# Appendix — Rodriguez v. Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1314%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 533 U.S. 949 ## Text 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[.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1314%3A2. Public record. Not legal advice.