, 164 F.3d

1035 (7th Cir. 1998) (holding that AEDPA § 440(a),

amending INA § 106(a), divested district courts of

habeas jurisdiction), cert. denied, ____ U.S.____, 120 S.Ct.

1157, 145 L.Ed.2d 1069 (2000).

od

The Permanent Rules of IIRIRA

Because deportation proceedings were not initiated

against any of the petitioners until after April 1, 1997,

the permanent rules apply to their cases. The government

invokes several jurisdictional provisions that are part of

the permanent rules in support of its motions to dismiss.

It argues that under these provisions, “the court of

appeals is now the exclusive forum for all immigration

matters,” including “the interpretation of statutory and

constitutional issues under 28 U.S.C. § 2241.” Respon-

dent’s Brief at 12. According to the government, there-

fore, the permanent rules divest the district courts of

their habeas jurisdiction where the transitional rules, as

we held in Sandoval, did not. Further, the government

asserts that “[o]nce the court determines that a petitioner

is an alien who has been ordered removed for a quali-

fying criminal conviction,” the court of appeals lacks

jurisdiction “to review any other challenge the petitioner

might raise to his removal proceedings.” Jd. at 4. It

argues that because the permanent rules were not before

us in Sandoval, that decision is inapplicable.

19a

The first of the provisions to which the government

refers, INA § 242(a)(2)(C), provides:

Notwithstanding any other provision of law, no

court shall have jurisdiction to review any final

order of removal against an alien who is removable

by reason of having committed a criminal offense

covered in section 1182(a)(2) or 1227(a)(2)(A)(iii),

(B), (C), or (D) of this title, or any offense covered

by section 1227(a)(2)(A)(ii) of this title for which

both predicate offenses are, without regard to their

date of commission, otherwise covered by section

1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C).

INA § 242(a)(1), also in the permanent rules, pro-

vides:

Judicial review of a final order of removal (other

than an order of removal without a hearing pursuant

to section 1225(b)(1) of this title) is governed only

by chapter 158 of Title 28, except as provided in

subsection (b) of this section and except that the

court may not order the taking of additional evi-

dence under section 2347(c) of Title 28.

8 U.S.C. § 1252(a)(1).

The government places its principal reliance for its

argument that the permanent rules divest the district

courts of habeas jurisdiction on INA § 242(b)(9), which

provides: |

Judicial review of all questions of law and fact,

including interpretation and application of consti-

tutional and statutory provisions, arising from any

action taken or proceeding brought to remove an

alien from the United States under this subchapter

shall be available only in judicial review of a final

order under this section.

20a

8 U.S.C. § 1252(b)(9). The government argues that

because INA § 242(b)(2) requires that all petitions for

review “be filed with the court of appeals for the judicial

circuit in which the immigration judge completed the

proceedings,” 8 U.S.C. § 1252(b)(2), § 242(b)(9) nec-

essarily divests the district courts of their habeas juris-

diction.

There is no reason why the jurisdictional ruling in this

case under the permanent rules should be any different

than that we reached under the transitional rules.

Although the text of these provisions differs somewhat

from the sections of the transitional rules that were con-

sidered in Sandoval, those sections, AEDPA §§ 440(a),

401(e), IIRIRA § 309(c)(4)(G), and INA § 242(g), used

language comparably comprehensive. Indeed, the phrase

“notwithstanding any other provision of law” in INA

§ 242(a)(2)(C) also appears in INA § 242(g), which we

did consider in Sandoval. See Sandoval, 166 F.3d at 236-

38. That phrase did not persuade us then to hold that

Congress had implicitly repealed § 2241 habeas juris-

diction; there is no reason why it would have a different

effect now.

The difficulty with the government’s effort to con-

vince us that the language of § 242(b)(9), or of any of

the permanent rules, requires a different result than that

reached in Sandoval is that no language in the permanent

rules fills the gap we found in Sandoval. None of the

provisions, including INA § 242(b)(9), expressly refers

to habeas jurisdiction or to 28 U.S.C. §2241. None

expressly revokes habeas jurisdiction.

As we explained in Sandoval, a repeal of habeas juris-

diction will not be found by implication. This is the

holding of the Supreme Court’s 1996 decision in Felker,

518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827. In that

case, the Supreme Court considered whether Title I of

AEDPA, which imposed significant restrictions on the

en en Te

2la

availability of the writ of habeas corpus, deprived the

Court itself of jurisdiction to entertain original habeas

petitions. The Court noted that no provision of Title I

mentioned its authority to hear habeas petitions filed as

original matters. Guided by its earlier decision in Ex

Parte Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1868),

the Court therefore held that:

Although [AEDPA] precludes us from reviewing, by

appeal or petition for certiorari, a judgment on an

application for leave to file a second habeas petition

in district court, it makes no mention of our author-

ity to hear habeas petitions filed as original matters

in this Court. As we declined to find a repeal [of our

power to entertain habeas petitions in Yerger] we

decline to find a similar repeal of § 2241 of Title 28

. . by implication now.

Id. at 661, 116 S.Ct. 2333.

The holding of the Supreme Court is clear. A repeal of

habeas jurisdiction can only be effected by express con-

gressional command. That was the basis for our decision

in Sandoval. See Sandoval, 166 F.3d at 232 (examining

the propositions established by the Supreme Court in

Felker, Yerger, and McCardle). That holding is as appli-

cable to the permanent rules as it was to the transitional

rules in Sandoval.

The government is correct that Sandoval involved only

the transitional rules, not the permanent rules, but the

legal principle relied on by this court transcends the

narrow context of the transitional rules. See, e.g., John

Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d 132, 139

(3d Cir. 1998) (“To be sure, there may be a number of

factual grounds to distinguish our holding in [an earlier

case], but the legal principle announced in that case

directly controls the issue presented ... .”). We

unquestionably interpreted Felker in Sandoval as requir-

22a

ing an explicit reference to habeas jurisdiction or its

statutory provision in order to find an express congres-

sional intent to repeal. As this court has frequently

noted, “[{A] panel of this court cannot overrule a prior

panel precedent.” O. Hommel Co. v. Ferro Corp., 659

F.2d 340, 354 (3d Cir. 1981); see Internal Operating

Procedures, United States Court of Appeals for the

Third Circuit, Rule 9.1 (“[T]he holding of a panel in a

reported opinion is binding on subsequent panels. . . .

Court in banc consideration is required [to overrule such

a holding].”).

This is not a case in which there have been “inter-

vening developments” that counsel reevaluation of the

underlying premise of Sandoval. Cf. Reich v. D.M. Sabia

Co., 90 F.3d 854, 858-59 (3d Cir. 1996) (finding that

subsequent statutory amendment and Supreme Court

precedent permitted reevaluation of earlier panel deci-

sion). Notwithstanding the government’s suggestion to

the contrary, nothing in the Supreme Court’s 1999 deci-

sion in American-Arab, 525 U.S. 471, 119 S.Ct. 936, 142

L.Ed.2d 940, bears on our reasoning in Sandoval.

American-Arab arose after the INS instituted depor-

tation proceedings against several aliens who belonged

to the Popular Front for the Liberation of Palestine, a

group that the government characterized as a terrorist

group. The aliens filed suit in district court seeking

injunctive and declaratory relief on the ground that the

INS was selectively enforcing immigration laws against

them in violation of their First and Fifth Amendment

rights. After Congress passed IIRIRA, the government

sought to dismiss the case for lack of jurisdiction, argu-

ing that INA § 242(g), made applicable by § 306(c)(1) of

IIRIRA to the aliens’ cases, deprived the courts of juris-

diction over the selective enforcement claim. In recon-

ciling an apparent conflict between IIRIRA § 306(c)(1),

which made INA § 242(g) applicable to all cases, includ-

23a

ing those pending on the date of IIRIRA’s enactment,

and transitional rule § 309(c)(L)(B), which stated the

general rule that the amendments of IIRIRA would not

apply to pending cases, the Supreme Court rejected a

broad reading of INA § 242(g). The Court held that

§ 242(g) applied only to “three discrete events along the

road to deportation”: the Attorney General’s uniquely

discretionary decisions to commence proceedings, adju-

dicate cases, or execute removal orders. Id. at 482, 119

S.Ct. 936. It compared the limited scope of that section

with the more expansive reach of § 242(b)(9) (a “zipper”

clause). Id. at 483, 119 S.Ct. 936. Because § 242(g) did

apply to the Attorney General’s decision to prosecute the

plaintiff aliens, the Court held that the district court

lacked jurisdiction over the plaintiffs’ suit. |

The government argues that it is clear from the Court’s

characterization in American-Arab of § 242(b)(9) as an

“unmistakable ‘zipper’ clause,” id., that the courts

of appeals are the exclusive forum for all immigration

claims. That reading attributes to the discussion in

American-Arab a meaning that extends beyond the mat-

ter at issue, which was the interplay between IIRIRA

§§ 306(c)(1), 309(c)(1)(B), and INA § 242(g).

The language of INA § 242(b)(9), even without the

Court’s comparing it with that of § 242(g), makes it evi-

dent that § 242(b)(9) was intended to apply to a broader

range of decisions than the three categories to which the

Court referred in American-Arab. However, that does not

mean that the Court intended to hold, without explicit

discussion, that § 242(b)(9) has the radical effect of

eliminating habeas jurisdiction. In fact, the underlying

Suit in American-Arab was not a habeas petition under

28 U.S.C. § 2241 but a civil suit for injunctive and

declaratory relief that relied for its jurisdiction on 28

U.S.C. § 1331. The Supreme Court never considered

whether IIRIRA divests the district courts of habeas

24a

jurisdiction. Rather, the Court noted that there was dis-

agreement in the courts of appeals on the issue and

expressed no view on the issue’s resolution. See id. at

480 & n.7, 119 S.Ct. 936. Although we agree that

§ 242(b)(9) clearly expresses congressional intent that

judicial review of questions arising from a proceeding

brought to remove an alien be conducted under the INA

in the courts of appeals, we do not agree that it clearly

expresses congressional intent that the district courts be

divested of their habeas jurisdiction under § 2241, the

issue considered here.

The government notes that the Court of Appeals for

the Eleventh Circuit relied on § 242(b)(9) in holding that

the district courts no longer have habeas jurisdiction

under 28 U.S.C. § 2241 to review any challenge to an

alien’s removal proceedings. See Richardson v. Reno

(Richardson IT), 180 F.3d 1311, 1315 (11th Cir. 1999),

cert. denied, _... U.S: ___., 120 S.Ct. 1529, _... La Se

____ (2000). Richardson, a thirty-year permanent legal

resident in this country with convictions for firearms and

drugs offenses, was detained by the INS as he attempted

to re-enter the United States after a two-day trip to Haiti.

He filed a petition for a writ of habeas corpus, asserting

that the INS’s illegal detention, denial of admission, and

denial of a bond hearing violated his constitutional and

Statutory rights as a lawful permanent resident alien.

Because Richardson’s removal proceedings began in

October 1997, the permanent rules applied to his case.

When the case first came to the Eleventh Circuit, the

court held that INA § 242(g) repealed district court

habeas jurisdiction. See Richardson v. Reno (Richardson

I), 162 F.3d 1338 (11th Cir. 1998). Richardson I was

vacated by the Supreme Court, and remanded for recon-

sideration in light of its decision in American-Arab. See

Richardson v. Reno, 526 U.S. 1142, 119 S.Ct. 2016, 143

L.Ed.2d 1029 (1999). On remand, the court of appeals

25a

recognized that, in light of the Supreme Court’s narrow

reading of § 242(g), that sec-tion did not divest the dis-

trict court of habeas jurisdiction over Richardson’s case.

Nevertheless, the court reaffirmed its earlier decision on

the ground that Richardson I rested not just on its inter-

pretation of INA § 242(g) but also of INA § 242(b)(9) as

well as the “overall judicial review scheme enacted in

INA § 242(b).” Richardson II, 180 F.3d at 1314. The

court concluded that “[a]ny constitutional infirmities

Richardson perceives in th[e] INA-proscribed judicial

review must be raised in an attack on the constitution-

ality of INA § 242(a)(2)(C) only in the court of appeals

and only after a final removal order.” Jd. at 1316 (quot-

ing Richardson I, 162 F.3d at 1376).

More recently, the Court of Appeals for the Fifth Cir-

cuit has followed the Eleventh Circuit in holding that

under the permanent rules district courts are divested of

their habeas jurisdiction. See Max-George v. Reno, 205

F.3d 194 (Sth Cir. 2000). Although the Fifth Circuit had

interpreted the transitional rules as preserving the dis-

trict courts’ habeas jurisdiction, it had foreseen the pos-

sibility of a different result under the permanent rules.

See Requena-Rodriguez, 190 F.3d at 305-06. Thus, its

decision in Max-George was not unexpected. It reasoned

that the phrase “notwithstanding any other provision of

law” in INA § 242(a)(2)(C), which had not appeared

before it under the transitional rules, “clearly precludes

habeas jurisdiction under 28 U.S.C. § 2241.” Max-

George, 205 F.3d at 198.° In contrast, as we noted above,

6 We note in passing that Max-George had already been

deported and the government argued that the case was moot. The

court overcame the mootness argument by holding that a collateral

consequence of his deportation was his future inadmissibility as a

matter of law, whether he chose to return or not.

26a

we did consider that phrase, which appears in § 242(g),

in Sandoval. See Sandoval, 166 F.3d at 236-38.

Moreover, the “[n]Jotwithstanding any other provision

of law” phrase that the court in Max-George found dis-

positive does not stand alone. The language that begins

§ 242(a)(2)(C) reads: “Notwithstanding any other pro-

vision of law, no court shall have jurisdiction to review

. .”’ 8 U.S.C. § 1252(a)(2)(C) (emphasis added). In

Sandoval, we reviewed the history of the Supreme

Court’s consistent affirmation since at least as far back

as 1888 of the right of aliens to availability of the writ of

habeas corpus in the district courts despite statutory lan-

guage that restricted or eliminated judicial review of

executive action in immigration matters. Sandoval, 166

F.3d at 233-34. We stated that when viewed in light of

the history of the Court’s treatment of habeas jurisdic-

tion in deportation cases, the references to “review” in

AEDPA and to “appeal” in IT[RIRA are properly under-

stood as relating to judicial review under the APA. Id. at

235. We continued, “This is so because in the immigra-

tion context, the Court has historically drawn a sharp

distinction between ‘judicial review’—meaning APA

review—and the courts’ power to entertain petitions for

writs of habeas corpus.” Jd. The court’s conclusion in

Max-George that the writ of habeas corpus “is merely an

‘other provision of law,’ ” Max-George, 205 F.3d at 198,

that can be swept away by the phrase “[nJotwithstanding

any other provision of law” fails to recognize or give

effect to this historical distinction maintained by suc-

cessive Supreme Court opinions.

The holdings of both Richardson cases and Max-

George that Congress need not mention habeas or § 2241

to repeal the district courts’ habeas jurisdiction 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

&

i

;

5

4

27a

to require explicit statutory reference to habeas or

§ 2241 to effect congressional repeal of habeas juris-

diction. See Magana-Pizano, 200 F.3d at 608-09 (inter-

preting Felker to require explicit reference to § 2241 to

effect repeal of habeas corpus jurisdiction, noting that

“[p]resumably, the holding in Felker placed Congress on

notice that it could repeal habeas jurisdiction under

§ 2241 only by express command, and not by implica-

tion”); Pak, 196 F.3d at 673 (“Although AEDPA § 401(e)

pointedly refers to INA § 106(a)(10), it does not refer to

§ 2241. Thus, despite the fact that AEDPA § 401(e)

expressly repealed habeas jurisdiction under INA

§ 106(a)(10), absent a clear statement from Congress, we

decline to interpret that provision as also repealing gen-

eral habeas jurisdiction under § 2241.”); Bowrin, 194

F.3d at 489 (“We believe that had Congress intended to

eliminate all habeas jurisdiction under § 2241, it would

have done so by using the same explicit references it

used to repeal INA § 106(a)(10).”); Jurado-Gutierrez,

190 F.3d at 1145-46 (“We find the lack of any mention

of § 2241 habeas review in the plain language of the

Statute, combined with the long historical precedent sur-

rounding habeas corpus review in immigration cases,

establishes that traditional habeas review under § 2241

Survived the enactment of AEDPA § 440(d) and IIRIRA

§ 309(c).”); Shah, 184 F.3d at 724 (“AEDPA rather point-

edly refers only to Section 106(a)(10) of the old Act. No

reference is made to the general federal habeas corpus

Statute, though that statute was for decades routinely

used to review executive decisions in immigration mat-

ters. . . .”); Goncalves, 144 F.3d at 119 (“Felker makes

clear that if Congress intends to repeal or restrict habeas

jurisdiction under § 2241, it must Say so explicitly.”).

But see LaGuerre, 164 F.3d at 1038-39 (holding that

AEDPA §§ 440(a) and 40! (e) divested the district courts

28a

of habeas jurisdiction, even without explicit reference to

§ 2241).’

The government argues that we should adopt the hold-

ing of Richardson II (and presumably now would include

Max-George) rather than adhere to the reasoning we

articulated in Sandoval. As we have explained, we see

no reason to abandon the path taken in Sandoval. We

continue to believe that had Congress intended to elim-

inate all habeas jurisdiction under § 2241, it would have

done so by making its intent explicit in the language of

the statute. Furthermore, as we recognized in Sandoval,

this approach obviates the serious constitutional prob-

lems that would arise were we to adhere to our previous

opinions holding we have no jurisdiction over petitions

for review filed by an alien with a criminal conviction

and read the permanent rules to strip the district courts

of habeas jurisdiction.

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 pub-

lic Safety may require it.” U.S. Const. art. I, § 9, cl. 2.

The Max-George court recognized that “[t]o some

degree, IIRIRA’s stripping of § 2241 jurisdiction impli-

cates the guarantee that the ‘Privilege of the Writ’ pre-

served by the Constitution cannot be suspended,” but it

7 It is of some interest that while Richardson | was awaiting

reconsideration in light of American-Arab, the Eleventh Circuit

decided Mayers v. INS, 175 F.3d 1289, 1299-1300 (11th Cir. 1999),

a transitional rule case, in which the court applied the presumption

against implied repeal of habeas jurisdiction articulated by the

Supreme Court in Felker and held that neither AEDPA nor the tran-

sitional rules of IIRIRA divested the district courts of habeas juris-

diction because none of the provisions expressly referred to 28 U.S.C.

§ 2241 or habeas jurisdiction. When the court re-affirmed its Richard-

son I analysis of Felker in Richardson II, it sought to distinguish

Mayers on factual and statutory grounds. See 180 F.3d at 1316 n.6.

29a

then stated that the distinction between the scope of the

writ of habeas corpus preserved in the Constitution and

the scope of the writ granted by § 2241 “is immaterial

when considered in the immigration context” where

Congress may make rules “that would be unacceptable if

applied to citizens.” Max-George, 205 F.3d at 201 (inter-

nal quotations and citations Omitted). We agree, of

course, with the proposition that habeas corpus need not

preserve review of discretionary decisions, but to the

extent the court’s discussion Suggests that aliens are not

entitled to the constitutional protection of habeas corpus,

the Supreme Court cases cited and discussed in detail in

Sandoval, see 166 F.3d at 233-34, pronounce precisely

the opposite. See, e.g., United States v. Jung Ah Lung,

124 U.S. 621, 8 S.Ct. 663, 31 L.Ed. 591 (1888) (alien

entitled to writ of habeas corpus to reenter United

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

660, 12 S.Ct. 336, 35 L.Ed. 1146 (1892) (“An alien

immigrant, prevented from landing . . . is doubt-

less entitled to a writ of habeas corpus to ascertain

whether the restraint is lawful.”); Heikkila v. Barber,

345 U.S. 229, 234-35, 73 S.Ct. 603, 97 L.Ed. 972 (1953)

(statute conferring finality on deportation decisions of

Attorney General precluded “judicial intervention in

deportation cases except insofar as it was required by the

Constitution”).

The government asserts that our concerns about avoia

ing constitutional problems are unfounded because the

judicial review provisions applicable to the cases »efore

us can be read to satisfy the Suspension Clause.

Congress may divest the district courts of habeas juris-

diction without violating the Suspension Clause so long

as it substitutes “a collateral remedy which is neither

inadequate nor ineffective to test the legality of a per-

son’s detention.” Swain v. Pressley, 430 U.S. 372, 381,

97 S.Ct. 1224, 51 L.Ed.2d 411 (1977).

30a

Although the courts of appeals generally retain juris-

diction under new INA § 242(a)(1) to review an alien’s

challenge to his or her final order of removal via the

alien’s petition for review, a petition for review brought

by an alien with a criminal conviction is excepted. New

INA § 242(a)(2)(C) provides that “[n]Jotwithstanding 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 [various sections of the INA].”

8 U.S.C. § 1252(a)(2)(C).

The government argues that, irrespective of this lim-

itation on our petition for review jurisdiction, the courts

of appeals retain jurisdiction under § 242 over petitions

for review “to test the legality of a criminal alien’s

removal order.” Respondent’s Brief at 20. Apparently in

response to the strong argument made by the amici

ACLU and law professors that if the INA provides no

review for petitioners’ statutory as well as constitutional

claims the Suspension Clause would not be satisfied, the

government argues that we do have jurisdiction to

review the merits of petitioners’ statutory as well as con-

Stitutional claims in such cases. It asserts that under

§ 242(a}(2)(C) we have jurisdiction to determine whether

each petitioner “(1) [is] an alien, (2) is removable, and

(3) is removable by reason of having committed a qual-

ifying crime. . . .” Respondent’s Brief at 19. According

to the government, the determination of removability is

“very broad,” permitting us to judge the merits of

petitioners’ statutory and constitutional challenges on a

petition for review. Transcript of argument, Dec. 20,

1999 at 61.

If we were to accept this suggestion, it would create

the awkward situation of requiring analysis of the mer-

its of a petitioner’s challenge in making a preliminary

jurisdictional determination. Moreover, the government’s

3la

position at this juncture is difficult to reconcile with its

earlier position taken in Sandoval that at most the courts

of appeals could review “substantial constitutional”

issues on petition for review.® Our response in Sandoval,

noting that neither the statute nor the legislative history

Support such a statutory construction, is even more

applicable here.

8 The government’s different positions here and in Sandoval on

the issue of the courts’ jurisdiction to hear a statutory claim raised by

an alien with a criminal conviction is illustrative of its vacillation on

this issue. In its brief on appeal from the district court’s ruling on

Sandoval’s habeas petition, the government argued that there was no

jurisdiction either in the court of appeals or in the district court to

hear aliens’ statutory claims, maintaining that the Suspension Clause

was not implicated because “judicial review required under the Sus-

pension Clause extends only to claims of substantial constitutional

error amounting to a fundamental miscarriage of justice.” Govern-

ment Brief at 30, Sandoval v. Reno, No. 98-1099. It took the same

position in its brief on Sandoval’s petition for review, where it stated,

“Sandoval’s contention *hat the Board erred as a matter of Statutory

construction in conclud..g that AEDPA § 440(d) applies to cases

pending upon enactment is a non-reviewable claim of legal error.”

Government Brief at 5, Sandoval v. INS, No. 98-3214. At argument

in the cases before us, the government took a considerably more

expansive view of the scope of our jurisdiction to hear the. petition-

ers’ statutory claims, stating”[I]n determining whether a criminal

alien is removable, you need to look at whether his removal order is

constitutionally and statutorily legal, whether it’s valid or not, before

you can decide whether the bar applies to him.” Transcript of argu-

ment, Dec. 20, 1999 at 66 (emphasis added). On several occasions

during the argument, the government set forth its position that “there

is review that is commensurate with 2241 review in this court under

242. This court can look at and answer any question that this alien

could raise under 2241.” Jd. at 65. The government’s fluctuation

strengthens our decision to base our holding on our interpretation of

the statutory language as preserving habeas jurisdiction under Felker

rather than on the government’s concessions at oral argument—con-

cessions from which it might retreat in the next case.

32a

This argument must fail because of the absence of

any support, either in the statute or in the legislative

history. The government’s briefs cite no provision

of AEDPA or IIRIRA that supports its reading and

it conceded at oral argument that there is no specific

provision granting us jurisdiction over substantial

constitutional claims. Although the government’s

argument would have more force if there were a

constitutional imperative to read the 1996 statutes in

that manner, our conclusion that the statutes have

left habeas jurisdiction intact in the district courts

removes any such imperative.

Sandoval, 166 F.3d at 237-38. For the same reason, we

do not see how INA § 242 can support the broader posi-

tion the government now takes.

On the contrary, the language of § 242(a)(2)(C) makes

clear that we lack jurisdiction over the petitions for

review filed by Cinquemani, Rodriguez, and Liang in the

cases before us. The effect of § 242(a)(2)(C) is similar to

that of IIRIRA § 309(c)(4)(G), which we interpreted in

Catney, 178 F.3d 190, and to that of AEDPA § 440(a),

which we interpreted in Morel, 144 F.3d 248.

Like Catney and Morel, petitioners in the cases before

us do not dispute that they are aliens with criminal con-

victions that render them removable under the INA.

In other words, they do not dispute that they are aliens

who are “removable by reason of having committed

a[specified] criminal offense.” 8 U.S.C. § 1252(a)(2)(C).

Rather, they raise statutory challenges to the BIA’s inter-

pretation of recent amendments and constitutional chal-

lenges to the statute itself, seeking the availability of a

discretionary waiver under former INA § 212(c).

We see no material distinction between the transitional

rules and the permanent rules governing petitions

for review of an alien with a criminal conviction.

33a

Accordingly, we hold that we lack jurisdiction under

§ 242(a)(2)(C) over the petitions for review.

IV.

CONCLUSION

We recognize that our decision perpetuates the divi-

sion in the courts of appeals interpreting the amend-

ments to the immigration laws. Indeed, were the judges’

preferences determinative, it is likely that many would

opt for a system under which aliens’ challenges to

nondiscretionary immigration decisions, both Statutory

as well as constitutional, would be reviewed directly in

the courts of appeals. But that is not the way in which

we read the legislation that Congress has enacted, and it

is Our obligation to interpret the statutes we are given,

while at the same time interpreting the Constitution in

accord with the Supreme Court’s precedent.

Because we lack jurisdiction under INA § 242(a)(2)(C)

over the petitions for review brought by Cinquemani,

Rodriguez, and Liang challenging their final orders of

removal, the petitions will be dismissed without preju-

dice to Rodriguez’s pending petition under 28 U.S.C.

§ 2241 for a writ of habeas corpus.

34a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5053

XU CHENG LIANG,

Petitioner

Vv.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

Petition for Review of a Decision

of the Immigration & Naturalization Service

(A40 278 218)

No. 99-5327

GIOACCHINO CINQUEMANI,

Petitioner

35a

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

Petition for Review of a Decision

of the Immigration & Naturalization Service

(A35 098 342)

No. 99-6039

CARMELO JOSE RODRIGUEZ,

Petitioner

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

Petition for Review of a Decision

of the Immigration & Naturalization Service

(A38 502 331)

Argued December 20, 1999

Present:

Sloviter, Roth and Cowen, Circuit Judges

36a

JUDGMENT

These causes came on to be heard on the records from

the Immigration & Naturalization Service and were

argued on December 20, 1999.

On consideration whereof, it is now here ordered and

adjudged by this Court that the petitions for review by

Mr. Cinquemani, Mr. Rodriguez, and Mr. Liang are

hereby dismissed for lack of jurisdiction without preju-

dice to Mr. Rodriguez’s pending petition under 28

U.S.C. Section 2241 for a writ of habeas corpus. Costs

taxed against petitioners. All of the above in accordance

with the opinion of this Court.

ATTEST:

/s/ P. DOUGLAS SIRK

Clerk

Dated: March 9, 2000

37a

Appendix C

IMMIGRATION COURT

970 Broad Street, Room 1135

Newark, NJ 07102

Case A38-502-331

In the Matter of

CARMELO JOSE RODRIGUEZ

Lu

Respondent

IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on

December 9, 1997. This memorandum is solely for the

convenience of the parties. If the proceedings should be

appealed or reopened, the oral decision will become the

official opinion in the case.

[X] The respondent was ordered removed from the

United States to Dominican Republic.

[ ] Respondent’s application for voluntary departure

was denied and respondent was ordered removed

to alternative to

38a

[ ] Respondent’s application for voluntary departure

was granted until upon posting a bond in

the amountof$__..

with an alternate order of removal to

[ ] Respondent’s application for asylum was (_ ) granted

( ) denied ( ) withdrawn.

[ ] Respondent’s application for withholding of removal

was ( ) granted ( ) denied ( ) withdrawn.

[ ] Respondent’s application for cancellation of removal

under section 240A(a) was ( ) granted ( ) denied

( ) withdrawn.

[ ] Respondent’s application for cancellation of removal

was ( ) granted under section 240A(b)(1) ( )

granted under section 240A(b)(2) ( ) denied ( )

withdrawn. If granted, it was ordered that the

respondent be issued all appropriate documents nec-

essary to give effect to this order.

[X] Respondent’s application for a waiver under section

212(c) of the INA was ( ) granted (X) denied

( ) withdrawn or (_) other.

[ ] Respondent’s application for adjustment of status

under section of the INA was ( ) granted

( ) denied ( ) withdrawn. If granted, it was ordered

that the respondent be issued all appropriate docu-

ments necessary to give effect to this order.

[ ] Respondent’s status was rescinded under section

246.

{[ ] Respondent is admitted to the United States as a

until

{ } As acondition of admission, respondent is to post a

eee,

[

[

_“- oe

]

]

Kd heed

39a

Respondent knowingly filed a frivolous asylum

application after proper notice.

Respondent was advised of the limitation on dis-

cretionary relief for failure to appear as ordered in

the Immigration Judge’s oral decision.

Proceedings were terminated.

Other:

Date:

Appeal WATVEBD = Appeal Due By: 1/8/98

Appeal by Alien

/s/ HENRY S. DoGIN

HENRY S. DOGIN

Immigration Judge

40a

Appendix D

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

P.O. Box 8530

5201 Leesburg Pike, Suite 1300

Falls Church, Virginia 22041

Kelman, Lorale, Esq.

19 WEST 34TH STREET, SUITE 818

New York, NY 10001-0000

Office of the District Counsel/NE

970 Broad St., Rm. 1104B

Newark, NJ 07102

December 29, 1998

RODRIGUEZ, CARMELO JOSE

A#: 38-502-331

Enclosed is a copy of the Board’s decision and order

in the above-referenced case.

Very Truly Yours,

/s/ PAUL W. SCHMIDT

Paul W. Schmidt,

Chairman

Enclosure

Panel Members:

HURWITZ, GERALD S.

MORSE, MARVIN H.

SCIALABBA, LORI L.

4la

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A38 502 331 - Newark Date: Dec 29 1998

In re: CARMELO JOSE RODRIGUEZ

a.k.a. Carmelo Rodriguez

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Lorne J. Kelman, Esquire

19 West 34th Street, Suite 818

New York, New York 10001

ON BEHALF OF SERVICE:

Charles Parker, Jr.

District Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(ii), I&N Act

[8 U.S.C. § 1227(a)(2)(A)(ii)]-

Convicted of two or more crimes

involving moral turpitude

Sec. 237(a)(2)(A)(iii), I&N Act

[8 U.S.C. § 1227(a)(2)(A)(iii)]-

Convicted of aggravated felony

Sec. 237(a)(2)(B)(i), I&N Act

[8 U.S.C. § 1227(a)(2)(B)(i)]-

Convicted of controlled substance

violation

42a

ORDER:

PER CURIAM. The respondent is statutorily ineligible

for cancellation of removal pursuant to section 240A(a)

of the Immigration and Nationality Act, 8 U.S.C.

§ 1229b(a), because he has been convicted of an aggra-

vated felony as defined in section 101(a)(43)(B) of the

Act, 8 U.S.C. § 1101(a)(43)(B). The respondent is also

seeking relief from deportation under section 21 2(h) of

the Act. However, due to the respondent’s conviction of

an aggravated felony, he is also ineligible for that form

of relief. Section 212(h) of the Act, 8 U.S.C. § 1182(h).

Since he is in removal proceedings, a waiver of inad-

missibility under section 212(c) of the Act, 8 U.S.C.

§ 1182(c), is not a form of relief that is available. See

section 304(b) of the Illegal Immigration Reform and

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

208, 110 Stat. 3009 (“ITIRIRA”). The respondent’s lack

of eligibility is not affected by the fact that the respon-

dent was convicted prior to the date of enactment of

IIRIRA and the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214 AEDPA.

Accordingly, the appeal is dismissed.

/s/ [ILLEGIBLE]

FOR THE BOARD

43a

Appendix E

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5053

XU CHENG LIANG,

Petitioner

Vv.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

No. 99-5327

GIOACCHINO CINQUEMANI.

Petitioner

V.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

444

No. 99-6039

CARMELO JOSE RODRIGUEZ,

Petitioner

V.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

SUR PETITION FOR REHEARING

Present: BECKER, Chief Judge, SLOVITER, MANS-

MANN, GREENBERG, SCIRICA, NYGAARD,

ALITO, ROTH, MCKEE, BARRY, FUENTES, and

COWEN,”* Circuit Judges

The petition for rehearing filed by

Respondent INS,

in the above-entitled case having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular active ser-

* Hon. Robert E. Cowen, Senior Circuit Judge, as to panel

rehearing only.

45a

vice not having voted for rehearing by the court en banc,

the petition for rehearing is denied.

By the Court,

/s/ Vv

Circuit Judge

Dated: JUN 9 2000

[Handwritten]:

ch/cc: CCF

AMI

JMM

TNC

MAK

KWB

AMS

TJS

JDW

46a

Appendix F

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

DISTRICT OF NEW JERSEY

Civil Action No. 99-4300(] WB)

CARMELO JOSE RODRIGUEZ,

Petitioner/Plaintiff,

Vv.

JANET RENO, Attorney General of the United States;

DORIS MEISSNER, Commissioner of the Immigration &

Naturalization Service; ANDREA QUARANTILLO, District

Director, Immigration and Naturalization Service; IMMI-

GRATION AND NATURALIZATION SERVICE; and the

DEPARTMENT OF JUSTICE,

Defendants/Respondents.

APPEARANCES:

BRETZ & COVEN

By: Eileen Collins Bretz, Esquire

Alan Michael Strauss, Esquire

305 Broadway, Suite 100

New York, New York 10007

(Attorneys for Petitioner-Plaintiff)

47a

ROBERT J. CLEARY

United States Attorney

By: Laura M. Smith

Assistant United States Attorney :

Federal Building |

970 Broad Street

Newark, New Jersey 07101

—and—

DAVID W. OGDEN

Acting Assistant Attorney General

By: Alison Marie Igoe, Esquire

Office of Immigration Litigation

U.S. Department of Justice

P.O. Box 878 Ben Franklin Station

Washington, D.C. 20044

(Attorneys for Defendants/Respondents)

BISSELL, District Judge

On December 9, 1997, an Immigration Judge ordered

Carmelo Jose Rodriguez removed to the Dominican

Republic. (Jd.) On December 29, 1998, the Board of

Immigration Appeals (“BIA”) affirmed the order of

removal. (/Jd.) Mr. Rodriguez is now subject to imme-

diate deportation.

The facts in this case are not in dispute. Mr. Rodriguez

filed this habeas corpus petition on September 9, 1999

requesting the Court to review the lawfulness of his final

order of removal. Mr. Rodriguez, a native and citizen of

the Dominican Republic, has been a lawful permanent

resident of the United States (“LPR”) since December

20, 1983. (Petition, 43). Mr. Rodriguez is married to

Lourdes Checo, a United States citizen, and the couple

48a

have two children, ages nine and six, who are also citi-

zens of the United States. (/d., 8). His parents and his

three siblings are also United States citizens. (Jd.) On

February 19, 1993, Mr. Rodriguez pled guilty in New

Jersey Superior Court, Hudson County, to two counts of

receiving stolen property in the third degree, and one

count of possession of a controlled, dangerous substance

(cocaine) in the third degree. (Jd.) He was sentenced to

four years imprisonment, but was released on or about

December 29, 1993. (/d.) Mr. Rodriguez was then extra-

dited to Ohio, where, on March 28, 1994, he pled guilty

in Hancock County Common Pleas Court, Findlay, Ohio,

to the offense of receiving stolen property. He was sen-

tenced to six months imprisonment, and released on or

about June 28, 1994. (Jd.) On or about November 5,

1995, Mr. Rodriguez pled guilty in New Jersey Superior

Court to one count of receiving stolen property. He was

sentenced to five years imprisonment, but he was

released on or about March, 5, 1997. (/d.)

On May 9, 1994, the immigration and Naturalization

Service (“INS”) issued an immigration detainer for

Mr. Rodriguez with the Correctional Reception Center

in Orient, Ohio. (Jd., 110). The Ohio Department of

Rehabilitation and Correction received the detainer

on May 13, 1994. The detainer indicated that the INS

had initiated an investigation to determine whether

Mr. Rodriguez was deportable. (/d.) The INS took no

further action with regard to Mr. Rodriguez.

On or about May 1997, after his release from custody,

Mr. Rodriguez lost his wallet with his alien Registration

Receipt Card (“green card”). He called the INS to

inquire about replacing his green card. (Jd., 912). On

May 23, 1997, the INS issued a “Notice to Appeal”

(“NTA”). The NTA alleged three grounds of remov-

ability: (1) INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227

(a)(2)(A)(ii), which applies to aliens convicted of two or

49a

more crimes involving moral turpitude not arising out

of a single scheme of criminal misconduct: (2) INA

§ 237(a)(2)(A)(iii), 8 U.S. C. § 1227(a)(2)(A)(iii), which

applies to aliens convicted of aggravated felonies; and

(3) INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i),

which applies to aliens convicted of controlled substance

offense. (Smith Cert., Exh. A). On July 1, 1997, Mr.

Rodriguez was arrested at his home and served with the

NTA. (Petition, 13). He was released from INS custody

on bond and is now living in Jersey City, New Jersey.

(/d.)

At his removal hearing held before an Immigration

Judge (“IJ”) on July 9, 1997, October 10, 1997 and

December 9, 1997, Mr. Rodriguez conceded remov-

ability and was found to be removable under the three

counts charged in the NTA. (/d., 914). Mr. Rodriguez

then applied for three forms of statutorily authorized dis-

cretionary relief from removal: (i) a waiver of deporta-

tion under former INA § 212(c), 8 U.S.C. § 1182(c)

(1994); (ii) “cancellation of removal” under INA § 240A(a),

8 U.S.C. § 1229b(a); and (iii) adjustment of status pur-

suant to INA § 245, 8 U.S.C. § 1255, in conjunction with

a waiver of inadmissibility under INA § 212(h), 8 U.S.C.

§ 1182(h). (/d.) The IJ found Mr. Rodriguez statutorily

ineligible for all three forms of relief. The IJ ordered

Mr. Rodriguez deported to the Dominican Republic.

(/d.)

Mr. Rodriguez filed a timely appeal with the BIA, and

on April 30, 1998, the BIA dismissed Mr. Rodriguez’s

appeal and affirmed the removal order. (/Jd., 415). The

BIA affirmed the IJ’s finding that Mr. Rodriguez was

statutorily ineligible for § 212(c) relief. In this petition,

Mr. Rodriguez is challenging only the denial of § 212(c)

relief. ([d., 122). The habeas petition contains claims

that the denial of §212(c) relief was an improper

retroactive application of IIRIRA § 304(b), that the

————— ee

50a

denial of § 212(c) relief violates the petitioner’s due pro-

cess rights under the fifth amendment, and a claim for

laches.

Mr. Rodriguez filed this petition under this Court's

habeas jurisdiction, 28 U.S.C. § 2241. However, Mr.

Rodriguez also filed a petition for review with the

United States Court of Appeals for the Third Circuit.

The issues in the two petitions are substantially similar;

therefore, this Court awaited the decision of the Court of

Appeals, which was issued on March 9, 2000. This Court

has jurisdiction pursuant to 28 U.S.C. § 2241.

ANALYSIS

The first issue before this Court is one of jurisdiction.

The respondents argue that this Court does not have sub-

ject matter jurisdiction over Mr. Rodriguez’ petition for

habeas corpus relief. The government claims that under

the permanent provisions of the IIRIRA, this Court lacks

jurisdiction because (1) any judicial review available to

Rodriguez must be sought in a federal appellate Court,

and (2) Mr. Rodriguez is subject to IIRIRA’s juris-

dictional bar because he is removable by reason of his

convictions for controlled substance offenses constitut-

ing aggravated felonies under the INS. (Respondents’

Br. at 4).

The government relies primarily on two provisions.

The first is INA § 242(b)(9), 8 U.S.C. § 1252(b)(9). It

States that

Judicial review of all questions of law and fact,

including interpretation and application of consti-

tutional and statutory provisions, arising from any

action taken or proceeding brought to remove an

alien from the United States under this title shall be

Sla

available only in judicial review of a final order

under this section.

8 U.S.C. § 1252(b)(9). The government argues that

with this section, Congress intended to create a stream-

lined review of final orders of removal which would

gO straight to the appellate courts. This, the govern-

ment argues, takes away the district court’s power to

review these issues, which implicitly removes the dis-

trict court’s habeas jurisdiction under 28 U.S.C. § 2241.

This section, the government claims, creates a “zipper

clause”, as outlined in Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471 (1999).

In addition, the respondents rely upon § 242(a)(2)(c)

of the INA, 8 U.S.C. § 1252(a)(2)(c), which states:

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 1182(a)(2) or 1227(a)(2)(A)(iii)

[aggravated felony offenses], (B) [controlled sub-

stance offenses], (C), or (C) of this title, or any

offense covered by section 1227(a)(2)(A)(ii) of this

title for which both predicate offenses are, without

regard to their date of commission, otherwise cov-

ered by section 1227(a)(2)(A)(i) of this title.

Mr. Rodriguez was convicted of receiving stolen

property and possession of cocaine, and this offense

falls within the aggravated felony definition of the INA.

INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (Supp.

II 1997) (including within the aggravated felony defi-

nition any “illicit trafficking in a controlled substance

(as defined in section 102 of the Controlled Substances

Act) . . .”). Therefore, the government argues that

Mr. Rodriguez’ petition is not reviewable by any court.

52a

However, this Court finds the government’s argument

unpersuasive. The Third Circuit, in Liang v. Immigration

and Naturalization Service, which involved the petition

for review by this very petitioner, found that district

courts do retain their habeas jurisdiction pursuant to 28

U.S.C. § 2241. 2000 WL 264216 (3d Cir.). The circuit

court relied on the “longstanding doctrine disfavoring

repeal of jurisdictional statutes by implication” to find

that without an express statement of intent to divest the

district courts’ habeas jurisdiction under 2241, such

jurisdiction was not divested. (/d. at *4).

Read together, McCardle, Yerger, and Felker estab-

lish the propositions that courts should not lightly

presume that a congressional enactment containing

general language effects a repeal of a jurisdictional

statute, and, consequently, that only a plain state-

ment of congressional intent to remove a particular

statutory grant of jurisdiction will suffice.

Liang, 2000 WL *4 (citing Sandoval v. Reno, 166 F.3d

225, 232(3d Cir. 1999)). The Liang court analyzed

8 U.S.C. § 1252(a)(2)(c) and (b)(9) and found that there

was nothing in these sections which evinced a congres-

siona! intent to divest the district courts of habeas

jurisdiction. “None of the provisions, including INA

§ 242(b)(9), expressly refers to habeas jurisdiction or to

28 U.S.C. § 2241. None expressly revokes habeas juris-

diction.” Liang, 2000 WL *8. The court followed its

decision in Sandoval, finding that nothing in the per-

manent IIRIRA’s rules changes the lack of specific ref-

erence to 28 U.S.C. § 2241 in the transitional rules. For

these reasons, this Court finds that it does have juris-

diction over Mr. Rodriguez’ petition for a writ of habeas

corpus. The passage of the recent statutes in this area

have not affected this court’s habeas corpus jurisdiction.

53a

_ Now that jurisdiction is established, this Court must

delve into the merits of Mr. Rodriguez’ claim. Mr.

Rodriguez bases his petition on INA § 212(c), 8 U.S.C.

§ 1182(c), which was repealed effective April 1, 1997 by

IIRIRA § 304(b), and was replaced by INA § 240A. The

original § 212(c) provided for discretionary authority on

the part of the Attorney General or her delegates, such as

the BIA, to waive the deportation of an alien because of

extraordinary hardship to the deportee or his family, or

other exceptional circumstances.

The statute which replaced § 212(c), § 240A, states:

(1) In general. The Attorney General may cancel

removal of, and adjust to the status of an alien law-

fully admitted for permanent residence, an alien

who is inadmissible or deportable from the United

States if the alien—

* * *

(C) has not been convicted of an offense under sec-

tion 212(a)(2), 237(a)(2), or 237(a)(3) [8 USCS

§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)]; . .

8 U.S.C. § 1229(b)(1)(C). The new statute therefore

removes the discretion of the Attorney General for

aliens, like Mr. Rodriguez who have been convicted of

an offense under § 237(a)(2)(iii) for an aggravated

felony.

Because Mr. Rodriguez had been convicted of an

aggravated felony under the INA, the BIA affirmed

the decision of the IJ that he was statutorily ineligible

for such relief. Mr. Rodriguez challenges this decision

on the basis that IIRIRA § 304(b) cannot apply retroac-

tively to convictions that occurred before the date of the

section.

DeSousa states that “five months after the passage of

AEDPA, Congress repealed § 212(c) in its entirety,

S4a

effective April, 1, 1997. See IIRIRA § 304(b). Because

DeSousa’s deportation proceedings were initiated in

1996, this repeal does not affect his case.” DeSousa v.

Reno, 190 F.3d 175, 179 n.4 (3d Cir. 1999). Therefore,

DeSousa states that deportation proceedings initiated

after April 1, 1997 were governed by the new statute. In

Sandoval, the court states: “ . we conclude that

AEDPA does contain an expression of congressional

intent and that Congress’s intent was that the AEDPA

amendment to § 212(c) was not to be applied to pending

cases.” Sandoval, 166 F.3d at 240. However, Sandoval

also holds that “Because the INA initiated removal pro-

ceedings against Sandoval before April 1, 1997, the

repeal of § 1182(c) does not apply here.” (Jd. at 239).

Therefore, both DeSousa and Sandoval hold that depor-

tation proceedings initiated after April 1, 1997 would be

governed by the new rule eliminating discretion on the

part of the Attorney General.

The only issue now to be decided by this Court is

whether the deportation proceedings against Mr.

Rodriguez were initiated before April 1, 1997. This

Court finds that they were not. It is clear that Mr.

Rodriguez’ convictions occurred prior to the date upon

which the AEDPA became effective. In addition, the INS

issued a detainer on him on May 9, 1994, before the

AEDPA became effective. Therefore, Mr. Rodriguez

argues that it is inequitable to apply the new AEDPA

rules to him, since the only reason that his case was “ini-

tiated” after April 1, 1997 was that the INS waited for

several years before filing the NTA on May 23, 1997.

Mr. Rodriguez claims that this action by the INS was not

only inequitable, but that the INS violated its regulations

by bringing an NTA after Mr. Rodriguez had been

released from custody.

However, in this case, the removal proceedings were

initiated on May 23, 1997, after the amendment came

55a

into effect. The reason that the case was not initiated

until May 23, 1997, is that the case is “initiated” when

the NTA is filed with the Court.' 8 C.FR. § 3.14(a)

States that “Jurisdiction vests, and proceedings before an

Immigration Judge commenced, when a charging docu-

ment is filed with the Immigration Court by the Ser-

vice.” The first document filed with the Court is the

NTA. In addition, 8 C.F.R. § 239.1 states that “Every

removal proceeding conducted under section 240 of the

Act to determine the deportability or inadmissibility of

an alien is commenced by the filing of a notice to appear

with the Immigration Court.” In this case, the Notice to

Appear was filed with the Court on May 23, 1997. In

addition, the Third Circuit in Liang held that, in the con-

text of the jurisdiction question, “deportation proceed-

ings were not initiated against any of the petitioners

until after April 1, 1997.” Liang, 2000 WL at *7. That is

the date that the case was initiated; therefore, the

amended statute which became effective on April 1,

1997 is controlling.

Mr. Rodriguez relies upon Wallace v. Reno, a First

Circuit case where the court found that “. . . we think

that when an order to show cause is served on the alien,

the deportation process has effectively begun and expec-

tations properly form, even if there is no actual

reliance.” Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.

1999); accord McKenzie v. Reno, No. 97-11285-DPW at

4 n.3 (D. Mass. Dec. 10, 1998); Mercado-Amador v.

Reno, 47 F. Supp. 2d 1219, 1224 (D. Or. 1999); Canela

. In its Opinion, the Third Circuit stated that the removal pro-

ceedings were “initiated” on July 1, 1997 (2000 WL 264216 at 72).

This is the date of service of the NTA upon Mr. Rodriguez and the

date on which he executed his request for a prompt hearing. (See Cer-

tification of Laura M. Smith, Exh. A). Any distinction between the

dates of May 23 and July 1, 1997 is, however, immaterial in the case

at bar where both are after April 1, 1997.

56a

v. U.S. Dep’t of Justice, 64 F. Supp. 2d 456 (E.D. Pa.

1999). In Canela, District Judge Katz, in the Eastern

District of Pennsylvania, analyzed “whether an alien

who was issued an OSC prior to the date of AEDPA’s

enactment should be barred from applying for discre-

tionary relief because the INS failed to file that same

OSC with the immigration court until after AEDPA’s

enactment.” 64 F. Supp. 2d at 457. The court found that

“The date at which the regulations consider a case

to have commenced is essentially random.” (/d., citing

Wallace, 24 F. Supp. 23d at 113).

Had the INS completed the administrative task of

filing the OSC with the IJ promptly, Mr. Canela may

well have been eligible for 212(c) relief even under

the agency interpretation. Consequently, the court

accepts the reasoning of another district court faced

with a similar issue:

“I am not persuaded by the defendants’ argument:

that [petitioner] was not in deportation pro-

ceedings until the order to show cause was filed

in immigration court. As of the time the order to

show cause was issued, the INS had the power

to arrest him; commencement of the case in

immigration court was subject only to the

vagaries of administrative scheduling. From a

due process standpoint, [petitioner] was subject

to the deportation power of the INS as of the

time the show cause order issued; fairness

requires that the INS, having placed [petitioner]

under its authority, should also live with the

results of that decision.”

Canela,64 F. Supp. 2d at 458 (citing Mercado-Amador v.

Reno, 47 F. Supp. 2d 1219, 1224 (D. Or. 1999)). There-

fore, the Canela court found that the petitioner’s case

oe

57a

was pending as of the date he received the order to show

cause.

In the instant case, an order to show cause was never

filed on Mr. Rodriguez. A detainer was filed, but that

document does not have the effect which an order to

show cause has. As stated in Canela, “As of the time the

order to show cause was issued, the INS had the power

to arrest him.” A detainer, on the other hand, “merely

notifies prison officials that a decision regarding [a pris-

oner’s] deportation will be made by the INS at some

future date.” Roldan v. Racette, 984 F.2d 85, 88 (2d Cir.

1993) (citing Orozco v. INS, 911 F.2d 539, 540-41 (11th

Cir. 1990). Courts have held that the issuance of a

detainer does not mean that the alien is considered to be

in the custody of the INS. See Lepez-Mejia v. U.S. Immi-

gration and Naturalization Service, et al., 798 F. Supp.

625, 627 (C.D. Cal. 1992). The detainer is a “request

that such agency advise the Service, prior to release of

the alien, in order for the Service to arrange to assume

custody, in situations when gaining immediate physical

custody is either impracticable or impossible.” 8 C.F.R.

§ 287.7. The detainer, as merely notice to another law

enforcement agency, does not initiate the proceedings

with the INS. Therefore, the petitioner's case was “ini-

tiated” when the Notice to Appear was filed with the

court on May 23, 1997. For that reason, the petitioner is

not eligible for relief under former § 212(c). The respon-

dents’ motion to dismiss petitioner’s habeas corpus peti-

tion is therefore granted.

58a

CONCLUSION

Respondents’ motion to dismiss is granted. The peti-

tioner’s habeas corpus petition is dismissed in its

entirety. ,

/s/ JOHN W. BISSELL

JOHN W. BISSELL

United States District Judge

Dated: May 31, 2000

59a

Appendix G

UNITED STATES COURT OF APPEALS

DISTRICT OF NEW JERSEY

Civil Action No. 99-4300(JWB)

CARMELO JOSE RODRIGUEZ,

Petitioner/Plaintiff,

V.

JANET RENO, Attorney General of the United States:

DORIS MEISSNER, Commissioner of the Immigration &

Naturalization Service; ANDREA QUARANTILLO, District

Director, Immigration and Naturalization Service; IMMI-

GRATION AND NATURALIZATION SERVICE; and the

DEPARTMENT OF JUSTICE,

'

Defendants/Respondents.

60a

ORDER

For the reasons set forth in the Court's Opinion filed

herewith,

It is on this 31st day of May, 2000,

ORDERED that the respondents’ motion to dismiss is

granted, and the petition of Carmelo Jose Rodriguez for

the issuance of a writ of habeas corpus be, and it hereby

is, dismissed in its entirety.

/s/ JOHN W. BISSELL

JOHN W. BISSELL

United States District Judge

6la

Appendix H

1. The Suspension of Habeas Corpus Clause of the

United States Constitution, Art. 1, § 9, C1.2, provides:

The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebel-

lion or Invasion the public Safety may require it.

2. U.S. Constitution, Art. III provides in pertinent

part:

Section 1. 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 andestablish. . .

Section 2. The judicial Power shal! extend to all

Cases, in Law and Equity, arising under this Con-

stitution, the Laws of the United States, and Treaties

made, . . . to Controversies to which the United

3. U.S. Constitution, Amendment V provides in per-

tinent part:

No person shall be. . . deprived of life, liberty,

Or property without due process of law. . . .

4. Prior to April 24, 1996, section 106(a) of the Immi-

gration and Nationality Act, 8 U.S.C. 1105a(a) (1994),

provided in pertinent part:

Exclusiveness of procedure

The procedure prescribed by, and all the provi-

sions of chapter 158 of title 28, shall apply to, and

shall be the sole and exclusive procedure for, the

judicial review of ail final orders of deportation,

_heretofore or hereafter made against aliens within

62a

the United States pursuant to administrative pro-

ceedings under section 1252(b) of this title or pur-

suant to section 1252a of this title or comparable

provisions of any prior Act, except that—

* * * * *

(10) Habeas corpus

any alien held in custody pursuant to an order of

deportation may obtain judicial review thereof by

habeas corpus proceedings.

5. After April 24,-1996, and before September 30,

1996, Section 106(a) of the Immigration and Nationality

Act, 8 U.S.C. 1105a(a) (to be codified), provided in

pertinent part:

Exclusiveness of procedure

The procedure prescribed by, and all the provi-

sions of chapter 158 of title 28, shall apply to, and

shall be the sole and exclusive procedure for, the

judicial review of all final orders of deportation,

heretofore or hereafter made against aliens within

the United States pursuant to administrative pro-

ceedings under seciion 1252(b) of this title or pur-

suant to section 1252a of this title or comparable

provisions of any prior Act, except that—

* * * kK *

(10) Any final order of deportation against an

alien who is deportable by reason of having com-

mitted a criminal offense covered by section

{[1251](a)(2)(A)(iii), (B), (C), or (D), or any offense

covered by section [1251](a)(2)€A)(ii) for which

both predicate offenses are covered by section

63a

[1251](a)(2)(A)(i), shall not be subject to review by

any court.

6. Prior to April 24, 1996, Section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. 1182(c)

(1994), provided:

Nonapplicability of subsection (a)

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and

not under an order of deportation, and who are

returning to a lawful unrelinquished domicile of

seven consecutive years, may be admitted in the

discretion of the Attorney General without regard to

the provisions of subsection (a) of this section

(other than paragraphs (3) and (9)(C). Nothing con-

tained in this subsection shall limit the authority of

the Attorney General to exercise the discretion

vested in him under section 1181(b) of this title.

The first sentence of this subsection shall not apply

to an alien who has been convicted of one or more

aggravated felonies and has served for such felony

or felonies a term of imprisonment of at least

5 years.

7. Effective April 24, 1996,' Section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. 1182(c) (to

be codified), provided:

' Section 212(c) was amended by Section 440(d) of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1277, on April 24, 1996. Further tech-

nical amendments were made by Section 306(d) of the Illegal Immi-

gration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208,

Div. C, 110 Stat. 3009-612, on September 30, 1996, and those tech-

nical amendments were made effective as if they were enacted on the

original enactment date of AEDPA. See p. 68a, infra. The version set

forth in the text reflects both sets of amendments. In addition, Sec-

Ee ea He eee ae

64a

Nonapplicability of subsection (a)

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and

not under an order of deportation, and who are

returning to a lawful unrelinquished domicile of

seven consecutive years, may be admitted in the dis-

cretion of the Attorney General without regard to

the provisions of subsection (a) of this section

(other than paragraphs (3) and (9)(C)). Nothing con-

tained in this subsection shall limit the authority of

the Attorney General to exercise the discretion

vested in him under section 1181(b) of this title.

This subsection shall not apply to an alien who is

deportable by reason of having committed any crim-

inal offense covered by section [1251](a)(2)(A)(i11),

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

[1251](a)(2)(A)(ii) for which both predicate

offenses are, without regard to the date of their

commission, otherwise covered by section [1251]

(a)(2)(A)(i).

8. Section 242 of the Immigration and Nationality Act,

8 U.S.C. 1252 (Supp. II 1996), provides in pertinent

part: :

(a) Applicable provisions

(1) General orders of removal

Judicial review of a final order of removal (other

than an order of removal without a hearing pursuant

to section 1225(b)(1) of this title) is governed only

by chapter 158 of title 28, except as provided in -

tion 304(b) of ITIRIRA, 110 Stat. 3009-597, repealed Section 212(c)

entirely, but Sections 306 and 309 of IIRIRA, 110 Stat. 3009-607,

3009-625, make clear that this repeal applies only to aliens placed in

removal proceedings on or after April 1, 1997. See pp. 67a-70a, infra.

65a

subsection (b) of this section and except that the

court may not order the taking of additional evi-

dence under section 2347(c) of such title.

* * * *

(2)(C) Orders against criminal aliens

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) 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).

* * * kK *

(b)(9) Consolidation of questions for judicial

review

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 title shall be available only in

Judicial review of a final order under this section.

* * * * *

(g) Exclusive jurisdiction

Except as provided in this section and notwithstanding

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

diction 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

66a

execute removal orders against any alien under this

chapter.

9. Section 401(e) of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1268 (Apr. 24, 1996), provides:

ELIMINATION OF CUSTODY REVIEW BY HABEAS

CorPpus.—Section 106(a) of the Immigration and

Nationality Act (8 U.S.C. 1105a(a)) is amended—

(1) in paragraph (8), by adding “and” at the end;

(2) in paragraph (9), by striking “; and” at the

end and inserting a period; and

(3) by striking paragraph (10).

10. Section 440 of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1276 (Apr. 24, 1996), as amended by the

Illegal Immigration Reform and Immigrant Responsi-

bility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div.

C, 110 Stat. 3009-546 (Sept. 30, 1996),” provides in per-

tinent part:

CRIMINAL ALIEN REMOVAL.

(a) JUDICIAL REVIEW.—Section 106 of the Immi-

gration and Nationality Act (8 U.S.C. 1105a(a)(10)) is

amended to read as follows:

“(10) Any final order of deportation against an

alien who is deportable by reason of having com-

mitted a criminal offense covered in section 241(a)-

(2)(A)(iii), (B), (C), or (D), or any offense covered

2 Section 306(d) of IIRIRA, Pub. L. No. 104-208, Div. C, 110

Stat. 3009-612, made certain technical amendments to Section 440 of

AEDPA, Pub. L. No. 104-132, 110 Stat. 1276, effective as if included

in the original enactment of AEDPA. See p. 68a, infra.

67a

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), shall not be subject to review by any

court.”

= = a -

(d) CLASSES OF EXCLUDABLE ALIENS.—Section

212(c) of such Act (8 U.S.C. 1182(c)) is amended—

(1) by striking “The first sentence of this” and

inserting “This”; and

(2) by striking “has been convicted of one or

more aggravated felonies” and all that follows

through the end and inserting “is deportable by rea-

son of having committed any criminal offense cov-

ered 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, without regard to

the date of their commission, otherwise covered by

section 241(a)(2)(A)(i).”

11. Section 304(b) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, 110 Stat. 3009-597 (Sept. 30, 1996)

provides:

REPEAL OF SECTION 212(c).—Section 212(c)

(8 U.S.C. 1182(c)) is repealed.

12. Section 306 of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, 110 Stat. 3009-607 (Sept. 30, 1996), as

amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct.

11 1996),* provides in pertinent part:

> Public Law No. 104-302, 110 Stat. 3656 (Oct. 11, 1996)

made certain technical amendments to Sections 306 and 309 of

68a

~ APPEALS FROM ORDERS OF REMOVAL

(NEW SECTION 242).

* * *& * *

(b) REPEAL OF SECTION 106.—Section 106 (8

U.S.C. 110(a) is repealed.

(c) EFFECTIVE DATE.—

(1 ) IN GENERAL.—Subject to paragraph (2), the

amendments made by subsections (a) and (b) shall

apply as provided under section 309, except that

subsection (g) of section 242 of the Immigration

and Nationality Act (as added by subsection (a)),

shall apply without limitation to claims arising from

all past, pending, or future exclusion, deportation,

or removal proceedings under such Act.

* * * *

(d) TECHNICAL AMENDMENT.—Effective as if included

in the enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (Public Law 104-132),

subsections (a), (c), (d), (g), and (h) of section 440 of

such Act are amended by striking “any offense covered

by section 241(a)(2)(A)(ii) for which both predicate

offenses are covered by section 24i(a)(2)(A)(i)” and

inserting “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 cov-

ered by section 241(a)(2)(A)(i).

13. Section 309 of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, 110 Stat. 3009-625 (Sept. 30, 1996), as

amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct.

11, 1996), provides in pertinent part:

IIRIRA, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-607, 3009-625,

effective as if enacted on the original date of enactment of ITRIRA.

69a

EFFECTIVE DATES; TRANSITION.

(a) IN GENERAL.—Except as provided in this section

and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5)

of this division, this subtitle and the amendments made

by this subtitle shall take effect on the first day of the

first month beginning more than 180 days after the date

of the enactment of this Act (in this title referred to as

the “title III-A effective date”).

* * * K *

(c) TRANSITION FOR ALIENS IN PROCEEDINGS.

(1) GENERAL RULE THAT NEW RULES Do NOT

APPLY.—Subject to the succeeding provisions of this

subsection, in the case of an alien who is in exclusion or

deportation proceedings before the title III-A effective

date—

(A) the amendments made by this subtitle shall

not apply, and

(B) the proceedings (including judicial review -

thereof) shall continue to be conducted without

regard to such amendments.

* * * * *

(4) TRANSITIONAL CHANGES IN JUDICIAL REVIEW.—

In the case in which a final order of exclusion or depor-

tation is entered more than 30 days after the date of the

enactment of this Act, notwithstanding any provision of

section 106 of the Immigration and Nationality Act (as

in effect as of the date of the enactment of this Act) to

the contrary—

* * * * *

(G) there 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

70a

212(a)(2) or section 241(a)(2)(A){iii), (B), (C), or (D) of

the Immigration and Nationality Act (as in effect as of

the date of the enactment of this Act), or any offense

covered by section 241(a)(2)(A)(ii) of such Act (as in

effect on such date) for which both predicate offenses

are, without regard to their date of commission, other-

wise covered by section 241(a)(2)(A)(i) of such Act (as

so in effect).

14. Section 2241 of Title 28, United States Code, pro-

vides 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 jurisdic-

tions. 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.

* * * kK *

(c) The writ of habeas corpus shall not extend to

a prisoner unless

* * * * *

(3) He is in custody in violation of the Con-

stitution or laws or treaties of the United

States[.]