# Appendix — Reno v. Navas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1020%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1004 ## Text Supems Court, 08 FILED 98 996 DEC 171998 No. Jn the Supreme Court of the Gnited States OCTOBER TERM, 1998 TION FOR A WRIT OF CERTI ITED STATES COURT OF MR THE SECOND CIR CT APPENDIX TO TITION FOR A WRIT OF CERTIORARI Washington, dD ( ; PLA ww dS TABLE OF CONTENTS Page Appendix A (court of appeals’ opinion, filed SE. BE, SIO seeieceenctetarshsnercindiniinecmnnninciomieniniciisiniiin la Appendix B Gudgment of the court of appeals, SERGE SOM. 20h, UMOIED sicinnsterntnenistsshiniesenbaieencienisimsniieiraoiensinnes 60a Appendix C (order of the immigration judge in Navas, filed May 9, 1996) es . 68a Appendix D (or al decision of the immigration judge IT NGUGS, THOG WARY BD, LGD) eccsecccessnsoscencsererssrsnesssstiutvinnsenam 66a Appendix E (order of the Board of Immigration Appeals in Navas, filed March 14, 1997) cnc 80a Appendix F (opinion of the district court in Navas ANd Mojica, filed July 11, 1997) scscccecrorrccrssssersorsesssssseees 82a Appendix G (order of the immigration judge in Mojzica, filed Aug. 2, 1996) ....ceccsccccccccccnvccceseesesssssveccscessesee 206a Appendix H (transcripts of deportation hearing in BEOTIOR LAE, Te CE teetitetctteetcanttrnsereteneniniininnte 208a Appendix I (order of the Board of Immigration Appeals in Mojica, filed Feb. 3, 1997) cesceccccssssssssssees 214a Appendix J (order of the immigration judge in FOC, TOG BU. Bh, SIE) cersiecnnenesinenteicisnnnmnsinintaris 218a Appendix K (decision of the Board of Immigration Appeals in Yeszl, filed Mar. 17, 1995) ..ec.csesessessne 222a Appendix L (order of the Board of Immigration Appeals denying motion to reopen in Yesil, filed SORE By TOD ictieaeiiiiicleadacieaiesaniaiiiagilactdiesnaaajmatsiahiantiieansiinn 232a Appendix M (opinion of the district court in Yesz7l, SEONG GRR, S65 RIPE D. senicntletemmentseinnstacenintiiemainnmannaes 248a Appendix N (opinion of the district court denying reconsideration in Yeszl, filed July 14, 1997) ...... 291la Appendix O (memorandum of oral decision of the immigration judge in Henderson, filed May 2 1996) . pahclieiisonineienaeiionh ww o20a Appendix P (oral decision of the immigration judge in Henderson, filed May 2, 1996) .........cssssssccccssssesessesess 323a (IIT) Table of Contents—Continued: Appendix Q (decision of the Board of Immigration Appeals in Henderson, filed Mar. 21, 1997) wu... Appendix R (order of the court of appeals certifying questions to New York Court of Appeals, Smee) Sk. 1S, TOGG) wisccssicnmecesaaamee aan Appendix S (order of the New York Court of Appeais declining certified questions in Mojica ores Feast, LOE. 1, TGGB) cccciicsreianiaenee Appendix T (constitutional and statutory DFOVISIONS INVORVOE) snnsmsinusnneemasaiaaiaenaies Appendix U (decision of the Board of Immigration Appeals in Jn re Soriano, June 27, 1996) ceecccccssmsec-. Appendix V (order of the Attorney General vacating the Board of Immigration Appeals’ decision in Jn re Soriano, Sept. 12, 1996) ...00...00.... Appendix W (decision of the Attorney General in y ’ .% ‘ 1( wd in re Sora? O, teb. 21. LYY 7) APPENDIX A UNITED STATES COURT OF APP] FOR THE SECOND CIRCUI1 vy 4 — — Was RENO, ATTORNEY GI DORIS'MEISSNER, COMMISSIONER OF THE IMMIGRA AND NATURALIZATION SERVICE; -RATION AND NATURALIZATION SEI IN B. Z. CAPLINGER, DISTRICT DIRI NANCY HOOKS, OFFICER IN CHARGI ~ ( iE VNTS-APPI oad Docket No. 97-2600 JUL NAVAS. PETITIONER-APPELLEE JANET RENO, AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL., RESPONDENTS-APPELLANTS (Argued: Jan. 21, 1998 Decided: Sept. 18, 1998] Before: MCLAUGHLIN and CALABRESI, Circuit Judges, and OWEN, District Judge. e+ Consolidated appeals from various district cow decisions on petitions for habeas corpus and for direct review from decisions of the Board of Immigration Appeals. Nos. 97-4050 and 97-4070 dismissed. No. 97-2600 affirmed. Jurisdiction in Nos. 97-2629 and 97-2599 retained pending resolution of question certified to the New York Court of Appeals. CALABRESI, Circuit Judge: These cases concern the scope of federal court jurisdiction to review the legality of deportation orders issued by the Immigration and Naturalization Service (the “INS”). The petitioners before us are legal perma- nent residents of the United States who have been The Honorable Richard Owen, United States District Judge tia? or the Southern District of New York, sitting by designati einai iain iliac, 4a ordered deported because of their past criminal convic- tions. They challenge the Attorney General’s interpre- tation of the immigration laws under which they face deportation. While the statutory provisions before us today are new ones,’ the questions raised by these cases are old. Guided by a century’s worth of Supreme Court decisions, we conclude that the question of whether the INS had the legal authority to act as it did is within the jurisdiction of the federal courts. And following recent decisions of this Circuit, we hold that this jurisdiction is to be exercised under the general habeas corpus statute, 28 U.S.C. § 2241 (Supp. 1998). Because personal jurisdiction over the respondent cited in two of the habeas petitions before us depends on interpretations of New York law as to which we are uncertain, we certify the relevant questions in those cases to the New York Court of Appeals. This case is concerned with the changes rendered to various provisions of the immigration laws by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (the “IIRIRA”) (both its transitional and perma- nent provisions). Collectively, we wili refer to these laws as “the 1996 amendments.” “ But cf. note 8, infra, expressing a preference—were we writing on a clean slate—for direct review over habeas jurisdiction in eases of this sort. 5a I. FACTS & PROCEDURAL HISTORY A. Franklin Henderson Petitioner Franklin Henderson has been a legal permanent resident (“LPR”) of the United States for thirty years. Most members of his immediate family reside in this country, and some of them are citizens. In May 1987, Henderson pled guilty to criminal possession of cocaine in the second degree under New York law. He was sentenced to a prison term of five-years-to-life, and was incarcerated until April 1992. His conviction rendered him deportable under the then-effective pro- visions of § 241(a)(2)(B)(i) of the INA (codified at 8 U.S.C. § 1251(a)(2)(B)(i) (1994)). In February 1994, the INS initiated deportation proceedings against Henderson. At a deportation hearing on May 3, 1994, Henderson conceded that he was deportable under INA § 241, but indicated his intent to apply for a discretionary waiver of deportation pursuant to INA § 212(c) (codified at 8 U.S.C. § 1182(c) (1994)). Since 1952, long-time LPRs like Henderson have been eligible to seek discretionary waivers of deportation or exclusion based on factors such as length of prior residence in the United States, family and personal ties to this country, positive histo- ries of employment and community service, evidence of good character, and (for those persons deportable by reason of having committed a crime) proof of genuine rehabilitation. See 8 U.S.C. § 1182(c) (1994) (added by the Immigration and Naturalization Act of 1952); see also Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995) (listing factors to be considered in an application for a § 212(c) waiver). eee 6a The first hearing on Henderson’s § 212(c) application was held on October 12, 1995. At the hearing, the INS stipulated that, based on the many positive factors in his case, Henderson would warrant § 212(c) relief as a matter of discretion, but raised a question as to whether he was eligible for such relief under then-existing law. At that time, aliens who had served five years or more in prison for an aggravated felony conviction were statutorily ineligible for § 212(c) relief, and the law in this Circuit was unsettled as to whether criminal possession of a controlled substance in the second degree constituted an “aggravated felony.” The hearing was adjourned so that the parties could brief the issue. On March 22, 1996, the Second Circuit held that criminal possession was not an aggravated felony. See Aguirre v. INS, 79 F.3d 315, 317 (2d Cir. 1996). Accord- ingly, when Henderson’s case came before an Immigra- tion Judge (“IJ”) on May 2, 1996, the IJ held that Henderson was eligible for § 212(c) relief and granted him a waiver of deportation. While Henderson’s case was pending, Congress en- acted a bill that made substantial changes to the im- migration laws. This bill, the AEDPA, took effect on April 24, 1996. Section 440(d) of the AEDPA greatly expanded the range of crimes that rendered aliens statutorily ineligible for § 212(c) relief. Under the new law, a person convicted of criminal possession of a controlled substance in the second degree was rendered ineligible for a § 212(c) waiver. The INS took the position that AEDPA § 440(d) should apply retroactively to cases pending on the date of its enactment. The Board of Immigration Appeals (“BIA”) rejected this position, ruling that § 440(d) could Ta not be applied retroactively to persons who had applied for § 212(c) relief before the AEDPA’s effective date. See Matter of Soriano, Int. Dec. No. 3289, 1996 WL 426888 (BIA June 27, 1996) (“Matter of Soriano I’). The Attorney General, exercising her statutory au- thority over the whole of the INS, see 8 U.S.C. § 1103(a)(1) (Supp. 1998), reversed the BIA and issued an opinion concluding that § 440(d) should be applied retroactively to all pending cases regardless of when the waiver application was made. See Matter of Sori- ano, Int. Dec. No. 3289, 1996 WL 426888 (Op. Att’y Gen. Feb. 21, 1997) (beginning at *16) (“Soriano IT’). On the basis of the Attorney General’s ruling in Soriano II, the BIA summarily reversed the waiver of deportation that had been granted to Henderson. Henderson, contending that the Attorney General’s interpretation of § 440(d) in Soriano IJ was incorrect, filed a petition for review of the BIA’s decision in this Court on April 1, 1997. See Henderson v. INS, Docket No. 97-4050. That petition is before us today.” B. Saul Navas Saul Navas has been a LPR of the United States since he arrived here from Panama in 1987, when he was twelve years old. His entire immediate family lives in this country, either as LPRs or as citizens. He has no close relatives in Panama. On May 2, 1995, Navas wes convicted in New York state court as the result of pleading guilty to two separate criminal charges. In the first ease, which involved driving a stolen automobile, > In addition, Henderson filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York on August 6, 1997. The district court has not yet ruled on Henderson’s habeas petition. ne pied OULILV LO DOSSeSSION O] Stoien property in +hiw ye +] . a, : Saal nira degree. In ne second case, wnicn INnVvVOoOLVed purse-snatching incident, he pled guilty to robbery in the third degree. Navas received concurrent sentences f one-and-a-half-to-four years, but satisfied his sen tences by spending eight months in New York’s “Shoc! incarceration Program.” While Navas was incarce! ited, the INS began deportation proceedings agains um. He first appeared before an IJ on October 11 995, but his case was continued until November § 1QQL — a : f a an (+4 4 no | JID, WNen, acting pro se, Navas admit ed the alleg } . 7 r ‘ + | ONS ana Was found deportapbl The IJ encour 10" x7 + )16) hi . iS to apply for a § 212(c) waiver, for which he NY a : , n ¢ r1IOL ind Navas dld So on Vecember &, 1995 { }? Via U 1996. , Meé 1) n¢ Was fié id (7 N\ IVAS e) ‘ ‘ 1%) nit TY} T } Mforas glial Walve) ine [J qaetermined [ Navas’ residence in the United States since a young ye, his substantial family ties to this country, and hi: story of steady employment weighed strongly flavor of allowing him to remain in this country. ordingly, the IJ granted him a § 212(c) waiver. Thi BIA reversed, however, holding that, under the Atto1 ey General’s intervening opinion in Soriano " \EDPA § 440(d) applied retroactively to render Na statutorily ineligible for § 212(c) relief.’ Navas then filed a petition for a writ of habeas cory the United States District Court for the Eastern Di ‘t of New York (Jack B. Weinstein, Judge). Th 1 , } 1 1 . . 1° . ] . i. velbe ' t > nn ,/ } . ; > + . rt concluded nat it nad jurisdiction O re ] iS ClalmMmsS unde) ( vyenera I er S 9a U.S.C. § 2241. See Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997). The court further held, as a matter of statutory construction, that AEDPA § 440(d) should not apply retroactively to Navas’ case. See id. at 165. Accordingly, the court granted Navas’ habeas petition and ordered the INS to adjudicate Navas’ application for § 212(c) relief under pre-AE DPA standards. See id. at 182. The INS appealed to this Court. See Navas v. Reno, Docket No. 97-2600. In addition to filing his habeas petition in the district court, Navas also filed a petition for direct review of the BIA’s March 14, 1997, decision with this Court on April 11, 1997. See Navas v. Reno, Docket No. 97-4070. These cases have been consolidated on appeal and are both before us today. C. Guillermo Mojica Guillermo Mojica. a citizen of Colombia, has been a LPR of the United States since 1972. His wife is a naturalized citizen, and his two children have citizen- ship by virtue of their birth in this country. Mojica was charged in 1988 with conspiracy to distribute cocaine in violation of federal law. He pled guilty, was sentenced to one year in prison, and, on completion of Ais term in early 1990, was released. In January, 1996, while returning from a brief trip to Ecuador to visit family, Mojica disclosed his conviction to border officials. He was detained overnight at John F’. Kennedy International Airport and paroled into the country the next morning. The INS seized his passport and green card and told him to report to the INS on February 12, 1996. On May 29, 1996, the INS officially admitted him into the country, but immediately there- 10a after began deportation proceedings against him.’ Mojica was taken into INS custody and transferred from New York to the INS holding facility in Oakdale, Louisiana on June 5, 1996. Mojica’s next appearance before an IJ was on July 5, 1996, in Louisiana. His attorney in New York appeared by telephone from Brooklyn and requested a change of venue to New York, which was denied. The case was adjourned until August 2, 1996, when Mojica conceded deportability and requested a § 212(c) waiver. On that same date, the IJ denied relief on the grounds that Mojica was statutorily ineligible for such relief because of § 440(d) of the AEDPA, and ordered him deported. — appealed to the BIA, and lost. veleased on bond on October 21, 1996, Mojica, with the INS’ Ss permission, returned home to New York. He then filed a habeas petition in the United States Dis- trict Court for the Eastern District of New York on March 4, 1997. The next day, the INS ordered him to surrender to their agents in Oakdale, Louisiana, which he did. Mojica’s case was consolidated with the case of Saul Navas before Judge Weinstein, who granted Mojica’s Prior to the 1996 amendments, the law distinguished between deportation and exclusion proceedings. Aliens who were physi- cally present in the United States were placed into deportation proceedings. Exclusion proceedings dealt with aliens who were iterally at the border seeking entry as well as those who had been aechersers 4 paroled into the country but who, through a legal mai remained for immigration purposes at the border. See 8 U.S § 125 2b (repealed 1996). The 1996 law combined the two procee a ings into a new process known as a “removal proceeding.” See & | SC. $ 1229a (Supp. 1998) (added by the ITRIRA). lla habeas petition. See Mojica, 970 F. Supp. at 182. The INS appealed. D. Engin Yesil Engin Yesil, a native of Turkey, arrived in this country in 1979 on a student visa at the age of sixteen. In 1987, he married a United States citizen, and the following year applied for LPR status. In 1990, Yesil pled guilty to aiding and abetting the distribution of cocaine in violation of federal law. He was sentenced to six years’ imprisonment, a three-year special parole term, and a $150,000 fine. In lieu of for- feiting his business (the eyewear distributor Lens Ex- press), he paid $25,000. Yesil was initially held at the Federal Correctional Institution (“FCI”) in Tallahassee, Florida, but at some point was transferred to the FCI at Oakdale, Louisiana. While he was still incarcerated, the INS commenced deportation proceedings against him in Louisiana on January 5, 1994. Shortly thereafter, Yesil was trans- ferred from the FCI to the INS’s Oakdale detention facility. He was released on bond on April 12, 1994, and told the INS that he would be living in New York City. On April 15, 1994, his attorney moved to change the venue of his deportation proceedings from Louisiana to New York, but that motion was denied. On May 4, 1994, the IJ found Yesil deportable, and on August 31, 1994, the IJ ordered him deported. The IJ held that Yesil had failed to demonstrate eligibility for relief from deportation because he had not been a LPR for the seven years required for a § 212(c) waiver. Since —under Fifth Circuit law—Yesil had only been a LPR for six years, the IJ determined that he was statutorily barred from relief. The BIA dismissed his Second or Fifth Cireuit law. Yesil had n the requisite seven consecutive years of lawful unrelin quished domicile necess e him eligible fo uve) On April 14, 1995, Y« filed a pe on f revi BIA’s decision in this Court, claiming that ur nd ¢ Ircult law ne had bee! ‘ PR lor Seven Ve . In July 1995, he voluntarily withdrew this pet i ending a decision by the BIA on his motion to reo H e deportation order. One vear later, on July 3, 19! : BIA denied the motion. Accordingly, on Jul 96, Yesil reinstated his original petition for our ew of the BIA’s March 17, 1995 decision. and Lugust 1, 1996 he nied in this Court a petitio cing the BIA’s Ju », 1Y9Y6, de} r | n eopen On October 29, 199¢ O! Dane i tnis ( nted the government’s motion to dis1 Yes ions for lack of subject matter jurisdiction, n¢ nat “[tjnis case is not sulliciently distinguishable iy IY ncapue Nie LO V INS, YZ F.3d 27 (2d Ci LYYb Hincapie-Nieto, we held—on the basis of governn presentations that some degree of habeas re emained that the AEDPA validly stripper the ( \ppeals of jurisdiction over petitions for dire ew of BIA decisions filed by aliens ¢ ‘ified criminal offenses. See id. at 31. Yesil filed a petition for a writ of habeas a nited States District Court for the Southern D New York on November &, 199¢ That court (De . n,. Judge) determined that Yesil did not pos l3a ana. It ordered instead that Yesil report once a month to the INS’s offices in New York. On February 27, 1997, the district court granted Yesil’s habeas petition, finding that it had jurisdiction to do so pursuant to 28 U.S.C. § 2241. See Yesil v. Reno, 958 F. Supp. 828, 886 (S.D.N.Y. 1997). The court then ruled that Yesil had acquired the necessary seven years of lawful domicile required for § 212(c) relief, and that he was otherwise statutorily eligible to seek such relief. See id. at 841-43. It therefore ordered the BIA to consider his application on the merits. See id. The INS appealed. IT. DISCUSSION A. Subject Matter Jurisdiction The first question before us is the extent of the federal courts’ subject matter jurisdiction to review removal orders issued by the INS against criminal aliens under the 1996 amendments to the immigration laws. We have previously found that the 1996 amend- ments “repealed the jurisdiction a court of appeals formerly had over petitions for review filed by aliens convicted of” certain criminal offenses. Hincapie- Nieto, 92 F.3d at 28. And we have recently stated that this repeal of jurisdiction suffers from no constitutional infirmity because the 1996 amendments left untouched the courts’ jurisdiction under the general! habeas stat- ute, 28 U.S.C. § 2241. See Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d Cir. 1998); Hincapie-Nieto, 92 F.3d at 31. We adhere to these decisions. Today, we consider one of the issues left open in Hincapie-Nieto and Jean-Baptiste—the scope of the review available under § 2241. We conclude that, what- ever the outer perimeters of such review may be, the Gd courts have the power t to address the ure questions of law presented in the instant cases. When Congress acted in 1996, it did not write on an mpty slate, but rather on one replete with century-old le eon guidelines. Accordingly, to ascertain the impact of the 1996 amendments on the scope and availability of judicial review, we must examine the backdrop against vhich Congress has legislated. } 1. Judicial Review of Executive Deportation Decisions, 1885-1952 ' Before 1952, judicial review of immigration decisions proceeded solely by way of the writ of prea Corpus. [he scope of the courts’ authority to review executiv: officials’ decisions in immigration matters in this man- ler was first litigated in 1885. In the case of Jn re Jung Ah Lung, 25 F. 141 (D. Cal. 1885), aff'd sub nom United States v. Jung Ah Lung, 124 U.S. 621 (1888), the eovernment challenged the jurisdiction of the federal istrict courts to review habeas petitions filed by Chinese immigrants. The government contended that the youn of customs at the por of entry, an execu- tive official, had final authority to determine whether a were excludable under the Chinese Exclusion Act and that his decisions were not reviewable by the courts. The district court rejected the government’s irgument that the Chinese Exclusion Act had moved sat °1 ry ¢ ryt a} tT authority to grant habe: as relie f, statins (x 81-82. See Felker v. Turpin, 518 U.S. 651, 661 (1996 1escril | ) Lda Such an abrogation of the writ of habeas corpus, which has always been considered among English- speaking peoples the most sacred muniment of personal freedom, must be unmistakably declared by congress before any court could venture to withhold its benefits from any human being, no matter what his race or color. Jung Ah Lung, 25 F. at 142-43. Noting that “ to a writ of habeas corpus is the right to have lawfulness of the restraint to which the petitioner is subjected inquired into by the courts; to be adjudged and determined by the law of the land,” the court ordered briefing by the parties on the merits of the collector’s findings of fact and conclusions of law with respect to the petitioner. Jd. at 148-44. The Supreme Court affirmed, holding that “[w]e see nothing in these acts which in any manner affects the jurisdiction of the courts of the United States to issue a writ of habeas corpus.” Jung Ah Lung, 124 U.S. at 628-29. tlhe right [ Even before the Supreme Court expressly approved of the practice in Jung Ah Lung, the district courts in port cities had become quite active in granting writs of habeas corpus to Chinese immigrants. The Department of Treasury estimated that by 1885, the courts were responsible for the admission of 2,695 Chinese, approxi- mately one-fifth of the total number of Chinese landed since the enactment of the Chinese Exclusion Laws. By 1888, at least 4,091 Chinese had petitioned the federal courts for a habeas hearing and eighty-five percent of those persons had been admitted. See Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law 20 (1995). The result of the courts’ exercise of the habeas power was that l6a [t]he Chinese litigants’ success increased the an- tagonism between the federal judges and the collector and fueled public opinion against the courts. The collector . . . accused the court of interfering with his job and argued that the cases “should [not] come before the judiciary at all.” Groups from the local community, incensed by the court decisions, called for the impeachment of the iner for the Department of Justice . . . re- ported to the aitorney general: “Two coorfinate sic| branches of the Government are engaged in a hostile conflict, with the people and the press on the side against the courts, accusing them openly of all manner of bargain, intrigue and corruption. i Salyer, supra, at 20-21 (citations and endnotes omitted). Apparently in response to these concerns, Congress attempted to restrict the availability of judicial review in its 1888 amendments to the Chinese Exclusion Act. See Act of Sept. 13, 1888, 25 Stat. 476. Section 12 of this act stated, “the collector shall . . . decide all questions in dispute with regard to the right of any Chinese passenger to enter the United States, and his decision shall be subject to review by the secretary of the treasury and not otherwise.” /d.§ 12. As one district court explained: The books are full of cases in which the rights of Chinese persons to enter this country have been re-examined on habeas corpus, after denials of such rights by customs officials. . . . It was, doubtless, in view of this unbroken line of decisions, and for the purpose of changing the law . . . that congress 17a enacted the twelfth section of the Act of September 13, 1888. With this section in force, the action of the collector, in the absence of fraud, would be conclusive and final. United States v. Loo Way, 68 F. 475, 477 (S.D. Cal. 1895), aff'd, 72 F. 688 (9th Cir. 1896). For reasons unrelated to this provision, however, the entire 1888 Act was held invalid, first by the Ninth Circuit, see United States v. Gee Lee, 50 F. 271, 273 (9th Cir. 1892), and ultimately by the Supreme Court, see Li Sing v. United States, 180 U.S. 486, 488-90 (1901). Ac- cordingly, judicial review of immigration decisions con- tinued apace. Shortly after the passage of the 1888 Act, a congres- sional joint committee on immigration began drafting what would become the Immigration Act of 1891. The committee sent representatives to the West Coast, where they learned that executive immigration officials considered meddling by the courts to be one of the most serious hindrances to their work. See U.S. Congress, Select Committee on Immigration and Naturalization, 51st Cong., 2d Sess., Chinese Immigration 272-73 (1890) (cited in Salyer, swpra, at 264 n.151). And so it came to pass that the 1891 law included a provision stating that “{a]ll decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.” Act of March 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085. The finality provision was carried forward, with only minor changes, in subsequent immigration acts. See LSa Heikkila v. Barber, 345 U.S. 229, 234 (1953) (citing statutes from 1903, 1907, and 1917). And as the Su- preme Court later explained, “(dJuring these years,” (7.e., from 1891 to 1952), “the cases continued to recog- nize that Congress had intended to make these admin- istrative decisions nonreviewable to the fullest extent possible under the Constitution.” J/d.; see also id. at 234-35 (noting that the statutes “clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution”). While cognizant of the limits placed on their au thority by Congress, the courts in this era continued to review—on habeas—claims by aliens that the immigra- tion officials had acted under erroneous interpretations of the law. The first of these cases was Nishimura Bkiu v. United States, 142 U.S. 651 (1892). The petitioner in that case was excluded from entry by customs inspectors in San Francisco. She filed a petition for a writ of habeas corpus, “and contended that the act of 1891, if construed as vesting in the [executive] officers . . . exclusive authority to deter- mine [her right to land] was in so far unconstitutional, as depriving her of liberty without due process of law; and that by the Constitution she had a right to the writ of habeas corpus.” Id. at 656. The Court responded to Nishimura Ekiu’s due pro- cess argument by stating in sweeping terms that, as to aliens outside the United States, “the decisions of ex- ecutive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Id. at 660. But the Supreme Court also held that “lajn alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of Congress, and thereby restrained of his liberty, is 19a doubtless entitled to a writ of habeas corpus to ascer- tain whether the restraint is lawful.” Id. (emphasis added). In other words, the alien was entitled to a judicial determination of whether the executive was “acting within powers expressly conferred by Congress.” And so the Court went on to consider whether the actions of the inspector were “in conformity with the act of 1891.” Id. at 668. Specifically, the Court addressed the ques- tion of whether the statutory language required the inspector to take testimony “on oath.” Jd. Concluding that the statute allowed, but did not require, the inspector to take testimony on oath, the Court rejected Nishimura Ejiku’s statutory claim on its merits. See id. As to her claim that the customs inspector had based his decision on erroneous factual findings, the Court, in contrast to its review of the statutory interpretation issue, held that “the final determination of those facts [on which the right to land depends] may be entrusted by congress to executive officers” and that the court was therefore barred by the 1891 Act from second- guessing those findings. Id. at 660. In Yamataya v. Fisher (“The Japanese Immigrant Case’), 189 U.S. 86 (1903), the Court reiterated that Congress was entitled to entrust the “enforcement of [immigration] provisions, conditions, and regulations exclusively to executive officers without judicial inter- vention,” id. at 97, and that the 1891 Act had, in fact, invested executive officers “with the power to deter- mine finally the facts upon which an alien’s right to enter this country, or remain in it, depended,” 2d. at 100. The Court went on, however, to consider the peti- tioner’s claim that a treaty signed in 1895 had, by implication, altered the law that allowed the exclusion 20a of Japanese subjects who are “paupers or persons likely to become a public charge.” Jd. at 97. Concluding that the provision excluding the indigent was still in effect, the court rejected the immigrant’s petition. See id. at 102. Similarly, in Gonzales v. Williams, 192 U.S. 1 (1903), the Court entertained a habeas petition brought by a Puerto Rican citizen who claimed that, although not a citizen of the United States, she was not an “alien immi- grant” under the 1891 statute and was, therefore, im- properly excluded. The Court agreed with the peti- tioner and rejected the government’s interpretation of the statute. See id. at 18. As for the government’s con- tention that judicial review was precluded by the finality provisions of the immigration laws, the Court concluded that “as Gonzales did not come within the act of 1891, the commissioner had no jurisdiction to detain and deport her by deciding the mere question of law to the contrary; and she was not obliged to resort to the Superintendent or the Secretary.” Jd. at 15. The Court further expounded upon the necessity of judicial review of statutory claims in Gegiow v. Uhl, 239 U.S. 3 (1915), stating: The statute, by enumerating the conditions upon which the allowance to land may be denied, pro- hibits the denial in other cases. And when the record shows that a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus. The conclusiveness of the decisions of immigration officers under § 25 is conclusiveness upon matters of fact. This was implied in Nishimura Ekiu v. United States. As was said in Gonzales v. Williams, “as Gonzales did not come within the act of 1891, the Commis- Zla sioner had no jurisdiction to detain and deport her by deciding the mere question of law to the con- trary.” Such a case stands no better than a decision without a fair hearing, which has been held to be bad. Id. at 9 (citations omitted). As a result, the Court went on to consider the petitioner’s claim that, under the immigration statute, he should not have been deemed an individual likely to become a public charge solely on the ground that the labor market in the city of his immediate destination was overstocked. The Court agreed with the alien and, rejecting the executive branch’s interpretation of the statute, held that the statute allowed only consideration of the labor market in the country as a whole, and not in any particular city. See id. at 9-10. Other cases of this sort abound in the reporters. See, e.g., Delgadillo v. Carmichael, 332 U.S. 388, 390-91 (1947) (granting habeas and rejecting the immigration service’s interpretation of the statutory term “entry”); Bridges v. Wixon, 326 U.S. 135, 149 (1945) (rejecting the government’s interpretation of the term “affiliation” with the Communist party and holding that habeas is appropriate “where an alien is ordered deported for reasons not specified by Congress”); Kessler v. Strecker, 307 U.S. 22, 35 (1939) (holding, on habeas, that “as the Secretary erred in the construction of the stat- ute, the writ must be granted and the respondent dis- charged from custody”); Mahler v. Eby, 264 U.S. 32 (1924) (rejecting, on habeas, the executive branch’s interpretation of findings necessary for deportation based on espionage); Howe v. United States ex rel. Savitsky, 247 F. 292 (2d Cir. 1917) (rejecting, in a habeas suit, the immigration authority’s “latitudinarian ' - ' @ + ( 47° 1946 > | T } Q i Ippo! cS. or ' ¢ . U.S. ( S TOG ’ ’ | } ioy Tr | ] (le?) iié — 1 thos Dla 1n tne ‘ | 4 | ) nNeig na ne | 27S) | CONSISTeNiI ' ' f"{ 4 f > ett of preclud Ses EeXxCeNT ] C10} rnerel T 4 mal ? myrowu StLaLUuULe pre A | né ,PA } t » + + y mmigration Act of YvTY ) ? } ‘ va. , sp howd t+i4 88) > | LO . | TWnmTY ’ ) Vr) Liiil U1it UlLit iriOUuS iaWs LCA MTlalil y | 1QnR4s Cd in 1Lddz rT’) ry) YYi1T 7 Pli© COMIN ce x naerstooda IMpilc A > | 1 ah CIESCITIVECU AVUUVE )} of the Unite } Yr)? ' , ‘ qaeserio atute y P ]¢ Kf F ; y ,1¢ °¢6 i™mm1o) +? . inverp}! ing judi nsotar 7 1? T “CC UILEGI - | ¥ | L 1952 ne QO! ] alig 4 AA ne ne - t is re Ta" Ae) | eT i¢é } I } ? l oon bd *) i) as" Leo tOr90 by y4 Or ¢> YOZ ’ ‘OY, Iprel ’ ’ ye é 1t1V yin y tr} ) ney ial we Ime i Hi ‘ ‘ 1Q] A | | Ou} 4 > ) Y"; ya4 r\14 } - } 1 - ( 1193 a Al 1 WT VV i \ ct é 1e | ‘ ' r) é > i Ou ' . { y ‘ ( ( *s WZ aliens are plenary and Congress may choose such agencies as it pleases to carry out whatever policy or rule of exclusion it may adopt, and, so long as such agencies do not transcend limits of authority or abuse discretion reposed in them, their judgment is not open to challenge or review by courts.” Jd. at *2 (emphasis added) (citing Yamataya v. Fisher, 189 U.S. 86 (1903)). Similarly, a committee report for a predecessor bill expressed Congress’ understanding of the constitu- tional backdrop as established by the case law, namely tnat: Once the order and warrant of deportation are issued, the administrative process is complete. Under the fifth amendment to the Constitution, the ‘due process’ provision, the alien may, however, petition for a writ of habeas corpus. In a habeas corpus proceeding, based on a deportation case, the court determines whether or not there has been a fair hearing [and] whether or not the law has been aad ] ] LrLLeE rpreted correcti i. ». Rep. No. 1515, 81st Cong., 2d Sess., at 629 (1950) quoted in Shaughnessy v. Pedreiro, 349 U.S. 48, 56 1955) (Minton, /J., dissenting)) (emphasis added). Although the 1952 Act also contained a finality pro- vision, this provision was held by the Supreme Court not to preclude direct judicial review of INS decisions under the APA. See Shaughnessy, 349 U.S. at 51-52 citing legislative history indicating that Congress intended APA review to be available under the 1952 Act). Accordingly, the scope of review of immigration decisions—particularly executive factual findings—was substantially broadened by the 1952 Act. See Heikkila, 345 U.S. at 236 & n.11 (contrasting the due process “some evidence” test applied on habeas in, « .; Bridge Ss 15), with the APA test of ; +. . — rr 9 > dade a | . ‘ ‘ rh ] 99 ibstantial evidence” on the “record as a whole > Immigration and Naturalization Act of 1961 Soon after, the government became worried that liens were taking advantage of the availability of APA review by filing duplicative petitions for habeas and direct review, thereby delaying their departures. President Eisenhower expressed this concern in special the growing fre- cases brought for purposes of delay, messages to Congress, stating that “ juency of particularly those involving aliens found to be criminals : nd traffickers in narcotics and subversion, makes mperative the need for legislation limiting and care llv defining the judicial process.” Letter from Presi ent Eisenhower to Congress, Jan. 31, 1957, H. Doc No. 85, 85th Cong., Ist Sess. (quoted in H.R. Rep. No. 1086 (1961), reprinted in 1961 U.S.C.C.A.N. 2951 61 WL 4841, at *20) (“Letter of Jan. : » same time, President Eisenhower stated that “ utional due process wisely confers upon any alie itever the charge, the right to challenge in the urts the Government’s finding of deportability.” residential Message of Feb. 8, 1956. H. Doc. No. 329. th Cong., 2d Sess. (quoted in H.R. Rep. No. 87-1086 1961), reprinted in 1961 U.S.C.C.A.N. 2950, 1961 WL 11, at *21); see also Letter of Jan. 31, 1957, at *20 “Whatever the ground for deportation, any alien has he right to challenge the Government’s findings of deportability through judicial process. This is as it should be.”). And so President Eisenhower urged that new legislation be enacted that would preserve judicial review but would limit the ability of aliens to file epetitious petitions in the courts. See Let + . * 3 ‘ Ler Ol Jan 1957, at *20. The Immigration and Naturalization Act was amended by the Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5, 75 Stat. 650, 651-538. This Act was “in accord” with former President Eisenhower’s recom- mendations in this regard and was supported by the new Kennedy administration. See H.R. Rep. No. 87-1086 (1961), reprinted in 1961 U.S.C.C.A.N. 2950, 1961 WL 4841, at *21. The Act created a “single, sepa- rate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States.” Jd. at *19. Primary jurisdiction to review final orders of deportation was vested in the courts of appeals. See 8 U.S.C. § 1105a (repealed 1996). The scope of this review was substantially the same as that provided by the APA, and so was broader than that allowed under the Heikkila-era habeas cases. Aliens facing exclusion rather than deportation wer: left with the sole remedy of a habeas corpus sult. Se d. In addition, the law provided that aliens held “in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings. Id. The law also placed time barriers on the filing of petitions for judicial review and limited repetitiou petitions. See id. 4. The 1996 Amendments In 1996, Congress enacted two bills that significantly altered the immigration laws. The first, the AEDPA took effect on April 24, 1996. Sections 401(e) and 440(a of the AEDPA struck 8 U.S.C. § 1105a(a)(10), the sec tion that had previously provided for habeas review for aliens held in custody pursuant to deportation orders, and replaced it with the following new text: “Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes] shall f P ] Ve 4 + 1*)° . t+0(a), 110 Stat. at it Congress undertook a more ambitious reform of the immigration laws a few months later. The product of this effort, the IIRIRA, took effect on September 30, 1996. The IIRIRA contains two sets of provisions. Th: permanent changes govern removal proceedings com menced after April 1, 1997. See IIRIRA § 309(a). The transitional] provisions (which are not codified in cne | SS. Code) control deport: tion proceedings Starter rior to April 1, 1997, in which the deportation ord: ' ecame administratively final aft y Octoher 2 1QQ¢ - Caine aaministrative 1 \ lifldl allel iT ODE) ov. Ll. , leportation orders that became final before Octobr 1996, are not affected b he IIRIRA and are ed D e 1961 Immigration Act amendet se, | ne AEDPA he cases before us are ¢ ) e rules in effect during the IIRIRA tr: nal period. Section 809(c)(4)(G) of the IIRIRA ft) al rules 18 the immediate successor t \E] PA tU( a and reiterated and expanded its overhau rmer 8 U.S.( > 1105a(a)(10) [It } Vides ere Snail be no ippeal permitted 1 the case o en who ls iInadmiss ble O} deportabl. b reast committed a criminal offense cover: n | ce ms of the code IIRIRA § 309 1)(( e IIRIRA’s permanent p re and relocated ne rule c,oOVve! O } et § 1252 The new § 1252 governs re! ‘ proceeding 1 alter April 1, 1997. In the permanent py sions ( LEDPA § 440 nd transitional IIRIRA OS d S$ U.S.C. § 1252 2)(( n states th: ling any other provision of law. no irt s! have ew any final order of removal ag: ! . ald 5. Effect of the 1996 Amendments The 1996 amendments were clearly meant to con- strict the availability of judicial review of deportation orders against criminal aliens. But how far did Con- gress intend to go? As noted above, we have previously found that the 1996 amendments “repealed the jurisdic- tion a court of appeals formerly had over petitions for review filed by aliens convicted of [certain criminal ffenses].” Hincapie-Nieto, 92 F.3d at 28. And we have joined our sister circuits in concluding that this repeal of jurisdiction suffers from no constitutional infirmity because the courts retain habeas jurisdiction under 28 U.S.C. § 2241. See Jean-Baptiste, 144 F.3d at 220: / neapr -Nieto, 92 F.3d at 31: see also Goncalves eno, 144 F.3d 110, 128 (1st Cir. 1998): Mansow) ) INS, 123 F.3d 423, 426 (6th Cir. 1997): Turkhan v. INS. 123 F.3d 487, 489-90 (7th Cir. 1997): Williams v. INS 114 F.3d 82, 83-84 (5th Cir. 1997); Ramallo v. Reno. 114 3d 1210, 1214 & n.1 (D.C. Cir. 1997). vetition fon A. led, 66 U.S.L.W. 3264 (Sept. 24, 1997) (No. 97-526 a 2 BE 31 +4 ~~ 11 TA TE ‘ /. F 4 P | FA LIL | \ “eB 113 od Llol, LidG-oe) LU Mm 4 ew Cc ( l A "ead ~ ie s SeCCLUL ind no » indi 4 i] no court shall have iurisdiction to hear ar ee A) LLU COUT Sildil lla Ve AP isSdait iUli LU llGal a Cau ¢ O in allen arising Irom tne decision or action D torney General to commence proceedings, adiudicate cases. ite removal orders against any alien under this Act.” IIRIRA 242(g) (codified at 8 U.S.C. §1252(g) (Supp. 1998)). This catch-: : : : ° AYO IIxy « lene ] ‘ ' ‘ ler anlalx al; rOvVision 1S generally applicable, and does not apply solely to alle . . ‘= ’ } rr'L. >TpD a9 . ‘ted of specified crimes. Seeid. The IIRIRA furthe that the nermanent Nrovision S 1? 2 ea imiting ] Iisdictic £ALGaALv Lill } Liiicalil Ai wi A ily bet (lot \ bc52,,0iL1 Aid Al apply witnout iimitatior O CialmS arising lng, or ¢ IRA § 306 EF ce a a Tee +) ‘ aoa 1997); Salazar-Haro v. INS, 95 F.3d 309. 311 (3d Cir. 1996), cert. denied, 117 S.Ct. 1842 (1997).° In Jean-Baptiste, we emphasized that although “Con- gress exercises broad power over immigration mat- ters,” that power is limited by the Constitution. Jean-Baptiste, 144 F.3d at 219 (citing INS v. Chadha, 162 U.S. 919, 940-41 (1983) (“Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, . . . so long as the exercise of hat authority does not offend some other constitutional restriction.” (internal quotation marks and citations ymitted))); see gene rally Battaglia v. General Motors rp., 169 F.2d 254, 257 (2d Cir. 1948) (“[Whhile ongress has the undoubted power to give, withhold, ind restrict the jurisdiction of the courts . .. , it must so exercise that power as to deprive any person life, liberty, or property without due process of law a Henry M. Hart, Jr., The Power of ( ‘ongre ss to the Jurisdiction of Federal Courts: An Exercis: Dialectic, 66 Harv. L. Rev. 1362, 1397 (1953) (posit- g constitutional limits on Congress’ control of federal ourt jurisdiction); Lawrence Gene Sager, The Suprem 1 ourt, 1980 Term—Foreword: Constitutional Limita- f fv , J ») / tho “effin ons on Congress’ Authority to Regulate the Jurisdic- on of the Federal Courts, 95 Harv. L. Rev. 17, 42 [he Eleventh Circuit’s opinion in Auguste v. Reno, 140 F.3d 73 (11th Cir. 1998), holding similarly, see id. at 1377 n.9, has beer thdrawn end superceded by Auguste v. Reno, No. 95-5555, F.3d , 1998 WL 556263 (11th Cir. Sept. 2, 1998). The new pinion is, however, inapposite to the cases before us since i declined to treat the petitioner’s writ as having been filed under 2241 (and instead treated it as a petition under now-repealed S.C. § 1105a(a)(10) Za We noted in Jean-Baptiste that the Constitution pro- vides that “‘[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Jean-Baptiste, 144 F.3d at 218 (quoting U.S. Const., art. I, § 9, cl. 2). And we further stated that “in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts’ habeas jurisdictior pursuant to § 2241.” Jd. at 219 (citing Felker, 518 U.S at 661. and Kx parte Yerger. 15 [)_S. { » Wall. RH. LOD L863 )). [The decision in Jea n-Baptist retiects ne Wwe accepted rule of statutory construction that repeais b implication of jurisdictional statutes (and particularly o! the habeas statutes) are disfavored. In addition, it ac knowledges the presumption in favor of judicial reviev see, é.g., Bowen v. Mich gan Academy of Fam Physicians, 476 U.S. 667, 670 (1986) (“We begin wit! the strong presumption that Congress intends jJudici. review of administrative action.”); see also Webster Doe, 486 U.S. 592, 603 (1988) (same); Johnson Robison, 415 U.S. 361, 373-74 (1974) (same). Finally, 11 avoids the profound constitutional questions that would be presented under the Suspension Clause, Article III, the Due Process Clause, and the Equal Protection Clause if the statute were read to preclude all judicial! review. See generally Note, The Avoidance of Const tutional Questions and Preservation of Judicial Ke view: Federal Court Treatment of the New Habeas Pri visions, 111 Harv. L. Rev. 1578, 1579, 1589-90 (1993). + 4 Indeed, the government itself does not argue that ths 1996 amendments completely forbid judicial review deportation against criminal aliens. Rather, the g ‘ CIS] | CS Ol) at ~ f ? ) } ‘ T “s) »)* ve" ) | y ? . ’ . * + prope mecnanism tor Sut review 1S Ul oat it nTtar 9 rye; + f Lohaoa: 2 . . ] e€v1v1ON [oO a writ of habeas cornu: in tne dis + | t | ] is > l ") > 7 ,Y X17 rT Taveti . x7 ‘x77, ¥ + hh . itner than by direct review in the courts of aQdalvion, the government contends that the Vview—w he revel available S quite narroyv x +1, } ~mMlIYtTS AYA | . ] , LUE COUFTS are ONLY empowered to exan me nrocaont; ee ey ee » Po ms presenting “subpstal Or colorabie = ; ] yp ‘ 4i ClalmMS, and Not pe S ) ler ; + mbaed ‘ S Ol SLaALULOr av tee Se , é V\ respect Co 1e oO er?) é : } a y : } ¢ PP f } ONSe 18 la ne pane n Daptiste Co } a " + 1 +} + +3 1 - o J rejected tne contentiol it the LYyv6 laws x } } ialmS tnrougn the courts of appeals. S, ' 144 2 -] + 1 } 1 of 4 1 \ . + tI . €, 144 9d al Zl AS result, we are | J > . y - . ) ow «(OTC c sé } AO lr. LgvoO A de S10 e yT C y +. ] + ] + Yy umuess and ul IS Overrule | ‘ Or DY the supreme Cou) i : nd Lig © s_urong I neq ) T f or ¢ ew is pe n tor \ i rts ) t , } és 5 } ‘ ] VY § 2241 habeas ir list ‘ourts S VW out pDropiems Le \ i i qd f DUL revlewWw in tne UrTS OT eT. seems 1 *e neressiona nren?t ( ongres eC ‘ mear oft review, and seems perverse find tha el added a taver ot review le GIStrict courts er: eX t petrore Moreo er anne 0 iV? F { ne Ourts OI ap Cdis 18 Standard mode ofr nistrative actions. See, e.g..5 U.S.( 7123 (199 ( t orders of the Fede) Li R YY Aut ewed D' neé 0 S of ppeaisS a4 5.4 Last 1994 orders the Cor d) $s] r r rts nN NI * poland J + @ ‘ai y ’ ’ ’ ( b T | f ‘ ji / j One ap! ( ’ , Lull > + iO] Té (ig i Sent : a : 2 -_ J J é _ . f — a = = ; L ~ y - - . ’ = Pr? ) - ~ ‘ . ~ . ~ 4 2D | — oo ’ " — - > ae - "NSE a HRS ; . ~m— ; , 4 ¢ 20 ~ ma 2b - f , —~ ~ ad a — ~ l —_, = = - “ - ~ a " uN - j . ~- ‘ ~ ’ 4 7 s , - ° a - ] “ wad — ST) + . 1 ; o-. ~ ae Dt 4 n w= 2 _ » S - - ~ _ x v — > oo on ‘ = . S = SB a ~ : > & 3S en ~ & . - - “ a -_ ™ - - “ a —_= ps f we a ~- ~ NM = - _ = ~ 1 $ - ~ + 7 ~~ a . — 4 - tions upon which the allowance to land may be deni rohibits the denial in other cases. And when the record nows that a commissioner of immigration 1s exceedin s power, the alien may demand his release upo. . 9q 7?\e Vas , TT as ¥ 1A/ Y] OrO) i. LbC@asS COrpus., ); Brou nett 4 Tom WV, OMUNEG, 13 4 [ 1QE9 1 One Bah , ad 6,3 R ” eae @) 1d2 n.1 (1956) (holding that que process Muara! tv ah] } | : ; ly, ‘6 Pos 4 4 enforceable on habeas include “conformity to orounds ); Goncalves, 144 F.3d at 124 (“! N lum ] . | S »«) ] ‘ mmigration cases under the 2241 Jurisdi onsidered claims of statutory right. sometimes } | rt ped aS an integral part of ensuring due proce 7 | ‘ r + , . ] ;. + . ’. ++ " s+ = . . ‘uiar ly enforced—in the face of statutes SeeKiIngo irt decided more than seventy-five vears ago that the Cor vallable for some statutory questions. such a ; Tt] etner the petivioner 1S 1n fact an allen under apt I i IWS and whether he or she has been con\ icted mes that render him or her deportable within th aning of the statute. See Brief for Respondents ellants at 29, Mojica, Nos. 97-2599, 97-2600 (citii ng v. INS, 109 F.3d 1185, 1189 (7th Cir. 199 \ - ele, , ia é¢ha4 ; P ] } ; \ccordingly, we hold that the federal courts ha j ’ +4 ] . spe + “yr ¢ sh, Fm ictlon under § 2241 to grant writs of habeas cor Im@ah|] o } . 2 lL, oa ff +4 , . 4 yNZadvie on habeas. Bi t tnose attecting the subs an } ] I 1! rignts of aliens of the sort that the courts nave ] A in - ariaial swnonint. L oh eee A mad Mt Judicial jurisdiction to the fullest extent co. 1. 1 1 : erie lix . iva , « ‘oO » + : ‘ + ry +7 uwiV DOSSIDIé surely are. The Wo Statutory aque ‘ i ‘ ‘ A petore us toda\ are clearly Of tnisS variety. and ( r exa ( : . nev ad { ~ ( ne statutory questions. JY And well they might concede this point. for the Suprs ition required judicial review of the executive’s decision that on facing deportation was a non-citizen. See Ng Fung Hi te, 259 U.S. 276, 284 (1922). Our decision is premised on the notion that § 2241 habeas is + : y . 74 sixy sh . +] ms } l itutionally required only where the immigration laws hav: interpreted to bar other forms of judicial review Baptiste, 144 F.3d at 218. 4 district courts had subject matter jurisdiction LO consider them. B. Personal Jurisdiction Before we turn to the merits of petitioners’ claims, however, we must address issues of personal jurisdic- tion. Two of the petitioners (Yesil and Mojica) have cited both the Attorney General of the United States and John B. Caplinger, the INS District Director in New Orleans, Louisiana as respondents. But the gov- ernment contends that Caplinger is the only legitimate respondent for habeas purposes and further asserts that Caplinger is outside of the New York district courts’ personal jurisdiction. For reasons we discuss below, we decline at this time to decide whether the Attorney General could appropriately be cited as custodian in these cases, and we concentrate instead on the government’s contentions with respect to Caplinger.”® A court has personal jurisdiction in a habeas case “so long as the custodian can be reached by service of process.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 499 (1973) (holding that a district court in Kentucky had personal jurisdiction over a case filed by an inmate in Alabama). Section The government concedes that both personal jurisdiction and venue were proper in the Eastern District of New York in the case of the third habeas petitioner, Saul Navas. Navas is a resident of New York, was ordered deported by INS officials in New York, and remains within the physical borders of the city. He named as respondents the District Director of the INS in New York, Attorney General Janet Reno, and INS Commissioner Doris Meissner. The fourth petitioner, Henderson, is before us only on direct review. His petition for habeas corpus relief is currently being adjudicated in the district court. SR NWI R Gr aie ined in Louisiana, Caplinger, the INS D ctor in New UOrieans, exercises primary A . government contends, Caplinger is the only a respondent to a habeas petition broug! se I IQ | DAD (16 { ry | { i ( , d ‘ hat het EO) LId il CO! i AY } y nd fry | Od1la } | nerelrore ( ( i ) | iC) Cd CvVehdUd ’ { ney na ft | a | 11] i } } é 1@ | rie ( USLOQ ’ ) ~ ) O¢ ‘\/ (y r , Hh L).( \ ll’. 1YA36): Baillit ;° i) { Waite d STAT “At 5. OA Qd ( ¢ } ’ ohh rn , 041 F.2d 938, 948 (2d Cir. 1976). This ru] y ) >} a" s +; ) | ’ One Dasea On COMMON sense administ? ] ’ ) r } ‘ imaders v. bennett 148 }: 2 19 aT M45 \nd T( Tf 3) 1gT 97 “tx t | L1G iT il¢ rea IMajOrivy oO} nabe: , \ OA os | ‘ INnv¢ e€ prisone} eid 1n penal Institutio1 ‘ + ] t | ' ’ ~ ~ T ) . AU t ‘ CQ Stl qaoes he person wit ’ aul T } Ontrol Over tne prisoner has the lite I l ] i .* | } roauce at bod. ind yenerall oca>rer , , ‘ ’ ne} ( mniit Wild ems , + \ ] petitioners Yesil and Moji re no tham ‘4 " , r ar les tnem, since they are both seeking’ to pe ym the detainers lodged a 9a) ist them OV tne all its Oakdale, Louisiana, facility. For this reason I Dpro ‘2 lt O y .( ZZ2i)t) na YO } ( 310n governing collateral attacks on co} CUO! T 1 . dary . + | ( ral prisoners. Prior to the 1948 enactm: fe ose from the few encountered numerou the fact that District Courts in whose territo} liction najor fe deral penal INSTITUTIONS are loc were required to handle an inordinate numbe: abeas corpus ites far from the scene of acts, the home of the witnesses and the recor the sentencing court solely because of the for ous concentration of federal prisoners w district nited States v. Hayman, 342 U.S. 205, 213-214 the legislative history of § 2255). To all (discussing ate these rovides Vere or 1g States sho \ problems, Congress enacted § 2255. wh that federal prisoners should mount the ttacks in the judicial districts where nally sentenced, and (b) that the Uy + ald be the appropriate responde) A | i i 14a sults. See Braden, 410 U.S. at 497 (“[A] critical part of the congressional purpose [was] to avoid the vastly disproportionate burden of handling habeas corpus petitions which had fallen, prior to the amendments, on those districts in which large numbers of prisoners were] confined.”). Similarly, one of the rules governing § 2254. which applies to habeas petitions that challenge state gov- ernment actions, provides that an applicant “not pres- ently in custody pursuant to the state judgment against which he seeks relief but may be subject to such custody in the future” should name as respondents both “the officer having present custody of the applicant and the attorney general of the state in which the judgment which he seeks to attack was entered.” Rule 2(b), Rules Governing 28 U.S.C. § 2254. The notes to this rule explain that “[t]his is appropriate because no one will have custody of the petitioner in the state of the judgment being attacked, and the habeas corpus action will usually be defended by the attorney general.” Advisory Comm. Note to Rule 2(b), Rules Governing 28 U.S.C. § 2254. In addition, the notes state that in a $ 2254 case, “the judge may require or allow the peti- tioner to join an additional or different party as a re- spondent if to do so would serve the ends of justice.” Id. Like these statutes, the case law also reflects a preference for a practical approach to such issues. In Ex parte Endo, 323 U.S. 283 (1944), for instance, the Supreme Court considered a habeas petition filed by an American citizen of Japanese ancestry held in an internment camp by the War Relocation Authority. Endo was originally detained in Northern California, and so she filed her suit in the United States District l \ a7 + ; P ‘ ) “Tt } ” } “et t ' , " rif ,Ortnern VIStri Lal ri] 1 covernment’s iawyers opposed the petition, no re pondent was ever served with process or appeared urt. See id. at 305. While the suit was pending, th vernment transferred Endo to Utah. See id. at 304 ine Supreme Court held that the Northern Distri: ilifornia nonetheless retained jurisdiction over thi hat court to grant the writ. Se 305-07. The High Court reasoned that either t] Ing’ secretary of the Interior or the assistant dirs whose office was in San Francisco could act as the espondent, for both were within the jurisdiction of the Northern District of California and each had the power o order the release of the pomp despite the fact that she was now in Utah. See id. at 304-05. Subse. quently, relying on Endo, the ane c ircuit held, in a ‘ase very much like the ones before us today, that 1 retained jurisdiction over an alien’s habeas petition even after the INS had transferred the alien to another state. See United States ex rel. Circella yv. Sakli 2G I'.2d 33, 37 (7th Cir. 1954). in Strait v. Laird, 406 U.S. 341 (1972), the Supreme Court took a similarly flexible approach (albeit in another context). In that case, the Court allowed an army reservist’s habeas suit to proceed in California. where he lived, despite the fact that his nomina custodian was in Indiana. The Court warned that it would be inappropriate to “exalt fiction over reality” in determining who Strait’s custodian was and what the proper venue for the suit should be. Jd. at 344. The Court noted that Strait’s “nominal custodian [in Indi ana] . . . has enlisted the aid and directed the ac- tivities of armed forces personnel in i in his dealings with Strait.” Jd. And the Court concluded ‘{tine concepts of ‘custody’ and sufficiently broad to allow us to say that the command ng officer in Indiana, operating through officers in Cali ornia in processing petitioner’s claim, is in California he limited purposes of habe as corpu . at 646 (emphasis added). Beyond the increasing appreciation for practical con rns, demonstrated in the above cases, additional] ictors relating to the unique role that the Attorney General plays in immigration matters may be taken to suggest that she may be a proper respondent in alien ») } ; h“TLSaGLeLion i nabeas cases. Congress has consistently designated the \ttorney General as the legal custodian of the petition ers. See, €.g.,8 U.S.C. § 1226(e)(1) (“The Attorney Gen eral shall take into custody any alien who [is deportable yr inadmissible because of criminal] convictions ].”) Supp. 1998); accord Ahrens v. Clark, 335 U.S. 188. 199 (1948) (Rutledge, /., dissenting).” Similarly, the Attor ney General is named as proper respondent in most court actions reviewing the legality of removal orders. See 8 U.S.C. § 1252(b)(3)(A) (Supp. 1998) (setting forth that, in petitions for review, “(t]he respondent is the Attorney General”). In Ahre ns, Justice Rutledge, joined by two other Justices, dissented from the majority opinion that declined to find proper ritorial jurisdiction and venue with respect to a habeas petitior +3 iLiVUl nvolving aliens. The majority opinion expressly left open the is ; ye ra. sue of personal jurisdiction based on naming the Attorney Genera! as the respondent. The dissent, instead, had to reach the question and concluded that the Attorney General was an appropriate respondent in the case. See Ahrens, 335 U.S. at 199 (Rutledge, J » ssenting) (“There can be no question of the Attorney General’ power to produce the petitioners in this case.” territorial jurisdiction, Ahrens was subsequent! . See Braden, 410 U.S. at 500. On the issue of VY overruled by Braden ” wah ys " on t a , = i . hf : oe OD Aars oS _ a : om:* me -- ~ + = b Toe - ae > . ~ . = f = " ~ —_ . 4 = - 2 j ° « + os ~ —_ aot SS * OO — ~~ - ~ = -_ + wits me — a _ a > fy + =~ “ - ae —" ~ ~ = do , : ——“OCVw Ss. &, = - ~ : . nd f - an. i + i £ ~ —~ = , om SF OW SS ohn ae — 7 ‘ .. GS pe ee Awe & ee 0S F AA o £& Poe ne - ; 5 ZB=nea toe aw wea OOS a 3 § . + j - >’ So Dea =~ “ : 3 : = al - an — “ —— = + ~~ ? > . ~ + : —~ —i eg | - S f « - - P - e- : Pn sd & Yn > 2 : : L “hate ~ ~ J faq 4 “ ms 4 = — : - ; aa Y > ’ 7; Of *& mY oS > oe Wm 300 ~- § , m4 Te ‘we Se ~~ . ~ . L om mf « — = - a am ~~ °e e = - \e « Ss = Me J - j 3 P -" , > C - = f _ 5 . - . ~ . ~ : ~ . mm Y ~ > bu - = > . : r ~ > Y 4 ] ¢ gy .. f *% y ~ _ ~ ~ = ; l = ad = . ‘ MY & : - ; : ~ , 2 —> j \ 1 ¢ » * 3 —= Ve / l 50a are toiling long and hard to process the torrent of habeas petitions flowing from the Oakdale facility as a result of the lengthy delays in processing detainees for deportation,” and the “atypical and unanticipated vol- ume of habeas corpus petitions . . . is beyond the capability of the district court to process in a timely fashion.” Emejulu v. INS, 989 F.2d 771, 772 (5th Cir. 1993). The government, however, counters by asserting that, if we permitted suits against the Attorney Gen- eral, aliens could engage in widespread forum shopping and bring suit in any district in the country. The government’s concerns—though undoubtedly serious ones—may be overstated. We note that Supreme Court precedent establishes that traditional venue doctrines are fully applicable in habeas suits and that these, if strictly applied, would do much to prevent such forum shopping. Thus, in Ahrens, overruled by Braden, 410 U.S. at 500, the Court held that the presence within the territorial jurisdiction of the district court of the petitioner was a prerequisite to the filing of a habeas petition. See Ahrens, 335 U.S. at 192. On that basis, the Court concluded that aliens detained on Ellis Island could not—as a jurisdictional matter—file suit in Washington, D.C. Some years later, in Braden v. 30th Judicial Circuit Court of Kentucky, while rejecting the “inflexible jurisdictional rule” established by Ahrens and holding that a habeas suit did not have to be brought in the district where the prisoner was being held, the Court nonetheless reaffirmed the result in Ahrens as the proper product of “traditional principles of venue.” Braden, 410 U.S. at 500 (emphasis added). The Braden Court noted that the petitioners in Ahrens were in New York, and that “[n]o reason is Rg ‘ $ + : om a By ye 5la apparent why the District of Columbia would have been a more convenient forum, or why the Government should have undertaken the burden of transporting 120 detainees to a hearing in the District of Columbia.” /d. Thus, the court held that normal venue principles “man- dated the bringing of the action in the Eastern District of New York, rather than the District of Columbia” and that “Ahrens v. Clark stands for no broader proposi- tion.” Jd. But Ahrens also stands for no less.” Accord- ingly, there is reason to think that strict application of “traditional principles of venue’ in alien habeas cases 4 In view of the Court’s recognition that personal jurisdiction issues are generally resolved before questions of venue, see Leroy v. Great Western United Corp., 443 U.S. 178, 180 (1979) (“The question of personal jurisdiction, which goes to the court’s power to exercise control over the parties, is typically decided in advance of venue. .. .”), the Supreme Court’s Braden holding, explaining Ahrens on venue grounds, is noteworthy. For the Court’s implicit decision in Braden that there was “a sound prudential justification for . . . revers[{ing] the normal order [and] considering venue” first, Leroy, 443 U.S. at 180, suggests that the High Court was hesitant to explain the result in Ahrens by holding that in Ahrens the Attorney General was not a proper respondent. See Braden, 410 U.S. at 500. 25 As the Supreme Court explained in Braden, factors to be considered in determining whether venue is proper in a habeas suit include: (1) “where all of the materia! events took place”; (2) where “the records and witnesses pertinent to petitioner’s claim are likely to be found”; and (3) the convenience of the forum for both the respondent and the petitioner. Braden, 410 U.S. at 493-94; see also 28 U.S.C. § 1391 (1994 & Supp. 1998) (setting forth the relevant factors in considerations of venue); Leroy, 443 U.S. at 186-87 (noting that the convenience of the defendants and the location of evidence and witnesses are relevant in determining appropriate venue); Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir. 1992) (holding that “the . . . statute does not, as a 52a might adequately control the forum shopping in which aliens might try to engage were the Attorney General to be designated an appropriate respondent. An additional factor, however, may counsel against the wisdom of so designating the Attorney General. Permitting the Attorney General to be named as a respondent in alien habeas cases would undoubtedly lead to the reduction of the overcrowded docket in the Western District of Louisiana (as well as other districts in which large INS detention facilities exist). But, when combined with the venue rules discussed above, it might only accomplish this by overcrowding those relatively few districts in which aliens disproportion- ately reside, districts that in many cases are already among the busiest in the nation.” In the end, the question of whether the Attorney General is an appropriate respondent in habeas corpus petitions brought by aliens is one that evokes powerful arguments on each side—both at the doctrinal and at the practical level. Accordingly, its resolution should be avoided unless and until it is manifestly needed to decide a real case in controversy. Because it is possible that District Director Caplinger may fall within the reach of the New York long-arm statute, thereby making it unnecessary for us to decide this difficult question, we decline, for now, to rule on whether the general matter, require the District Court to determine the best venue”). *6 See Statistics Division, Administrative Office of the United States Courts, Judicial Business of the United States Courts 122-24, 178-80 (1997) (compiling statistics of pending cases before United States District Courts). DRI ca ea a AAS OS FOAMS MI Se SEE SITY RDS Cosas ae LAE BRA te TL ols 53a Attorney General is a proper respondent in these cases.~' C. Statutory Interpretation—Retroactivity of AEDPA § 440(da) Given that the government concedes that jurisdiction and venue are proper in the case of Navas, we turn to the merits of his claims. Navas argues that Congress did not intend § 440(d) to apply retroactively and to exclude from relief those aliens whose cases had already begun on the date of its enactment.” The gov- ernment responds by citing to the Attorney General’s contrary ruling in Soriano IJ. The Attorney General there held that § 440(d) barred relief to aliens whose cases predated the statute. This, she reasoned, pre- sented no problems because applying § 440(d) to pend- ing cases would not be genuinely retroactive. See Soriano II, 1996 WL 426888, at *19. Relying on the Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Attorney General stated that the amendment merely “alters both juris- diction and the availability of future relief’ and “does not impair a right, increase a liability, or impose new duties on criminal aliens.” Soriano IT, 1996 WL 426888, at *19. “7 Because we certify part of Yesil’s case, it is also premature for us to consider whether the district court was correct in its finding that Yesil had accumulated the seven years of LPR needed to qualify for a § 212 waiver even before passage of the AEDPA. *8 Since it is possible to decide this case on the ground that $ 440(d) was not intended to apply to cases pending when the section was enacted, we need not reach Navas’ broader argument that the statute should not apply to primary conduct—.e., criminal! convictions—that occurred prior to April 24, 1996. 54a Like the First Circuit in Goncalves v. Reno, 144 F.3d at 126, we reject the Attorney General’s position and hold that § 440(d) does not apply to cases initiated before the date of its enactment. The government contends that the statute is, on its face, ambiguous, and that the Attorney General’s inter- pretation in Soriano II is therefore entitled to consider- able deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).” But this is by no means obvious. For, as the Supreme Court recently explained: Under the formulation now familiar, when we ex- amine [an agency’s interpretation of a statute], we ask first whether “the intent of Congress is clear” as to “the precise question at issue.” Chevron, 467 U.S. at 842. If, by “employing traditional tools of statutory construction,” id. at 843 n.9, we deter- mine that Congress’ intent is clear, “that is the end of the matter.” id. at 842. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construc- tion of the statute.” Jd. at 843. Regions Hosp. v. Shalala, 118 8S. Ct. 909, 915 (1998) (citations abbreviated). “? We note here the First Circuit’s suggestion that “[t]he question of whether AEDPA § 440(d) applies retroactively may be viewed as a ‘pure question of statutory construction for the courts to decide,’ . . . a question that is ‘quite different from the ques- tion of interpretation that arises in each case in which the agency is required to apply [statutory] standards to a particular set of facts’ which involves the agency’s particular expertise.” Goncalves, 144 F.3d at 127 (citation omitted) (quoting JNS v. Cardoza-Fonseca, 4sv U.S. 421, 446, 448 (1987)). at Font aa tS OO es Tee Ee Ea ae . i yencty 5ba Accordingly, we turn to the initial step of the Chev- ron analysis—whether we can clearly discern Congress’ intent through “ ‘traditional tools of statutory construc- tion.” Regions Hosp., 118 8. Ct. at 915 (quoting Chev- ron, 467 U.S. at 842-43). For, if we can, “that is the end of the matter.” Chevron, 467 U.S. at 842. There is, of course, a strong presumption against retroactivity. See, e.g., Landgraf, 511 U.S. at 265 (“The presumption against retroactive legislation is deeply rooted in our jurisprudence.”); see also Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997) (holding that the AEDPA amend- ments to the provisions governing habeas corpus did not apply to pending noncapital cases). Thus, statutes are not ordinarily afforded retroactive effect unless “Congress has clearly manifested its intent” to have them so applied. Hughes Aircraft Co. v. United States ex rel. Schumer, 1178. Ct. 1871, 1876 (1997). Application of this presumption would require us first to consider whether the statute before us is genuinely retroactive. We are inclined to believe that itis. See Lindh, 1178S. Ct. at 2068; Goncalves, 144 F.3d at 128. But we need not decide the issue, since it is not necessary to rely on any presumption against retro- activity in the instant case. For, when § 440(d) is read in conjunction with the rest of the AEDPA and with ___ the legislative history of that statute, there is abundant direct evidence that the section was not intended to apply retroactively. Title IV of the AEDPA constricts the availability of relief from deportation for two categories of aliens— those involved in terrorism and those convicted of ordinary crimes. “Many of these provisions, with the notable exception of . . . § 440(d), contain explicit subsections stating that they apply retroactively.” 56a Goncalves, 144 F.3d at 128. For example, “[ujnder AEDPA § 418, alien terrorists are made ineligible for several different forms of relief from deportation.” Jd. (footnote omitted). And Congress included in that section an express provision stating that the section “shall take effect on the date of the enactment of this Act and shall apply to applications filed before, on, or after such date if final action has not been taken on them before such date.” AEDPA § 413(g). Congress’ use of explicitly retroactive language in that part of the bill, and its failure to employ any analogous language in the nearby and closely related § 440(d), by itself strongly indicates that Congress did not intend § 440(d) to apply retroactively. See Lindh, 117 8. Ct. at 20638 (undertaking an identical analysis in distinguishing between the capital and noncapital AEDPA amend- ments to the statutory provisions governing habeas corpus). Moreover, the AEDPA’s legislative history, far from cvineing a clear intent to make § 440(d) apply retro- actively, suggests precisely the opposite. The Senate version of the antiterrorism bill contained a measure restricting the availability of § 212(c) relief for criminal aliens. That same section of the proposed bill stated that “(t]he amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to cases pending before, on, or after such date of enactment.” 141 Cong. Rec. 87559 (daily ed. May 25, 1995) (quoting S. 735, 104th Cong. § 303(f) (1995)). The House version, on the other hand, explicitly made the provisions governing terrorist aliens retroactive, but contained no similar language as to criminal aliens. See H.R. 2703, 104th Cong. § 611(b), 612(f) (1996). atte Teh A ar Sa Tek st Cave asa CM ks hard aR %® OE, eat a ee eS er oia The compromise bill that came out of the conference committee combined aspects of both the House and Senate bills. And it notably did not contain the Senate bill’s language on retroactivity. Instead, it adopted the House version on this issue. This sort of “contrast in statutory language is ‘particularly telling’ when it represents a decision by a conference committee to resolve a dispute in two versions of a bill, and the com- mittee’s choice is then approved by both Houses of Congress.” Goncalves, 144 F.3d at 132 (quoting FEC v. NRA Political Victory Fund, 513 U.S. 88, 95 (1994)). Thus, traditional rules of statutory interpretation all point in one direction: § 440(d) should not apply retro- actively. Under Chevron, if by “employing [such] tools of statutory construction,” we are able to discern the plain meaning of a statute, that ends the inquiry. Chevron, 467 U.S. at 843 n.9. And “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” /d. To summarize, under ordinary rules of statutory con- struction, a statute that is silent with respect to retro- activity is not “ambiguous.” In the absence of clear evidence that Congress intended some other result. such a statute does not apply retroactively. Here, there is considerable evidence of congressional intent, but it all argues against retroactive application. Therefore, the meaning of the statute, in this respect, is not in doubt, and we owe no deference to the Attorney General’s interpretation of it. Accordingly, since Navas’ deportation proceeding was pending on the date 58a of the statute’s enactment, we hold that § 44d) does not apply to him.” Ill, CONCLUSION Following Jean-Baptiste, we hold that aliens con- victed of specified criminal offenses—who are pre- cluded by the AEDPA and the IIRIRA from seeking direct review of their deportation, exclusion, or removal orders in the courts of appeals—may file habeas peti- tions in the district courts pursuant to 28 U.S.C. § 2241. We also conclude that this habeas review includes the claims brought by Navas, one of the petitioners before us. We decline at this time to resolve the issue of whether the Attorney General is a proper respondent for habeas actions brought by aliens facing deportation. Instead, we certify to the New York Court of Appeals the question of whether the New Orleans INS District Director in Yesil and Mojica’s cases falls within the scope of the New York long-arm statute. Finally, we agree with the findings of the district court in Navas’ case that the provision of the AEDPA that limits the availability of § 212(c) waivers does not apply retro- actively to aliens whose deportation or exclusion pro- ceedings were pending on the date of its enactment, and hence does not preclude his § 212(c) petition. We further hold, due to the previous uncertainty in this area of the law, that petitioners like Henderson, who have filed for direct review of their deportation, 30 With respect to Mojica, we note that he was in exclusion proceedings when the AEDPA came into effect. The fact that the INS subsequently chose to terminate the exclusion proceeding against him does not affect his claim, because the instant that Mojica’s exclusion proceeding was ended, the INS started a deportation proceeding against him. Thus, Mojica’s “case” (like Navas’) was pending when the AEDPA came into effect. OO, OS GREY Re ae 59a exclusion, or removal orders, and who have received a stay of such orders during the pendency of their ap- peals, should have their stays continued for a reason- able time while they seek review pursuant to § 2241. Accordingly, we dismiss, for lack of jurisdiction, Henderson’s and Navas’ petitions for direct review. We affirm the decision of the district court with respect to Navas’ habeas petition. And we retain jurisdiction over Yesil and Mojica’s petitions. After we receive a response from the New York Court of Appeals on the question (certified in a separate order) of whether the New York long-arm statute applies in their cases, we will dispose of whatever issues remain in their appeals. In the interim, we continue to stay Yesil and Mojica’s deportation orders. 60a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Docket No. 97-4050 F'RANKLIN HENDERSON, PETITIONER [IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT Docket No. 97-4070 SAUL NAVAS, PETITIONER JANET RENO, AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL., RESPONDENTS bla Docket No. 97-2629 K;NGIN YESIL, PETITIONER-APPELLEE JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE; JOHN B. Z. CAPLINGER, DISTRICT DIRECTOR; NANCY HOOKS, OFFICER IN CHARGE, RESPONDENTS-APPELLANTS Docket No. 97-2599 (ZUILLERMO MOJICA, PETITIONER-APPELLEE JANET RENO, AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.., RESPONDENTS-APPELLANTS 62a Docket No. 97-2600 SAUL NAVAS, PETITIONER-APPELLEE VU. JANET RENO, AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL., 4 RESPONDENTS-APPELLANTS Present: Hon. Joseph M. McLaughlin, Hon. Guido Calabresi, Circuit Judge Hon. Richard Owens ”, District Judge Consolidated appeals from various district court deci- sions on petitions for habeas corpus and for direct re- view from decisions of the Board of Immigration Ap- peals. These causes came on to heard on the transcript of records from the district courts and were argued by counsel. ON CONSIDERATION WHEREOF, It is hereby ORDERED, ADJUDGED and DECREEED that the judgments of said district courts Nos. 97-4050 and 97- 4070 are dismissed; No. 97-2600 is affirmed; Jurisdiction in Nos. 97-2629 and 97-2599 are retained pending reso- lution of question certified to the New York Court of Appeals in accordance with the opinion of this Court. * The Honorable Richard Owen, United States District Court for the Southern District of New York, sitting by designation. 63a APPENDIX C U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE NEW YORK, NY Case No.: A 40198963 Docket: Varick St. IN THE MATTER OF SAUL NAVAS, RESPONDENT IN DEPORTATION PROCEEDINGS ORDER OF THE IMMIGRATION JUDGE This is a summary of the oral decision entered on May 9, 1996 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 deported to [ } Respondent’s application for voluntary departure was denied and respondent was ordered deported to _ _or in the alternative to_ | Respondent’s application for voluntary departure was granted until ___————i«,~ With an aiternate order of deportation to__———séor’ _ 64a |2) . +9 ‘ Tas : -~\y yoy +> ee Respondent $ application for asylum Was yeranted ( )denied ( )withdrawn (_)other. Respondent’s application for withholding of de- portation was ( )granted ( )denied ( )withdrawn other. ) * } > +) ‘ : ‘ +> ; . . 2" : e ] . Respondent’s application for suspension of depot tation was ( ) granted ( )denied ( )withdrawn Respondent’s application for waiver under Sec- I ion of the Immigration and Nationality . 4 . ma nt ] \ : ] — ] ace \ct was ranted ( )denied ( )withdrawn otnel 2, ve +9 o annlins ; . P ns O0 919(~p were nespondent Ss application If0} 1A\C, was X)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 appropriate documents necessary to give effect to this order. Respondent’s status was rescinded under Section NAL +0. 65a Respondent was advised of the limitation on discretionary relief for failure to appear as ordered in the Immigration Judge’s oral decision. s/ DONN LIVINGSTON Immigration Judge f\n J I I | is ON J NITED STATE CECUTIVE OFFI] oba APPENDIX D S DEPARTMENT OF JUSTICE CE FOR IMMIGRATION REVIEW IMMIGRATION COURT NEW YORK, NEW YORK No.: A 40 198 963 Mav 9, 1996 MATTER OF SAUL NAVAS-NG ING: ‘ ‘Ter RESPONDENT Immigration and Nationality Act, Section 241(a)(2)(A)(ii) . . . alien convicted of two (2) or more crimes involving moral] turpitude and not arising out a single scheme of criminal misconduct. Waiver of Inadmissibility pursu- ant to Section 212(c) of the Immi- gration and Nationality Act. BEHALF OF RESPONDENT: egal Aid Society 66 Montague Stre srooklyn, NY BEHALF OF SEI ohn Mulrooney, E ). (aa effect on him. He testified that because of the program he learned respect for himself and for others. The respondent quite clearly testified as to the remorse he feels for his criminal activity. He clearly realizes the pain that he has caused to himself and the pain that he has caused to the people around him that he loves. Regarding hardship, the respondent testified that there will be emotional devastation to himself and to his family if he is to be deported. The respondent testified that he received no disciplinary violations while in prison, which is a fact consistent with his graduation from the shock incarceration program. He also testified that since going to prison that his mother and step- father have moved to Florida seeking a better environ- ment. The respondent produced the testimony of Hugh Haddock. Mr. Haddock is a United States citizen. He is related to the respondent by marriage. He’s a retired sergeant in the United States Air Force, has known the respondent for a long time. He lives in Rome, New York,with his wife, two (2) children and a grandson. And he has offered to have the respondent come to live with him in Rome, New York. They would let him stay at his house. They help get him into college and get him some work. They believe it would be a new environ- ment. It’s clear to the Court that Mr. Haddock has taken a genuine interest in the respondent and will help the respondent if the respondent is allowed to remain in this country. Xiomara Shepherd also testified. She testified that the respondent is her cousin’s fiancé. She corroborated the respondent’s testimony regarding the fact that the respondent’s stepfather had hit him and had threw [sic] him out of their house. Again she expressed support for the respondent. Tara Simonette; she testified in the respondent's behalf. She indicated that she had worked together with the respondent at Antun’s Restaurant from Sep- tember of '94 until March of 1995. She was the respon- dent’s girlfriend at that time. She has visited him and kept in contact with him while he’s been incarcerated. She testified that the restaurant will hire him back and so his job is available to him if he wants it and if he’s allowed to remain in this country. The respondent also presented the testimony of his mother, Luz Smith. She basically corroborated the re- spondent’s testimony concerning the biographical facts in this case. She believes that it was her husband’s hos- tile treatment of the respondent which was a contribut- ing factor to the respondent’s criminal activity. She believes her son will change and she also believes that her husband will change and will be more supportive of the respondent in the future. She stated that the re- spondent can come and live with her in Florida as soon as he is “free”. She meant that he can come down there as soon as he is allowed to do so by the authorities. It does appear that the respondent may be required to reamin in the State of New York for a period of time following his release. If that occurs, and it appears that the respondent intends to either stay in the Bronx, New York, or in Rome, New York, for a period of time. If allowed to leave the State of New York and move to Florida, it is possible that he may take up his mother’s offer and move down there with her. The respondent also called Orintia Johnson who’s a cousin by marriage. Her testimony was somewhat abbreviated at the request of the Court due to the hour 14a of the proceedings. She offered to give full testimony. She did testify that she knows the respondent since he arrived in the United States. She’s involved in church activity and they will help the respondent if need be. Also, her husband is available to provide a positive role model to the respondent. In determining whether or not a favorable exercise of discretion is warranted, it’s necessary to balance the favorable and unfavorable factors in the respondent case. As the negative factors grow more. serious, it be- comes necessary for the respondent to introduce addi- tional offsetting favorable evidence which in some cases may have to involve unusual or outstanding equities. Such a heightened showing is required when an alien had been convicted of a serious drug offense, particu- larly one (1) relating to trafficking and sale of drugs. It may also be required when there has been a conviction of a single serious crime. A showing of unusual or out- standing equities is also required when there has been a succession of criminal acts, which together establish a pattern of serious criminal misconduct. Matter of Buscemi, 19 I&N Dec. 628 (BIA 19838). With regards to the negative factors in this case, the Court would note that the negative factors are con- centrated on the respondent’s criminal activity. The respondent has three (3) arrests. The Court would note that the arrests occurred over a period of about 1] months. It’s clear that the respondent was engaged during this period of time in criminal activity and this is a pattern of criminal behavior which is of great concern to the Court. Whether or not these three (3) arrests qualify as a pattern of serious criminal misconduct re- quiring a showing of unusual or outstanding equities is not entirely clear on this record. The respondent has it & 2 a a ; rk Ea A ; F — iva been convicted of two (2) felony offenses. Felonies, of course, are considered serious offenses. The respon- dent received a concurrent sentence of one and a half (1-1/2) to four and a half (4-1/2) years in prison. That’s a lengthy period of time indicating that the crimes are serious. Other negative factors are minor on this record. The respondent did testify to some marijuana use but it doesn’t appear to be serious. The respondent has not filed his Income Tax Returns; however, it’s not entirely clear that the respondent was required to file Income Tax Returns due to the amount of his income. He has been working; however, also his work is limited due to the fact that he’s a young man and spends much of his time also in school. On the positive side, the Court would note that the respondent’s length of residence is not much longer than the minimum required for eligibility for Section 212(c) relief; i.e., he has about nine (9) years. It begins at the age of 13 which the Court finds to be a relatively young age. The residence of nine (9) years beginning at the age of 13 is a substantial equity but not anything that qualified as unusual or outstanding. However, the Court does believe that the family ties in the United States do qualify as unusual or outstanding equities. The respondent has only one (1) remaining parent and she’s a permanent resident of the United States. It’s clear from watching the contact between the respon- dent and his mother when she was in court that it’s very close and emotionally intense relationship. The respondent also has all of his siblings in the United States. The respondent also has a girlfriend who is not technically classified as a qualifying relative. However, she does appear to be supportive and the Court has taken her support into consideration. Also there are aod a ORL | TTL Se ES 76a more distant relatives in the United States who have expressed support for the respondent and the Court is impressed that the respondent has a important close supportive family group here in this country. The respondent does have some family contacts back in Panama, but clearly the weight of those contacts are in the United States. Regarding hardship if the respondent is deported to Panama, it’s clear that it would involve serious emo- tional hardship to the respondent and to his close family members. There may be a degree of financial hardship also. The respondent has helped out to some extent with the family finances. However, his level of financial support does not appear to have gone much beyond contributing to his own expenses and so the Court feels that most of the hardship in this matter relates to emotional hardship to the respondent. The history of employment is a positive factor in the Court’s view. The respondent is a young man and has expressed by his conduct a willingness to work and to survive by the fruits of his own labor. Naturally, he’s relatively young and does not have an impressive em- ployment history. Nevertheless, the history is a solid willingness to work lawfully and legally in this country. There’s no indication of substantial property or busi- ness ties, community service or service in the armed forces of the United States. As mentioned above, there has been impressive outpouring of support from the respondent’s family and friends and from responsible community representatives. Regarding the question of rehabilitation, the Board of Immigration Appeals has indicated this is not an absolute requirement in all cases. However, it is “ordi- narily” a factor of positive exercise of discretion. As = i kd fia the Assistant District Counsel for the Government pointed out, the respondent has a close and supportive family group which has been in place since before the respondent’s criminal behavior commenced. As the Counsel for the Government pointed out, it’s hard to see how that group could provide more support than they have provided to the respondent in the past. Despite a close and supportive environment that the respondent has found himself in, the respondent, nev- ertheless, was engaged in criminal activity in the past. This group is available to help him in the future and the Court takes that into consideration. The Court is im- pressed with the fact that the respondent participated in the shock incarceration program. In general, the Court has credited the respondent’s testimony about his participation in the shock incarceration program. Particularly, the Court credits his testimony that he was a platoon leader; and his explanation as to why he was not featured as a platoon leader in the photograph is accepted by the Court as being truthful. The Court is concerned by the fact that the respondent has not acknowledged culpability for one (1) of the crimes for which he was convicted. It’s not simply that the respondent was convicted but the respondent, in fact, pled guilty in open court under oath to a judge of the New York State court system. So it’s clear that either the respondent was lying to the court when he pled guilty or the respondent is lying to the Immigration Court when he states that he didn’t commit the robbery. The Court naturally finds this disconcerting. This is a factor which makes it more difficult to esta blish rehabilitation in that the respondent has not accepted responsibility for the crimes for which he has been committed. Nevertheless, the Court acknow] edges that the respondent has accepted responsibility for other crimes that he has committed. I believe Sa + Lne ourt is precluded by the fact of the respondent’s conviction from accepting at face value his testimony that he did not commit the robberies. At least hypo- tically speaking, it's difficult to know what a respon ruilty when he was not guilty would say he Immigration Court. Nevertheless, this casts lestions and doubts upon the rehabilitation of efforts the Court has entertained those doubts and doe: those misgivings. Nevertheless, despite those ibts and misgivings, the Court believes that there is ype that the respondent will be able to lead a lav biding life in the future. The Court is Opt imistie that he respon weit has learned from his time in prison. Thi ourt is impressed that the respondent acknowledges the pain that he has caused the people who he loves and that he would be reluctant to engage in ‘activity which would cause that pain in the future. Therefore, even though the Court does not make a finding that rehabili tation has been clearly shown on this record, the Court does believe that there is some optimism that reha bilitation will be completed as time goes by and that the res} ae nt, if given the opportunity, will be able to onstrate rehabilitation in the future. Therefore, after balancing all the positive and nega tive factors in this case, the Court believes that the respondent does merit a favorable exercise of discre- tion. The Court finds that the positive factors outweigh the negative factors. In the opinion of the undersigned, purpose of Section 212(c) relief is to allow a re- spondent one (1) opportunity to reform his life and to resume his place in society as a law-abiding person. The Court believes that the ameliorative purposes of 212(c) relief are satisfied by granting the relief (Ya in this case. The respondent is a young man. He has his whole life ahead of him. He seems to recognize that his life is in his own hands and the Court feels that it’s probable that he will take this opportunity and deal with it maturely and acquit himself properly in the future. Specifically, the Court finds that the crimes for vhich he was committed are serious but do not re q ure sual or outstanding equities. However, the Court loes 3 acknowledge that’s a close issue. Even if the ‘imes were serious enough to require iding has been made by the unusual or out inding equities, such a fi! ind the balancing of equities does balance in the our r of the respond nt as indicated above. Theref ore n light of the foregoing, and after having fully con idered all of the evidence of record, ie followi1 ORDER bE RESPONDENT'S } REQUEST FOR relief und 212(c) of the Immigration and Nationality Act | Mi LIN \TED R \N ‘ ) and these proceedi 17s are TER ATED THIS May 9th. 1996. Sa APPENDIX E A40 198 963 - New York Date: |[Mar. 14, 1997] e: SAUL NAVAS-NG EPORTATION PROCEEDING PrRAL , BEHALF OF RESPONDENT Kam Wong, Esquire egal Aid Soe lety, [Immigration Unit 166 Montagu e Street. Sth Kloor Brooklyn, New York 1120] PER CURIAM. You are seeking relief from deporta tion under section 212(c) of the Immigration and Na- tionality Act, 8 U.S.C. § 1182(c). However, you are statutorily ineligible for such relief as an “alien who is deportable by reason of having committed any eae offense covered in section 241(a)(2)(A)(iu1), (B), or (D), or any offense covered by section 241( OMAK for which nee predicate offenses are covered by section 241(a)(2)(A)(i).” See Antiterrorism and Effec- ve Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (““AEDPA”) § 440(d); Matter of Soriano, nterim Decision 3289 (A.G., Feb. 21, 1997). Accord- eat the appeal of the Immigration and Naturalization Sla Service from the Immigration Judge’s grant relief is sustained. If you conceded deportability prior to the enactment of AEDPA on April 24, 1996, in reliance on the aval ability of section 212(c) relief, you may have proceed ings reopened for the limited purpose of contesti: Aid deportability. See Matter of Soriano, supra. If \ wish to have proceedings reopened for this limited pu pose, you must submit a signed written request to that effect directly to the Board, at the address on th attached letter, without payment of any fee. Pleas include a copy of this decision with any such reques' and mark “SORIANO REOPENING” on the request an on the outside of the envelope. You must serve a cop’ of such request on the Immigration and naturalizat Service. FURTHER ORDER: The respondent leported to Panana. f WU eames ee 2 a ea tt EAD Ia 78 APPENDIX F UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Nos. CV 97-1085(JBW) CV 97-1869(J BW) (ZUILLERMO MOJICA, PLAINTIFF V. JANET RENO, AS ATTORNEY GENERAL OF THE UNITI STATES; DORIS MEISSNER, AS COMMISSIONER OF THE IMMIGRATION AND NA TURALIZATION SERVICE; EDWARD MCELROY, AS NEW YORK DISTRICT oo OF THE IMMIGRATION AND NATURALIZATION SERVICE; JOHN B.Z. CAPLINGER, AS NEW ORLEANS DI don a T DIRECTOR OF THE IMMIGRATION AND N, = 'RALIZATION SERVICE; IMMIGRATION AND YATURALIZATION SERVICE, RESPONDENTS SAUL NAVAS, PLAINTIFF is ST RENO, AS ATTORNEY GENERAL OF THE UN D peace De ORIS MEISSNER, AS pariah OF THI IMMIGRATION AND NATURALIZATION SERVICE; preg: D MCELROY, AS NEW YORK DISTRICT — = THE IMMIGRATION AND NATURAL — SEI ): IMMIGRATION AND NATURALIZATI( SERVICE, RESPONDENTS [Filed: July 11, 1997] NSTEIN, Senior District Judge. dd \ Ascretionary Relief fro; Depo) ( d the Recent Amendment 8SGa misdemeanor petty theft or public transportation fare evasion charges—turnstile jumping in the New York City subway system leading to a “theft of services” misdemeanor conviction is considered a crime of “mora] turpitude”—is now subject to automatic deportation without any opportunity to present to an Immigration Judge any mitigating equities. Under the Attorney General’s view, any such person could now be picked up off the streets for crimes of this nature committed many years ago, torn from his or her family, job or business. and deported without the right to seek a waiver with an Immigration Judge on section 212(c) grounds. Immediately after the A KE DPA’s enactment, the Immigration and Naturalization Service (INS) began arguing that section 440(d) applied in al] pending and Subsequently initiated deportation cases. regardless of whether the conduct or events triggering the section’s restrictions pre-dated the AEDPA. This position was rejected by the Board of Imm; gration Appeals (BIA) in a June 27, 1996 decision. The BIA held that section 440(d) may not be applied retroactively to an individual who Sought 212(c) relief prior to the AEDPA’s enactment on April 24, 1996. Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (BIA June 27, 1996), The INS sought review of the BIA’s Soriano decision by the Attorney General. On September 12, 1996, the Attorney General vacated the BIA’s decision without providing for public notice or hearing contrary arguments. Some months later, she issued a brief written decision, unsupported by relevant authority, concluding that section 440(d) should be applied to all pending 212(c) waiver Cases, even in cases where it was O(a triggered by events pre-dating the AEDPA’s enact- ment. The Attorney General found that “nothing in the language of the newly enacted statute, AEDPA § 440(d), specifies either that it is to be applied in pending deportation proceedings, or that it is not to be.” Matter of Soriano, Int. Dec. 3289, 1996 WL 426888, at screen page 41 (beginning at screen page 37, AG Op. Feb. 21, 1997). The Attorney General ipse dixit decided in favor of retroactivity even in pending cases. Although of no direct relevance in the instant case, Congress has enacted further statutory reforms related to section 212(c). Specifically, section 212(c) was re- pealed, effective April 1, 1997, by the “Illegal Immigra- tion Reform and Immigrant Responsibility Act of 1996” (IIRIRA), Section 304(b), Pub. L. No. 104-208, Division C, 110 Stat. 3009 (1996). The IIRIRA replaced section 212(c) relief with a new form of prospective relief for lawful permanent residents called Cancellation of Removal. See IIRIRA § 304(a)(3) (new INA § 240A(a)). In general, the repeal and new cancellation relief in the IIRIRA does not apply in proceedings initiated prior to April 1, 1997—as were petitioners’ proceedings. See IIRIRA § 309(c)(1) (providing that general rule is that the IIRIRA does not apply to deportation proceedings commenced before April 1, 1997); IIRIRA § 309(c)(2) and (3) (providing the Attorney General with the option to apply IIRIRA law in certain deportation cases pending on April 1, 1997); new 8 C.F.R. § 240.40, pub- lished at 62 Fed. Reg. 10371 (March 6, 1997) (following general rule only); and new 8 C.F.R. § 240.16, published at 62 Fed. Reg. 10374 (March 6, 1997) (indicating that at some undetermined time in the future, the Attorney General may pursue options to apply IIRIRA law in certain cases). Ce ee Pee, ae ey ee a ee ae Yla The government now argues that section 440(d) applies to all legal permanent residents in deportation proceedings on or after the date of enactment of the AEDPA, regardless of when they committed or were convicted of an offense covered by that section. Under the government’s reading, legal permanent residents. many with relatively minor convictions, would now be Subject to automatic deportation even if the conduct and conviction took place years or decades ago and even { section 212(¢) proceedings were pending when the AEDPA was adopted. B. Saul Navas Petitioner Navas is a twenty-two year old native and citizen of Panama who lives in St. Albans, Ney York, within the Eastern District of New York. He was admitted to the United States as a legal permanent resident on July 10, 1987 when he was twelve years old. Since the time of his admission into the United States over nine years ago, he has continuously resided here. Navas’s entire immediate family, which includes his mother and step-father, one brother, two half siblings and five step-siblings, resides in the United States. All members of his family are either United States citizens or legal permanent residents. In Panama, Navas has no immediate family and no means of support. Navas attended Junior High School and High School up to the twelfth grade in Queens, New York. There- alter he worked in New York City as a delivery boy, as a Stock boy, as a building maintenance worker, and as a waiter, On May 2, 1995, Navas Was sentenced in the New York Supreme Court. Queens County as a result of | wo guilty pleas to offenses committed in Queens. In the ~11 o ye | e 244. ) ys) ' \ q ZY (1994 ] > > + ss dictate tha KNOW Whai i Orang Stock Yar { ( and on and venue 1S proper under sections 1591 and 17 P2227 >) i, et - S mie “ . ti OL titie 2d, 1t alSO 18 competent to issue a deelar: judgment. 28 U.S.C. §§ 2201, 2202; Charles A. ight. Law of Federal Courts 712-20 (5th ed. 1994). The government contends that this court lacks bject matter jurisdiction over these petitions to ‘onsider the retroactivity of AEDPA section 440(d). Relying on jurisdiction-modifying provisions of the \EDPA and the IIRIRA, the government asserts that the only remaining judicial review relating to fina! orders of deportation for legal permanent resident riminal aliens such as petitioners is in the court of ippeals, and that such review is available only for bstantial constitutional claims. As the petitioners’ laims are not of the substantial constitutional variety, the government avers, they cannot be reviewed by any bb a2) Mil 139a Petitioners, in contrast, assert that this eourt does have jurisdiction to consider their claims. They point out that the theory of jurisdiction that the government urges upon the court would bar them from obtaining judicial review on a straight question of law—the pro- per statutory construction of AEDPA section 440(d). Petitioners argue that the refusal of the Immigration Judge (with respect to Mojica) and the Board of Immi- gration Appeals (BIA) (with respect to both peti- tioners) to consider the merits of petitioners’ section U.S. > most basic tenets of 140a Cranch) 137, 2 L.Ed. 60 (1803), assigned to the judiciary the final responsibility for interpreting the law. Petitioners’ argument is persuasive. The govern- ment is incorrect as a matter of statutory construction. Congress could not have intended the result that the government’s position ordains. The court retains subject matter jurisdiction under ts general habeas corpus powers, which Congress did not eliminate. The statutory changes wrought by the \EDPA and the IIRIRA bar the judicial review that : was once available pursuant section 106 of the Immi- oration and Nationality Act, section 1105a(a)( Title 8 of the United States Code. Se e ee § 401(e) eliminating the old INA § 106, 8 U. § 1108 ra(a) (10) AEDPA § 440(a) (Dr ernene 7 ‘or a new IN A § 106, 8 U.S.C. § 1105a( (10) ; IIRIRA § 306(b)-(c) (repealing INA § 106,8 U.S C § 1105 a With respect to actions filed yn or after Sept. 30, 1996). While the amendments anifest Congress’s desire to streamline the deporta- tion process, the AEDPA and the IIRIRA leave undis irbed the OA HET authority of federal district ‘ourts to entertain habeas petitions under section 2241 ‘Title 28. The reasons for this conclusion are demon- strated below. Because this issue is one of statutory interpretation, petitioners’ constitutional arguments based on the Sus- anraeg Clause, the Due Process Clause, and the Sepa- ation of Powers principles embodied in Article III of he Constitution need not be reached. But see, Note, The Constitutional Requirement of Judicial Review for 1 Pyare hes Deportation Decisions, 110 Harv. L. Rev. 1850 (1997). 10) of (1) Statutory Background (a) Section 2241 of Title 28 = section 2241 of Title 28 of the United States | establishes federal courts’ power to grant the habeas corpus. It provides in relevant part that: a) Writs of habeas corpus may be grante L he #1 qd Ov rié Supreme Court, any justice thereof. the distric courts and any circuit judge within their respective jurisdictions. i The Writ of habe as Corl prisoner unless 25 U.S.C. § 2241(a), (c)(1). (e)\(3 . section 22 direct descendant of Section 14 of the Judici ry A 1739 and the 1867 Act which expanded the scope o writ. See, Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. & Act of Feb. 5, 1867, ch. 28, 14 Stat. 380; see also Fi Turpin, — US. ’ , 1I6S. ( , 135 L.Ed.2d 827 (1996). Te em 142a (b) INA Section 106(a), The AEDPA, and The IIRIRA Legal permanent residents have always had the right to test the legality of their deportation orders before an Article III court. Until the enactment of the 1952 immigration Act, the procedure for doing so was by means of a habeas corpus action in district court. Se¢ Heikkila v. Barber, 345 U.S. 229, 235, 73 S. Ct. 603, 605- 06, 97 L.Ed. 972 (1953) (““Now, as before, [an alien] may attack a deportation order only by habeas corpus.”). \fter 1952, an alien could challenge a deportation order in habeas actions as well as in an action for declaratory relief pursuant to the Administrative Procedure Act \PA). See Shaughnessy v. Pedre iro. 349 U.S. 18. 75S. 591, 99 L.Ed. 868 (1955). The Immigration Act of 1961 amended the INA, antially altering the system of judicial review and tablishing the regime that remained in place until the ‘ent amendments. Specifically, the 1961 Act sought eliminate the APA declaratory actions. In their stead tion 106(a) of the INA provided that petitions for iew before the courts of appeal “shall be the sole and sive procedure for judicial review of all final CAL rders of deportation except” as provided elsewhere in section. 8 U.S.C. § 1105a (amended Apr. 24, 1996 by ] » A ] { ‘ ang vat tirzvolyw y alad UPA tOl(e), 440(a), and prospectively repealed 1996 hy IIRIR \ S 206(h -(¢@)). Sub-se tA? 143a a)(10) of section 1105a authorized habeas corpus review: (10) Habeas ( orpus [AJny alien held in custody pursuant to an ne of deportation m: iy obtain judicial re. view thereof by habeas corpus proceedings. 5 U.S.C. § 1105a(a)(10) (amended Apr. 24. 1996 by AEDPA §§ 401(e) , 440(a), and prospectively repealed Sept. 30, 1996 by IIRIRA § 306(b)- On April 24, 1996, the AEDPA became law. Section ‘Ol(e) of the Act. entitled “Elimination of C ustody Review by Habeas C orpus,” rg uck the habeas cor pus provision of INA section L06(a AEDPA Section 440(a) substituted new language: hae} final order of de -porta- “on against an alien who is de portable by reason of ving committed [certain crimes] shi r not be subject to review by any court.” AF DPA § 440(: ‘ 110 Stat L276-77 (1996) (ame nding and codified S U.S.C L105a(a)(10) which paragraph was prospectivel re ealed sept .d0, ] 1996 by [IR [IR A§: sO06(t y)-(@)). TY} inere was no mention of section 2241 of Title 2s e AEDPA. The Illegal wee ration Reform and Immigrant esponsibility Act of 1996 ( IIRIRA”) was enacted o1 eptember 30, 1996 and f{ further amended the proc lures governing Judicial review of de portation orders ge nerally ITRIRA § 506(a), Pub. L. No. 104-208, 110 . t-é Stat. 3009 (Sept. ¢ 30, 1996). The IIRIRA contains two sets of provisions, transitional] and permanent. The per anent changes made } by the Act govern de portation Yr) ' a ¥ . *1] Y roceedings commenced afte April l, 1997 See 144a LIRIRA § 309(c). The transitional provisions, which are not codified in the United States Code, apply to deportation proceedings commenced before April 1, 1997, where the deportation order became administra- tively final after October 30, 1996. See § 309(c)(4). A deportation order that became administratively final on or before October 30, 1996 is governed by the Immigra tion and Naturalization Act, as amended through Sep- tember 30, 1996. , ‘ Because petitioners’ deportation orders became ad- ministratively final after October 30, 1996, their cases are governe .d by the IIRIRA’s transitional rules, spe ically section 309(c)(4)(G). Section 309(¢)(4)(G) pro- vides that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed” one of the — ‘rimes. Because each of the petitioners committed one of the enumerated crimes, they are subject to section 309(¢)(4)(G). Neither the I[RIRA’s transitional rules, nor its =a manent provisions, specifically address or amend the habeas abyss f the district courts under section 2241 of f Title 2 (2) Habeas Corpus Jurisdiction Under Section 2241 Not Repealed [he interplay between section 2241 and the recently ‘nacted modifications of judicial review implicates the clear statement rule—a rule governing repeals of habeas jurisdiction. Almost one-hundred thirty years igo, and again last year, the Supreme Court explicitly admonished that congressional intent to repeal habeas jurisdiction must be express and that “[rJjepeals by l tba mplication are not favored.” Felker Uv. Turpin, U.S. ——, ——.. 114 S. Ct. 2333, 2338. 135 L..Ed.2d 827 (1996): see also Ex Parte Yerger, 75 US. 85, 105. 19 L.Ed. 332, 8 Wall. 85 (1868). In both Felker and Yerger the Court refused to read jurisdic tion-modifying stat- utes enacted by Cong Tess as repealing other avenues of habeas jurisdiction that had not been specifically abrogated, much less mentioned, by those jurisdiction- modifying statutes, Only upon a clear statutory statement— a specific, express and unambiguous direc- tive—can a court conclude that Congress meant to repeal an independent avenue of habeas jurisdiction. Such a clear statement js absent from the governing $ } statutes In the present case. Yerger involved the scope of a Congressional lim} tion on the appellate jurisdiction of the Supreme ourt. In 1867 Congress expanded power of the federa ourts to Issue writs of habeas corpus, allowiag suc! vrits “in all cases where any person may be restrained ft his or her liberty in violation of the constitution, or iny treaty or law of the United States.” See Act of Feb. , 1867, ch. 28, 14 Stat. 385. The same legislation also expanded the appellate jurisdiction of the Supreme Court, authorizing appeals from any final decision of th ircuit courts on a habeas petition. See id., 14 Stat. 3 Steak Che following year Congress retreated and revoked this appellate jurisdiction. repealing “ ‘so much of th L867] act as authorized an appeal from t] idgment of the Circuit Court to the Supreme Court of he United States.’” See Ex Parte Y, rger, 75 U.S. 8F 7,19 L.Ed. 332, 8 Wall. 85 « 1868) (quoting Act of Mar 1868, ch. 34 § 2, 15 Stat. 44). t 146a The question considered by the Yerger Court was whether the 1868 Act also revoked the Supreme Court’s power to entertain habeas petitions under section 14 of the Judiciary Act of 1789. The Court held that it did not, explaining that the text of the 1868 Act addressed only jurisdiction over appeals conferred by the 1867 Act and that it made no reference to habeas jurisdiction under the 1789 Act. Last year in Felker the Court—in considering the validity of an AEDPA jurisdiction-modifying provision unrelated to the provision here at issue—reaffirmed the rule against repeals by implication. Specifically, it held that while the AEDPA “gatekeeping” provision— section 106(b)(3)(E)—legitimately precluded review by appeal or petition for certiorari of a denial of an appli- cation for leave to file a second or successive habeas petition in district court, the Act could not be read to foreclose the section 2241 avenue of original habeas review. Noting the parallels to Yerger, the Court unanimously held that since the AEDPA “makes no mention of our authority to hear habeas petitions filed as original matters in this Court . . . we decline to find a .. .repeal of § 2241 of Title 28 . . . by implication .”’ Felker v. Turpin, —— USS. , 1168. Ct. 2333, 2338, 1385 L.Ed.2d 827 (1996). The instant case involves an issue not dissimilar to those confronted by the Yerger and Felker Courts: whether recent jurisdiction-modifying amendments to the INA repeal by implication an independent and unrelated statutory source of jurisdiction—section 2241 of Title 28—thereby depriving courts of this long- established habeas jurisdiction. 147a As noted, the AEDPA amended the INA, with section 401(e) deleting the habeas provision providing a method for judicial review of deportation orders by habeas corpus proceedings and section 440(a) inserting new language establishing that deportation orders against aliens convicted of certain crimes “shall not be subject to review by any court.” See AEDPA §8§ 401(e). 440(a). Similarly, IIRIRA section 309(c)(4)(G)—the interim amendment of INA section 106—provided that “there shall be no appeal permitted” in the case of certain criminal aliens and new INA section 242(¢), codified at section 1252 of Title 8 of the United States Code, added by IIRIRA section 306, provided that “no court shall have jurisdiction . . . except as provided in” this section. See IIRIRA $§ 306, 309. It is clear that. by these provisions, Congress intended to speed the process of deportation of criminal aliens by restricting Judicial review of final orders of deportation. Nevertheless, as was the case in Yerger and Felker. there is no indication that Congress intended to take the dramatic—and arguably unconstitutional step of repealing the habeas statute with roots traceable to our nation’s beginnings. See, é.g., Act of Sept. 24, 1789. ch. » lar 1+ inn? aesired to repeal section 2241, or render it ina] lL] , i ; ue - *4 able to cnallienges to deportation orders, 1t wo } ry 1, » > , ery + . 4 ] T+ miiat Ken tne necessary SstepS tO @O so. itl MUS : ] + , —- . 7 1f,;] "+h 2 1+ resumed that Congress was minatul oI tne necessl to that elfect. Congress 1s pre a clear Statement imed to “know the law.” See generally, Director | WCP v. Perini North River Associates, 459 U.S. 297, 19, 103 S. Ct. 634, 648, 74 L.Ed.2d 465 (1983); see als imnon v. University of Chicago, 441 U.S. 677, 696-97 9 S. Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979) (same Felker Court acknowledged, Congress know yw to repeal habeas jurisdiction. Where it intends to 1 . . : 7 17 states that intention expressly. See Felke the — U.S. —_. . 1168S. Ct. 2333, 2338. 135 1.Ed.2d 827 (1996 ) (AEDP A section 10 3 expressly eliminated original habeas Jurisdiction in the courts of appeals by amending Federal Rules of Appellate P eae ). This—as Congress is doubtless aw are—is ] T 4 ne purpose of the clear statement rule: courts do not have to resort to divining phantom or unarticulated congressional intentions to repeal habeas jurisdiction where there is st: itutory silence. In the wake of the AEDPA and the IIRIRA, section 224] remains a viable basis for habeas jurisdiction. Other cases inte rpreting the AEDPA amendme nts are consistent with this conclusion. Courts have noted that despite the AEDPA’s withdrawal of jurisdiction some means of seeking judicial relief remainfs ivailable.” Yesil v. Reno, 958 F-. Supp. 828, 837 & n. 7 S.D.N.Y. 1997) (citing cases): see Hincapie-Nieto v. INS, 92 F.3d 27, 30-31 (2d Cir. 1996) (“at least some ivenue of judicial relief remains available”: “we e xpress no opinion on the nature of the reme dy or the scope of ‘eview that remains available in any court”); Kolster v NS, 101 F.3d 785, 790-91 (1st Cir. 1996) i (Same); wzar-Haro v. INS, 95 F.3d 309. 31] (3d Cir. 1996 do not foreclose judicial review of { all claims 0) liens arising in the course of bee rears proceec ngs’), cert. denie d,—— are . 1842, 137 L.Ed.2d 1046 (1997). District courts ida: the : eur as effect on section 2241 jurisdiction have been mest unanimous in their agreement that section 224] is available and has n [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1020%3A2. Public record. Not legal advice.