Appendix — Calcano-Martinez v. INS
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
(% FILED
001 011 DEC 2 0200
No. 00-____
ae
IN THE
Supreme Court of the United States
ei
DEBORIS CALCANO-MARTINEZ, ET AL., “ae
Petitioners,
a |
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI 3
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
Attorneys for Petitioners
TABLE OF CONTENTS
PAGE
Appendix A (court of appeals’ opinion,
NY By OE is iii ccc la
Appendix B (oral decision of the immigration D
judge in Calcano-Martinez, July 16,
adit POR AA ern LAN etc any IS EN 34a
Appendix C (decision of the Board of
Immigration Appeals in Calcano-
Martinez, December 30, 1997) ............... 37a
Appendix D (order of the immigration judge
in Madrid, October 1, 1997)................;. 40a
Appendix E (oral decision of the immigration
judge in Madrid, October 1, 1997)........... 43a
Appendix F (decision of the Board of
Immigration Appeals in Madrid, May 5,
copy SL ON ERS PI RAEI PUI Baise VaR Sara tea 48a
Appendix G (order of the immigration judge
Oe Oe OE Oe BE eis, 50a
Appendix H (transcript of removal hearing
ci ed. os ee a cr 53a
Appendix I (decision of the Board of
Immigration Appeals in Khan, May 28,
sche at Eee EL Oe Oe IO WSO ERD Ea 66a
li
Appendix J (constitutional and statutory
PFOVisiORs IM VORWHE). « cicicccccevessaveveseess 75a
la
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1999
(Argued March 30, 2000 Decided September 1, 2000)
Docket Nos. 98-4033, 98-4214, 98-4246
DEBORIS CALCANO-MARTINEZ,
Petitioner,
—_—Y,—
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
SERGIO MADRID,
Petitioner,
—VY,——
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
2a
FAZILA KHAN,
Petitioner,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Before:
OAKES, WALKER, and KEITH,*
Circuit Judges.
Lawful permanent resident aliens filed separate peti-
tions for review of final orders of removal, seeking
review of decisions of Board of Immigration Appeals
that they were removable by reason of having been con-
victed of a certain crime and ineligible to apply for
discretionary relief from deportation. Cases were con-
solidated. We hold that under the permanent rules of the
Illegal Immigration Reform and Immigrant Responsi-
bility Act, a court of appeals lacks jurisdiction over peti-
tions for review filed by the aliens. We further hold that
the permanent rules of the Illegal Immigration Reform
and Immigrant Responsibility Act do not deprive federal
district courts of habeas jurisdiction over purely legal
claims of aliens ordered removed from the United states
for having committed specific crimes.
* The Honorable Damon J. Keith of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
3a
LUCAS GUTTENTAG and CHRISTOPHER J.
MEADE, American Civil Liberties Union
Foundation, New York, NY (Lee Gel-
ernt; Kerry William Bretz, Jules Coven,
Alan Michael Strauss, Matthew L.
Guadagno and Bretz & Coven, of coun-
sel), for Petitioners.
DIOGENES P. KEKATOS, Assistant United
States Attorney, New York, NY (Mary
Jo White, United States Attorney, James
A. O’Brien III, Special Assistant United
States Attorney, and Gideon A. Schor,
Assistant United States Attorney, of
counsel), for Respondent.
OAKES, Senior Circuit Judge:
The consolidated cases before the Court require us to
interpret the effect of the permanent rules of the Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.
3009-546 (1996), on the jurisdiction of federal courts to
hear challenges raised by criminal aliens with respect to
removal proceedings commenced by the Immigration
and Naturalization Service (“INS”). In three opinions
handed down in the last three years, we considered the
effect of various provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214 (1996) and the transi-
tional rules of IRRIRA on a federal court’s jurisdiction
to review removal proceedings. This is our first occasion
to examine the effect of IIRIRA’s permanent rules in the
same context.
4a
In enacting the AEDPA and IIRIRA in 1996, Congress
reworked the role of the courts in immigration decisions
by severely limiting judicial review of final orders of
deportation for certain classes of aliens. By enacting
these laws, Congress clearly meant to speed the removal
of legal permanent residents convicted of certain crimes
from the United States by curtailing the availability of
judicial review of their removal orders. See H.R. Rep.
No. 104-879 at 251-61 (1997), 1997 WL 9288; H.R.
Conf. Rep. No. 104-828, at 495-507 (1997), 1997 WL
563320. In our first decision interpreting Congress's
1996 amendments, we held that the AEDPA “repealed
the jurisdiction a court of appeals formerly had over
petitions for review filed by aliens convicted of [certain
criminal offenses].” Hincapie-Nieto v. INS, 92 F.3d 27,
28 (2d Cir. 1996). Two years later, we held that under
the transitional rules of IIRIRA, federal courts retained
habeas jurisdiction under 28 U.S.C. § 2241. See Jean-
Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir.), reh’g
denied, 175 F.3d 226 (2d Cir. 1998). Four months after
our decision in Jean-Baptiste, we examined the scope of
the remaining habeas review and held that federal courts
retained jurisdiction to review statutory and constitu-
tional challenges to deportation orders. See Henderson
v. INS, 157 F.3d 106, 122 (2d Cir. 1998), cert. denied,
Reno v. Navas, 526 U.S. 1004 (1999).
The three petitioners before us, Deboris Calcano-Mar-
tinez, Sergio Madrid, and Fazila Khan, are legal per-
manent residents of the United States who have been
ordered deported because of prior criminal convictions.
Each has filed a petition for review in this Court
pursuant to INA § 242(a)(2), codified at 8 U.S.C.
§ 1252(a)(2), challenging the final orders of removal
entered against them by the Board of Immigration
Appeals (“BIA”). Each petitioner has also filed a peti-
tion for habeas corpus in a United States district court.
Sa
The petitions of Calcano-Martinez and Madrid were dis-
missed without prejudice to refiling after this Court’s
mandate in the present case, and Khan’s petition is pend-
ing in the Eastern District of New York. On appeal, the
petitioners do not dispute that they are aliens with crim-
inal convictions that render them deportable under the
Immigration and Naturalization Act (“INA”). Rather,
they raise statutory challenges to the Attorney General’s
interpretation of the immigration laws under which they
face deportation and constitutional challenges to the
Statute itself.
The INS argues that this Court does not have juris-
diction to hear these petitions. We hold, for the reasons
set forth herein, that INA § 242(a)(2)(C) bars this Court
from reviewing claims against final orders of removal
filed by certain classes of criminal aliens, including the
petitioners. We also hold that IIRIRA’s permanent rules
do not repeal a federal court’s jurisdiction to review
criminal aliens’ removal orders by writ of habeas corpus
under 28 U.S.C. § 2241. In doing so, we follow decisions
by the Third and Ninth Circuit Courts of Appeals and the
principles set forth in our prior cases interpreting the
immigration laws. Accordingly, we dismiss the petitions
without prejudice to the same claims being brought pur-
suant to habeas petitions.
I. BACKGROUND
A. Deboris Calcano-Martinez.
Deboris Calcano-Martinez is a native and citizen of
the Dominican Republic who was admitted to the United
States as a lawful permanent resident in 1971, when she
was three years old. She has four children who are
United States citizens. On October 9, 1996, Calcano was
sentenced to one to three years’ imprisonment based on
6a
her April 24, 1996, guilty plea to attempted criminal sale
of heroin in the third degree, in violation of §§ 110 and
220.39 of the New York Penal Law.
On June 16, 1997, the INS commenced removal pro-
ceedings against Calcano-Martinez by filing a Notice to
Appear. See 8 C.F.R. § 239.1(a) (1999). The notice
charged that Calcano-Martinez’s narcotic conviction ren-
dered her deportable from the United States pursuant to
INA §§ 237(a)(2)(A)(iii) and (a)(2)(B)(i), codified at
8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i) (1999), as an
alien convicted of an aggravated felony and as an alien
convicted of a violation of a controlled substance law. '
A removal hearing, at which Calcano-Martinez was
represented by counsel, was held before an Immigration
Judge (“IJ”). At the end of the hearing, the IJ ordered
Calcano-Martinez deportable as charged by the INS and
ruled that, based on her criminal convictions, she was
statutorily ineligible for any relief from removal. Cal-
cano-Martinez timely appealed the IJ’s decision to the
BIA. The BIA dismissed her appeal. On January 29,
1998, Calcano filed a petition for review in this Court.
On October 13, 1999, Calcano filed a petition for a writ
of habeas corpus in the United States District Court
for the Southern District of New York. See Calcano-
Martinez v. Reno, No. 99 Civ. 10481 (S.D.N.Y. filed Oct.
13, 1999). By stipulation and order dated December 20,
1999, Calcano’s habeas petition was dismissed without
prejudice to refiling after this Court’s mandate in the
instant case.
. INA § 237(a)(2)(A)(iii) provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is
deportable.” INA § 237(a)(2)(B)(i) states that “[a]ny alien who at any
time after admission has been convicted of a violation of . . . any
law or regulation of a State, the United States, or a foreign country
relating to a controlled substance. . . is deportable.”
7a
B. Sergio Madrid.
Sergio Madrid is a native and citizen of Mexico who
remained in the United States unlawfully until his status
was adjusted to lawful permanent resident of the United
States at the age of seventeen. On September 6, 1994,
Madrid was sentenced to a prison term of four years to
life based on his conviction for the criminal sale of a
controlled substance in the second degree, in violation of
§ 220.41 of the New York Penal Law.
On June 24, 1997, the INS commenced removal pro-
ceedings against Madrid by filing a Notice to Appear.
The notice charged that Madrid’s narcotic conviction
rendered him deportable from the United States as an
alien convicted of an aggravated felony and as an alien
convicted of a violation of a controlled substance law.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C.
§ 1101(a)(43).2 A removal hearing was held before an IJ
and at the close of the hearing, the IJ rendered Madrid
deportable. Madrid appealed the BIA’s decision and on
May 4, 1998, the BIA dismissed his appeal. On June 4,
1998, Madrid filed a petition for review in this Court.
On October 13, 1999, Madrid filed a petition for a writ
of habeas corpus in the United States District Court for
the Southern District of New York. Madrid v. Reno, No.
99 Civ. 10482 (S.D.N.Y. filed Oct. 13, 1999). By stipu-
lation and order dated December 20, 1999, Madrid’s
habeas petition was dismissed without prejudice to refil-
ing after this Court’s mandate in the instant case.
C. Fazila Khan.
Fazila Khan is a native and citizen of Guyana who
was admitted to the United States as a lawful permanent
2 _ INA §101(a)(43), codified at 8 U.S.C. § 1101(a)(43), defines
“aggravated felony” as a crime involving “illicit trafficking in a con-
trolled substance.”
8a
resident on September 2, 1987. Khan’s family, including
her mother and sister as well as five of her aunts and
uncles, are also United States citizens. She also has a
four-year-old daughter who is a United States citizen. On
February 13, 1997, Khan was sentenced to a prison term
of four months, to be followed by a period of supervised
release for one year, in connection with her November 6,
1996, guilty plea to the use of a telephone to facilitate
the distribution of heroin in violation of 21 U.S.C.
§§ 843(b), (d).
In May 1997, the INS commenced removal proceed-
ings against Khan by filing a Notice to Appear.
The notice charged that her offense rendered her
deportable as an alien convicted of an aggravated felony.
See INA §237(a)(2)(A)(iii), codified at 8 U.S.C.
§ 1127(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(B).
A removal hearing was held before an IJ and Khan,
represented by counsel, denied that she was deportable
as charged. On July 24, 1997, the IJ ordered her
deportable. Khan timely appealed the IJ’s decision. On
May 28, 1997, the BIA issued a decision dismissing
Khan’s appeal. On June 29, 1998, Khan filed a petition
for review in this Court. On October 13, 1998, Khan also
challenged her removal order by filing a petition for a
writ of habeas corpus in the United States District Court
for the Eastern District of New York. Khan v. Reno, No.
CV 99-6515 (E.D.N.Y. filed Oct. 13, 1999). That peti-
tion is pending.
D. INA § 212(c) Waiver from Deportation.
Under former INA § 212(c), codified at 8 U.S.C.
§ 1182(c) (1996), the Attorney General had discretionary
authority to waive the deportation of an alien deportable
because of a prior conviction where deportation would
cause extraordinary hardship to the deportee or his or her
9a
family. The permanent rules of IIRIRA, effective April
1, 1997, repealed § 212(c) in its entirety and replaced it
with another form of relief entitled “cancellation of
removal,” found at new INA § 240A, codified at 8
U.S.C. § 1229b (1999). See IIRIRA §§ 304(a), (b), 110
Stat. at 3009-587-594. That relief, permitting the Attor-
ney General to waive deportation for certain classes of
aliens, is categorically not available to an alien con-
victed of a crime that qualifies as an “aggravated felony”
under the statute. See id. The petitioners are each ineli-
gible for “cancellation of removal” because their con-
victions qualify as “aggravated felonies” under the INA.
See INA § 240A, codified at 8 U.S.C. § 1229b (1999);
8 U.S.C. § 1101(a)(43).
In their petitions for review to this Court, the peti-
tioners argue that the BIA erred by interpreting IIRIRA
~ § 304’s repeal of § 212(c) relief and replacement with
“cancellation of removal” to apply retroactively to an
alien who is convicted before April 1, 1997, the effective
date of IIRIRA § 304(a).? The petitioners further contend
that if IIRIRA is interpreted to apply retroactively to
pre-enactment convictions, § 304(a) of IIRIRA is uncon-
Stitutional because it violates their rights guaranteed
under the due process and equal protection clauses of the
U.S. Constitution.
II. DISCUSSION
-We must consider whether we have jurisdiction over
the petition before us. Implicit in this question is
whether IIRIRA’s permanent rules repealed habeas cor-
pus jurisdiction to review final removal orders entered
* Sa argument, counsel for the petitioners alternatively argued
that ITRIRA §§ 304(a), (b) should not apply retrospectively to guilty
pleas entered to deportable crimes prior to IIRIRA’s effective date.
10a
against a legal resident alien who is removable because
of a prior conviction. See Liang v. INS, 206 F.3d 308,
312-13 (3d Cir. 2000) (noting the interrelationship
between jurisdiction over a petition for review and
habeas corpus). The permanent rules of IIRIRA are
Congress's most recent enactment, in a line of many, on
the subject of the judicial review available over immi-
gration decisions. A complete discussion of the history
of judicial review of immigration orders is set forth in
this Court’s decision in Henderson, 157 F.3d at 112-17.
For our purposes on this appeal, it is necessary to begin
with the 1996 amendments to the INA.
A. The AEDPA.
In April of 1996, Congress enacted the AEDPA, which
included two provisions relevant to the judicial review
of immigration decisions. Prior to the enactment of the
AEDPA, INA § 106(a)(10) provided that “any alien held
in custody pursuant to an order of deportation may
obtain judicial review thereof by habeas corpus
proceedings.” 8 U.S.C. § 1105a(a)(10) (1996). Section
401(e) of the AEDPA, entitled “Elimination of Custody
Review by Habeas Corpus,” explicitly repealed prior
INA § 106(a)(10). See AEDPA § 401(e), 110 Stat. at
1268. Section 440(a) was enacted to replace the repealed
provision and substitute the following language:
(10) Any final order of deportation against an alien
who is deportable by reason of having committed a
criminal offense covered in section 241(a)(2)(A)(iii),
(B), (C), or (D), or any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses
are covered by section 241(a)(2)(A)(i), shall not be
subject to review by any court.
lla
AEDPA § 440(a), 110 Stat. at 1276-77, codified at 8
U.S.C. § 1105a(a)(10) (1996) (repealed by IIRIRA
§ 306(b), 110 Stat. at 3009-612, September 30, 1996,
with respect to deportation proceedings commenced after
April 1, 1997).
In Hincapie-Nieto, 92 F.3d at 29-30, we held that
§ 440(a) repealed a court of appeals’s pre-existing juris-
diction over petitions for review filed by aliens ordered
deported because of the convictions specified. In hold-
ing that our jurisdiction over a petition for review was
repealed, we noted that “[t]he absence of an Opportunity
for some aliens to file a petition for review in a court of
appeals does not necessarily mean. . . that the federal
courts are closed to all claims by such aliens arising in
the course-of deportation proceedings.” Jd. at 30. In
Hincapie-Nieto, it was not necessary to determine
whether district courts continued to have 28 U.S.C.
§ 2241 habeas jurisdiction over final deportation orders
after the AEDPA. In dicta, however, we stated that no
constitutional infirmity appeared to arise from AEDPA
§ 440(a)’s repeal of our jurisdiction because the INS
assured that at least some avenue for judicial relief
remained available through a challenge to detention by
application for habeas corpus. See id. at 30-31.
Our suggestion in Hincapie-Nieto that AEDPA
§ 440(a)’s bar of judicial review under the INA was con-
Stitutional because courts might review deportation
orders through habeas corpus petitions was in accord
with the vast majority of courts of appeals to consider
the same issue. See Mansour v. INS, 123 F.3d 423, 426
(6th Cir. 1997); Mendez-Morales v. INS, 119 F.3d 738,
739 (8th Cir. 1997); Williams v. INS, 114 F.3d 82, 83-4
(Sth Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154-
55 (10th Cir. 1997); Chow v. INS, 113 F.3d 659, 668-70
(7th Cir. 1997); Bosto.-Bollers v. INS, 106 F.3d 352, 354
n.1 (11th Cir. 1997); Kolster v. INS, 101 F.3d 785, 790-
12a
91 (1st Cir. 1996); Salazar-Haro v. INS, 95 F.3d 309, 311
(3d Cir. 1996); Duldulao v. INS, 90 F.3d 396, 400 n.4
(9th Cir. 1996).
B. IIRIRA’s Transitional Rules.
Five months after enacting the AEDPA, on September
30, 1996, Congress enacted IIRIRA, which further nar-
rowed judicial review for legal residents ordered remov-
able because they were convicted of certain crimes.
IIRIRA contains two sets of provisions. The transitional
rules (which are not codified in the U.S. Code) control
deportation proceedings commenced prior to April I,
1997. See IIRIRA § 309(c), 110 Stat. at 3009-625. Sec-
tion 309(c)(4)(G) of IIRIRA’s transitional rules is the
successor to AEDPA § 440(a) and provides in more
absolute language that “there shall be no appeal per-
mitted in the case of an alien who is inadmissible or
deportable by reason of having committed a criminal
offense covered in [the deportation proceedings of the
INA].” IIRIRA § 309(c)(4)(G), 110 Stat. at 3009-626,
codified at 8 U.S.C. § 1101 note (1999).
In addition, IIRIRA § 306(a) amends 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
Chapter.
IIRIRA § 306(a), 110 Stat. at 3009-612, codified at 8
U.S.C. § 1252(g) (1999). Although INA § 242(g) is
listed with the permanent provisions, ITRIRA § 306(c)
13a
makes § 242(g) applicable to both transitional and per-
manent rules cases. See IIRIRA § 306(c), 110 Stat. at
3009-612.
In Jean-Baptiste, 144 F.3d at 214-18, this Court con-
sidered whether INA § 242(g) divested federal courts of
jurisdiction over a case where legal residents, ordered
deported because of a criminal conviction, maintained
that their right to due process was violated because they
had never been given notice that their criminal convic-
tion could subject them to consequences under the immi-
gration laws. Finding that plaintiffs’ claims arose out of
“the decision of the Attorney General to commence pro-
ceedings, adjudicate cases, or execute removal orders,”
this Court held that INA § 242(g) deprived federal courts
of jurisdiction to hear plaintiffs’ claims. See id. at 218.
We reasoned, however, that all review had not been
eliminated by INA § 242(g) or the AEDPA. See id. Rely-
ing on the doctrine articulated in Felker v. Turpin, 518
U.S. 651, 659-61 (1996), that repeal by implication of
the right to petition for habeas corpus relief is disfa-
vored, we held that:
Nothing in the language of either the [AEDPA] or
[IIRIRA] suggests that Congress expressly repealed
§ 2241, limited its scope, or eliminated the juris-
diction of the district courts under that statute to
entertain petitions seeking writs of habeas corpus.
Those two Acts therefore do not specifically
exclude habeas review in deportation cases under
Paavo eS.
Id. at 219. Therefore, in Jean-Baptiste, this Court con-
cluded that the AEDPA and IIRIRA’s transitional rules
did not repeal the habeas jurisdiction granted to federal
courts by Congress in 28 U.S.C. § 2241 to review chal-
lenges to final deportation orders. We left open the ques-
tion of the scope of the habeas review of immigration
l4a
decisions available under 28 U.S.C. § 2241. See id. at
220.
Our decision in Jean-Baptiste is in accord with the
majority of circuits also to hold that the language of
§ 242(g) did not repeal habeas jurisdiction over immi-
gration decisions. The First, Third, Fourth, Fifth, Sixth,
Eighth, Ninth, Tenth, and Eleventh Circuit Courts of
Appeals held that habeas jurisdiction to review final
deportation decisions survived the AEDPA and IIRIRA
transitional rules’ streamline of the judicial review avail-
able under the INA. See Magana-Pizano v. INS, 200 F.3d
603, 609 (9th Cir. 1999); Pak v. Reno, 196 F.3d 666, 673
(6th Cir. 1999); Bowrin v. INS, 194 F.3d 483, 489 (4th
Cir. 1999); Requena-Rodriquez v. Pasquarell, 190 F.3d
299, 306 (Sth Cir. 1999); Jurado-Gutierrez v. Greene,
190 F.3d 1135, 1145-46 (10th Cir. 1999), cert. denied,
Palaganas-Suarez v. Greéne, ___ U.S. __, 120 S. Ct.
1539 (2000); Shah v. Reno, 184 F.3d 719, 723-24 (8th
Cir. 1999); Mayers v. INS, 175 F.3d 1289, 1301 (11th
Cir. 1999); Sandoval v. Reno, 166 F.3d 225, 236-37 (3d
Cir. 1999); Goncalves v. Reno, 144 F.3d 110, 119-23 (1st
Cir. 1998), cert. denied, Reno v. Goncalves, 526 U.S.
1004 (1999). Only the Seventh Circuit has held that the
transitional rules of IIRIRA effected a repeal of habeas
jurisdiction over final deportation orders. See LaGuerre
v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998), cert.
denied, Reno v. LaGuerre,__ U.S. ___, 120 S. Ct. 1157
(2000).
In Henderson, 157 F.3d at 118-22, we reaffirmed our
synthesized holding of Hincapie-Nieto and Jean-Baptiste
that under the INA, modified by the AEDPA and
IIRIRA’s transitional rules, an alien ordered deported
because of a criminal conviction cannot seek a petition
for review in the court of appeals but must pursue a
claim in a habeas proceeding pursuant to 28 U.S.C.
§ 2241. Although the panel questioned the wisdom of
15a
having the channel for review be by habeas in the dis-
trict court rather than by petition for review in the courts
of appeals, it acknowledged that it was bound by a rea-
sonable comprehension of the statute and Second Circuit
precedent. See id. at 119 n.9; see also Jean-Baptiste, 175
F.3d at 226 (denying a subsequent petition for rehearing
despite the Henderson panel's questioning).
We also considered in Henderson the breadth of
review available under habeas corpus, the question left
open after Jean-Baptiste. The INS argued that review
only of “substantial” constitutional claims remained and
that the courts were without power to review the Attor-
ney General’s interpretation of the immigration laws.
See Henderson, 157 F.3d at 119-20. We soundly rejected
the INS’s argument and held that federal courts have
jurisdiction under 28 U.S.C. § 2241 to consider all
claims that are purely legal in nature—including con-
Stitutional challenges and claims that the Attorney Gen-
eral misinterpreted the immigration laws. See id. at 122.
C. IIRIRA’s Permanent Rules.
The permanent rules of IIRIRA govern deportation
proceedings initiated after April 1, 1997. See IIRIRA
§ 309(c), 110 Stat. at 3009-625. The parties agree that
because deportation proceedings were not initiated
against any of the petitioners until after April 1, 1997,
the permanent rules apply to their cases. The permanent
rules revamp the INA by striking 8 U.S.C. § 1105(a) in
its entirety and relocating the rules governing judicial
review of deportation orders to 8 U.S.C. § 1252. See
IIRIRA § 306(a), 110 Stat. at 3009-607-612.
The INS argues that the court of appeals is the exclu-
sive forum for all immigration matters, invoking several
provisions of the permanent rules in support of its posi-
tion that IIRIRA, in its final form, divests district courts
16a
of their habeas jurisdiction. The INS calls our attention
to newly added INA §§ 242(a)(1), 242(a)(2)(C),
242(e)(2), 242(g) and 242(b)(9). See IIRIRA § 306(a),
110 Stat. at 3009-607-612. Section 242(a)(1) of the INA
provides:
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 [the Hobbs ae
8 U.S.C. § 1252(a)(1) (1999). The INS argues that
because the Hobbs Act gives exclusive jurisdiction to
the court of appeals, see 28 U.S.C. § 2342 (“The court of
appeals. . . has exclusive jurisdiction over specified
agency orders), § 242(a)(1) evidences Congress’s intent
to eradicate habeas review.
Section 242(a)(2)(C) of the INA is the successor to
AEDPA § 440(a) and IIRIRA § 309(c)(4)(g) and in its
final form now 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 [the deportation sections of the INA].
8 U.S.C. § 1252(a)(2)(C) (1999). The INS argues that
when it added the “notwithstanding any other provision
of law” phrase to the final incarnation of this section,
Congress explicitly repealed habeas jurisdiction.
The INS also relies on INA § 242(e)(2). This section
provides:
Judicial review of any determination made under
section 1225(b)(1) of this title is available in habeas
corpus proceedings, but shall be limited to deter-
minations of —
\ 17a
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed
under such section, and
(C) whether the petitioner can prove by a prepon-
derance of the evidence that the petitioner is an
alien lawfully admitted for permanent residence, has
been admitted as a refugee under section 1157, or
has been granted asylum under section 1158, such
Status not having been terminated, and is entitled to
such further inquiry as prescribed by the Attorney
General pursuant to section 12255(b)(1)(C) of this
title.
8 U.S.C. § 1252(e)(2) (1999). The INS contends that
because INA § 242(e)(2) provides for Statutory habeas
review under the delineated circumstances, Congress
knew how to create habeas review under the INA when
it so desires. It follows, according to the INS, that
Congress’s decision to omit analogous language in
regard to an alien’s challenge to his or her final depor-
tation order demonstrates its intent that this review be
unavailable.
The INS additionally points to INA § 242(g), a section
already considered by this Court in Henderson. Section
242(g) provides: |
Except as provided in this section and notwith-
Standing 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 pro-
ceedings, adjudicate cases, or execute removal
orders against any alien under this Chapter.
8 U.S.C. § 1252(g) (1999).
18a
Finally, § 242(b)(9), upon which the INS rests its prin-
cipal argument 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.
8 U.S.C. § 1252(b)(9) (1999). The INS 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,” § 242(b)(9) necessarily divests any court
of jurisdiction other than the appropriate court of
appeals. In support of this argument, the INS points to
the Supreme Court’s recent characterization in dicta of
§ 242(b)(9) as a “zipper clause” that channels all review
of removal decisions under the INA into the court of
appeals. See Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 483 (1999) (“AADC”).
Four courts of appeals have considered arguments
similar to those presented by the INS in this case. The
Fifth and Eleventh Circuit Courts of Appeals adopted the
INS’s position; the Third and Ninth rejected it.
In Richardson v. Reno, 180 F.3d 1311, 1312-13 (11th
Cir. 1999) (“Richardson IT’), cert. denied, Richardson v.
Reno, ___, U.S. __, 120 St. Ct. 1529 (2000), the
Eleventh Circuit reaffirmed its holding in Richardson v.
Reno, 162 F.3d 1338 (11th Cir. 1998) (“Richardson I’),
after reconsideration in light of the Supreme Court’s
decision in AADC, that IIRIRA’s permanent rules elim-
inated § 2241 habeas jurisdiction over an alien’s chal-
lenge to his or her removal proceedings. The court held
that INA § 242(b)(2), § 242(e)(2) and the AEDPA’s elim-
19a
ination of habeas review in §401(e) evidenced
Congress’s intent to preclude Statutory habeas review
Over immigration decisions. See id. at 1314. More
specifically, the court held that INA § 242(b)(9) and the
Supreme Court’s description of that section in AADC as
a “zipper clause” that channels judicial review of immi-
gration decisions exclusively into that provided by the
INA, was evidence that Congress intended to repeal all
habeas review. See id. at 1314-15. The court concluded
that the repeal of habeas jurisdiction to review immi-
gration decisions is not unconstitutional because judicial
review still remains under INA § 242(a)(2)(C) to deter-
mine whether the petitioner is an alien, is deportable,
and deportable for a reason covered by INA
§ 242(a)(2)(C). See id. at 1315-16. Furthermore, the
court said, review of substantial constitutional questions
and challenges to the constitutionality of the INA itself
remains available because INA § 242(a)(2)(C) does not
literally foreclose constitutional challenges to the statute
itself. See id. at 1316 n.5.
In Max-George v. Reno, 205 F.3d 194, 197-98 (Sti Cir.
2000), the Fifth Circuit followed the lead of the Eleventh
Circuit and agreed with the INS that 28 U.S.C. § 2241
habeas jurisdiction had been repealed by IIRIRA’s per-
manent rules. According to the Fifth Circuit, Congress
need not explicitly mention habeas jurisdiction generally
or § 2241 by name to repeal habeas jurisdiction. See id.
at 199 (“While Congress could theoretically have been
more explicit by specifically mentioning habeas corpus
in general or § 2241 in particular, we believe the juris-
dictional limitation described throughout § 1252 was suf-
ficiently explicit.”). Accordingly, the court reasoned
that, unlike the language in IIRIRA’s transitional rules,
the jurisdiction-stripping provisions in the permanent
rules, beginning with the far more preclusive language
“notwithstanding any other provisions of law,” explicitly
20a
repealed § 2241 habeas jurisdiction over immigration
decisions. Jd. at 198. The Fifth Circuit, like the Eleventh
Circuit, reasoned that the repeal was not unconstitutional
because sufficient judicial review remained available for
criminal aliens’ challenges against removal under INA
§ 242(a)(2)(C). See id. at 199-201. It did not go as far,
however, as the Eleventh Circuit to hold that review of
constitutional and statutory claims were preserved. It
held instead that the court of appeals retains jurisdiction
under § 242(a)(2)(C) only to determine whether the pre-
requisites for precluding review are met, whether the
provisions classifying the petitioner in a specific crim-
inal category are constitutionally applied, and whether
the level of judicial review remaining in a particular case
satisfies the Constitution. See id.
In Liang v. INS, 206 F.3d 308, 316-18 (3d Cir. 2000),
the Third Circuit parted ways with the Fifth and
Eleventh Circuits, holding that because none of the sec-
tions in § 1252 expressly refers to habeas jurisdiction or
to § 2241, none expressly revoked habeas jurisdiction.
The court reasoned that the Supreme Court did not, in
AADC, decide that § 242(b)(9) radically eliminated
habeas jurisdiction because that was not the issue raised
in that case, and the Supreme Court explicitly noted that
courts were in disagreement whether habeas jurisdiction
remained after IIRIRA. See id. at 319. The Third Circuit
also disagreed with the Fifth and Eleventh Circuits’ con-
clusion that sufficient judicial review remained under
§ 242(a)(2)(C) so that the repeal of habeas was not
unconstitutional, and continued to adhere to its earlier
ruling in Sandoval, 166 F.3d 225, that the language of
§ 242(a)(2)(C) makes clear that the court of appeals
lacks jurisdiction over petitions of review filed by aliens
removable because of prior convictions. See id. at 321.
Because no judicial review of criminal aliens’ statutory
and constitutional claims remains under § 242(a)(2)(C),
2la
the court concluded that a repeal of habeas jurisdiction
over immigration decisions raises serious constitutional
questions. See id. at 321-22.
The Ninth Circuit, following the lead of the Third Cir-
cuit, held that IIRIRA’s permanent rules do not use lan-
guage explicit enough to repeal a federal court’s habeas
jurisdiction to review final removal orders. See Flores-
Miramontes v. INS, 212 F.3d 1133, 1137-38 (9th Cir.
2000). The court reasoned that although the language of
the permanent rules is stronger than that of the transi-
tional provisions, the difference would not cause it to
depart from its decision in Magana-Pizano, 200 F.3d
603, to find a repeal of 28 U.S.C.-§ 2241 jurisdiction
over final removal orders. See Flores-Miramontes, 212
F.3d at 1137. Furthermore, the court held that
§ 242(b)(9) and the Supreme Court’s remarks about that
provision did not require the conclusion that habeas
review is repealed. See id. at 1139. Finally, the court
found that an interpretation that IIRIRA does not repeal
habeas jurisdiction avoids a substantial constitutional
question. See id. at 1141-42. In so doing, it rejected the
INS’s argument that review of substantial constitutional
claims remained in the court of appeals under a petition
for review. See id. at 1142. ,
We are persuaded by the Third and Ninth Circuits’
reasoning in Liang v. INS and Flores-Miramontes v. INS
that Article III courts continue to have habeas jurisdic-
tion under 28 U.S.C. § 2241 over legal challenges to
final removal orders. We conclude that the scope of this
review includes statutory claims such as those raised by
the petitioners in this case. We do not read any excep-
tions into INA § 242(a)(2)(C) that bars our jurisdiction
Over petitions to review removal orders against aliens
convicted of certain crimes. It is also our view that our
preservation of habeas jurisdiction under the permanent
rules avoids the novel and profound constitutional ques-
22a
tions that would arise were we to find that IIRIRA
eliminates habeas jurisdiction over final immigration
decisions.
We will not strain to infer that Congress radically
repealed the federal courts’ habeas jurisdiction to review
final orders of removal. In Felker, 518 U.S. at 657, the
Supreme Court considered whether Title I of the
AEDPA, a statute limiting the right to file successive
habeas petitions that specifically provided that a court of
appeals’s decision denying leave to file a successive
petition could not be appealed or be the subject of a peti-
tion for rehearing or petition for certiorari, see 28
U.S.C. § 2244(b)(3)(E), deprived it of jurisdiction to
entertain an original application for habeas relief. The
Court concluded that because no provision of Title I
explicitly mentioned its authority to entertain original
habeas petitions, it would not find a repeal of habeas
jurisdiction by implication. See id. at 660-61. In so hold-
ing, the Court restated its rule developed more than a
century earlier in Ex Parte Yerger, 75 U.S. 85 (1868),
that repeals of jurisdictional statutes by implication are
not favored. See Felker, 518 U.S. at 660. This rule
requires that a court cannot presume that a congressional
enactment effects a repeal of a jurisdictional statute
when it does not explicitly mention the jurisdictional
statute or the general type of jurisdiction by name.
In Jean-Baptiste, 144 F.3d at 220, we determined that
although the AEDPA and IIRIRA’s transitional rules
eliminated habeas corpus review under INA
§ 106(a)(10), neither specifically discussed 28 U.S.C.
§ 2241 or habeas jurisdiction generally. Following the
rule articulated in Felker, we held that Congress did not
repeal habeas corpus jurisdiction under 28 U.S.C.
§ 2241. See id. In order to find habeas jurisdiction erad-
icated, our precedent thus requires an explicit statement
from Congress that mentions a repeal of habeas juris-
\
23a
diction. The majority of other circuit courts have also
held that Congress must explicitly mention § 2241 or
general habeas jurisdiction to repeal it. See Flores-
Miramontes, 212 F.3d at 1137; Liang, 206 F.3d at 320;
Magana-Pizano, 200-F.3d at 608-9; Pak, 196 F.3d \at 673;
Bowrin, 194 F.3d at 489; Jurado-Gutierrez, 190 F.3d at
1145-46; Shah, 184 F.3d at 724; Goncalves, 144 F.3d at
119; but see LaGuerre, 164 F.3d at 1038-39.
Nothing in IIRIRA’s permanent provisions requires us
to stray from our determination in Jean-Baptiste that
habeas review survives IIRIRA. Although the language
is arguably more restrictive, there is stil] nothing in
IIRIRA’s permanent provisions that constitutes a suffi-
ciently clear statement of congressional intent to repeal
the habeas jurisdiction granted Article III courts by 28
U.S.C. § 2241. Although each new provision works
to narrow or limit the judicial review available to the
criminal aliens under the INA, INA §§ 242(a)(1),
242(a)(2)(C), 242(e)(2), and 242(g)* do not explicitly
mention a repeal of a federal court’s general habeas
jurisdiction or 28 U.S.C. §2241. See 8 U.S.C.
§§ 1252(a)(1), (a)(2)(C), (e)(2), and (g) (1999). Judicial
review and habeas corpus have distinct technical mean-
ings under the law. See Heikkila v. Barber, 345 U.S. 229,
235-36 (1953); see also Flores-Miramontes, 212 F.3d at
1140 (citing Sandoval, 166 F.3d at 235). We will not
infer that Congress meant to repeal habeas corpus review
under 28 U.S.C. § 2241 when it mentioned only judicial
review, a distinct and separate concept from habeas.
* Indeed, the INS’s argument that INS § 242(g) repeals § 2241
habeas jurisdiction over final deportation orders is foreclosed by the
Supreme Court's decision in AADC, interpreting § 242(g) to apply
only to the three discrete immigration decisions identified in the sec-
tion. See 525 U.S. at 482.
24a
Felker’s requirement that Congress provide an explicit
statement in order to repeal habeas jurisdiction is par-
ticularly relevant in this case. As the Ninth Circuit
pointed out, Felker was decided three months before
IIRIRA became law. We assume that Congress is aware
of the law, see U.S. v. Georgopoulos, 149 F.3d 169, 172
(2d Cir. 1998) (citing Miles v. Apex Marine Corp., 498
U.S. 19, 32 (1990)), and therefore aware of Felker’s
mandate when it considered the transitional and perma-
nent rules of IIRIRA. See Flores-Miramontes, 212 F.3d
at 1139. Had Congress intended that the avenue of
review available under 28 U.S.C. § 2241 be repealed, it
knew to use more explicit language than it chose.
The INS rests heavily on the phrase “notwithstanding.
any other provision of law” added to INA
§ 242(a)(2)(C), codified at 8 U.S.C. § 1252(a)(2)(C)
(1999). However, we were not persuaded that the same
exact phraseology repealed § 2241 habeas jurisdiction
when, in Jean-Baptiste, we examined the effect on
habeas jurisdiction of INA section 242(g). See 144 F.3d
at 218. Other courts of appeals have also held that the
“notwithstanding” language was not strong enough to
repeal habeas jurisdiction. See Sandoval,'166 F.3d at
236; Goncalves, 144 F.3d at 122. Our holding and our
application of it in Jean-Baptiste controls our interpre-
tation of the permanent rules and requires a conclusion
that the permanent rules do not divest federal courts of
jurisdiction to review a criminal alien’s legal challenge
to his or her removal order.
As for the INS’s reliance on § 242(b)(9), we first rec-
ognize that § 242(b)(9) does not expressly mention
habeas jurisdiction or § 2241. INA § 242(b)(9) is a con-
gressional limitation on judicial review and does not
concern habeas jurisdiction. Thus, under Felker and our
decision in Jean-Baptiste, § 242(b)(9) does not constitute
a repeal of habeas corpus.
25a
Furthermore, we are not persuaded by the INS that the
Supreme Court’s characterization of INA § 242(b)(9) as
a “zipper clause” requires us to hold that it effects a
repeal of habeas jurisdiction. In AADC, a group of tem-
porary residents, who belonged to the Popular Front for
the Liberation of Palestine, sought injunctive and
declaratory relief on the ground that the INS was selec-
tively enforcing the immigration laws against them in
violation of their First and Fifth Amendment rights. See
525 U.S. at 473-74. The INS sought to dismiss the case
for lack of jurisdiction, arguing that INA § 242(g), made
applicable to the case by § 306(c)(1) of IIRIRA,
deprived the courts of power to hear the appeal. See id.
at 475. The Supreme Court agreed with the INS that INA
§ 242(g) deprived federal courts of jurisdiction over the
petitioners’ selective enforcement case until the depor-
tation orders against them became final, if ever. See id.
at 482. The Court, however, rejected the “unexamined
assumption that § 1252(g) cévers the universe of depor-
tation claims” and held that the section covered only the
three discrete actions delineated by the statute: the
Attorney General’s decision to commence proceedings,
adjudicate cases, or execute removal orders. See id.5 In
AADC, the Supreme Court contrasted the narrow scope
of INA §242(g) with INA § 242(b)(9), which it
described as an “unmistakable zipper clause” that chan-
nels judicial review of all immigration-related decisions
and actions to the court of appeals. Jd. at 482-83.
The Court’s description of INA § 242(b)(9) as a “Zzip-
per clause” that “channels judicial review” of immigra-
> The Supreme Court thus held that INA § 242(g) applies in a
very narrow class of cases. This holding is contrary to our interpre-
tation of that section in Jean-Baptiste where we assumed that it gov-
erned in the case before us. This distinction has no bearing, however,
on our holding in Jean-Baptiste that the language of § 242(g) was
- insufficient to repeal § 2241.
Pe aa
26a
tion decisions to the court of appeals was not a holding
that § 242(b)(9) divests federal courts of § 2241 habeas
jurisdiction. The discussion of § 242(b)(9) in AADC per-
tained to whether § 242(g) was redundant of § 242(b)(9).
By interpreting § 242(g) narrowly, the Supreme Court
held that the apparent redundancy was a “mirage.” Id. at
482. Far from deciding the question what habeas relief
remained after IIRIRA, the Court chose not to address
the question. See id. at 480 n.7 (noting disagreement
among the courts of appeals). To repeat, that case did not
concern a habeas petition but was a case brought under
a federal court’s federal question subject matter juris-
diction. See id. at 474. Therefore, “that case does not
require a conclusion contrary to the rule set forth in
Felker.” Flores-Miramontes, 212 F.3d at 1139. Accord-
ingly, we will not presume that the Supreme Court meant
its decision in AADC to have the radical effect of repeal-
ing habeas jurisdiction when it declined to address the
issue directly.
As the Ninth Circuit points out, our interpretation that
INA § 242(b)(9) does not eradicate 28 U.S.C. § 2241
habeas jurisdiction does not render that section mean-
ingless. See Flores-Miramontes, 212 F.3d at 1140. Put
differently, § 242(b)(9) forces a legal resident alien in
removal proceedings to save all of his or her challenges
to an unlawful government decision or action until after
a final removal order is issued. Congress enacted INA
§ 242(b)(9) for the important purpose of consolidating
all claims that may be brought in removal proceedings
into one final petition for review of a final order in
the court of appeals. See id. at 1141. Before INA
§ 242(b)(9), only actions attacking the deportation order
itself were brought in a petition for review while other
challenges could be brought pursuant to a federal court’s
federal question subject matter jurisdiction under 28
U.S.C. § 1331. Now, by establishing “exclusive appellate
27a
court” jurisdiction over claims “arising from any action
taken or proceeding brought to remove an alien,” all
challenges are channeled into one petition. See 8 U.S.C.
§ 1252(b)(9); Flores-Miramontes, 212 F.3d at 1140-41.
Hence, § 242(b)(9) concerns judicial review in a civil
action brought under 28 U.S.C. § 1331 rather than
review under habeas corpus. Finally, our interpretation
of IIRIRA’s permanent rules as preserving 28 U.S.C.
§ 2241 habeas jurisdiction allows us to avoid the serious
constitutional question that a repeal of habeas jurisdic-
tion over removal proceedings involving criminal aliens
would raise under the Constitution. See Webster v. Doe,
486 U.S. 592, 603 (1988) (interpreting a federal statute
to avoid a serious constitutional question presented
where the statute appeared to foreclose review of con-
stitutional claims); Ashwander v. Tennessee Valley Auth.,
297 U.S. 288, 348 (1936) (Brandeis J., concurring)
(same). The Suspension Clause mandates that “[t]he
privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in cases of rebellion or invasion of
the public safety may require.” U.S. Const. art. 1, $9, cl.
2. Just recently, Justice Stevens, writing for the Supreme
Court majority, remarked that “[t]he writ of habeas cor-
pus plays a vital role in protecting constitutional rights.”
Slack v. McDaniel, __ U.S. __., 120 S. Ct. 1595, 1603
(2000). Historically, legal permanent residents ordered
removable from this country have been entitled to assert
their legal rights in habeas corpus proceedings. See e.g.,
Heikkila, 345 U.S. at 230; Nishimura Ekiu v. United .
States, 142 U.S. 651, 660 (1892); United States v. Jung
Ah Lung, 124 U.S. 621, 622-23 (1888). Indeed, non-cit-
izens have long been permitted to raise Statutory claims,
similar to those raised by the petitioners before us, that
are based on the executive branch’s misinterpretation of
the immigration laws. See Kwong Hai Chew v. Colding,
344 U.S. 590, 596-600 (1953); Wong Yang Sung v.
28a
McGrath, 339 U.S. 33, 48-53 (1950); Fong Haw Tan v.
Phelan, 333 U.S. 6, 9 (1948); Delgadillo v. Carmichael,
332 U.S. 388, 390-91 (1947); Kessler v. Strecker, 307
U.S. 22, 28-32 (1939); Mahler v. Eby, 264 U.S. 32, 45
(1924). An interpretation that repeals habeas corpus
jurisdiction as it applies to legal permanent residents
ordered removed from the country because of prior
crimes would therefore raise a serious constitutiona!
question under the Suspension Clause of the Constitu-
tion.
The INS argues that a constitutional question does not
arise if 28 U.S.C. § 2241 jurisdiction is repealed because
the constitutionally-mandated amount of judicial review
remains under the INA. Specifically, although it
acknowledges the broad preclusive language of
§ 242(a)(2)(C) and the majority of courts’ interpretation
of it, see supra at II. A, the INS assures us that a crim-
inal alien may still obtain review of his or her removal
orders pursuant to a petition for review in a court of
appeals. It argues that this review includes all that is
required by the Constitution—“substantial” constitu-
tional claims and “certain jurisdictional facts” including
whether the petitioner is an alien who is removable by_
reason of having committed a specified criminal offense.
It is true that the Supreme Court has held that
Congress may divest the district courts of habeas juris-
diction without violating the Constitution so long as it
substitutes “a collateral remedy which is neither inade-
quate nor ineffective to test the legality of a person’s
detention.” Swain v. Pressley, 430 U.S. 372, 381 (1977).
In accord with this principle, we heretofore have rec-
ognized the need for adequate judicial review of the
legal challenges filed by a criminal alien. We have deter-
mined that, because § 242(a)(2)(C) eradicated all review
for legal residents ordered removed owing to a prior
conviction, habeas review of this class of claims
294
remains. See Henderson, 157 F.3d at 119; Jean Baptiste,
144 F.3d at 219; Hincapie-Nieto, 92 F.3d at 31.
The INS’s interpretation of INA § 242(a)(2)(C) and its
definition of what review is required by the Constitution
is a misapprehension of the law, in conflict with our
prior decisions, and difficult to reconcile with the INS’s
earlier position taken in Hincapie-Nieto. Although a fed-
eral court of appeals generally retains jurisdiction under
INS § 242(a)(1) to review a legal resident alien’s chal-
lenge to his or her final order of removal, INA
§ 242(a)(2)(C) excepts this review for a petition filed by
a detained alien ordered removable because of a crimi-
nal conviction. See 8 U.S.C. § 1252(a)(2)(C). Thus, in
Hincapie-Nieto and Jean-Baptiste, we interpreted
§ 242(a)(2)(C) as barring all review of a final order of
removal entered against an alien removable because of a
prior conviction. Hincapie-Nieto, 92 F.3d at 30: Jean-
Baptiste, 144 F.3d at 219. Indeed, in Hincapie-Nieto, the
INS, contrary to what it asserts here, assured the court
that there was no constitutional infirmity with this inter-
pretation because a non-citizen in executive detention
could obtain judicial review of his or her deportation
order by habeas corpus. See 92 F.3d at 31.
Furthermore, in Jean-Baptiste, we rejected the very
same argument presented by the INS in this case. There,
the INS argued that it was unnecessary to preserve
habeas jurisdiction to avoid a constitutional question
because review of constitutional questions remained
available under the INA. Relying on our prior decision
in Hincapie-Nieto, we held that the INA as amended by
IIRIRA takes away that review for legal residents
ordered removable because of prior convictions. See
Jean-Baptiste, 144 F.3d at 219-20. The INS’s arguments
were “not well taken” in that case, see id. at 220, and are
received with the same skepticism here. There is nothing
in IIRIRA’s permanent rules or their legislative history
30a
that indicates that Congress excepted review of sub-
stantial constitutional questions under INA § 242.
In addition, the INS’s formulation of the review
required by the Constitution falls short of the review that
we held in Henderson is mandated. We found there that
even a partial repeal of habeas jurisdiction to hear an
executively detained alien’s statutory challenges may
violate the Suspension Clause. See 157 F.3d at 120. In
that case, we reasoned that the INS’s articulation of the
review that is required under the Constitution:
is drawn from the very different context of succés-
sive federal habeas corpus petitions by prisoners in
state custody who have already had one or more
opportunities for full judicial process and appeals in
the state system, with an opportunity for further
review in the Supreme Court by a writ of certiorari,
and one or more opportunities for review in the fed-
eral judiciary on their first habeas petition.
Id. (quoting Goncalves, 144 F.3d at 118 n.8). The case of
a legal permanent resident alien, in contrast, arises in the
setting of executive detention, “a context in which the
petitioner[] ha[s] never had [his or her] claim[]
review[ed] by any court, federal or state.” Jd. In this
context, circuit courts, including this one, have noted
that review of statutory questions similar to the one pre-
sented in this case has long been deemed essential to
ensure that a detained alien receives full due process of
law. See Henderson, 157 F.3d at 121 (citing Gegiow v.
Uhl, 239 U.S. 3, 3 (1915); Brownell v. We Shung, 352
U.S. 180, 182 n.1 (1956)); Goncalves, 144 F.3d at 124
(citing numerous immigration cases that have considered
claims of statutory right)); see also Mayers, 175 F.3d at
1300 (citing United States ex rel. Hintopoulos v. Shaugh-
nessy, 353 U.S. 72, 78 (1957)); Accardi v. Shaughnessy,
347 U.S. 260, 268 (1954)).
_
3la
-Furthermore, the language of 28 U.S.C. § 2241 does
not contemplate that the writ only extends to a person in
custody in violation of the Constitution. Rather, the
Statute also provides habeas jurisdiction over claims that
a person is in custody in violation of federal laws and
treaties. See 28 U:S.C. § 2241 (providing that the writ of
habeas corpus shall extend to a person in custody “in
violation of the Constitution or laws or treaties of the
United States”). Hence, the literal terms of 28 U.S.C.
§ 2241 contemplate Statutory claims against executive
detention.
The substitution of judicial review only of substantial
constitutional questions for the habeas review guaranteed
under 28 U.S.C. § 2241 therefore does not cure the con-
Stitutional infirmity that could result from a repeal of the
habeas statute. Without habeas jurisdiction to review
final orders, there is currently no judicial review at all of
a removal order issued against a non-citizen who is
ordered removable because he or she committed a cer-
tain crime. Because habeas jurisdiction is constitution-
ally required where the immigration laws have been
interpreted to bar other forms of judicial review under
§ 242(a)(2)(C), our decision that habeas review remains
for a criminal alien’s legal challenge to his or her depor-
tation order obviates the profound constitutional ques-
tions that would arise if we concluded that all judicial
review had been eradicated.
Although not all challenges that an alien may launch
against his removal are cognizable under habeas, purely
legal] statutory and constitutional claims are within
§ 2241’s scope. Thus, a federal court’s habeas review
includes the claim raised by the petitioners in these con-
solidated cases—that IIRIRA does not apply to bar the
availability of §212(c) relief for convictions that
occurred prior to its enactment. The petitioners chal-
lenge the government’s refusal to consider an application
32a
for a waiver from deportation and do not ask the court to
determine whether the BIA exercised its discretion
appropriately. Their claim is a purely legal question that
is cognizable under the habeas statute.
We note, as did the Third Circuit in Liang, that if we
were legislators, rather than judges, we might opt for a
statutory scheme under which an alien’s constitutional
and statutory challenges are cognizable in the court of
appeals pursuant to a petition for review. This would
eradicate habeas corpus’s duplicative review of legal
questions in the district court and the court of appeals
and serve Congress’s goal to streamline judicial review.
However, we disagree with the Eleventh Circuit's inter-
pretation of INA § 242(a)(2)(C) in Richardson II as per-
mitting review of both statutory and constitutional
claims. Although this interpretation may represent sound
legislative policy, we reiterate that we do not read
IIRIRA or our prior cases to permit such review under
INA § 242(a)(2)(C).
Notwithstanding, the question raised by the petition-
ers is a purely legal matter appropriate for a court, rather
than the BIA, to determine. See Mayers, 175 F.3d at
1300; see also Goncalves, 144 F.3d at 113; LaGuerre,
164 F.3d at 1041. It is the type of question that, once
answered by the highest court, is answered for all cases
that follow presenting the same issue. We therefore
believe our decision today that a legal resident alien’s
pure legal challenges are preserved via habeas corpus to
his or her removal order serves to advance Congress’s
goal of streamlining judicial review. |
\
33a
II. CONCLUSION
We affirm our adherence to the proposition that had
Congress intended to strip federal courts of habeas juris-
diction under 28 U.S.C. § 2241 over criminal aliens’
Statutory and constitutional challenges, it would have
done so by making its intent explicit. Because the per-
manent rules do not mention a repeal of 28 U.S.C.
§ 2241 or habeas jurisdiction generally, we hold that
they do not deprive a federal court of its habeas juris-
diction under § 2241 to review the purely legal claims of
criminal aliens against final orders of removal. Because
we lack jurisdiction under INA § 242(a)(2)(C) over the
petitions for review brought by Calcano-Martinez,
Madrid, and Khan challenging their final orders of
removal, we dismiss the petitions without prejudice to
Khan’s pending petition or to the same claims being
brought by Calcano-Martinez and Madrid under habeas
corpus.
34a
Appendix B
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Buffalo, New York
File No.: A 30 151 244
July 16, 1997
In the Matter of
~DEBORIS CALCANO-MARTINEZ
Respondent
IN REMOVAL PROCEEDINGS
CHARGES:
APPLICATION: None.
ON BEHALF OF RESPONDENT:
Ann Doebler, Esquire
ON BEHALF OF SERVICE:
Juliam Miriam, Esquire
35a
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent admitted that she is not a citizen or a
national of the United States but a native and citizen of
the Dominican Republic who entered the United States
at New York, New York on May the 3rd, 1971 as a law-
ful permanent resident. The respondent neither admitted
or denied the final allegation in the Notice To Appear
that she was convicted in the Supreme Court of the State
of New York, New York for the offense of attempted
criminal sale of a controlled substance in the third
degree, to wit: heroin, in violation of Section 110/220.39
of the New York State Penal Code.
The Immigration Service in support of that allegation
offered Exhibit 9, which is a sentence and commitment
order establishing the respondent was, in fact, convicted
on April the 24th, 1996 of the attempted criminal sale of
a controlled substance and she was sentenced as a result
of that. Accordingly, I find that the respondent is
deportable as charged in the Notice To Appear, both
pursuant to Section 237(a)(2)(A)(iii) of the Immigration
& Nationality Act, as amended, in that after admission
she has been convicted of an aggravated felony as
defined in Section 101(a)43) of the Act. I also find that
she is deportable as charged pursuant to Section
237(a)(2)(B)(i) of the Immigration & Nationality Act as
amended in that at any time after admission she was con-
victed of a violation of a law regulating a controlled sub-
Stance as defined in Section 102 of the Controlled
Substances Act, 21 U.S.C. 802, and this was for other
than a single offense involving possession of marijuana
for one’s own use of 30 grams or less. I also find that
because of the charges of deportability which have been
established, that the respondent is ineligible for any form
of relief from deportation.
Accordingly, the following order is entered.
36a
ORDER
IT Is HEREBY ORDERED the respondent be deported
from the United States to Dominican Republic.
THOMAS J. PULLIN
Immigration Judge
July 16, 1997
A 30 151 244
37a
Appendix C
Decision of the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
Falls Church, Virginia 22041
File: A30 151 244 - Buffalo
Dec 30 1997
In re: DEBORIS CALCANO-MARTINEZ
a.k.a. Deboris Calzano a.k.a. Deborah Martinez
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Anne E. Doebler, Esquire
International Institute of Buffalo, Inc.
864 Delaware Avenue
Buffalo, New York 14209-2093
ON BEHALF OF SERVICE:
Joy A. Merriman
Assistant District Counsel
CHARGE:
Notice: 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
In a decision dated July 16, 1997, an Immigration
Judge found the respondent subject to removal on the
ERAT MA AT ey nr ko
38a
charges set forth above and determined that the respon-
dent is ineligible for relief from removal. The respon-
dent has appealed. The appeal will be dismissed.
The respondent is a native and citizen of the Domini-
can Republic who was admitted to the United States on
May 3, 1971, as a lawful permanent resident. The Immi-
gration and Naturalization Service submitted evidence
that on April 24, 1996, the respondent pled guilty to the
offense of attempted criminal sale of a controlled sub-
stance, to wit: heroin, in violation of section 110/220.39
of the New York State Penal Law (Exhibit 9).
On appeal, the respondent contends that the Immi-
gration Judge erred in denying her the opportunity to
apply for relief under section 212(c) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(c). The respondent
contends that the retroactive application of recent immi-
gration legislation to her case would result in manifest
injustice.
Initially, we find that the respondent was properly
placed in removal proceedings under section 240 of the
Act, 8 U.S.C. § 1229a, by the filing of a Notice to
Appear, Form 1-862, with the Immigration Court on
June 16, 1997. See 8 C.F.R. § 239.1(a) (1997). Although
relief from deportation under section 212(c) of the Act
is unavailable to an alien in removal proceedings, can-
cellation of removal under section 240A(a), 8 U.S.C.
§ 1229b(a), is available to certain lawful permanent res-
idents.' The respondent is ineligible for cancellation of
removal due to her conviction of an aggravated felony.
See section 240A(a)(3) of the Act. At the removal hear-
ing, the respondent, through counsel, stated that she did
not believe that she is statutorily eligible for any form of
Section 212(c) of the Act was repealed by section 304(b) of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009.
39a
relief from removal, and she does not indicate any relief
for which she may be eligible in her pleadings on appeal
Tr. at 11).
Contrary to the respondent’s argument on appeal that
the amendments to section 212(c) of the Act should not
apply retroactively to her case, section 440(d) of the
Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-131, 110 Stat. 1214 (“AEDPA”), ren-
dering section 212(c) relief unavailable to aliens con-
victed of certain crimes, has been held to apply
retroactively to section 212(c) applications pending on
the effective date of AEDPA. See Matter of Soriano,
Interim Decision 3289 (BIA 1996, A.G. 1997).? More-
Over, despite respondent’s contentions on appeai regard-
ing the injustice of recent immigration law, this Board
does not have jurisdiction to rule upon the constitu-
tionality of the Act and the regulations. See section 103
of the Act, 8 U.S.C. § 1103; 8 CER. § 3.1 (1997); Liu v.
Waters, 55 F.3d 421 (9th Cir. 1995); Matter of Feuntes-
Campos, Interim Decision 3318 (BIA 1997); Matter of
-, 20 I&N Dec. 529, at 532 (BIA 1992).
ORDER: The appeal is dismissed.
/s/ ILLEGIBLE
FOR THE BOARD
2
We note that the amendment to section 212(c) of the Act by
section 440(d) of AEDPA relates to aliens in deportation proceedings;
the respondent is in removal proceedings, in which section 212(c)
relief is not available.
Appendix D
IMMIGRATION COURT
Red Schoolhouse Road
Fishkill, NY 12524
Case A91-251-796
94-A-6379
In the Matter of
*S-MADRID, SERGIO
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered on Oct
1, 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 MEXICO.
[ ] Respondent’s application for voluntary departure
was denied and respondent was ordered removed to
MEXICO or in the alternative to
4la
Respondent’s application for voluntary departure
was granted until upon posting a bond in the
amount of $ 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
necessary to give effect to this order.
Respondent’s application for a waiver under sec-
tion of the INA was ( ) granted
( ) 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 respondent be issued all appropriate
documents 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 a condition of admission, respondent is to post
a $ bond.
42a
{ ] 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: Oct 1, 1997
Appeal: RESERVED Appeal Due By: Oct 31, 1997
/s/ MITCHELL A. LEVINSKY
MITCHELL A. LEVINSKY
Immigration Judge
CLD
43a
Appendix E
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Downstate Correction Facility
Fishkill, New York
File No.: A 91 251 796 October 1, 1997
In the Matter of
SERGIO MADRID, -
Respondent
In REMOVAL Proceedings
CHARGES: Immigration and Nationality Act, Sec-
tion 237(a)(2)(A)(iii), alien who has
been convicted of an aggravated felony,
Immigration and Nationality Act, Sec-
tion 237(a)(2)(B)(i), alien who has been
convicted of a violation of any law or
regulation relating to a controlled sub-
stance
APPLICATION: None
~ a a 2 eet oe
44a
ON BEHALF OF RESPONDENT:
Alan Strauss, Esquire
Law offices of Kerry Bretz & Associates
299 Broadway, Suite 810
New York, New York 10007
ON BEHALF OF SERVICE:
Adam Opaciuch, Esquire
Assistant District Counsel
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 25-year old male, native and cit-
izen of Mexico who entered the United States originally
without being inspected at an unknown time and place.
On December 20th, 1989, the respondent’s status was
adjusted to that of a lawful permanent resident, pursuant
to Section 245(a) of the Immigration and Nationality
Act, at New York, New York.
On September 6th, 1994, the respondent was con-
victed in the State of New York, the County Court,
County of Rockland, for the offense of the criminal sale
of a controlled substance in the second degree; that sub-
stance being cocaine.
On June 11th, 1997, a Notice to Appear was issued
charging the respondent with removability pursuant to
the above-captioned provisions of the Immigration and
Nationality Act. The respondent, through counsel, has
admitted all of the allegations of fact c ‘tained in the
Notice to Appear and has conceded remvuvability.
In support of the allegations of fact, the Immigration
Service provided a copy of the respondent’s Form I-181,
Memorandum of Creation of a File of Lawful Permanent
45a
Residence and a copy of the respondent’s conviction
records. Based on the respondent’s concessions and the
evidence of record, removability has been established by
evidence which is clear, convincing and unequivocal for
the charges set out in the Notice to Appear. See Woodby
v. INS, 385 U.S. 276 (1966).
Mexico has been designated the country of removal.
The respondent has not submitted any application for
relief from removal, but would, if allowed, apply for
relief under Section 212(c) of the Immigration and
Nationality Act. Section 212(c) of the Immigration and
Nationality Act provides aliens lawfully admitted for
permanent residence, who have a lawful unrelinquished
domicile of seven consecutive years may be admitted to
the United States in the discretion of the Attorney Gen-
eral without regard to most grounds of exclusion. If
allowed, and if granted, the Section 212(c) waiver would
allow this respondent to remain in the United States.
However, the respondent appears to be Statutorily inel-
igible for the relief sought and the request to file relief
under Section 212(c) must be pretermitted by the Court.
First, as regards to Section 212(c) relief, the Court
believes that even if he were in deportation proceedings,
rather than removal proceedings, the respondent has
been convicted of an aggravated felony as defined in
Section 101(a)(43)(b) of the Immigration and Nation-
ality Act, for having been convicted of the criminal sale
of a controlled substance.
As such, the respondent comes within the preview of
Section 440(d) of the Anti-Terrorism and Effective
Death Penalty Act (AEDPA) of 1996. That section stated
that an alien who has been convicted of an aggravated
felony, or a violation of any law or regulation relating to
a controlled substance, is barred from relief under Sec-
tion 212(c) of the Immigration and Nationality Act.
eee og ee Ne a
46a
In her decision, in Matter of Soriano, the Attorney
General stated that the provisions of Section 440(d) of
the AEDPA must be applied to aliens in deportation pro-
ceedings applying for Section 212(c) relief on or after
April 24th, 1996. Thus, this Court is bound to follow the
decision of the Attorney General and deny such relief
because the respondent is statutorily ineligible for relief
under Section 212(c) of the Act, because of his convic-
tion for an aggravated felony.
Notwithstanding the respondent's statutory ineligi-
bility pursuant to the Matter of Soriano, and the AEDPA,
the Court believes this respondent cannot apply for
Section 212(c) relief in removal proceedings. When
Congress created the removal proceedings in the Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Section 309(c) of that Act, provided
that under the transition rules, deportation relief is only
available in deportation proceedings and deportation
remedies cannot be had in removal proceedings. Con-
versely, removal relief and relief available in removal
proceedings could not be had in deportation proceedings.
The Notice to Appear in these proceedings was filed
with the Immigration Court, June 11th, 1997. Notwith-
standing the fact that respondent's conviction pre-dates
the institution of hearings, and the institution of removal
laws, this Court must apply removal laws to this respon-
dent. In doing so, the respondent is statutorily ineligible
for cancellation of removal under Section 240(A) of the
Immigration and Nationality Act, as amended, because
that Section of law provides that cancellation of removal
is not available to an alien who has been convicted of an
aggravated felony.
Therefore, the respondent is statutorily barred from
relief both under removal laws and deportation laws, and
the Court is not aware of any relief that is available to
this respondent. Notwithstanding the merits of any argu-
47a
ments made by counsel for the respondent, the Court is
constrained to follow the Board of Immigration Appeals
and the Attorney General in their decisions and cannot
adopt the decisions of District Court Judges that are con-
trary to those of the Attorney General and the BIA.
Therefore, the Court believes that the respondent is
without any relief from removal and the following order
will be entered:
ORDER:
IT Is HEREBY ORDERED that the respondent’s verbal
request for relief under Section 212(c) of the Immigra-
tion and Nationality Act is denied and the respondent is
hereby ordered removed from the United States to
Mexico on the charges contained in the Notice to
Appear.
Dated: October 1, 1997
MITCHELL A. LEVINSKY
U.S. Immigration Judge
48a
Appendix F
Decision of the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
Falls Church, Virginia 22041
File: A91 251 796 - Fishkill, New York
Date: May 5, 1998
In re: SERGIO MADRID
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Kerry W. Bretz, Esquire
Bretz & Associates, P.C.
299 Broadway, Suite 810
New York, New York 10007
ORDER:
PER CURIAM. We agree with the Immigration Judge
that the record in this case establishes by clear, unequiv-
ocal, and convincing evidence, that you are subject to
removal as charged. See Woodby v. INS, 385 U.S. 276
(1966). No arguments presented during the hearing or on
appeal would cause us to disturb this finding. |
Regarding relief, we note that you were placed in
removal proceedings. Since you are in removal pro-
ceedings, a waiver of inadmissibility under section
212(c) is not a form of relief that is available. See sec-
tion 304(b) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of
49a
Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-596
(“ITRIRA”). Moreover, you are statutorily ineligible for
cancellation of removal pursuant to section 240A(a) of
the Act, 8 U.S.C. § 1229b(a), because you have been
convicted of an aggravated felony as defined in section
101(a)(43)(B) of the Act; 8 U.S.C. § 1101(a)(43)(B).
You have argued on appeal that AEDPA is unconsti-
tutional. We cannot rule on the constitutionality of laws
enacted by Congress. See, e.g., Matter of Fuentes-Cam-
pos, Interim Decision 3318 (BIA 1997); Matter of C-, 20
I&N Dec. 529 (BIA 1992).
Accordingly, your appeal is dismissed.
/s/ ILLEGIBLE
FOR THE BOARD
50a
Appendix G
U.S. DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
Office of the Immigration Judge
Case No.: A 41 602 519
Docket: Danbury, CT
In the Matter of:
KHAN FAZILA
Respondent
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
This is a summary of the oral decision entered on
7/24/97. This memorandum is solely for the convenience
of the parties. If the proceedings should be appealed, the
Oral Decision will become the official decision in this
matter.
& The respondent was ordered removed to Guyana.
© Respondent’s application for voluntary departure
was denied and respondent was ordered deported to
or in the alternative to
Sla
Respondent’s application for voluntary departure
was granted until , with an alter-
nate order of deportation to or
Respondent’s application for asylum was ( ) granted
( ) denied ( ) withdrawn ( ) other.
Respendent’s application for withholding of depor-
tation was ( ) granted ( ) denied ( ) withdrawn
( ) other.
Respondent’s application for suspension of depor-
tation was ( ) granted ( ) denied ( ) withdrawn
( ) other.
Respondent’s application for waiver under Section
of the Immigration and Nationality Act
was ( ) granted ( ) denied ( ) withdrawn ( ) other.
Respondent’s application for was ( ) granted
( ) denied ( ) withdrawn ( ) other.
Proceedings were terminated.
The application for adjustment of status under
Section (216)(216A)(245)(249) was ( ) granted
( ) denied ( ) withdrawn ( ) other. If granted, it was
ordered that the respondent be issued all appropri-
ate documents necessary to give effect to this order.
Respondent’s status was rescinded under Section
246.
Other
52a
CO Respondent was advised of the limitation on dis-
cretionary relief for failure to appear as ordered in
the Immigration Judge’s oral decision.
[ILLEGIBLE]
Immigration Judge
Date: 7/24/97
{Handwritten date:] Aug. 25, 997
Appeal: RESERVED/WAIVED (A/I/B)
[word “Reserved” and letter “A”
in the line above have been circled by hand]
53a
Appendix H
U.S. Department of Justice
Executive Office for Immigration Review
Immigration Court
File A 41 602 519
Matter of
KHAN FAZILA,
Respondent
IN REMOVAL PROCEEDINGS
Transcript of Hearing
Before WILLIAM P. Joyce, Immigration Judge
DATE:
PLACE: Danbury, Connecticut
Transcribed by DEPOSITION SERVICES, INC.
At Rockville, Maryland
OFFICIAL INTERPRETER:
LANGUAGE:
54a
APPEARANCES:
FOR THE IMMIGRATION AND
NATURALIZATION SERVICE:
Kim Bingham, Esquire
FOR THE RESPONDENT:
William Bretz, Esquire
JUDGE FOR THE RECORD
This is the United States Immigration Court in Dan-
bury, Connecticut. We’re here in the matter of Fazila
Khan. File number A 41 602 519.
Miss Khan is being represented telephonically by Mr.
William Bretz (phonetic sp.). The Government is being
represented by Mr. Kim Bingham (phonetic sp.).
Mr. Bretz has provided pleadings in this case in that
Miss Khan acknowledges proper of the service of the
Notice to Appear. Agrees to the admissions in the order
to Show Cause and concedes that she’s the person in the
Order to Show Cause and she acknowledges that she’s
been advised of the purposes of the hearing. She waives
a formal reading of the hearing. Admits the factual alle-
gations four through six.
JUDGE TO MR. BRETZ
Q. Now what’s your position on this one, Mr. Bretz?
A. Oh, we’re denying that that is a conviction for an
aggravated felony and that Miss Khan would remain
nevertheless eligible for relief.
Q. Now isn’t this—well, what’s the sentence in this
case?
A. (Indiscernible).
55a
MR. BINGHAM TO JUDGE
Q. Your Honor, if I may? We’ll offer the convictions.
JUDGE TO MR. BRETZ
Q. Well let me just say, I’m now—Mr. Bingham is
handing around copies of the conviction record. Which
will be Exhibit 1. She pleaded to an information. Is this—
is your position, Mr. Bretz, this is a misdemeanor?
A. Yes.
JUDGE TO COUNSEL
Q. What was the sentence for this? Anybody.
A. (Mr. Bretz) I believe it was for four months.
A. (Mr. Bingham) Four months under page two, Your
Honor.
JUDGE TO MR. BINGHAM
Q. Okay. Mr. Bingham, what’s your position on this?
A. Well, I do have the Title 21 U.S. Code and I do
believe that that would be a felony conviction under
Title 21, because it would be punishable for more than a
year. Which would then qualify it as a felony and since
it’s a drug conviction under Title 21, it would automat-
ically be a aggravated felony.
Q. Is it, is it what the—what you’ re sentenced to or is
it what—
A. No, it’s the type of crime. If it’s Federal felony
offense under Title 21—
Q. All right. Well that’s the issue, why don’t you look
it up?
A. Right.
Q. I don’t how you can get four months—well, maybe.
56a
MR. BRETZ TO JUDGE
Q. Your Honor, I’d be happy to articulate our argu-
ment in writing.
A. Well, Mr. Bingham now is looking at the statute.
We’ll take a look at it.
MR. BINGHAM TO JUDGE
Q. Can we go off the record for a moment?
JUDGE TO MR. BRETZ
Q. We’re going off the record for a second.
(OFF THE RECORD)
(ON THE RECORD)
HEARING CONTINUED
EE EEO
an ate
57a
U.S. Department of Justice
Executive Office for Immigration Review
Immigration Court
File A 41 602 519
Matter of
KHAN FAZILA,
Respondent
IN REMOVAL PROCEEDINGS
Transcript of Hearing
Before WILLIAM P. Joyce, Immigration Judge
DATE:
PLACE:
Transcribed by DEPOSITION SERVICES, INC.
At Rockville, Maryland
OFFICIAL INTERPRETER:
LANGUAGE:
58a
APPEARANCES:
FOR THE IMMIGRATION AND
NATURALIZATION SERVICE:
Kim Bingham, Esquire
FOR THE RESPONDENT:
Irwin Berowitz, Esquire
JUDGE FOR THE RECORD
This the Immigration Judge William Joyce. We’re here
in the matter of Fazila Khan. We’ ve been discussing the
matter of the issue that I had asked to be briefed as to
whether or not her conviction, her violation of Section
21 U.S.C. 43(b) and (d) brings her within the purview of
Section 237(a)(2)(A)(3) in that she’s been convicted of
an aggravated felony.
It’s a technical discussion. It’s been well briefed by
both parties. I pointed out to the parties, the Board has
recently ruled that in Onray Juan Bautista-Hernandez
(phonetic sp.) that an individual who was charged as an
accessory after the fact did not come within the drug
trafficking purview. However, it was my conclusion
based on the argument of both sides and in this instance
it does and I so hold.
We also then discussed the issue of whether or not
she'd be eligible for cancellation of removal and it
appears that her conviction of a aggravated felony would
bar the availability of cancellation. However, it’s a close
case and that this my be something the Board may want
to address.
Now, with that being said.
Representing Miss Khan is Mr. Irwin Berowitz.
Sher
3 Aer ge
59a
JUDGE TO MR. BEROWITZ
Q. And Mr. Berowitz, you wanted to get something on
the record?
A. Yes, a couple of things. Thank you. It’s our posi-
tion that Miss Khan remains eligible for 212(c) relief for :
the following reasons: All of her acts and her arrests
occurred prior to April 24, 1996 and under the holdings
of Mohecka v. Reno (phonetic sp.), Judge Winestein’s
(phonetic sp.) recent decision and Gueshill v. Reno (pho-
netic sp.), Judge Chen’s decision from last week in the
Southern District. We believe that—
Q. She—it shouldn’t be—
A. (Indiscernible)—
Q. Yeah.
A. Any changes in the law should not be applied
retroactively to this respondent.
Q. Let me ask you this counsel?
A. Yes.
Q. Did Judge Chen adopt the same general rational of
Judge Winestein?
A. Yes, he did.
Q. Those cases headed up the Circuit?
A. The Mohecka decision can be appealed up until,
I think the date is, September 3. Neither party has appeal
at this point. And the Gueshill decision will] probably be
appealed by the Government.
Q. Where did—those cases then just stand for what
they were stated in the particular case. I mean there’s no
precedent there. Am I not correct on that?
A. Correct. :
Q. I see. It would be nice if a Circuit would rule on
these.
A. All right these same issues are before the 2nd Cir-
cuit at this time. It’s possible that all—
Q. Uh-huh.
60a
A. Argument will be heard as early as the week of
October 13. But I understand that’s not really quite set in
stone.
Q. I see. So, okay, if, in fact, the 2nd Circuit was to
rule favorably for you, this case would have to revisited.
Well, all right. As those cases are not precedent at this
point and we're bound by Board precedent. I'm going to
rule that she’s not eligible for 212(c) relief. She is an
aggravated felon and therefore, that'll be my ruling. And
counsel, you're going to reserve appeal?
A. Yes.
Q. And your, let’s see, you need to get that back to the
Board by August 25, 1997 and I appreciate you briefing
that issue and it'll be interesting to see where we go with
it.
A. okay.
MR. BINGHAM TO JUDGE
Q. Your Honor?
JUDGE TO MR. BEROWITZ
Q. All right. Now Mr. Bingham wants to make an
observation.
MR. BINGHAM TO JUDGE
Q. Oh, just first of all. I assume counsel is referring to
cancellation of removal as oppose to 212(c) since we
have a Notice to Appear in this case and not a OSC.
A. Well, I think he’s arguing that it doesn’t matter.
That if, in fact, your crimes were committed before the
passage of the Act. It’s maybe—
JUDGE TO MR. BEROWITZ
Q. And I don’t want to put words in your mouth.
6la
A. You're right, Judge Joyce. That is our position.
Q. That she shouldn’t be in cancellation. She should
be in—she should be—well, the end of the old law.
MR. BINGHAM TO JUDGE
Q. Also could we have the (indiscernible)
MR. BEROWITZ TO JUDGE
Q. Are we still connected?
A. Yes.
Q. Okay.
MR. BINGHAM TO JUDGE
Q. Could we have the conviction marked as an
exhibit?
A. Yeah.
JUDGE FOR THE RECORD
Just for the record purposes, I’m going to go ahead,
I’m going to mark the 861, 862 as Exhibit 1. I’m going
to marx the conviction as Exhibit 2. The briefs stand for
themselves.
And there we are.
JUDGE TO COUNSEL
Q. Does any of the parties have anything else?
A. (Mr. Berowitz) Nothing further today.
Q. Okay.
JUDGE TO MR. BEROWITZ
Q. And the country that she’d be removed to is
Ghana?
A. Yes.
62a
Q. Okay. All right. Well thank you very much, sir, and
we'll see what happens.
A. Okay.
Q. Thanks.
A. I have a couple of other with you today, should I
Stay on the line or?
Q. Well, half the problem is getting people out here.
Which of the two do you have?
A. Let’s see. Odech (phonetic sp.) 832.
Q. It’s 8. Could you repeat that, please?
A. Sorry, that’s a mistake. I got, let’s see. Medina
(phonetic sp.) 689.
Q. Six—okay.
A. And I think Amora (phonetic sp.) is on the
calendar that’s 515.
Q. Yeah, 515. 515. I’m not sure either one of then are
out there, but—
A. Oh, okay. a
Q. But Amara near the top of our list so. Are you
going to be for the rest of the morning?
A. Yes.
Q. Okay. We'll call you—let me just see.
JUDGE TO UNIDENTIFIED PERSON
Q. Is Amara here?
A. Yes.
Q. Okay. Let’s send in Amara in about one minute.
JUDGE TO MR. BEROWITZ
Q. Now, let me just explain to Miss Khan.
JUDGE TO MISS KHAN
Q. You’ ve heard all this discussion and basically, what
we’ve done here is—I’ve gone ahead and ordered that
you be removed to Ghana at the conclusion of your sen-
63a
tence. However, as you can see, there’s a lot of legal
arguments going on as to whether or not you’ re entitled
to some kind of relief and the courts are now examining
this issue and I’ve suggested to counsel that because
your Case is a close one, he may want to bring it up with
the appellant body, the people who review my work. And
that’s what we’ve done here. The will go up to them and
they'll take a look at it. Okay.
A. All right.
So there still may be hope for you. Okay. And you
understand that?
A. Yes, I understand.
Q. Okay.
MR. BEROWITZ TO JUDGE
Q. I’m holding Judge Joyce.
A. Okay. And counsel, Mr. Berowitz, I take it you’ll
speak to Miss Khan at a later day.
JUDGE TO UNIDENTIFIED PERSON
Q. All right. Well, we’re done anyway. We’ll have to
call him back.
A. Yes.
JUDGE TO MISS KHAN
Q. All right. So he’1I talk to you.
A. Okay.
Q. And let me give you a copy of this.
UNIDENTIFIED PERSON TO JUDGE
Q. Should be give her one?
A. Yes.
Q. or just mail it to the attorney?
A. No.
64a
Q. I'll give her the last one.
A. Yeah, give her one too.
Q. Now another one of Berowitz’s clients is outside.
A. Okay. So let’s bring that gentlemen in.
Q. 515.
UNIDENTIFIED PERSON TO UNIDENTIFIED PERSON
Q. Yes? Take you can have one.
A. (Indiscernible).
JUDGE TO UNIDENTIFIED PERSON
Q. And I don’t see a—yes, it is. All right. And we’ll
go him back.
A. 515.
JUDGE TO UNIDENTIFIED PERSON
Q. We’ re calling your lawyer.
HEARING CLOSED
65a
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
WILLIAM P. JOYCE in the matter of:
FAZILA KHAN
A 41 602 519
Danbury, CT
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immigration Review.
/s/ LINDA S. WADE
(Linda S. Wade, Transcriber)
Deposition Services, Inc.
6245 Executive Boulevard
Rockville, Maryland 20852
(301) 881-3344
December 13, 1997
(Completion Date)
66a
Appendix I
U.S. Department of Justice
Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A41 602 519 - Danbury Date: May 28 1998
In re: FAZILA KHAN
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Kerry W. Bretz, Esquire
Bretz & Associates
299 Bradway, Suite 810
New York, New York 10007
ON BEHALF OF SERVICE:
Robert K. Bingham
Special Counsel
CHARGE:
Notice: Sec. 237(a)(2)(A)(iii), I&N Act
[8 U.S.C. § 1227(a)(2)(A)(ili) ]—
Convicted of aggravated felony
In a decision dated July 24, 1997, an Immigration
Judge found the respondent subject to removal on the
charge set forth above and determined that the respon-
dent is ineligible for relief from removal. The respon-
dent has filed a timely appeal. The appeal will be
dismissed.
67a
I. PROCEDURAL HISTORY
The respondent is a native and citizen of Guyana who
was admitted to the United States as a lawful permanent
resident on or about September 2, 1987. The respondent
admitted that on February 13, 1997, she was convicted
in United States District Court, Eastern District of New
York, for the offense of use of a telephone to facilitate
the distribution of heroin, in violation of 21 U.S.C.
§§ 843(b) and (d). Subsequent to a motion for downward
departure, the respondent was sentenced to 4 months
imprisonment. See Tr. at 1; Exh. 2.
On appeal, the respondent presents the following argu-
ments. First, she asserts that her conviction does not sup-
port the charge of deportability, because the Immigration
and Naturalization Service did not clearly and convinc-
ingly establish that drug trafficking was an integral
element of her offense. Thus, she denies that she is
deportable as charged under section 237(a)(2)(A)(iii) of
the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien con-
victed of an aggravated felony as defined in section
101(a)(43)(B) of the Act. Second, she argues that, by
finding her ineligible to apply for relief from removal
under former section 212(c) of the Act, the Immigration
Judge impermissibly subjected her to a new disability
for past conduct, in violation of the principle against
retroactive application of a new law to past conduct
enunciated in Landgraf v. USI Products, 511 U.S. 244
(1994). Third, she argues that the recently enacted IIle-
gal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) violates equal protection by bar-
ring relief for lawful permanent residents in removal
proceedings while allowing similarly situated persons to
pursue such relief if they are in either deportation or
exclusion proceedings.
68a
In response, the Service argues that the respondent
was convicted of a controlled substance offense that is
punishable as a felony under Title 21 of the United
States Code, and which therefore is a drug trafficking
crime. Consequently, the Service contends, she is
deportable under section 237(a)(2)(A)(iii) of the Act as
an alien convicted of an aggravated felony (as defined in
section 101(a)(43)(B) of the Act).
II. THE RESPONDENT’S CONVICTION
The respondent was convicted of use of a telephone to
facilitate the distribution of heroin, pursuant to 21
U.S.C. §§ 843(b) and (d). This statute, in pertinent pari,
provides as follows:
(b) Communication facility
It shall be unlawful for any person knowingly or
intentionally to use any communication facility in
committing or in causing or facilitating the com-
mission of any act or acts constituting a felony
under any provision of this subchapter or subchap-
ter II of this chapter. Each separate use of a com-
munication facility shall be a separate offense under
this subsection. For purposes of this subsection, the
term “communication facility” means any and all
public and private instrumentalities used or useful
in the transmission of writing, signs, signals, pic-
tures, or sounds of all kinds and includes mail, tele-
phone, wire, radio, and all other means of
communication.
69a
(d) Penalties
(1) . . . any person who violates this section shall
be sentenced to a term of imprisonment of not more
than 4 years, a fine of not more than $30,000, or
both; except that if any person commits such a vio-
lation after one or more prior convictions of him for
violation of this section, or for a felony under any
other provision of this subchapter or subchapter II
of this chapter or other law of the United States
relating to narcotic drugs, marihuana, or depressant
or stimulant substances, have become final, such
person shall be sentenced to term of imprisonment
of not more than 8 years, a fine of $60,000, or both.
In section (b) above, the language “this subchapter or
subchapter II of this chapter” refers to the Controlled
Substances Act, Title II of Pub.L. 91-513, Oct. 27, 1970,
84 Stat. 1242.
III. DEPORTABILITY UNDER SECTION
241(A)(2)(A)(iii) OF THE ACT
The respondent concedes that the statute under which
she was convicted, 21 U.S.C. § 843(b), indisputably
relates to controlled substances. We note that we have
held that various inchoate or preparatory crimes are con-
trolled substance violations, within the meaning of the
Act, when the underlying substantive crime involves
a drug offense. See Matter of Batista-Hernandez, Interim
Decision 3321 (BIA 1997). Many inchoate crimes
“relate to” an underlying controlled substance offense
because, although such crimes are not lesser included
offenses of controlled substance violations, they none-
theless involve acts closely related to the culmination of
the substantive controlled substance offense. Jd. at 5. We
70a
specifically have held that a conviction for “facilita-
tion” of a drug offense is itself a controlled substance
violation. Matter of Del Risco, 20 I&N Dec. 109 (BIA
1989); see also Matter of Beltran, 20 I&N Dec. 521
(BIA 1992) (solicitation); Matter of Bronsztein, 15 I&N
Dec. 281 (BIA 1974) (attempt). We concur that the
respondent’s facilitation offense is a controlled sub-
stance violation.
The respondent maintains, however, that a conviction
under 21 U.S.C. § 843(b) does not necessarily involve
drug trafficking. She disputes the Service’s contention
that every offense enumerated within the Controlled
Substances Act is also a drug trafficking crime. In sup-
port of her argument, she cites Matter of L-G-, 20 I&N
Dec. 905 (BIA 1994), in which the Board held that a sin-
gle conviction for possession of a controlled substance
under Louisiana law was not analogous to a conviction
under 21 U.S.C. § 844(a), and thus did not consti-
tute an aggravated felony conviction.' Accordingly, the
respondent maintains that if she has not been convicted
of a drug trafficking crime as defined in section
101(a)(43)(B) of the Act, she is not subject to removal
as an aggravated felon under section 237(a)(2)(A)(iii) of
the Act.
Addressing the issue of deportability under section
241(a)(2)(A)(iii) of the Act, we note that section
101(a)(43)(B) of the Act, as it applies to the respondent,
defines an “aggravated felony” as “illicit trafficking in-
a controlled substance (as defined in section 102 of the
Controlled Substance Act), including a drug trafficking
| But see Matter of L-G-, Interim Decision 3254 (BIA 1995),
in which the Board held (1) that a federal definition applies to deter-
mine whether a crime is a “felony,” and thus whether it is an “aggra-
vated felony”; and (2) that, for immigration purposes, a state drug
offense qualifies as a “drug trafficking crime” (and hence an aggra-
vated felony) if it is punishable as a felony under federal law.
Tila
crime (as defined in section 924(c) of Title 18, United
States Code).” Section 924(c)(2) of Tide 18 defines
“drug trafficking crime” to include “any felony punish-
able under the Controlled Substances Act (21 U.S.C. 801
et seq.), the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1901 et seq.).” See
Matter of L-G-, Interim Decision 3254 (BIA 1995).
Because the respondent was convicted of an offense that
is punishable under the Controlled Substances Act (21
U.S.C. § 801 et seq.), the remaining issue to determine
is whether her crime is properly characterized as a
“felony.”
The Controlled Substances Act at 21 U.S.C. § 802(13)
(1994) provides: “As used in this subchapter: The term
‘felony’ means any Federal or State offense classified by
applicable Federal or State law as a felony.” The defi-
nitions under 21 U.S.C. § 802 also apply to the Con-
trolled Substances Import and Export Act, see 21 U.S.C.
§ 951(b) (1994), and the Maritime Drug Law Enforce-
ment Act, see 46 U.S.C. App. § 1903(i) (1994). Because
the respondent’s conviction was for a federal offense, we
look to the federal definition of felony to resolve our
query.’
Under federal law, a felony is an offense that may be
punished by a term oi imprisonment that exceeds one
year. 18 U.S.C. § 3559(a); see also Jenkins v. INS, 32
F.3d 11, 14 (2d Cir. 1994). As punishment for her
offense, the respondent received a sentence of only 4
months imprisonment. See Exh. 2. However, the statute
under which she was convicted provides that her crime
is punishable by “a term of imprisonment of not more
2
We note, however, that we also have held that a state drug
offense qualifies as a “drug trafficking crime” if it is punishable as a
felony under the federal drug laws. Matter of Davis, 20 I&N Dec. 536
(BIA 1992); Matter of Barre, 20 1&N Dec. 171 (BIA 1990).
72a
than 4 years, a fine of not more than $30,000, or both.”
21 U.S.C. § 843(d)(1). Thus, because the crime may be
punished by imprisonment of more than a year, it is a
felony. Moreover, we note that section 101(a)(43)(B) of
the Act, which defines as an “aggravated felony” illicit
trafficking in a controlled substance (including drug traf-
ficking crimes), does not require that any minimum sen-
tence of imprisonment be imposed in order that a
conviction qualify as an aggravated felony. Compare,
e.g., section 101(a)(43)(F) of the Act (crime of violence
for which sentence of at least one year imposed); section
101(a)(43)(G) of the Act (theft offense for which sen-
tence of at least one year imposed); section 101(a)(43)(J)
of the Act (racketeering or gambling offense for which
sentence of at least one year imposed); section
101(a)(43)(S) of the Act (obstruction of justice offense
for which sentence of at least one year imposed). Con-
sequently, we find that the respondent’s crime is
properly characterized as an “aggravated felony” under
section 101(a)(43)(B) of the Act, and that she therefore
is deportable under section 241(a)(2)(A)(iii) of the Act.
IV. RETROACTIVITY AND EQUAL PROTECTION
ARGUMENTS
The respondent also argues on appeal that the Immi-
gration Judge, by finding her ineligible for relief from
removal under former section 212(c) of the Act, violated
the principle against retroactive application of a new law
to past conduct. Upon review, we find that the Immi-
gration Judge correctly applied the law. In amending the
definition of “aggravated felony” in section 101(a)(43)
of the Act, Congress in IIRIRA specifically provided
that the provision applies regardless of the date of the
conviction: “[nJotwithstanding any other provision of
law (including any effective date), the term applies
73a
regardless of whether the conviction was entered before,
on, or after the date of enactment of this paragraph.” See
Matter of Soriano Interim Decision 3289 (A.G., Feb. 21,
1997) (amendment to section 212(c) of the Act applied
to respondent, who had been convicted in 1992, which
was before enactment of the Anti-Terrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA) and before
deportation proceedings commenced). Thus, we find no
error in the Immigration Judge’s determination that the
respondent is ineligible for relief, including cancellation
of removal under section 240A(a) of the Act, 8 U.S.C.
§ 1229b(a), owing to her conviction for an aggravated
felony. See section 240A(a)(3) of the Act.
Finally, the respondent also argues on appeal that
IIRIRA violates equal protection by barring relief for
lawful permanent residents in removal proceedings. We
cannot rule on the constitutionality of laws enacted by
Congress. See, e.g., Matter of Fuentes-Campos, Interim
Decision 3318 (BIA 1997); Matter of C-, 20 I&N Dec.
529 (BIA 1992); see also section 103 of the Act,
8 U.S.C. § 1103. Moreover, we reject the respondent’s
argument that the Board should apply the holding in
Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997) and
Yesil v. Reno, 973 F. Supp. 372 (S.D.N.Y. 1997) (section
440(d) of AEDPA not retroactive). The Board of Immi-
gration Appeals is not bound to follow the published
decisions of a United States district court in cases aris-
ing in the same district. Matter of K-S-, 20 I&N Dec.
715 (BIA 1993).
74a
V. CONCLUSION
We find that the respondent was properly placed in
removal proceedings under section 240 of the Act, 8
U.S.C. § 1229a, by the filing of a Notice to Appear,
Form I-862, with the Immigration Court on May 13,
1997 (Exhibit 1). See 8 C.F.R. § 239.1(a) (1997). Fur-
thermore, we conclude that the Immigration Judge prop-
erly found the respondent subject to removal under
section 237(a)(2)(A)(iii) of the Immigration and Nation-
ality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who,
at any time after entry, has been convicted of an aggra-
vated felony. See section 101(a)(43)(B) of the Act. We
concur also with the Immigration Judge’s determination
that the respondent is not eligible for any form of relief
from removal. We note that cancellation of removal
under section 240A(a), 8 U.S.C. § 1229b(a), is available
to certain lawful permanent residents. However, the
respondent is ineligible for cancellation of removal
Owing to her conviction of an aggravated felony. See
section 240A(a)(3) of the Act.
The respondent has not established eligibility for any
form of relief from removal. Accordingly, the appeal
will be dismissed.
ORDER: The appeal is dismissed.
[ILLEGIBLE]
FOR THE BOARD
75a
Appendix J
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 and establish. . . .
Section 2. The judicial Power shall 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
States shall be a Party; . . .
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 all final orders of deportation,
heretofore or hereafter made against aliens within
76a
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 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) 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
77a
[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:
Nonapp.icability 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, or. 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. 82a, infra. The version set
forth in the text reflects both sets of amendments. In addition, Sec-
78a
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)(iii),
(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. IV 1998), 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 ITRIRA, 110 Stat. 3009-597, repealed Section 212(c)
entirely, but Sections 306 and 309 of ITRIRA, 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. 81a-84a, infra.
79a
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.
i ae
(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
1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C),-or (D), or any
offense covered by section 1227(a)(2)(A)(ii) for which
both predicate offenses are, without regard to their
date of commission, otherwise covered by section
1227(a)(2)(A)(i).
* * K 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
80a
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
CORPUS.—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)-
* 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. 82a, infra.
8la
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)G), shall not be subject to review by any
court.’
=.
(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 sh ac ale re
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
82a
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 241(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.
83a
EFFECTIVE DATES; TRANSITION.
(a) INGENERAL.—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”).
* * * *
(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
84a
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)(1ii) 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.
* * * * *
(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[.]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.