Richardson v. INS

162 F.3d 1338

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 22, 1998
• Docket: 98-4230
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 12/22/98 THOMAS K. KAHN No. 98-4230 CLERK ________________________

D. C. Docket No. 97-3799-CIV-DAVIS

RALPH RICHARDSON, Petitioner-Appellee,

versus

JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commission, Immigration and Naturalization Service; ROBERT WALLIS, Acting District Director, Immigration and Naturalization Service; UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; UNITED STATES DEPARTMENT OF JUSTICE; and EXECUTIVE OFFICE OF IMMIGRATION REVIEW, Respondents-Appellants. ________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (December 22, 1998)

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HULL, Circuit Judge: The Court VACATES and WITHDRAWS the previous opinion dated

December 9, 1998 and substitutes the following opinion. While the remainder of

the opinion stays the same, the Court has revised footnotes 88, 137, and the third

paragraph in Section IV(H) and added the following subsequent history to the

citations of Hose v. INS, 141 F.3d 932 (9th Cir. 1998): withdrawn and reh’g en

banc granted, ___ F.3d ___, No. 97-15789 (9th Cir. December 2, 1998). Although

the Ninth Circuit’s order granting the rehearing en banc was dated December 2,

1998, the order did not appear in the on-line subsequent history of Hose until

December 10, 1998 - the date after the Court published its original decision in this

case.

2 TABLE OF CONTENTS

I. FACTS AND PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. RICHARDSON’S HABEAS CORPUS PETITION . . . . . . . . . . . . . . . . . . . . . 8 III. NEW IMMIGRATION LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. “Removal” Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Permanent Resident Criminal Aliens Returning From Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. Supreme Court’s Fleuti Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 D. Detention of Criminal Aliens “Seeking Admission” . . . . . . . . . . . . 19 E. Detention Under TPCRs in IIRIRA § 303(b)(3) . . . . . . . . . . . . . . . 22 F. Detention Under INA § 236(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 G. INA § 236(e) Restricts Review of Bond and Parole Decisions . . . . 29 H. Procedures for Removal Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 31 I. IIRIRA Consolidates Judicial Review in the Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 B. No Constitutional Infirmities to Avoid . . . . . . . . . . . . . . . . . . . . . . . 47 C. Eleventh Circuit’s Boston-Bollers Decision . . . . . . . . . . . . . . . . . . . 51 D. Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 E. Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 F. Suspension Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 G. Second Circuit’s Henderson Decision . . . . . . . . . . . . . . . . . . . . . . . 66 H. Ninth Circuit’s Magana-Pizano Decision . . . . . . . . . . . . . . . . . . . . . 69 I. Seventh Circuit’s Yang Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 J. INA §§ 242(b)(9) and (d) Require Final Removal Order . . . . . . . . . 83 K. Alternative Review Under INA Satisfies Suspension Clause . . . . . 87 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

3 This appeal arises from a district court’s order granting a writ of habeas

corpus to a thirty-year permanent resident alien petitioner with a cocaine-

trafficking conviction who was detained as he attempted to enter the United States

after a two-day trip to Haiti. The INS district director denied bond pending the

outcome of petitioner’s removal proceedings. Petitioner filed his habeas corpus

petition under 28 U.S.C. § 2241 asserting that the INS’ illegal detention, denial of

admission, and denial of a bond hearing violated his constitutional and statutory

rights as a lawful permanent resident alien.

This case presents issues of first impression in this Circuit regarding subject

matter jurisdiction under the Immigration and Nationality Act (“INA”), as

amended by the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”). After review, we find the district court lacked jurisdiction over

the habeas corpus petition. We reverse and order the district court to dismiss the

petition.

I. FACTS AND PROCEDURAL HISTORY

Appellee-petitioner Ralph Richardson (“Richardson”) is a native and citizen

of Haiti who has been a lawful permanent resident alien in the United States since

1968. In 1984, Richardson was convicted of carrying a concealed weapon. In

1990, Richardson was convicted of trafficking cocaine and served five years in

4 prison.1 The parties do not dispute that Richardson could have been deported

under the immigration laws in existence in 1990 and could be deported under

current immigration law but that deportation proceedings were never initiated.2

On October 24, 1997, Richardson left the United States and traveled to Haiti.

On October 26, 1997, Richardson attempted to re-enter the United States at the

Miami International Airport, but was not allowed to enter. At the initial

immigration checkpoint, Richardson presented an expired “I-151” card, also called

an Alien Resident Card, and a valid Haitian passport. Richardson’s use of an

expired card caused him to be referred to a secondary immigration inspector for a

more detailed interview regarding his eligibility to enter the United States.

Through this inspection, the INS concluded that Richardson, although a

lawful permanent resident alien, was no longer eligible to enter the United States

under the new immigration laws due to his prior criminal convictions. During the

inspection, Richardson admitted his criminal history including his cocaine-

1 Richardson initially served only three years of his five-year sentence on the drug- trafficking offense. In 1993, he was arrested for violating his probation by eluding police and served the remainder of his sentence in prison. He was released from prison on January 11, 1994. 2 8 U.S.C. § 1251(a)(1)(1990); 8 U.S.C. § 1182(a)(10)(1990); 8 U.S.C. § 1227(a)(2)(b)(i) (Supp. 1998).

5 trafficking conviction, an aggravated felony under INA § 103(a)(43).3 Richardson

was taken to the Krome Detention Center, Miami, Florida, and immediately was

placed in “removal” proceedings under INA § 240.4

On November 13, 1997, Richardson’s attorney sent a letter to the INS

district director in Miami requesting release from custody. On December 4, 1997,

the district director denied Richardson’s request.

On November 18, 1997, while awaiting the district director’s response,

Richardson also sought release on bond with the immigration judge at Krome.

New INA § 101(a)(13)(C)(v)5 provides that a lawful permanent resident alien,

returning from abroad, is not deemed to be seeking an official “admission” to the

United States, and can be admitted summarily, unless the alien has been convicted

of certain crimes. Since Richardson’s conviction for trafficking cocaine is a crime

described in INA § 101(a)(13)(C)(v),6 the immigration judge found that

3 8 U.S.C. § 1101(a)(43) (Supp. 1998). This opinion utilizes the section numbers of the INA and IIRIRA because the text of those statutes references INA and IIRIRA sections and because certain parts of IIRIRA are not codified. See footnote 42 infra. At the Miami International Airport, the immigration inspector prepared a four-page sworn statement signed by Richardson that outlined his criminal history. 4 8 U.S.C. § 1252 (Supp. 1998). An INS “notice to appear,” dated October 26, 1997 was served on Richardson alleging that he was an arriving alien who was a citizen of Haiti, not the United States, and was subject to removal due to his criminal convictions. 5 8 U.S.C. § 1101(a)(13)(C)(v) (Supp. 1998). 6 Id.

6 Richardson was “seeking admission” to the United States, that aliens “seeking

admission” at the border can request release only from a district director, and that

immigration judges lack jurisdiction over such requests.7 On November 24, 1997,

the immigration judge denied Richardson’s release request for lack of jurisdiction.8

On November 26, 1997, Richardson filed in the district court a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2241. Richardson filed an amended

petition on December 10, 1997. Richardson’s petition asserted, inter alia, that he

was being illegally detained and, at a minimum, was entitled to a hearing before an

immigration judge on his release request and not merely consideration by the

district director. The INS moved to dismiss Richardson’s petition for lack of

subject matter jurisdiction.

On December 30, 1997, the magistrate judge issued a report finding

statutory habeas jurisdiction under 28 U.S.C. § 2241 and recommending that

7 See 8 C.F.R. § 103.1(g)(2)(ii)(B) (1997); 62 Fed. Reg. 10312, 10360 (1997) (codified in 8 C.F.R. § 236.1(c)(5) (Jan. 1, 1998)); see footnotes 38 and 40 infra. 8 The proceedings before the immigration judge on Richardson’s release request were not recorded or transcribed. On November 24, 1997, the immigration judge signed a form bond order with blanks to check for granting or denying release. The immigration judge checked the box stating that the request for release was denied and wrote “arriving alien” at the bottom of the form. Although nothing in the record clearly establishes that the basis of the immigration judge’s decision was a lack of jurisdiction, both parties agree that the immigration judge did not conduct a bond hearing, although witnesses were present ready to testify, and that the immigration judge indicated lack of jurisdiction over Richardson’s release request due to his status as an alien seeking admission.

7 Richardson be given “an individualized hearing, within 14 days of any order

adopting this recommendation at which time the immigration judge should

considered [sic] whether petitioner is an arriving alien, and if not, whether and

under what circumstances petitioner may be released from custody pending the

completion of deportation proceedings.”

On January 8, 1998, Richardson’s removal proceedings concluded with the

immigration judge’s order that Richardson be removed to Haiti.9 After a hearing

during which Richardson testified and was represented by counsel, the immigration

judge found that, because of his criminal convictions, Richardson was

“inadmissible” under INA §§ 212(a)(2)(A)(i)(I), 212(a)(2)(A)(i)(II), and

212(a)(2)(C)10 and not entitled to cancellation of removal under INA § 240A(a).11

9 In the Matter of Ralph Richardson, Respondent: In Removal Proceedings, Case #A17- 566-876 (Immigration Court, January 1, 1998). 10 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1182(a)(2)(A)(i)(II), & 1182(a)(2)(C) (Supp. 1998). 11 8 U.S.C. § 1229b (Supp. 1998). Denying cancellation of removal under INA § 240A(a), the immigration judge found that Richardson was statutorily ineligible due to his cocaine-trafficking conviction, deemed an aggravated felony under INA § 101(a)(43). 8 U.S.C. § 1101(a)(43) (Supp. 1998). INA § 240A (a), 8 U.S.C. § 1229b(a) (Supp. 1998), provides that the “Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien – (a) has been an alien lawfully admitted for permanent resident for not less than five years, (2) has resided in the United States continuously for seven years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” (Emphasis supplied.)

8 Richardson’s appeal of the removal order to the Board of Immigration Appeals

(“BIA”) remains pending.12

On February 19, 1998 and over the INS’ objections, the district court

adopted the magistrate judge’s report and recommendations, denied the INS’

motion to dismiss and granted Richardson’s petition. The district court ordered the

immigration judge to hold “an individualized hearing within eleven (11) days from

the date stamped on the Order, at which time the Immigration Judge should

determine whether Petitioner is an arriving alien, and if not, whether and under

what conditions Petitioner may be released from custody pending the completion

of deportation proceedings.”

This appeal ensued. On February 23, 1998, this Court granted the INS’

motion to stay the district court’s order pending this appeal. Richardson remains in

custody.

II. RICHARDSON’S HABEAS CORPUS PETITION

Before examining the new immigration laws, we outline Richardson’s

claims. In this case, Richardson does not dispute that he is an alien, that he has a

cocaine-trafficking conviction, and that cocaine trafficking is a basis for both

12 Richardson’s brief was filed with the BIA on October 15, 1998, and the INS brief was due on November 28, 1998.

9 inadmissibility and deportability under the INA.13 Instead, Richardson’s habeas

corpus petition asserts, inter alia, that his constitutional and statutory rights were

violated because:

(1) the INS ignored his thirty-year legal permanent resident alien status,

misinterpreted INA § 101(a)(13)(C)14 in classifying Richardson as an arriving alien

“seeking admission,” unlawfully detained him, and illegally denied him admission,

as opposed to permitting entry into the United States and then initiating removal

proceedings based on “deportability;”

(2) the Attorney General’s detaining and denying a legal permanent resident

alien admission back into the United States and delegating her custody release

authority to only the INS district director, without a bond hearing before an

immigration judge, are ultra vires of the INA and illegal;

(3) the Attorney General’s detaining and denying a legal permanent resident

alien admission and a bond hearing before the immigration judge solely because of

13 In the removal hearing before the immigration judge, Richardson contended that the INS’ evidence of his criminal conviction for cocaine trafficking was improperly certified, but the judge admitted this evidence of his conviction. The INS also introduced Richardson’s sworn statement at inspection that he had a cocaine-trafficking conviction. At the removal hearing, Richardson testified that while he signed the statement, he did not read it because he was “confused,” “shocked,” and “upset.” The immigration judge found that the INS had proved a cocaine-trafficking conviction. This is one of many issues Richardson has raised on appeal to the BIA; however, this issue was not raised in the district court. 14 8 U.S.C. § 1101(a)(13)(C) (Supp. 1998).

10 his brief trip abroad violates that resident alien’s due process guarantees under the

Due Process Clause of the Fifth Amendment; and

(4) the Attorney General’s allowing a bond hearing before an immigration

judge for legal permanent resident aliens arrested in the United States, but denying

a bond hearing to Richardson only because of his two-day sojourn abroad violates

the equal-protection guarantees of the Due Process Clause of the Fifth

Amendment.

In explaining why he filed his habeas petition while his BIA appeal

remained pending, Richardson contends that exhaustion of administrative remedies

is futile because the INA, as amended by IIRIRA, eliminates judicial review in the

courts of appeals over any prospective BIA final order removing him as a criminal

alien, and forecloses appeal of the INS’ district director’s bond decisions to an

immigration judge. Finally, Richardson asserts that INA § 242(g)’s exclusive-

jurisdiction provision15 does not repeal habeas jurisdiction under 28 U.S.C. § 2241

and does not prevent the district court from hearing a permanent resident alien’s

habeas petition alleging unlawful executive detention in violation of the INA and

the Constitution.

15 8 U.S.C. § 1252(g) (Supp. 1998).

11 Since Richardson attempted to enter the United States on October 26, 1997,

IIRIRA’s extensive revisions to the INA undisputedly govern this case.16

III. NEW IMMIGRATION LAWS

In 1996, Congress twice revised the INA. The changes began incrementally

with the enactment of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) in April 1996 and accelerated with IIRIRA’s major structural

revisions to the INA in September 1996.17 Congress’ reconstruction of the INA

includes, inter alia, these key elements applicable to Richardson’s appeal:

(1) new custody rules mandating detention of aliens after a serious criminal

conviction;

(2) new procedures for prompt removal of criminal aliens from the United

States;

(3) new restrictions on judicial review that preclude all judicial involvement

in the administrative agency removal and detention process until after a final

removal order is entered by the BIA;

16 IIRIRA was signed into law on September 30, 1996 and became effective on April 1, 1997. 17 Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996).

12 (4) new provisions directing that judicial review shall be exclusively under

the INA and in only the court of appeals after a final BIA removal order; and

(5) new provisions removing all other formerly available federal-court

jurisdiction over the detention and removal of criminal aliens, including repeal of

statutory habeas under 28 U.S.C. § 2241.

Simply put, IIRIRA strips all jurisdiction, including § 2241 habeas, from the

district courts, places exclusive judicial review in the court of appeals, and delays

even that judicial review until after a final administrative agency order. Congress

has reduced judicial review to one time in one place in an effort to expedite the

removal of resident aliens with serious criminal convictions. Since these

legislative revisions to the INA are extensive, complicated, and affect so many

resident aliens with criminal convictions in such a significant manner, we outline

them in detail.

A. “Removal” Proceedings

Upon being denied entry, Richardson was detained and immediately placed

in “removal” proceedings.18 As one of its broad structural changes to the INA,

IIRIRA eliminated some of the distinctions between “deportation” and “exclusion”

18 Before IIRIRA, the INA separated the concepts of exclusion proceedings and deportation proceedings. Different procedural rules applied to proceedings to exclude an alien from entering the United States. Compare 8 U.S.C. § 1226 (1996) with 8 U.S.C. § 1252b (1996).

13 proceedings and created a unified set of proceedings in INA § 24019 called

“removal proceedings.”20 New INA § 240(e)(2) defines the term “removable” as

an alien who is “deportable” or an alien who is “inadmissible” (replacing the old

term “excludable”).21 New INA § 240(a)(3) provides that unless specified

otherwise under the INA, a removal proceeding “shall be the sole and exclusive

procedure for determining whether an alien may be admitted to the United States

or, if the alien has been so admitted, removed from the United States.”22

Under the unified framework in INA § 240, many of the procedures in

“removal proceedings” are now the same regardless of whether the alien is seeking

admission to the United States or the alien is being deported from the United

States.23 In contrast, the substantive grounds for determining “inadmissibility” and

19 8 U.S.C. § 1229a (Supp. 1998). 20 8 U.S.C. § 1229a(a)(1) (Supp. 1998). Removal proceedings were created in INA § 240. Other sections of the INA established the procedures to be employed in removal proceedings. For example, INA § 239, 8 U.S.C. § 1229 (Supp. 1998), established the procedures for the initiation of removal proceedings. INA § 240A, 8 U.S.C. § 1229b (Supp. 1998), established the procedures for the cancellation of removal proceedings. 21 8 U.S.C. § 1229a(e)(2) (Supp. 1998). 22 8 U.S.C. § 1229a(a)(3) (Supp. 1998). 23 Within INA § 240’s framework, certain procedures are still differentiated based on whether deportability or inadmissibility is the subject of the removal proceeding. 8 U.S.C. § 1229a (Supp. 1998). For example, INA § 240(c)(2)(A) provides that an alien has the burden of establishing eligibility for admission “clearly and beyond doubt” or “by clear and convincing evidence that the alien is lawfully present in the United States pursuant to a prior admission;” whereas, INA § 240(c)(3)(A) provides that the INS has the burden of establishing by clear and

14 “deportability” are still handled in several separate parts of the INA and vary

considerably.24 However, Richardson’s cocaine-trafficking conviction is a

sufficient basis alone for both deportation and inadmissibility under the INA.25

B. Permanent Resident Criminal Aliens Returning From Abroad

IIRIRA also altered the rules for permanent resident aliens returning from

abroad, which is why the INS detained Richardson and immediately initiated

“removal proceedings” against him. Under IIRIRA’s restructuring, most

permanent resident aliens returning from abroad are summarily admitted back into

this country.

In this regard, new INA § 101(a)(13)(c) provides that “an alien lawfully

admitted for permanent residence in the United States shall not be regarded as

seeking an admission into the United States for purposes of the immigration laws

unless the alien”:

convincing evidence “that the alien is deportable.” 8 U.S.C. §§ 1229a(c)(2)(A) (Supp. 1998) & 1229a(c)(3)(A) (Supp. 1998). As discussed infra in footnotes 38 and 40, the INS district director decides bond requests for arriving aliens detained while seeking admission into the United States; whereas, aliens being deported may request bond from an immigration judge. 24 Compare admission qualifications for aliens covered by 8 U.S.C. §§ 1181-1189 (Supp. 1998), with the basis for deporting aliens in 8 U.S.C. § 1227 (Supp. 1998). 25 See 8 U.S.C. § 1182(a)(2) (Supp. 1998) (listing criminal inadmissibility grounds); Id. § 1227(a)(2) (listing criminal deportability grounds). A permanent resident alien is “deportable” for many more crimes than a permanent resident alien is deemed “seeking admission” and “inadmissible.” Id.

15 (i) has abandoned or relinquished that status (ii) has been absent from the United States for a continuous period in excess of 180 days (iii) has engaged in illegal activity after having departed the United States (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings, (v) has committed an offense identified in section 212(a)(2) of this Act [which includes controlled substances], unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

INA § 101(a)(13)(C) (emphasis supplied).26 Section 101(a)(13)(C)(v) references

offenses in “section 212(a)(2),” which provides that any alien convicted of a

controlled substance offense is inadmissible.27 Because Richardson was a lawful

26 8 U.S.C. § 1101(a)(13) (Supp. 1998). INA §§ 212(a)(2) and (h) are codified in 8 U.S.C. § 1182(a)(2) and (h) (Supp. 1998). INA § 240A(a) is codified in 8 U.S.C. § 1229b(a) (Supp. 1998). 27 INA § 212(a)(2)(A)(i)(I) and (II), 8 U.S.C. § 1182(2)(A)(i)(I) and (II) (Supp. 1998), includes controlled substance offenses as follows:

. . . any alien convicted of . . . a crime involving moral turpitude . . . or . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . is inadmissible.

Id. Pre-IIRIRA, certain criminal aliens could seek discretionary relief under INA § 212(h), 8 U.S.C. § 1182(h) (1995), or suspension of deportation under INA § 244, 8 U.S.C. § 1254 (1995). Post-IIRIRA an alien, including a permanent resident alien, convicted of an aggravated felony as defined under INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (Supp. 1998), is statutorily ineligible for a waiver under INA § 212(h), 8 U.S.C. § 1182(h) (Supp. 1998), and also statutorily ineligible for cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a) (Supp. 1998). See footnote 11 supra.

16 permanent resident with a cocaine-trafficking conviction covered by Section

1182(a)(2), the INS treated him as an arriving alien “seeking admission” to the

United States under INA § 101(a)(13)(C) and subjected him to inspection as any

other alien arriving to the United States.28

C. Supreme Court’s Fleuti Doctrine

Immediately upon his detention, the INS initiated removal proceedings

against Richardson. In turn, Richardson filed his § 2241 habeas petition in the

district court. Richardson contended, inter alia, that the INS had interpreted

erroneously new INA § 101(a)(13)(C), illegally considered him an arriving alien

“seeking admission,” and therefore unlawfully detained him and denied him

admission and bond.

Before 1996, INA § 101(a)(13) provided that a returning permanent resident

alien shall not be regarded as making “an entry” into the United States if the alien’s

presence abroad was not “intended or reasonably . . . expected.”29 In Rosenberg v.

28 Since under INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (Supp. 1998), Richardson was “seeking admission” at a port of entry, the INS treated Richardson an “arriving alien” under INS regulation 62 Fed. Reg. 10312, 10330 (1997) (currently codified in 8 C.F.R. § 1.1(q) (1998)), which states: “The term arriving alien means an alien who seeks admission to or transit through the United States . . .” 29 INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994), provided:

(13) The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien

17 Fleuti, 374 U.S. 449 (1964), the Supreme Court interpreted “intended” in former

INA § 101(a)(13) as an intent to depart the country in a manner “meaningfully

interruptive of the alien’s permanent residence.” The Court held that a lawful

permanent resident’s “innocent, casual and brief” excursion was not sufficiently

interruptive of the alien resident’s status to be “intended” and would not be deemed

an “entry.” Id.

Unfortunately for Richardson, IIRIRA replaces former INA § 101(a)(13)

with an entirely new statutory scheme.30 New INA § 101(a)(13)(A) replaces the

term “entry” with the terms “admission” and “admitted,” which are defined as “the

lawful entry of the alien into the United States after inspection and authorization by

an immigration officer.”31 The statute no longer references an alien’s intent.

having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.

Id. 30 IIRIRA § 301(a) enacted the new version of INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (Supp. 1998). 31 8 U.S.C. § 1101(a)(13)(A) (Supp. 1998).

18 Instead, new INA § 101(a)(13)(C) provides that a lawful permanent resident “shall

not be regarded as seeking admission,” and thus shall be summarily admitted back

into the United States, unless the alien falls under one of the six subparagraphs (i)

through (vi) of INA § 101(a)(13)(C) quoted above. Since Richardson’s cocaine-

trafficking conviction is covered expressly by INA § 101(a)(13)(C)(v), the INS

treated Richardson as an arriving alien “seeking admission.”32

In the district court, the INS stressed that, in another case, the BIA had held

that Fleuti’s “innocent, casual, and brief” rule no longer applies because IIRIRA

repealed the statutory language relied upon in Fleuti.33 The INS emphasized that

INA § 101(a)(13)(C) no longer defines “admission” with reference to an alien’s

intent, thus removes the entire Fleuti concept, and requires the INS to treat

Richardson as “seeking admission.”34 Rejecting the INS’ position, the district

court determined that the INS was not required to treat Richardson as “seeking

32 See footnote 28 supra. 33 See Matter of Collado-Munoz, Int. Dec. No. 3333 (BIA Dec. 18, 1997). 34 Fleuti addressed the harsh result of a legal permanent resident alien suddenly being excludable from the United States just because he left the country a few days, while not being deportable for the same conduct. The INS stresses the concern in Fleuti is not applicable here as Richardson is both inadmissible and deportable for his crimes. 8 U.S.C. § 1182(a)(2) (Supp. 1998); 8 U.S.C. § 1227(a)(2)(B) (Supp. 1998). New INA § 101(a)(13)(C) is also arguably more favorable for most legal permanent residents as they are able to re-enter the United States automatically for up to 180 days (as opposed to just after a brief trip abroad under Fleuti), unless they fall into one of the six categories in INA § 101(a)(13)(C)(i–vi).

19 admission.” The district court interpreted new INA § 101(a)(13)(C) as specifying

only when a returning alien may not be regarded as “seeking admission,” as

opposed to shall be regarded as “seeking admission.” The INS submits that the

language of INA § 101(a)(13)(C) is explicit and nondiscretionary and that the

district court circumvented its plain language.35

The proper construction of INA § 101(a)(13)(C) and the Fleuti issue are

some of the issues Richardson has raised before the BIA in his pending appeal of

the immigration judge’s removal order.

D. Detention of Criminal Aliens “Seeking Admission”

While his BIA appeal proceeds, Richardson’s habeas claims also stem, in

part, from IIRIRA’s new stringent custody rules for aliens with serious criminal

convictions. INA § 235(b)(2)(A) provides that any alien “seeking admission” to

the United States who “is not clearly and beyond a doubt entitled to be admitted”

“shall be detained” for removal proceedings, as follows:

. . . in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall

35 The INS also asserts that the Attorney General is entitled to deference if her interpretation of an immigration statute is reasonable, citing Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984). Perlea-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1296 (11th Cir. 1990) (quoting Chevron).

20 be detained for a proceeding under section 240 [removal proceedings].

INA § 235(b)(2)(A) (emphasis supplied).36

An alien so detained may seek parole into the United States temporarily.

INA § 212(d)(5)(A) provides that the Attorney General “may in his discretion . . .

parole into the United States temporarily under such conditions as he may

prescribe only on a case-by-case basis for urgent humanitarian reasons or

significant public benefit or for reasons deemed strictly in the public interest any

alien applying for admission to the United States.”37 At the time of Richardson’s

attempted entry, the Attorney General’s regulations delegated to the INS district

director the authority to review “parole” requests.38 On December 4, 1997, the

36 8 U.S.C. §1225(b)(2)(A) (Supp. 1998). INA § 240 is codified in 8 U.S.C. § 1229a (Supp. 1998). 37 8 U.S.C. §1182 (d)(5)(A) (Supp. 1998). 38 8 C.F.R. § 103.1(g)(2)(ii)(B) (1997) stated:

(B) District directors are delegated the authority to grant or deny any application or petition submitted to the Service, except for matters delegated to asylum officers pursuant to part 208 and § 253.1(f) of this chapter, or exclusively delegated to service center directors, to initiate any authorized proceeding in their respective districts, and to exercise the authorities under § § 242.1(a), 242.2(a) and 242.7 of this chapter without regard to geographical limitations. District directors are delegated authority to conduct the proceeding provided for in § 252.2 of this chapter.

Id.

21 district director sent Richardson’s counsel a letter outlining Richardson’s criminal

convictions and denying parole on the basis of no showing of a significant public

benefit or urgent humanitarian reasons.39

After initial custody and release determinations by the INS district director,

aliens may seek release from the immigration judge. However, at the time of

Richardson’s attempted entry, the Attorney General’s regulations provided that

immigration judges lacked jurisdiction over release requests by “arriving aliens”

facing removal proceedings.40

39 Noting that Richardson’s criminal convictions included an aggravated felony as defined by INA § 101(a)(43), the district director’s letter, dated December 4, 1997, stated: “The release of Mr. Richardson into the community will be of no significant public benefit. Mr. Richardson has not shown that his release would be warranted based upon urgent humanitarian reasons.” 40 62 Fed. Reg. 10312 (1997) (currently codified in 8 C.F.R. § 236.1(d)(1) (Nov. 3, 1998) stated:

Application to immigration judge. After an initial custody determination by the district director, including the setting of a bond, the respondent may, at any time before an order under 8 CFR part 240 becomes final, request amelioration of the conditions under which he or she may be released. Prior to such final order, and except as otherwise provided in this chapter, the immigration judge is authorized to exercise the authority in section 236 of the Act (or section 242(a)(1) of the Act as designated prior to April 1, 1997 in the case of an alien in deportation proceedings) to detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released, as provided in § 3.19 of this chapter. If the alien has been released from custody, an application for amelioration of the terms of release must be filed within 7 days of release. Once a removal order becomes administratively final, determinations regarding custody and bond are made by the district director.

22 E. Detention Under TPCRs in IIRIRA § 303(b)(3)

IIRIRA enacted new mandatory custody rules for certain criminal aliens in

both INA § 236(c) and the Transition Period Custody Rules (“TPCRs”) in IIRIRA

§ 303(b)(3). When Richardson attempted to enter the United States, the TPCRs

mandated the detention of certain criminal aliens, as follows:

(A) In General - During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who - (i) has been convicted of an aggravated felony (as defined under section 101(a)(43)) of the Immigration and Nationality Act, as amended by section 321 of [IIRIRA]) (ii) is inadmissible by reason of having committed any offense covered in section 212 (a)(2) of such Act (iii) is deportable by reason of having committed any offense covered in section 241 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act (before redesignation under this subtitle), or (iv) is inadmissible under section 212(a)(3)(B) of such act or deportable under

Id. However, 62 Fed. Reg. 10312, 10360 (1997) (codified in 8 C.F.R. § 236.1(c)(5)(i) (Jan. 1, 1998)) stated:

An immigration judge may not exercise the authority provided in this section, and the review process described in paragraph (d) of this section shall not apply, with respect to . . . [a]rriving aliens as described in § 1.1(q) of this chapter. . . .

Id. This provision was subsequently modified in 8 C.F.R. § 236.1(c)(11) (Nov. 3, 1998).

23 section 241 (a)(4)(B) of such act (before redesignation under this subtitle) when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

IIRIRA § 303(b)(3)(A).41 The TPCRs mandated Richardson’s detention because

his cocaine-trafficking conviction is an aggravated felony under the INA42 and thus

falls under subparagraph (i) of the TPCR in IIRIRA § 303(b)(3)(A). Richardson’s

cocaine-trafficking conviction is also an offense covered by INA §§ 212(a)(2),

241(a)(2), 212(a)(3)(B), and 241(a)(4)(B),43 and thus is also covered by the other

three subparagraphs (ii), (iii), and (iv) of the TPCR in IIRIRA § 303(b)(3)(A).

41 The TPCRs are not codified. The text of the TPCRs can be found in the historical notes following 8 U.S.C. § 1226 (Supp. 1998). Richardson argues that the interim TPCRs apply to aliens detained while attempting to gain admission to the United States. Whether these rules apply only to aliens within the United States or to any alien detained by the INS is not material to the resolution of this appeal. The Court assumes without deciding that the detention and release provisions of the TPCRs apply to aliens seeking admission and aliens already in the United States. INA § 101(a)(43) is codified in 8 U.S.C. § 1101(a)(43) (Supp. 1998). INA § 212 is codified in 8 U.S.C. § 1182 (Supp. 1998). INA § 241 is codified in 8 U.S.C. § 1227 (Supp. 1998). 42 Successive definitions of the term “aggravated felony” have been enacted in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). As initially enacted in 1988, the term covered only a few serious offenses, such as murder, drug trafficking, and illicit trafficking in firearms. The definition has expanded continually to include less serious offenses. The adverse immigration consequences legislated by Congress for permanent resident aliens with an aggravated felony conviction, as defined under the INA, have likewise continued to expand. 43 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), 1182(a)(3)(B), & 1227(a)(4)(B) (Supp. 1998).

24 The TPCRs also significantly restricted the Attorney General’s release

authority for the criminal aliens subject to the TPCRs’ mandatory detention. The

TPCR in IIRIRA § 303(b)(3)(B) provides that the Attorney General “may release”

an alien but only if the alien is an alien described in subparagraphs (A)(ii) or

(A)(iii) of the TPCR in IIRIRA § 303(b)(3), is lawfully admitted, will not pose a

danger and is likely to appear for any scheduled proceeding.44

Under the TPCRs, the Attorney General could not have released an alien

detained because of an aggravated felony conviction because that alien is in a

category mandatorily detained under the TPCR in IIRIRA § 303(b)(3)(A)(i) and is

not in an (A)(ii) or (A)(iii) category subject to release under the TPCR in IIRIRA §

303(b)(3)(B).45

44 The TPCR in IIRIRA § 303(b)(3)(B) states:

(B) Release. – The Attorney General may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii) and – (i) the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, . . .

Subsections (A)(ii) and (A)(iii) describe aliens inadmissible because of an offense described in INA § 212(a)(2) or deportable because of an offense described in INA §§ 241 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D). The TPCR in IIRIRA §§ 303(b)(A)(ii) & 303(b)(A)(iii). 45 Commentators note that since criminal aliens, even if legal permanent resident aliens, are now clearly removable for certain crimes, the mandatory custody rules for criminal aliens were intended to insure removal because criminal aliens no longer have incentive to show up

25 When Richardson attempted to enter the country, the Attorney General had

implemented regulations delegating her detention and release authority under the

TPCRs and INA § 236(c). Under those regulations, the INS district director made

an initial determination regarding custody and release of criminal aliens under both

the TPCRs and INA § 236(c).46 After the district director’s initial determination,

an alien could seek release from an immigration judge.47 However, immigration

judges lacked jurisdiction over release requests of “arriving aliens” facing removal

proceedings.48

In addition to denying parole, the INS district director’s letter, dated

December 4, 1997, concluded that Richardson “would have no incentive to appear

for Immigration hearings” and thus in effect denied bond as well. Although

Richardson was subject to mandatory detention and not eligible for release on

bond, it appears that the district director considered release on bond.

F. Detention Under INA § 236(c)

voluntarily for removal proceedings. See, e.g., Peter H. Schuck, INS Detention and Removal: A “White Paper”, 11 Geo. Immigr. L.J. 667, 671 (1997). Similarly, the INS acknowledged at oral argument that it is discovering permanent residents convicted of serious crimes when they seek re-entry in part because of the difficulty of finding them through the myriad state courts. 46 See footnote 40 supra. 47 Id. 48 Id.

26 Although enacted by IIRIRA in 1996, new INA § 236(c) was not in effect

when Richardson attempted to enter the United States on October 24, 1997.49

IIRIRA § 303(b)(2) allowed the Attorney General to delay the implementation of

INA § 236(c) for up to two years by providing notice to Congress that the INS

lacked sufficient space and personnel to accommodate the mandate of INA §

236(c). The Attorney General twice provided such notice and delayed the effective

date of INA § 236(c) until October 10, 1998. During the two-year interim, the

TPCR in IIRIRA § 303(b)(3) supplanted INA § 236(c).50 As of October 10, 1998,

INA § 236(c)(1) also mandates Richardson’s detention, whether he is considered

inadmissible or deportable, for his criminal convictions, as explained below.

New INA § 236 contains some general custody rules for aliens in removal

proceedings and some specific, more stringent, custody rules for certain criminal

aliens. Under INA § 236(a) “[o]n a warrant issued by the Attorney General, an

alien may be arrested and detained pending a decision on whether the alien is to be

removed from the United States.”51 Under INA § 236(a) and (b), the Attorney

49 INA § 236(c), 8 U.S.C. § 1226(c) (Supp. 1998). 50 Id. 51 8 U.S.C. § 1226(a) (Supp. 1998) (emphasis supplied).

27 General may grant bond or parole and may revoke bond or parole for an alien so

arrested.52

However, INA § 236(c) provides for mandatory detention of certain criminal

aliens, whether inadmissible or deportable. Subparagraph (1) of new INA §

236(c), entitled “Detention of criminal aliens,” mandates that the Attorney General

shall take into custody a criminal alien who falls into one of these four categories:

(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2),53 (B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),54 (C) is deportable under section 237(a)(2)(A)(i)55 on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or

52 8 U.S.C. § 1226(a) and (b) (Supp. 1998). 53 INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (Supp. 1998), covers certain crimes involving “moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime,” or “a violation of (or a conspiracy or attempt to violate)” any state, federal, or foreign law “relating to a controlled substance.” 54 These sections cover certain multiple criminal convictions in INA § 237(a)(2)(A)(ii), an aggravated felony in § 1227(a)(2)(A)(iii), certain controlled substance offenses in INA § 237(a)(2)(B), certain firearm offenses in INA § 237(a)(2)(C), and other miscellaneous crimes in INA § 237(a)(2)(D). INA §§ 237(a)(2)(A)(ii), (A)(iii), (B), (C) & (D), 8 U.S.C. §§ 1227(a)(2)(A)(ii), (A)(iii), (B), (C) & (D) (Supp. 1998). 55 INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (Supp. 1998), covers crimes involving moral turpitude committed within a certain time frame after the date of admission and for which a sentence of one year or longer may be imposed.

28 (D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B),56 when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

INA § 236(c)(1).57 Next, subparagraph (2) of new INA § 236(c) provides that the

Attorney General “may release” an alien in one of these four mandatory detention

classes “only if the Attorney General decides” that the alien’s release is necessary

to the protection of someone cooperating in the investigation of major criminal

activity, and the alien satisfies the Attorney General that the alien will not pose a

danger to the safety of others and is likely to appear at any scheduled hearing.58

56 INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (Supp. 1998), and INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B) (Supp. 1998), cover certain “terrorist activities.” 57 8 U.S.C. § 1226 (c)(1) (Supp. 1998). 58 INA § 236(c)(2), entitled “Release,” provides:

The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.

29 Richardson’s cocaine-trafficking offense brings him within several mandatory

detention categories in INA § 236(c)(1), but he does not fall within the

discretionary release option in INA § 236(c)(2).

G. INA § 236(e) Restricts Review of Bond and Parole Decisions

Of particular relevance to Richardson’s situation is INA § 236(e) which

applies to detention and release decisions under both INA § 236(c)59 and the TPCR

in IIRIRA § 303. INA § 236(e) significantly restricts the judicial review of the

Attorney General’s decisions as follows:

(e) Judicial review

The Attorney General’s discretionary judgment regarding the application of this section [236's custody rules] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

INA § 236(c)(2), 8 U.S.C. § 1226(c)(2) (Supp. 1998). 59 8 U.S.C. § 1226(c) (Supp. 1998).

30 INA § 236(e).60 Thus, the INS contends that the district court had no jurisdiction

to review the INS district director’s discretionary decision to grant or deny

Richardson bond or parole.

Richardson responds that INA § 236(e) applies to only final, not interim,

orders, and that historically bond decisions were considered collateral to the

removal proceedings and cognizable under § 2241 habeas in immigration cases.

However, INA § 236(e), by its plain language, bars judicial review of the INS’

discretionary bond and parole decisions. Nonetheless, we note that Richardson is

not actually seeking review of those INS discretionary decisions but instead review

of his constitutional claim that denial of bond without a hearing before an

immigration judge violates his constitutional rights.

60 8 U.S.C. § 1226(e) (Supp. 1998). Richardson contends that INA § 236(e) does not apply to this case because he was detained while the TPCRs were in place. Although Richardson correctly argues that the TPCRs (and not INA § 236(c)) applied to his detention from October 26, 1997 to October 9, 1998, the TPCRs appear to supplant only INA § 236(c) and not INA § 236(e) for the reasons below. IIRIRA § 303(b)(2), the effective date provision for IIRIRA § 303(a), allows the Attorney General to delay for up to two years the effective date of INA § 236(c). During the period when INA § 236(c) is not in effect, the TPCRs apply instead of INA § 236(c). However, IIRIRA § 303(b)(2) does not provide that the Attorney General can delay the effective date of new INA § 236(e). Instead, INA § 236(e) is governed by the effective-date provision in IIRIRA § 303(b)(1) which provides the general rule that INA § 236 is effective the same day as the rest of Title III of IIRIRA. In any event, we need not resolve this issue because the two-year delay has expired and INA § 236(e) is now clearly effective.

31 H. Procedures for Removal Hearings

While only the INS district director decided Richardson’s request for parole

and bond, IIRIRA did not diminish Richardson’s right to a full hearing before the

immigration judge on the merits of his removal from the United States.61 Before

issuing any removal order, an immigration judge still must hold a hearing62 in

which the alien may be represented by counsel.63 The alien is entitled to present

evidence and cross-examine witnesses presented by the United States.64 A

complete record is required to be kept of all testimony and evidence produced at

the hearing.65 A “criminal alien” subject to removal (either as inadmissible or

deportable) has a right to appeal a removal order to the BIA,66 and the immigration

judge “shall inform the alien of the right to appeal.”67

61 Compare 8 U.S.C. § 1252 (1995) with 8 U.S.C. § 1229a(a)(1) (Supp. 1998). 62 The hearing can take several forms – a hearing with the alien present, a hearing without the alien’s presence if the alien so consents, through a video conference, or over the telephone if the alien so consents. INA § 240(b)(2), 8 U.S.C. § 1229a(b)(2) (Supp. 1998). 63 Although an alien subject to removal may secure his or her own counsel, according to INA § 240(b)(4)(A) the government is not required to provide counsel to the alien. 8 U.S.C. § 1229a(b)(4)(A) (Supp. 1998). 64 INA § 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B) (Supp. 1998). 65 INA § 240(b)(4)(C), 8 U.S.C. § 1229a(b)(4)(C) (Supp. 1998). 66 8 C.F.R. § 3.1(b)(3) (1998). 67 INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (Supp. 1998).

32 Represented by counsel, Richardson received a hearing before an

immigration judge on the merits of his removal from the United States and has

appealed the judge’s removal order to the BIA. As of this date, the BIA has not

issued its decision.

I. IIRIRA Consolidates Judicial Review in the Court of Appeals

IIRIRA also completed the major overhaul of federal-court jurisdiction over

immigration matters begun by the AEDPA. Prior to 1996, INA § 106 set out the

judicial-review scheme for deportation and exclusion orders.68 INA § 106(a)(2)

provided for petition for review in the court of appeals.69 In addition, INA §

106(a)(10) allowed aliens in custody to seek habeas corpus review of final

deportation orders under the INA.70 Aliens also could rely on 28 U.S.C. § 2241

habeas corpus to challenge INS detention or deportation proceedings.71

68 See generally 8 U.S.C. § 1105a (1995). 69 8 U.S.C. § 1105a(a)(2) (1995). 70 8 U.S.C. § 1105a(a)(10) (1995). See general discussion of the old scheme of judicial review and Congress’ attempts as early as 1961 to streamline judicial review of deportations to avoid “interminable procedural delays” in deportations through overlapping modes of judicial review. United States, ex rel. Marcello v. District Director, 634 F.2d 964, 967-72 (5th Cir. Jan. 1981) (INA § 106(a)(q) discussed in Marcello became INA § 106(a)(10).) 71 See, e.g., Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990).

33 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”).72 AEDPA § 44073 repealed INA § 106(a)(10),

which had allowed habeas corpus review under the INA. In its place, AEDPA §

440(a) enacted a new INA § 106(a)(10), which states that a final deportation order

against an alien deportable for certain criminal offenses “shall not be subject to

review by any court.”74

Five months after the AEDPA, Congress enacted IIRIRA.75 Section 306 of

IIRIRA repealed the entire judicial-review scheme in INA § 106 and replaced it

with a new judicial-review scheme in INA § 242. IIRIRA did not eliminate all

judicial review. Instead, IIRIRA removed all jurisdiction from the district courts

72 Pub. L. No. 104-132, 110 Stat. 1214 (1996). 73 Id. 74 AEDPA § 440(a) amended INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995), to read:

Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject to review by any court.

Id. See footnote 83 infra for IIRIRA’s amendments to INA § 106(a)(10). INA § 241 is codified in 8 U.S.C. § 1227 (Supp. 1998). 75 Pub. L. No. 104-208, 110 Stat. 3009 (1996).

34 and consolidated judicial review into the court of appeals.76 INA § 242(b)(2)

provides that the venue for judicial review is only in the court of appeals.77

More importantly, INA § 242(g), entitled “Exclusive Jurisdiction,” provides

that except as provided in INA § 242, no court shall have jurisdiction over aliens’

claims arising from the Attorney General’s decisions or actions, as follows:

Except as provided in this section [242] and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.

INA § 242(g).78

76 As outlined infra at footnote 93, INA § 242(e)(2) does provide for a truncated form of habeas review for non-resident aliens summarily rejected at ports of entry without any removal proceedings. 8 U.S.C. § 1252(e)(2) (Supp. 1998). Throughout the remainder of this opinion, we repeatedly note that IIRIRA consolidates all judicial review into one procedure – a petition for review in the court of appeals after a final removal order has been issued. We note that INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp. 1998), remains a narrow exception to our statement about IIRIRA’s providing for judicial review in only the court of appeals. Since that narrow exception applies only to non-resident aliens in limited circumstances, it has no applicability here or to any immigration cases involving resident aliens. 77 INA § 242(b)(2), 8 U.S.C. § 1252(b)(2) (Supp. 1998), provides:

The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.

Id. 78 8 U.S.C. § 1252(g) (Supp. 1998). This Court recently held that INA § 242(g) divests district courts of jurisdiction over removal orders under former INA § 106(a)(10) and that

35 IIRIRA also mandated the timing of the INA’s exclusive judicial review.

INA § 242(b)(9) proscribes that judicial review shall be only after a final removal

order, as follows:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section.

INA § 242(b)(9).79 INA § 242(d)(1) mandates that “a court may review a final

order of removal only if . . . the alien has exhausted all administrative remedies

available . . .”80

In these new INA provisions, Congress has abbreviated judicial review to

one place and one time: only in the court of appeals and only after a final removal

order and exhaustion of all administrative remedies. In IIRIRA, Congress strictly

“judicial review of orders of removal may only be initiated in the court of appeals” under the INA. Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir. 1998). Auguste did not address judicial review under § 2241 habeas because Auguste, a non-criminal alien in custody, filed a habeas petition in the district court pursuant to only INA § 106(a)(10) which provided for habeas review under the old INA. The AEDPA repealed the habeas review in INA § 106(a)(10) and replaced it with the version of INA § 106(a)(10) that restricted judicial review of deportation orders against criminal aliens. Thus, whether INA § 242(g) repealed § 2241 was not discussed in Auguste. 79 INA § 242(b)(9), 8 U.S.C. § 1252(b)(9) (Supp. 1998). 80 8 U.S.C. § 1252(d)(1) (Supp. 1998). IIRIRA imposes other timing requirements to expedite judicial review. The petition for direct review in the court of appeals must be filed 30 days after a final order, as opposed to 90 days under the pre-IIRIRA version of the INA. Compare INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (Supp. 1998), with former INA § 106a(a)(1), 8 U.S.C. § 1105a(a)(1) (Supp. 1996).

36 regulated the exclusive mode and timing of judicial review in order to remove

overlapping jurisdiction and to prevent dilatory tactics previously used to forestall

departure of aliens.

J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal Aliens

Even within the INA’s exclusive judicial-review scheme, Congress further

limited what a court of appeals can review after a final removal order. Of

particular relevance to Richardson is INA § 242(a)(2)(C), which provides that no

court shall have jurisdiction to review “any final order of removal against an alien

who is removable” because of certain criminal convictions, as follows:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 212(a)(2) [covers certain controlled substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 237(a)(2)(A)(i).

INA § 242(a)(2)(C).81 Section 212(a)(2)82 includes Richardson’s cocaine-

trafficking conviction.

81 8 U.S.C. § 1252(a)(2)(C) (Supp. 1998). INA § 212(a)(2) is codified in 8 U.S.C. § 1182(a)(2). INA § 237(a)(2) is codified in 8 U.S.C. § 1227(a)(2) (Supp. 1998). 82 8 U.S.C. § 1182(a)(2) (Supp. 1998).

37 New INA § 242(a)(2)(C) is similar to former INA § 106(a)(10) which also

placed restrictions on judicial review of deportation orders against criminal

aliens.83 As detailed later, this Court has upheld the judicial review restrictions in

former INA § 106(a)(10) as constitutional. Boston-Bollers v. INS, 106 F.3d 352

(11th Cir. 1997).

K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions

IIRIRA also limits other aspects of the exclusive judicial review remaining

for aliens under the INA. INA § 242(a)(2)(B)(ii) limits judicial review of the

Attorney General’s discretionary decisions, as follows:

Notwithstanding any other provision of law, no court shall have jurisdiction to review–

83 See footnotes 74 and 176 in order to compare INA § 106(a)(10), as amended by the AEDPA, with INA § 242(a)(2)(C), as amended by IIRIRA. IIRIRA made two amendments to INA § 106(a)(10). First, IIRIRA § 306(d) eliminated the phrase “any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)” and replaced it with the phrase “any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i).” IIRIRA § 306(d). This amendment was effective immediately and has been applied by several circuits. Id. IIRIRA’s second amendment to INA § 106(a)(10) included more substantial changes, although the end result – new INA § 242(a)(2)(C) – is overall very similar to its predecessor. As a technical matter, IIRIRA repealed INA § 106(a)(10) and replaced it with new INA § 242(a)(2)(C). Altering the language of INA § 106(a)(10) in several respects, IIRIRA added the introductory phrase “Notwithstanding any other provision of law, no court shall have jurisdiction to review . . . .” and replaced INA § 106(a)(10)’s reference to a final order of “deportation” with a reference to a final order of “removal.” Similarly, IIRIRA changed the citations listing the criminal offenses that precluded judicial review to the citations corresponding to the sections amended under IIRIRA. The cumulative result of the two amendments enacted by IIRIRA is new INA § 242(a)(2) which limits the judicial review of removal orders based on certain criminal convictions with language similar to that in former INA § 106(a)(10).

38 ... (ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of relief under section 208(a).

INA § 242(a)(2)(B)(ii).84

IV. DISCUSSION

Against this backdrop, Richardson filed his habeas petition in the district

court under 28 U.S.C. § 2241. Given IIRIRA’s overhaul of the judicial-review

scheme in immigration cases, the first question we must address is whether INA §

242(g), as enacted by IIRIRA, has eliminated federal jurisdiction under § 2241

over Richardson’s habeas petition.85

84 8 U.S.C. § 1252(a)(2)(B)(ii) (Supp. 1998). INA § 208(a) is codified in 8 U.S.C. § 1158(a) (Supp. 1998). The INS asserts that INA § 242(a)(2)(B)(ii) is a complete bar to judicial review of any discretionary decision to deny bond and parole to Richardson. Even if that position is well founded, Richardson points out that he is not seeking review of the discretionary denial of bond and parole or the discretionary authority to delegate bond decisions to the INS district director. Instead, Richardson seeks review of his constitutional claims that denial of a bond by the INS district director, without a bond hearing before an immigration judge, violated his constitutional rights under the Due Process Clause of the Fifth Amendment. See footnote 179 infra. 85 28 U.S.C. § 2241 (1994) states:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus

39 A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions

We begin by recognizing and applying established cannons of statutory

construction applicable to immigration statutes. First, ambiguities in the law are to

be interpreted in favor of the alien.86 Second, restrictions on jurisdiction are to be

read narrowly, courts should not assume that jurisdiction is repealed unless the

statute says so explicitly, and repeals by implication of jurisdictional statutes are

disfavored.87

Although guided by these same principles, courts are divided on whether the

new INA § 242(g) abrogates statutory habeas, as provided in § 2241, over an

alien’s petition challenging detention or a final removal order. See Hose v. INS,

141 F.3d 932, 934-35 (9th Cir.) (holding that INA § 242(g) deprives district court

of habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241), withdrawn and reh’g

and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.

Id. 86 INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Fong Haw Tan v. Phelan, 333 U.S. 6, 9-10 (1948). 87 See McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496 (1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-72 (1986).

40 en banc granted, ___ F.3d ___, No. 97-15789 (9th Cir. December 2, 1998);88

Cabrera v. Reno, 5 F. Supp. 2d 244, 245-46 (D.N.J. 1998) (same); Ray v. Reno, 3

F. Supp. 2d 1249, 1251 (D. Utah 1998) (same); Rusu v. Reno, 999 F. Supp. 1204,

1209-10 (N.D. Ill. 1998) (same); Mendez-Tapia v. Sonchick, 998 F. Supp. 1105,

1107 (D. Ariz. 1998) (same); Marriott v. Ingham, 990 F. Supp. 209, 213-14

(W.D.N.Y. 1998) (same); Mustata v. United States Dep’t of Justice, 979 F. Supp.

536, 539 (W.D. Mich. 1997) (same); Mayers v. Reno, 977 F. Supp. 1457, 1461

(S.D. Fla. 1997) (same); Udenze v. Strapp, 977 F. Supp. 418, 421 (N.D. Tex. 1997)

(same); Moore v. District Director, INS, 956 F. Supp. 878, 882 (D. Neb. 1997)

(same); see also Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.) (stating in dicta that

“effective April 1, 1997, § 306(a) of the IIRIRA [INA § 242] abolishes even

review under § 2241, leaving only the constitutional writ, unaided by statute”),

cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997). But see Goncalves

v. Reno, 144 F.3d 110, 113, 120-21 (1st Cir. 1998) (holding that IIRIRA did not

88 This Court notes two points relevant to the Hose decision. First, although Hose v. INS held that INA § 242(g) repealed § 2241 habeas over a non-criminal alien’s claims for discretionary relief, the Ninth Circuit subsequently held that INA § 242(g) is unconstitutional when applied to certain criminal aliens who cannot obtain judicial review under INA § 242(a)(2)(C). Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998). Therefore, the Ninth Circuit concluded that INA § 242(g) does not repeal § 2241 in its entirety but that criminal aliens may proceed in the district court under § 2241, whereas the non-criminal alien in Hose could not proceed under § 2241. Second, this Court notes that the Ninth Circuit has granted a rehearing en banc and withdrawn its published decision in Hose. Nevertheless, this Court still finds persuasive the reasoning in Hose and the Ninth Circuit’s subsequent discussion of Hose in Magana-Pizano.

41 eliminate § 2241 habeas corpus jurisdiction); Jean- Baptiste v. Reno, 144 F.3d 212,

218-20 (2d Cir.1998)89 (same); Tam v. INS, 14 F. Supp. 2d 1184, 1187-88 (E.D.

Cal. 1998) (same); Lee v. Reno, 15 F. Supp. 2d 26, 37 (D.D.C. 1998) (same);

Barrett v. INS, 997 F. Supp. 896, 900 (N.D. Ohio 1998) (same); Gutierrez-

Martinez v. Reno, 989 F. Supp. 1205, 1209 (N.D. Ga. 1998) (same); Morisath v.

Smith, 989 F. Supp. 1333, 1338 (W.D. Wash. 1997) (same); Mojica v. Reno, 970

F. Supp. 130, 157 (E.D.N.Y. 1997) (same).

After review, we conclude that INA § 242(g) abrogates jurisdiction over

Richardson’s § 2241 habeas corpus petition for several reasons. First, the language

of INA § 242(g) is plain and clear. INA § 242(g)’s language that “[e]xcept as

provided in this section [242] . . . no court shall have jurisdiction” clearly and

unequivocally precludes any jurisdiction in the district court except that provided

in INA § 242.90 INA § 242 does not permit the kind of habeas corpus review in the

district court Richardson sought. Instead, INA § 242 provides for judicial review

for aliens only in the court of appeals and only after a final removal order.

89 A subsequent Second Circuit decision in Henderson v. Reno, 157 F.3d 106, 119 n.9 (2d Cir. 1998), followed Jean-Baptiste but noted that “[w]ere we not bound by Jean-Baptiste, the members of the panel would be strongly inclined to find that the proper mechanism for judicial review is by petition for review in the courts of appeals, rather than by § 2241 habeas in the district courts.” 90 See Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir. 1998), and footnote 78 supra.

42 More importantly, INA § 242(g)’s broad admonition that it applies

“notwithstanding any other provision of law” sufficiently and clearly encompasses

other provisions of law, such as § 2241.91 When Congress says “any,” it means

“any” law, which necessarily includes § 2241.92

In addition, while INA § 242 consolidates judicial review in the court of

appeals for aliens, there is another section within INA § 242 that does permit

limited habeas corpus review under INA § 242(e)(2)93 for certain non-resident

91 8 U.S.C. § 1252(g) (emphasis supplied). See, e.g., United States v. Gonzales, 117 S. Ct. 1032, 1035 (1997) (“Read naturally the word ‘any’ has an expansive meaning, that is ‘one or some indiscriminately of whatever kind.’”) (citation omitted); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997) (“‘Congress did not add any language limiting the breadth of that word,’ so ‘any’ means all.”) (quoting in part Gonzales, supra). 92 On other occasions, this Court found that “notwithstanding any other provision of law” means precisely “notwithstanding any other provision of law,” especially where the Court’s jurisdiction is involved. Allen v. David, 334 F.2d 592, 597-98 (5th Cir. 1964); United States v. C.E. Sykes, 310 F.2d 417, 419-20 (5th Cir. 1962). 93 INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp. 1998), provides for habeas review for non-resident arriving aliens subject to expedited and summary removal under 8 U.S.C. § 1225(b)(1):

(2) Habeas corpus proceedings Judicial review of any determination made under section 235(b)(1) is available in habeas corpus proceedings, but shall be limited to determinations of – (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 207, or has been granted asylum under section 208 of this title, such status not having been terminated, and is entitled to such

43 arriving aliens. INA § 235(b)(1) permits a single immigration officer to remove

summarily a non-resident arriving alien without a removal hearing or review,

unless the alien indicates an intention to apply for asylum or indicates fear of

persecution.94 Therefore, INA § 242(e)(2) provides for statutory habeas review

under the INA in this narrowly limited situation.95 This evidences Congress’

ability to create statutory habeas review under the INA when it so desires.

Congress’ express provision of some limited habeas review within § 242 of the

INA underscores Congress’ clear intent in INA § 242(g) that no court shall have

jurisdiction over immigration decisions except as provided under INA § 242.96

Second, in addition to the sweeping language of new INA § 242(g), the

elimination of INA § 106(a)(10)’s habeas corpus review by the AEDPA further

evidences congressional intent to preclude statutory habeas corpus review over

further inquiry as prescribed by the Attorney General pursuant to Section 235(b)(1)(C).

INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp. 1998). INA § 235(b)(1) is codified in 8 U.S.C. § 1225(b)(1) (Supp. 1998). INA § 207 is codified in 8 U.S.C. § 1157 (Supp. 1998). INA § 208 is codified in 8 U.S.C. § 1158 (Supp. 1998). This procedure, originally called “summary exclusion,” was created by the AEDPA but modified by IIRIRA before taking effect. 94 INA § 235(b)(1), 8 U.S.C. § 1255(b)(1) (Supp. 1998). 95 See footnote 93. 96 See, e.g., United States v. White, 118 F.3d 739, 742 (11th Cir. 1997) (“The selection of the statutes set forth [in the Act] reflects an intent to omit all others.”); United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993) (“The canon of statutory construction that the inclusion of one implies the exclusion of others is well-established.”).

44 immigration decisions. AEDPA § 440 first eliminated the specific habeas review

granted under former INA § 106(a)(10).97 Then IIRIRA enacted the broad

language of INA § 242(g) that “notwithstanding any other provision of law, no

court shall have jurisdiction except as provided under INA § 242.”98 Thus, the

AEDPA and IIRIRA reflect Congress’ clear intent to avoid unduly protracted

litigation over removal orders against resident aliens by consolidating all judicial

challenges in the courts of appeals under INA § 242(b)(2) after a final removal

order, and by removing all district-court jurisdiction, including § 2241 habeas

jurisdiction, over immigration decisions.99 Accordingly, we conclude that INA §

242(g) repeals any statutory jurisdiction over immigration decisions other than that

conferred by INA § 242. That repeal includes § 2241 habeas jurisdiction over

immigration decisions by the Attorney General under the INA.

Richardson’s main argument is that § 2241 habeas corpus jurisdiction

survives IIRIRA’s enactment of new INA § 242(g) because INA § 242(g) fails to

97 Pub. L. No. 104-132, 110 Stat. 1214 (1996). 98 8 U.S.C. § 1252(g) (Supp. 1998). 99 See, e.g., H. Rep. No. 104-469(I) (1996). Indeed, INA § 242(g), along with INA § 242(b)(9), should be properly understood not as an attempt to divest the courts of jurisdiction they previously possessed, but as Congress’ effort to make absolutely clear what should have been apparent under the INA and AEDPA all along: that review of INS’ conduct of deportation proceedings is available only after the entry of a final order of deportation, and only under the INA provisions specifically provided for that purpose.

45 mention § 2241 expressly.100 Richardson emphasizes the presumption against

implied repeal of habeas corpus jurisdiction addressed in Felker v. Turpin, 518

U.S. 651 (1996).

However, the jurisdictional repeal at issue in Felker was much narrower than

the repealing language of INA § 242(g). AEDPA § 106(b)(3)(E) repealed a narrow

class of Supreme Court jurisdiction – the Court’s review of a court of appeals

decision denying or granting authorization to file a second or successive habeas

corpus petition.101 In addition, AEDPA § 106(b) specifically cited § 2244(b) as the

statute it amended. In Felker, the Supreme Court determined that this express

prohibition of a specific, limited form of judicial review of second or successive

habeas corpus petitions, did not also repeal by implication the Supreme Court’s

original jurisdiction to entertain habeas petitions.102

100 Richardson also asserts that INA § 242(g) affects only final removal orders and that the INS ignores the critical distinction between review of interim detention orders – denying admission, bond and parole – and review of final removal orders. We disagree. The INS’ interim orders and actions are not collateral proceedings but are inextricably part of the removal proceedings and covered by the broad language of INA § 242(g). See, e.g., United States v. Chada, 462 U.S. 919, 938 (1983); Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996). 101 Felker, 518 U.S. at 661. Specifically, AEDPA § 106(b)(3)(E) states “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E) (Supp. 1998). 102 Felker, 518 U.S. at 660.

46 Conversely, the repeal of jurisdiction under INA § 242(g) is much broader.

INA § 242(g) does not address a limited set of statutory provisions. Instead, the

jurisdiction-repealing language in INA § 242(g) states comprehensively that

“[e]xcept as provided in this section and notwithstanding any other provision of

law, no court shall have jurisdiction” over the specified claims.103 INA § 242(g)

expressly repeals any and all jurisdiction except that conferred by INA § 242.

Unlike Felker, the language of INA § 242(g) does not require repeal by

implication. Indeed, Congress could hardly have chosen broader language to

convey its intent to repeal any and all jurisdiction except that provided by INA §

242.

Based on the foregoing, we conclude that INA § 242(g) repealed § 2241

habeas jurisdiction over Richardson’s claims challenging his executive detention

without bond and removal order and that the district court erred in exercising

jurisdiction under § 2241.

B. No Constitutional Infirmities to Avoid

Richardson asserts that IIRIRA’s elimination of § 2241 jurisdiction means

he has no judicial review of his executive detention. Although conceding many

aliens can still obtain judicial review in the court of appeals under the INA,

103 8 U.S.C. § 1252(g) (Supp. 1998).

47 Richardson stresses that other limitations within the INA’s judicial-review scheme

result in his having no judicial review whatsoever. Richardson contends, for

example, that INA § 242(a)(2)(C) adds other limits to the judicial review available

to criminal aliens and thus he has no judicial review under the INA. Richardson

argues that no judicial review whatsoever of his executive detention violates the

Due Process Clause, Article III, and the Suspension Clause. For those reasons,

Richardson submits INA § 242(g) cannot repeal § 2241 habeas.

The INS responds that INA § 242(g)’s repeal of § 2241 habeas jurisdiction

over immigration decisions creates no constitutional infirmities because the INA

does not eliminate all judicial review for Richardson. According to the INS, these

new INA provisions, enacted by IIRIRA, do not “operate to bar the court of

appeals from redressing substantial claims of constitutional error as part of the

petition for review” of any final removal order against criminal aliens. The INS

and Richardson vigorously dispute how much judicial review is required under the

INA to avoid constitutional infirmities arising from the INA’s repeal of § 2241

habeas jurisdiction over immigration decisions. The INS concedes only that any

constitutionally required judicial review of administrative agency decisions must

occur under the INA and in the form of a petition for review in the court of appeals

after a final removal order.

48 Richardson rejoins that the other circuits have held that INA § 242(g) does

not repeal § 2241 habeas, in large part, to avoid what the Second Circuit described

as “serious constitutional issues” in Jean-Baptiste104 or what the First Circuit

termed “serious, novel and complex constitutional issues” in Goncalves, stating:

Finally, our refusal to find express repeal of § 2241 in new INA § 242(g) eliminates the need to address serious, novel and complex constitutional issues. We would be loathe to find a repeal where that repeal creates serious constitutional problems. We note these constitutional concerns briefly to underscore the wisdom of avoiding them.

Goncalves, 144 F.3d at 122.105 Similarly, in Jean-Baptiste, the Second Circuit

outlined how historically habeas was available to aliens, why permanent resident

aliens enjoy procedural due process rights, and avoided what it foresaw as “serious

constitutional issues” under the Suspension Clause and Due Process Clause. Jean-

104 144 F.3d at 219. 105 Goncalves was a 25-year permanent resident alien subject to a deportation order because of certain criminal convictions. 144 F.3d at 114. His application for discretionary relief under former INA § 212(c), 8 U.S.C. § 1182(c), was denied by the INS because the AEDPA made him ineligible for such relief. Id. AEDPA § 440(d) greatly expanded the category of criminal convictions rendering an alien ineligible to apply for INA § 212(c) relief. Id. Goncalves filed a § 2241 habeas, rather than a petition for direct review in the court of appeals. Id. at 115. The First Circuit held that jurisdiction existed under § 2241 habeas, that § 2241 habeas encompassed legal issues based on statutory construction as well as constitutional claims, and that the AEDPA § 440(d) did not apply retroactively to Goncalves. Id. at 123. But compare Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997) (holding AEDPA § 440(d), effective April 24, 1996, applies retroactively and listing six other circuits reaching same result). See footnote 110 infra.

49 Baptiste, 144 F.3d at 219. The Second Circuit worried that without § 2241 habeas,

a permanent resident criminal alien would lack a forum in which to vindicate

substantial constitutional rights. Id.106 We agree with Richardson that both the

First and Second Circuits’ holdings that INA § 242(g) did not repeal § 2241,

stemmed from their adopting a principle of “constitutional avoidance,” as opposed

to following the plain language of INA § 242(g).

We reject this “constitutional avoidance” approach for two reasons. First,

although courts wisely prefer avoiding thorny constitutional issues, the language of

INA § 242(g), in our view, is plain, unambiguous, and yields only one permissible

statutory construction. See United States v. Locke, 471 U.S. 84, 96 (1985)

(“[c]ourts cannot press statutory construction ‘to the point of disingenuous

106 In Jean-Baptiste, two permanent resident aliens and one conditional permanent resident alien faced deportation under INA §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) for criminal convictions involving controlled substances. 144 F.3d at 214. Alleging that the INS’ deportation procedures deprived them of due process, the aliens filed a proposed class action in district court in which they sought to enjoin their deportation proceedings. Id. The district court dismissed the aliens’ complaint for failure to state a claim upon which relief could be granted under Fed. R. Civ. P. 12(b)(6), and the aliens appealed. Id. Holding that INA § 242(g) eliminated the district court’s jurisdiction over the aliens’ proposed class action, the Second Circuit affirmed the district court’s dismissal of the complaint. Id. at 218-220. Nevertheless, the court held that INA § 242(g) did not repeal § 2241 jurisdiction over petitions for habeas relief by aliens facing removal from the United States. Id. at 220. The Second Circuit still dismissed the aliens’ complaint because they “sought federal court jurisdiction under 28 U.S.C. § 1331, not habeas jurisdiction under U.S.C. § 2241.” Id. at 220. However, the court noted that “in finding that § 2241 habeas review remains available for aliens deemed deportable under certain circumstances to raise constitutional questions, we express no opinion on the permissible scope of that review.” Id.

50 evasion’ even to avoid a constitutional question.”); American-Arab Anti-

Discrimination Comm. v. Reno, 132 F.3d 531, 532-33 (9th Cir. 1997)

(O’Scannlain, J., dissenting from the denial of rehearing en banc) (“Whatever the

merits of constitutional avoidance might be, no court may ‘avoid’ a perceived

conflict when the text is unambiguous, as it is here. The avoidance canon, invoked

with such abandon, amounts to nothing less than rewriting the statute.”), cert.

granted, 118 S. Ct. 2059 (June 1, 1998).107

Second, examining, not avoiding, Richardson’s constitutional concerns, we

find that INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration

decisions does not violate the Due Process Clause and Article III because neither

provision mandates judicial review of immigration decisions. This repeal also does

not violate the Suspension Clause because Richardson still has adequate and

effective judicial review available under the INA. In light of these significant

constitutional issues, we outline why in considerable detail.

C. Eleventh Circuit’s Boston-Bollers Decision

This Circuit already has upheld as constitutional the similar, restricted

judicial review afforded criminal aliens under former INA § 106(a)(10), enacted by

the AEDPA. Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997). Although

107 See footnote 169 infra.

51 decided before the effective date of IIRIRA’s repeal of § 2241108 and involving a

slightly different statute, Boston-Bollers is our necessary starting point because it

held that INA § 106(a)(10)’s precluding judicial review of a deportation order

against a permanent resident criminal alien109 did not violate the Due Process

Clause or Article III.110

Quoting from Reno v. Flores, 507 U.S. 292, 305 (1993), this Court

recognized that the “responsibility for regulating the relationship between the

United States and our alien visitors has been committed to the political branches of

the Federal Government,” and that “over no conceivable subject is the legislative

108 Boston-Bollers was decided on February 5, 1997. Although Congress enacted IIRIRA on September 30, 1996, with some limited technical amendments thereafter in October 1996, IIRIRA § 309(a) provided for a general effective date of April 1, 1997. Although there is some dispute over whether certain parts of IIRIRA were effective immediately on September 30, 1996, or only after April 1, 1997, Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir. 1997), that question is of no continuing significance because both dates have now passed. 109 Paul Boston-Bollers entered the United States as a lawful permanent resident in January 1987. 106 F.3d at 353. In 1992, Boston-Bollers pled guilty to second-degree murder which made him deportable under INA § 241(a)(2)(A)(iii) for a conviction of an “aggravated felony” as defined under the INA. Id. 110 In holding that AEDPA applied retroactively to Boston-Bollers’ pending appeal, this Court found that INA § 106(a)(10), as enacted by AEDPA § 440(d), did not impair Boston- Bollers’ substantive rights but was a jurisdiction-eliminating statute. Therefore, this Court declined to apply the Supreme Court’s presumption against the retroactive application of statutes which impair substantive rights, citing Landgraf v. USI Film Prod., 511 U.S. 244, 265 (1994). Boston-Bollers, 106 F.3d at 354 (listing six other circuits reaching same result). See footnote 105 supra.

52 power of Congress more complete.” Boston-Bollers, 106 F.3d at 355.111

Accordingly, this Court determined that INA § 106(a)(10) did not violate the Due

Process Clause because deportation is not a criminal proceeding or punishment and

no judicial review is guaranteed by the Due Process Clause, stating:

This restriction of federal court jurisdiction does not violate the Due Process Clause. As the Supreme Court stated in Carlson v. Landon, “[t]he power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely though executive officers, with such opportunity for judicial review of their action as congress may see fit to authorize or permit.” 342 U.S. 524, 537, 72 S. Ct. 525, 532-33, 96 L.Ed. 547 (1952) (internal quotation omitted). And since “[d]eportation is not a criminal proceeding and has never been held to be punishment . . . [n]o judicial review is guaranteed by the Constitution.” Id. at 537, 72 S. Ct. at 533 (footnote omitted). Because the Constitution does not give aliens the right to judicial review of deportation orders, section 440(a)(10) does not violate the Due Process Clause.

106 F.3d at 355.112

111 See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (noting that this Court’s decisions “have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”); Fiallo v. Bell, 430 U.S. 787, 794-95 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765-67 (1972); Harisiades v. Shaughnessy, 342 U.S. 580, 588-90 (1952). 112 In Carlson v. Landon, 342 U.S. 524, 528-29 (1952), the alien brought a habeas corpus petition alleging his detention without bond violated the Due Process Clause of the Fifth Amendment and the Eighth Amendment. Because the alien had access to a petition for habeas, there was no claim of conflict with the Suspension Clause. Id. at 528. The Supreme Court found no Due Process Clause or Eighth Amendment violation for the reasons quoted above in Boston- Bollers. Carlson, 342 U.S. at 537. However, in between these quotations about the executive

53 In addition, this Court concluded that former INA § 106(a)(10) did not

offend Article III because Congress and the executive branch exercise plenary

authority over immigration regulation. Id. at 355. We also recognized that “the

federal appellate courts have ‘jurisdiction to review certain final orders of

deportation and exclusion against aliens only because Congress has conferred it.’”

106 F.3d at 354 (quoting Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir. 1996).

Accordingly, this Court concluded that INA § 106(a)(10)’s restricting judicial

review of deportation orders against criminal aliens “not only does not violate

Article III, it is illustrative of the concept of separation of powers envisioned by the

Constitution.” Id.

Boston-Bollers would resolve Richardson’s constitutional concerns were it

not for two facts: (1) when this Court interpreted former INA § 106(a)(10) in

Boston-Bollers, IIRIRA’s repeal of § 2241 was not yet effective, and (2) in a

footnote, this Court in Boston-Bollers expressly recognized that whether INA §

106(a)(10) precluded judicial review of deportation orders against criminal aliens

“via a writ of habeas corpus” was not presented in that appeal. Id. at 354 n.1.113

and legislative power over expelling aliens, the Supreme Court also stated: “This power is, of course, subject to judicial intervention under the ‘paramount law of the Constitution.’” Carlson, 342 U.S. at 537 n.27 (citing a long line of Supreme Court precedent). 113 Boston-Bollers was before this Court on a petition for direct review of a final deportation order. Both parties agreed “that the issue of whether section 440(a)(10) precludes

54 While Boston-Bollers informs our analysis, we recognize that it was decided

under INA § 106(a)(10) as enacted by the AEDPA, was not colored by the same

constitutional concerns created by IIRIRA’s repeal of § 2241 habeas in INA §

242(g), and did not address the restrictions now in INA § 242(a)(2)(C) on judicial

review of deportation orders against criminal aliens. Nonetheless, we find that

these additional circumstances still do not create constitutional infirmities in

IIRIRA’s new judicial-review scheme. We reach this conclusion not only for the

reasons outlined in Boston-Bollers but also because Congress clearly has the

authority (a) to repeal § 2241 jurisdiction over immigration decisions, (b) to

legislate that all judicial review of immigration decisions must be exclusively

under the INA, and (c) to regulate the exclusive mode and precise timing of that

judicial review within the INA’s provisions. As shown below, Congress’ repeal of

§ 2241 and its enactment of the requirement that all judicial review now be

exclusively under the INA, in the court of appeals, and after a final removal order

judicial review of deportation orders via a writ of habeas corpus is not presented in this appeal.” 106 F.3d at 354 n.1. In Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997), the Seventh Circuit noted that four courts of appeal have rejected contentions that INA § 106(a)(10) violates the Constitution but the Yang court pointed out that “they observe that limited opportunity to apply for a writ of habeas corpus may remain,” citing Kolster v. INS, 101 F.3d 785, 790-91 (1st Cir. 1996); Hincepie-Nicto v. INS, 92 F.3d 27, 30-31 (2d Cir. 1996); Duldulao v. INS, 90 F.3d 396, 399-400 & n.4 (9th Cir. 1996). See also Morel v. INS, 144 F.3d 248, 251 (3d Cir. 1998); Mansour v. INS, 123 F.3d 423, 426 (6th Cir. 1997); Williams v. INS, 114 F.3d 82, 83-84 (5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154 (10th Cir. 1997).

55 do not violate the Due Process Clause, Article III, or the Suspension Clause. We

now examine each such constitutional provision in turn.

D. Due Process Clause

Permanent resident aliens are protected by the Due Process Clause of the

Fifth Amendment which provides that “[n]o person shall be . . . deprived of life,

liberty or property, without due process of law . . .” U.S. Const. amend. V.

Although the political branches exercise plenary control over the admission and

removal of aliens, INS v. Chadha, 462 U.S. 919 (1983), this plenary authority is

subject to the limits of the Constitution. See, e.g., Galvan v. Press, 347 U.S. 522,

531 (1954); Carlson v. Landon, 342 U.S. 524, 533 (1952).

While an alien seeking initial admission to the United States has no

constitutional rights regarding an application for admission, United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), “once an alien gains admission

to our country and begins to develop the ties that go with permanent residence his

constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). The

Supreme Court has held that a permanent resident alien “continuously present” in

the United States has a right to procedural due process in any proceedings to

56 remove that alien from the country.114 See, e.g., Reno v. Flores, 507 U.S. 292

(1993); Landon v. Plasencia, 459 U.S. at 21.115 At the core of the alien’s due

process rights is the right to notice of the nature of the charges and a meaningful

opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590,

596-98 (1953).

Removal proceedings under the INA are not criminal proceedings and are

not summary ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th

Cir. 1997). Instead, removal proceedings are imbued with procedural safeguards

that satisfy the Due Process Clause. The alien has the right to notice, the

114 Although Richardson’s leaving the United States may have changed his legal status under INA § 101(a)(13)(C) to an arriving alien “seeking admission” due to his criminal convictions, we assume solely for purposes of this case that it did not change his constitutional status in light of his thirty-year permanent residency in the United States. Specifically, the Supreme Court instructs that “[w]e do not regard the constitutional status which petitioner indisputably enjoyed prior to his voyage as terminated by that voyage. From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien.” Kwong Hai Chew v. Colding, 344 U.S. 590, 600 (1953). The alien in Chew was a lawful permanent resident who worked on an American ship. Id. at 592. He was on a voyage to the Far East for about four months. Id. at 594. Upon his return, he was denied entry to the United States under an immigration regulation which allowed the Attorney General to exclude certain aliens without a hearing when information relating to the exclusion would “be prejudicial to the public interest.” Id. Thus, not only was Chew excluded and detained, he also was denied any notice of the reasons for his exclusion and any opportunity to challenge those reasons. In contrast, Richardson has been afforded extensive procedural safeguards in his removal proceedings. 115 In Landon v. Plasencia, 459 U.S. 21, 31 (1982), the Supreme Court stated: “although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process . . . ,” citing United States ex rel. Vajtauer v. Comm’r of Immigration, 273 U.S. 103, 106 (1927); Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903); United States ex rel. Tisi v. Tod, 264 U.S. 131, 133 (1924); Low Wah Suey v. Backus, 225 U.S. 460 (1912).

57 opportunity to present evidence and cross examine witnesses, and the right to do so

with the assistance of counsel at a hearing before an immigration judge.116 Given

these procedural safeguards, no judicial review is required to provide the process

due to a permanent resident alien facing removal. See, e.g., Carlson v. Landon,

342 U.S. 524, 537 (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 109

F.3d 1185, 1196-97 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct.

624 (1997).117 Therefore, the fact that IIRIRA repeals § 2241 habeas jurisdiction

over immigration decisions, provides for exclusive judicial review under the INA,

and within that INA scheme further limits the mode, timing and types of issues for

which Richardson can seek judicial review under the INA, does not violate the Due

Process Clause.

We recognize that Richardson also asserts that the INA’s limiting his bond

requests in these removal proceedings to written request to the INS district

director, without any judicial review by an immigration judge, deprives him of due

process. We disagree. The sufficiency of that process is evaluated under the three

factors outlined in Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976): (1) a

116 See footnotes 62-67 supra. 117 “The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.” Landon v. Plasencia, 459 U.S. 21, 32-33 (1982) (emphasis supplied).

58 petitioner’s interest in additional procedures; (2) the “risk” of the procedure; and

(3) the government’s interest in the procedure. Richardson’s “liberty interest”

under the Due Process Clause is weighty, although slightly attenuated given his

resident alien status.118 However, the “risk” factor is low, as Richardson’s counsel

was able to make written bond and parole requests to the INS district director,

supported by evidence, which here included several documents and affidavits on

Richardson’s behalf.

In contrast, the INS’ interest is fairly high in its district director’s being able

to make parole and bond decisions for arriving aliens facing removal proceedings

in that district without a subsequent hearing before an immigration judge. Given

the volume of arriving aliens and numerous ports of entry, it simplifies the

procedures, expedites consideration, and reduces costs, while still giving the alien

an opportunity to request bond and parole.119 Being the initial step in the removal

118 See, e.g., Matthews v. Diaz, 426 U.S. 67, 80 (1976) (“Congress regularly makes rules that would be unacceptable if applied to citizens.”). 119 Congress acts well within its plenary power in mandating detention of a criminal alien with an aggravated felony conviction facing removal proceedings. See INA § 236(c), 8 U.S.C. § 1226(c) (Supp. 1998); TPCRs in IIRIRA § 303(b)(3). This poses no constitutional issue, for the Supreme Court already has stated that “[t]he Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed . . .” Carlson v. Landon, 342 U.S. at 545. The Supreme Court has determined that bail need not be provided in all immigration cases. Id. at 546. More importantly, Richardson does not challenge the INS district director’s denial of his release request as incorrect under the INS regulations or show why the opportunity to be heard by the regulations governing bond and parole was inadequate.

59 proceedings, the INS’ bond and parole procedures also must be evaluated in light

of the many procedural safeguards in the overall removal proceedings. Indeed,

Richardson received a plenary removal hearing before an immigration judge.

Richardson has shown no due process violation.

E. Article III

IIRIRA’s repeal of § 2241 habeas over INS decisions also does not violate

Article III. While § 2 of Article III extends the judicial power to “all cases . . .

arising under the Constitution,” § 1 of Article III provides that this judicial power

shall be vested “in one supreme Court, and in such inferior Courts as the Congress

may from time to time ordain and establish.” U.S. Const. art. III §§ 1, 2. Even if

Richardson had no judicial review available in the district court under § 2241 or in

the court of appeals under the INA, Article III does not mandate the judicial review

of immigration decisions in any inferior court. Instead, Congress possesses the

sole authority to establish the jurisdiction of the inferior federal courts.120

120 See Morel v. INS, 144 F.3d 248, 251 (3d Cir. 1998); Chow v. INS, 113 F.3d 659, 668 (7th Cir. 1997); Yang v. INS, 109 F.3d 1185, 1196 (7th Cir.) cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997). In finding lack of jurisdiction under former INA § 106(a)(10) over Morel’s appeal of a final deportation order, the Third Circuit stated that “we do not see any deprivation of his rights which is of constitutional proportion,” noting “the INS concedes that § 440(a) [INA § 106(a)(10)] does not preclude Article III court review of claims of substantial Constitutional error.” Morel, 144 F.3d at 251. Finding Morel’s appeal raised only a “question of law,” the Third Circuit concluded that “relevant Supreme Court authority does not mandate judicial review by an Article III court of questions of law underlying legislatively-created public rights such as immigration. See Crowell v. Benson, 285 U.S. 22 (1932) (drawing a distinction between public and private rights and listing immigration as an exemplar of a public right).”

60 The jurisdiction of the inferior federal courts are created by statute and

jurisdiction does not exist except to the extent conferred by statute. Sheldon v. Sill,

49 U.S. (8 How.) 441, 449 (1850). Therefore, inferior federal courts must have

some statutory basis upon which to retain jurisdiction regardless of the character of

Richardson’s claims. Similar to many congressionally enacted limits on federal

jurisdiction, Article III does not preclude Congress from removing all judicial

review over immigration decisions from the inferior courts.121

F. Suspension Clause

Contending that he has no judicial review available under the INA,

Richardson asserts that the Suspension Clause entitles him to judicial review, and

thus Richardson argues INA § 242(g) cannot be read to repeal § 2241 habeas. The

Morel, 144 F.3d at 252. 121 Congress has established significant limits on federal jurisdiction throughout history and continuing today. For example, during the first century of the nation’s existence, the inferior courts lacked federal-question jurisdiction; and, until 1976 the federal-question jurisdiction remained restricted by an amount-in-controversy requirement. Yang v. INS, 109 at 1195. The Seventh Circuit in Chow v. INS, 113 F.3d 659, 668 (7th Cir. 1997), also outlined the following reasons why the AEDPA’s enacting INA § 106(a)(10), restricting judicial review of deportation orders against criminal aliens, does not offend Article III. Although Article III enumerates cases over which the judicial power shall extend, Article III, however, grants Congress the power “to ordain and establish” such lower federal courts and courts of appeal. Keene Corp. v. United States, 508 U.S. 200, 207 (1993); Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 57-60 (1982); Chow, 113 F.3d at 670. The Constitution does not prescribe how much judicial power must vest in the inferior courts and leaves it to Congress to make that decision. Id. Thus, the Seventh Circuit found that the INA, that limits the lower courts’ jurisdiction, is not unconstitutional unless it confers powers not enumerated in the Constitution. Sheldon, 49 U.S. (8 How.) at 449. Therefore, the court concluded that the INA does not offend Article III or the separation of powers. Id.

61 Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus

shall not be suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it.” U.S. Const. art. I § 9. Since “the traditional Great Writ was

largely a remedy against executive detention,”122 the INS concedes that the

Suspension Clause requires some limited judicial review of Richardson’s executive

detention. The INS emphasizes, however, that any constitutionally required

judicial review (a) must be found under the INA and not § 2241 habeas, and (b) is

limited to only “substantial constitutional claims” or “substantial claims of

constitutional error.”123

122 Swain v. Pressley, 430 U.S. at 386 (Burger, C.J., concurring). The Second Circuit also emphasized that “[t]he primary historical use of the writ of habeas corpus was precisely against executive detention. See Felker, 518 U.S. at 663 (noting that the writ originally only extended to prisoners in federal custody who were not “detained in prison by virtue of the judgment of a court” (citation and internal quotation marks omitted)).” Henderson, 157 F.3d at 120; see also Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring) (“[T]he historic purpose of the writ has been to relieve detention by executive authorities without judicial trial.”). 123 The Second Circuit in Henderson observed that “the government itself does not argue that the 1996 amendments completely forbid judicial review of deportation against criminal aliens . . . . In its view, the courts are only empowered to examine petitions presenting ‘substantial’ or ‘colorable’ constitutional claims, and not petitions involving ‘mere’ questions of statutory law.” Henderson, 157 F.3d at 119. As the Second Circuit also noted, “[a]nd well [the INS] might concede this point, for the Supreme Court decided more than seventy-five years ago that the Constitution required judicial review of the executive’s decision that a person facing deportation was a non-citizen.” Henderson, 157 F.3d at 122 n.14 (citing Ng Fung Ho v. White, 259 U.S. 276 (1922)). In Ng Fung Ho, the Supreme Court stated that the precise question in that habeas petition was whether a claim of citizenship by a resident entitles him to judicial review of his claim. 259 U.S. 276, 282 (1922). The Court held that “[j]urisdiction in the executive to order deportation exists only if the person arrested is an alien. The claim of citizenship is thus a denial of an essential jurisdictional fact.” Id. at 284.

62 The Supreme Court has not defined the level of judicial review preserved by

the Suspension Clause, unaided by § 2241 or its precursor statutes, because

statutory habeas review historically has been available since 1789.124 Both parties

repeatedly cite Heikkila v. Barber, 345 U.S. 229 (1953), in which the Supreme

Court held that “the 1917 Immigration Act . . . clearly had the effect of precluding

judicial intervention in deportation cases except insofar as it was required by the

Constitution.” Id. at 234-35. The Supreme Court upheld the preclusion of judicial

review in the 1917 Act, but in the context of statutory habeas remaining available,

stating:

124 The United States Constitution became effective on March 4, 1789. In September 1789, the First Congress passed the Judiciary Act of 1789. Section 14 of the Judiciary Act granted the federal courts jurisdiction to issue writs of habeas corpus. 1 Stat. 81 (1789). In 1867, Congress significantly expanded federal jurisdiction to issue writs of habeas corpus. 14 Stat. 385 (1867). The Supreme Court has recognized that this amendment to federal habeas jurisdiction increased the scope of habeas review beyond the “bare legal review” of the common-law writ. Johnson v. Zerbst, 304 U.S. 458, 466 (1938); see also McClesky v. Zant 499 U.S. 467, 477 (1991) (noting inter alia that the 1867 amendments expanded availability of the writ in federal court to people held in state custody). Accordingly, the Court has concluded that this revision to habeas jurisdiction conferred on federal courts the ability to determine the legality and constitutionality of a person’s detention even if “the proceedings resulting in incarceration may be unassailable on the face of the record.” United States v. Hayman, 342 U.S. 205, 212 (1952). Over the years, Congress amended habeas jurisdiction several times. For the most part, these amendments have related to the form and procedure for seeking the writ and to the codification of federal statutes in 1874 and 1948. Rev. Stat. §§ 751-766 (1874); 62 Stat. 869 (1948). However, the Supreme Court has recently recognized that the Judiciary Act of 1789 is the “direct ancestor” of 28 U.S.C. § 2241(a) and the 1867 amendments to the Judiciary Act are the “direct ancestor” of 28 U.S.C. § 2241(c). Felker, 518 U.S. at 659 n. 1 & 2; see also Hayman, 342 U.S. at 211 n. 11 (noting that the 1867 Act is [n]ow incorporated in 28 U.S.C. (Supp. IV) § 2241 et seq.”

63 The rule which we reaffirm recognizes the legislative power to prescribe applicable procedures for those who would contest deportation orders. Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases in order to minimize opportunities for repetitious litigation and consequent delays as well as to avoid possible venue difficulties connected with any other type of action.

Id. at 237. Thus, Heikkila does not resolve the issue here of whether IIRIRA’s

repeal of § 2241 habeas would violate the Suspension Clause if Richardson has no

judicial review under the INA.125

Unguided by direct Supreme Court precedent, the Second, Seventh, and

Ninth Circuits have thoughtfully addressed and reached different conclusions about

what level of judicial review is protected by the Suspension Clause, what scope of

125 Both Richardson and the INS cite Webster v. Doe, 486 U.S. 592, 603 (1988), which involved a discharge of a government employee based on sexual preference. Chief Justice Rehnquist’s majority opinion in Webster states it reached certain conclusions “to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” (quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12 (1986)). Since we find that certain judicial review remains under the INA, as outlined infra, this case also does not present a denial of all judicial review. Also, two dissents stated that judicial review is not required over constitutional claims challenging the validity of employment decisions by the Central Intelligence Agency. In his dissent, Justice Scalia pointed out that “the denial of all judicial review is not at issue,” but “merely the denial of review in United States district courts.” Id. at 611. Since Article III, § 1 provides that the judicial power shall be vested “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Justice Scalia stressed that “[w]e long ago held that the power not to create any lower federal courts at all includes the power to invest them with less than all the judicial power.” Id. His dissent concluded that Congress can prescribe that for certain jobs, the dismissal decision is “committed to agency discretion by law” and “that not all constitutional claims require a judicial remedy.” Id. at 614.

64 judicial review the INA provides, and whether constitutional infirmities are created

by INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration decisions.

The Second and Ninth Circuits have outlined in great detail the two-hundred year

history of the Suspension Clause and why the Great Writ protected by the

Suspension Clause (whether under an originalist approach as it existed in 1789 or

today) requires judicial review of an alien’s executive detention that is the

equivalent of § 2241 habeas. Magano-Pizano v. INS, 152 F.3d 1213, 1217-21 (9th

Cir. 1998); Henderson v. INS, 157 F.3d 106, 112-21 (2d Cir. 1998). In Magano-

Pizano, the Ninth Circuit concluded that INA § 242(g)’s repeal of § 2241 habeas

violated the Suspension Clause. In Jean-Baptiste, 141 F.3d 212 (2d Cir. 1998), the

Second Circuit, in order to avoid the Suspension Clause issue, held that INA §

242(g) did not repeal § 2241 habeas. A subsequent panel of the Second Circuit in

Henderson followed yet questioned the correctness of the Jean-Baptiste decision.

The Seventh Circuit took a different approach. After outlining the history of

§ 2241 habeas and the Suspension Clause, the Seventh Circuit agreed that “[a]liens

may seek the writ that Art. I § 9 cl. 2 preserves against suspension.” Yang v. INS,

109 F.3d 1185, 1195 (7th Cir. 1997). However, the Seventh Circuit found that “28

U.S.C. § 2241 offers an opportunity for collateral attack more expansive than the

Great Writ preserved in the Constitution.” Id. While Yang’s direct holding

65 involved the restrictions on a criminal alien’s judicial review under former INA §

106(a)(10), the Seventh Circuit noted that “effective April 1, 1997, § 306(a) of the

IIRIRA [INA § 242] abolishes even review under § 2241, leaving only the

constitutional writ, unaided by statute.” Id. The Seventh Circuit found that the

particular errors of law and discretionary INS decision of which Yang, a criminal

alien in custody, sought judicial review were simply not protected by the “Great

Writ.” Id. Similarly, the Seventh Circuit noted there is a “vast gulf between the

non-suspendable constitutional writ” and certain other forms of judicial review,

such as under the Administrative Procedures Act. Id.

Below we first discuss the different approaches of these three circuits in

considerable detail. Second, we address IIRIRA’s clear mandate that judicial

review be exclusively after a final removal order – a factor we find not given

sufficient weight by our sister circuits. Third, we outline why we find INA §

242(g)’s repeal of § 2241 habeas and its requirement of exclusive judicial review

under the INA do not conflict with the Suspension Clause.

G. Second Circuit’s Henderson Decision

When it decided Henderson, the Second Circuit in Jean-Baptiste already had

held that INA § 242(g) did not repeal § 2241 habeas. Jean-Baptiste v. Reno, 144

F.3d 212, 218-19 (2d Cir. 1998); Henderson v. INS, 157 F.3d 106, 119 (2d Cir.

66 1998). Subsequently, in Henderson the Second Circuit revisited whether

constitutional issues under the Suspension Clause are actually implicated by

IIRIRA’s repeal of § 2241 habeas. Noting that it was bound by Jean-Baptiste, the

Second Circuit in Henderson held that INA § 242(g) did not repeal § 2241.126

However, in a footnote, the Second Circuit in Henderson expressly

acknowledged that “[w]ere we not bound by Jean-Baptiste, the members of this

panel would be strongly inclined to find that the proper mechanism for judicial

review is by petition for review in the courts of appeals, rather than by § 2241

habeas in the district courts.”127 The Henderson panel noted that Congress

“clearly” meant to streamline judicial review and concluded that “it seems perverse

to find that the new laws [IIRIRA] actually added a layer of review in the district

courts that did not generally exist before.”128

The Second Circuit in Henderson noted that Jean-Baptiste expressly had

reserved the question of the extent and nature of judicial review remaining

available under the INA post-IIRIRA.129 The Henderson panel rejected the INS’

contention that judicial review under IIRIRA is limited to “substantial

126 Henderson, 157 F.3d at 119. 127 Id. at 119 n.9. 128 Id. (emphasis supplied). 129 Henderson, 157 F.3d at 119.

67 constitutional issues.”130 Instead, the Second Circuit indicated that judicial review

post-IIRIRA “‘is much like it was prior to the enactment of the INA’ and is similar

to that which existed under the early statutes that were ‘intended to make these

administrative decisions nonreviewable to the fullest extent possible under the

Constitution.’”131 The Second Circuit then noted that the Attorney General’s

position that no court has power to review her interpretation of immigration laws

“is, to put it mildly, not only at war with the historical record described earlier in

this opinion – for at least a hundred years, the courts have reviewed the executive

branch’s interpretation of the immigration laws, and have deemed such review to

be constitutionally mandated – it is also hard to square with the core conception of

habeas corpus as it has been applied over many centuries.”132

Ultimately, the Second Circuit in Henderson concluded only that whatever

the remaining parameters of § 2241 relief in the immigration context, the claims

130 Id. at 120. The Second Circuit also noted that the INS borrowed this standard from the standard for reviewing successive habeas petitions but observed that this standard arose in an entirely different context than presented under the immigration laws. Id. Specifically, the Second Circuit recognized that the substantial-constitutional-question standard applied to petitioners in state custody who had necessarily enjoyed several opportunities to challenge their detention before in a judicial forum. Id. (citing Goncalves, 144 F.3d at 118 n.8). Conversely, according to the Henderson panel, aliens detained pending removal from the country are detained by the executive with no prior judicial review of their detention. Henderson, 157 F.3d at 120. 131 Id. at 119. 132 Id.

68 presented by the Henderson aliens facing deportation fell within the remaining

scope of § 2241.133 As its holding, the Second Circuit stated “federal courts have

jurisdiction under § 2241 to grant writs of habeas corpus to aliens when those

aliens are ‘in custody in violation of the Constitution or laws or treaties of the

United States.’”134 But, the Second Circuit immediately qualified that holding by

stating that “[t]his is not to say that every statutory claim that an alien might raise

is cognizable on habeas.”135 Instead, the court concluded that the range of claims

available under § 2241 consisted of “the sort that the courts have secularly

enforced . . . in the face of statutes seeking to limit judicial jurisdiction to the

fullest extent constitutionally possible.”136

H. Ninth Circuit’s Magana-Pizano Decision

Two recent Ninth Circuit decisions also address INA § 242(g)’s repeal of §

2241 habeas. In Hose v. INS, 141 F.3d 932, 935 (9th Cir.), withdrawn and reh’g

en banc granted, ___ F.3d ___, No. 97-15789 (9th Cir. December 2, 1998), the

133 Id. at 122. The aliens in Henderson presented questions of pure law. The Second Circuit also noted, almost in passing, that judicial review under the INA as long as “the equivalent of habeas” would avoid any conflict with the Suspension Clause. Henderson, 157 F.3d at 119 n.10. 134 Id. at 122 (quoting 28 U.S.C. § 2241). 135 Id. 136 Id.

69 Ninth Circuit first held that INA § 242(g) repealed § 2241 jurisdiction, noting that

the non-criminal alien in that case still could seek judicial review of the BIA’s final

deportation order under INA § 242(b)(2) in the court of appeals.137 Subsequently,

in Magana-Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir.), modified, ___ F.3d ___

(9th Cir. Nov. 13, 1998), the Ninth Circuit held that, unlike the alien in Hose, a

criminal alien cannot obtain full judicial review in the court of appeals due to INA

§ 242(a)(2)(C), that INA § 242(g)’s repeal of § 2241 jurisdiction as applied in that

137 Again, we note that although the Ninth Circuit has withdrawn its published opinion in Hose, this Court still finds persuasive the analysis used by the Ninth Circuit in Hose. In Hose, after receiving a final exclusion order on April 25, 1997, the alien filed a § 2241 habeas petition in the district court which was dismissed for lack of jurisdiction under INA § 242(g). 141 F.3d at 933-34. The alien appealed the district court’s dismissal, but did not file a petition for direct review in the court of appeals and, importantly, did not request that the court of appeals treat her appeal of the district court’s order as a petition for review. Id. at 934. Affirming the district court’s dismissal for lack of jurisdiction, the Ninth Circuit first noted that IIRIRA channeled judicial review to the court of appeals and that the language of INA § 242(g) was “clear” and sufficiently broad to convey congressional intent to repeal § 2241 jurisdiction. Id. at 935. The court reasoned that the rule disfavoring implicit repeals of jurisdictional statutes was followed in Felker v. Turpin, 518 U.S. 651 (1996), because it was interpreting the AEDPA’s repeal of a “specific avenue for review” (appellate jurisdiction over a successive habeas petition) and that repeal did not implicitly repeal another separate and distinct avenue for review (the Supreme Court’s original habeas jurisdiction) which was not mentioned in the AEDPA. Hose, 114 F.3d at 935. Conversely, the court in Hose found the clear language of INA § 242(g) provided that unless jurisdiction otherwise existed under INA § 242, no court could exercise jurisdiction to review a removal order. Id. Finally, the court in Hose concluded that the Suspension Clause did not prohibit this repeal because no suspension of the writ occurs if a substitute procedure exists that is “neither inadequate nor ineffective to test the legality of a person’s detention.” Id. at 936 (citing Swain, 430 U.S. at 381). Since judicial review of exclusion orders remained available under IIRIRA in the form of direct review in the court of appeals, the court held that Ms. Hose had failed to demonstrate how such review was either inadequate or ineffective to contest her detention.

70 different context violated the Suspension Clause, and thus, § 2241 jurisdiction still

existed over Magano-Pizano’s deportation order.

In light of Hose’s holding that INA § 242(g) repealed § 2241, the Ninth

Circuit could not construe INA § 242(g) to avoid constitutional issues. The Ninth

Circuit found that Heikkila established the minimum constitutionally permissible

level of judicial review in immigration cases and required the conclusion that,

when Congress limits judicial review over immigration matters to the extent

permitted by the Constitution, habeas remains available. In other words, the Ninth

Circuit found that “[s]imply put, elimination of all judicial review of executive

detention violates the Constitution.”138 Based on this premise, the Ninth Circuit

concluded that, as interpreted in Hose and applied to cases for which no judicial

review is available, INA § 242(g)’s repeal of § 2241 was invalid under the

Suspension Clause.139

Prior to granting rehearing en banc, the Ninth Circuit thus had adopted a

hybrid approach to whether INA § 242(g) repeals § 2241. For cases where judicial

review remains in the court of appeals under the INA, the Ninth Circuit had

138 Magana-Pizano, 152 F.3d at 1220. 139 Id.

71 interpreted INA § 242(g) as repealing § 2241 jurisdiction.140 Conversely, for cases

in which the Ninth Circuit finds that there is no judicial review under the INA, the

Ninth Circuit concluded that INA § 242(g) cannot constitutionally repeal § 2241

habeas and that some form of habeas relief remains available.141

I. Seventh Circuit’s Yang Decision

Although involving former INA § 106(a)(10),142 the Seventh Circuit’s

decision in Yang v. INS, 109 F.3d 1185, 1187 (7th Cir.), cert. denied sub nom,

Katsoulis v. INS, 118 S. Ct. 624 (1997), also contains an instructive analysis of the

Suspension Clause and Congress’ plenary power to remove judicial review over

immigration decisions to the full extent permitted by the Constitution. The specific

facts and legal issues in Yang are an important background to its holding that the

INA does not preclude all judicial review of deportation orders against criminal

aliens.

After finding that Yang’s conviction for concealing stolen firearms was a

deportable offense under INA § 241(a)(2)(C), the immigration judge ordered Yang

140 Hose, 141 F.3d at 936. 141 Magano-Pizano, 152 F.3d at 1220. 142 The Seventh Circuit in Yang interpreted INA § 106(a)(10) as it existed following IIRIRA’s first amendment, but before it was amended the second time and moved to INA § 242(a)(C)(2). See footnotes 74 and 83 supra and 176 infra.

72 deported because of this conviction, among other reasons.143 On his petition for

direct review in the court of appeals, Yang argued, inter alia, that he was not

deportable under INA § 241(a)(2)(C) because his conviction for concealing stolen

firearms was not a crime involving the “possession” of a firearm.144 Although

prior to IIRIRA’s repeal of § 2241 habeas, Yang was still faced with a similar

judicial review bar in former INA § 106(a)(10) which provided that “[a]ny final

order of deportation against an alien who is deportable by reason of having

committed a criminal offense covered in section [designated sections omitted] . . .

shall not be subject to review by any court.”145

According to the INS, Yang was not entitled to judicial review of his final

deportation order because the BIA already had determined that he was an alien

deportable based on one of the sections referenced in INA § 106(a)(10).146 Like

Boston-Bollers, the Seventh Circuit held that INA § 106(a)(10)’s restrictions on

143 Id. at 1189. 144 Id. at 1191. 145 INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995). 146 Id. at 1192. The Yang case actually involved petitions for review by four aliens in separate deportation proceedings. Id. According to the Seventh Circuit, in three of these four consolidated cases, the INS contended that the court lacked jurisdiction if the BIA determined that an alien was deportable based on one of the referenced criminal offenses. Id. Conversely, the court noted that in one of these cases, the INS adopted a different position. Id. Specifically, in the fourth case, the INS argued that the court retained jurisdiction over whether the alien facing deportation was actually an alien deportable for an enumerated offense. Id.

73 judicial review of Yang’s deportation order did not violate the Due Process Clause

or Article III.147 The Seventh Circuit also discussed how the review protected by

the Suspension Clause is not co-extensive with § 2241 habeas as follows:

Aliens may seek the writ that Art. I § 9 cl. 2 preserves against suspension. But we are reluctant to place weight on its availability, because the Supreme Court long ago made it clear that this writ does not offer what our petitioners desire: review of discretionary decisions by the political branches of government. [Citations omitted.] There is a vast gulf between the non- suspendable constitutional writ and the Administrative Procedure Act. [Citations omitted.] Similarly, in cases under 28 U.S.C. § 2254, “[a] a federal court may not issue the writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 875, 79 L.Ed. 29 (1984). [Citations omitted.] Likewise with errors of federal law. See United States v. Caceres, 440 U.S. 741, 752, 99 S. Ct. 1465, 1472, 59 L.Ed. 2d 733 (1979) (error “by an executive agency in interpreting its own regulations surely does not raise any constitutional concerns”); Czerkies, 73 F.3d at 1443 (“The government does not violate the Constitution every time it mistakenly denies a claim for benefits.”). As a practical matter, the right to obtain review, in any court, on the theories our petitioners advance is gone. That is the point of the legislation. Congress wanted to expedite the removal of criminal aliens from the United States by eliminating judicial review, not to delay removal by requiring aliens to start the review process in the district court rather than the court of appeals.

147 Id. at 1197.

74 Yang, 109 F.3d at 1195 (emphasis supplied). The Seventh Circuit in Yang

recognized, as did the Second Circuit in Henderson, that Congress wanted to

eliminate review in the district courts and allow review only in the court of

appeals.

In addition to its Suspension Clause discussion, the Seventh Circuit in Yang

explained how the INA does not abrogate all judicial review for criminal aliens

because courts always have jurisdiction to determine whether a jurisdictional bar

applies and to consider constitutional attacks on any such jurisdictional bar.148 The

Seventh Circuit explained succinctly that “a court has jurisdiction to determine

whether it has jurisdiction.”149 The Seventh Circuit found that the language of INA

§ 106(a)(10) did not condition its restriction on judicial review merely on the

Attorney General’s saying that an alien is deportable for one of the enumerated

criminal offenses.150 Instead, the language of INA § 106(a)(10) conditioned its

restriction on judicial review on there being “an alien” “who is deportable” “by

reason of having committed a criminal offense” enumerated in the statute.151 The

Seventh Circuit noted that “[w]hen judicial review depends on a particular fact or

148 Id. at 1192. 149 Id. 150 Id. 151 Id.

75 legal conclusion, then a court may determine whether that condition exists.”152

Therefore, the Seventh Circuit held that INA § 106(a)(10) permitted courts to

exercise jurisdiction to determine these three threshold issues in order to decide

whether the jurisdictional bar in INA § 106(a)(10) applies: (1) whether the person

is an alien, (2) whether the alien is deportable, and (3) whether deportation is based

on an enumerated criminal offense.153

Without as extensive a discussion as in Yang, the Fifth Circuit in Anwar v.

INS, 116 F.3d 140, 144 (5th Cir. 1997), likewise concluded that even under INA §

106(a)(10)’s restrictions on judicial review, it could still exercise some jurisdiction

over the alien’s petition for review.154 The Fifth Circuit noted that under INA §

152 Id. at 1192 (citing Land v. Dollar, 330 U.S. 731 (1947), for the proposition that the court retains jurisdiction to determine its own jurisdiction). 153 Id. at 1191-92. 154 As did the Ninth Circuit in Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), the Fifth Circuit in Anwar applied the pre-IIRIRA version of INA § 106(a)(10). 116 F.3d at 144. However, unlike in Coronado-Durazo, the fact that the pre-IIRIRA version of INA § 106(a)(10) applied in Anwar meant that the court could exercise jurisdiction over the alien’s petition for review. Specifically, the court in Anwar noted that prior to IIRIRA, INA § 106(a)(10) precluded the judicial review of a deportation order of an alien who was deportable under INA § 212(a)(2)(A)(ii) (i.e. for multiple criminal convictions of crimes involving moral turpitude) only if both “predicate offenses” were also covered by INA § 212(a)(2)(A)(i). Id. An alien was deportable under INA § 212(a)(2)(A)(i) only if the alien had been convicted of a crime involving moral turpitude which crime occurred within five years of when the alien entered the United States and for which the alien was sentenced to confinement for one year or more. Id. Because one of Anwar’s crimes had occurred more than five years after he entered the United States, the court concluded that his multiple convictions did not fall under INA § 212(a)(2)(A)(i) and thus did not fall under the jurisdictional bar of the pre-IIRIRA INA § 106(a)(10). Id. We note that the Fifth Circuit has recognized an inconsistency between an earlier Fifth

76 106(a)(10), “unamended by IIRIRA,” judicial review was precluded if deportation

was based on two convictions for a crime involving moral turpitude only if both of

the convictions occurred within five years of when the alien entered the United

States.155 Because one of Mr. Anwar’s criminal convictions occurred more than

five years after he entered the United States, the Fifth Circuit concluded that the

jurisdictional bar of INA § 106(a)(10) did not apply.156 Accordingly, the Fifth

Circuit proceeded to review the alien’s petition.157

Despite its lack of extensive discussion, the Anwar decision illustrates the

same concept followed in Yang. The Fifth Circuit did not simply decline to

exercise jurisdiction based on the INS’ asserted grounds for deportation. Instead,

Circuit decision, Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997), and a portion of the Anwar decision that is not at issue in this case. Okoro v. INS, 125 F.3d 920, 924-25 (5th Cir. 1997)(noting the inconsistency between these two decisions); Anwar, 116 F.3d at 143 n.2. In Pichardo, the Fifth Circuit applied the version of INA § 106(a)(10) that included IIRIRA’s first amendment to this section - the amendment adding the phrase “without regard to the date of their commission” to INA § 106(a)(10). However, the court in Anwar applied INA § 106(a)(10) “unamended by IIRIRA.” 116 F.3d 143. The court in Okoro decided to follow the earlier decision of Pichardo. Okoro, 125 F.3d at 925. Nevertheless, neither Pichardo nor Okoro diminish the aspect of the Anwar decision that illustrates the jurisdictional analysis discussed in Yang. Indeed, as was the case in Anwar and Yang, the court in Pichardo also exercised its jurisdiction to the extent necessary to determine whether it could exercise further jurisdiction. 104 F.3d 758-59. In addition, as discussed below, Okoro expressly adopts a holding that is very similar to the holding in Yang. Okoro, 125 F.3d 925. 155 Id. at 143-44. 156 Id. 157 Id. at 144.

77 the Fifth Circuit conducted its own review of the allegations supporting deportation

to determine whether these allegations prohibited further judicial review. Finding

that the judicial-review limiting provisions of INA § 106(a)(10) did not apply, the

Fifth Circuit proceeded to entertain the alien’s claims.158

Moreover, in a subsequent decision, the Fifth Circuit expressly adopted the

aspect of the Yang decision holding that the court of appeals can exercise

jurisdiction in order to determine whether a jurisdictional bar precludes further

jurisdiction. Okoro v. INS, 125 F.3d 920, 925 (5th Cir. 1997). Okoro involved a

158 Likewise, the First Circuit in Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997), found the jurisdictional bar in INA § 106(a)(10) did not apply because the deportation order was based on a criminal offense not covered by that section. Although the alien had other criminal offenses which were not charged in the deportation proceedings, the court held “that the INS cannot, consistent with due process and the statutory and regulatory requirements governing its own proceedings, substitute new grounds for deportation at this stage of the proceedings, solely for the purposes of depriving the federal courts of jurisdiction.” 129 F.3d at 40. Also, without extensive discussion, the Ninth Circuit reached a similar conclusion in Coronado-Durazo v. INS, 108 F.3d 210, withdrawn by 123 F.3d 1322, 1323 (9th Cir. 1997). The alien facing deportation in Coronado-Durazo claimed that the immigration judge and BIA had erroneously concluded that the alien’s conviction for solicitation to possess cocaine was a deportable offense under INA § 241(a)(2)(B)(i) as an offense “relating to a controlled substance.” 123 F.3d at 1324. In both of its opinions in Coronado-Durazo, the Ninth Circuit began with the premise that if the alien’s conviction constituted a deportable offense, the court “lack[s] jurisdiction to review the final order of deportation issued by the INS” because of INA § 106(a)(10) as amended by the AEDPA. 108 F.3d at 211; 122 F.3d at 1323. Without discussing the issue, in both opinions, the Ninth Circuit proceeded on the premise that, under the terms of INA § 106 (10), it could review whether the offense upon which deportation was based was a deportable offense. 108 F.3d at 211; 123 F.3d at 1323. See also Mendez-Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997) (finding that the petitioner was deportable for conviction of an aggravated felony and therefore jurisdiction was barred); Perez v. INS, 116 F.3d 405, 408 (9th Cir. 1997) (reversing agency’s findings that the petitioner’s crime made him deportable and rendered judicial review unavailable).

78 petition for review by an alien facing deportation under INA § 241(a)(2)(A)(ii),159

which provided for the deportation of any alien with two or more convictions of

crimes involving moral turpitude.160 As a “threshold matter,” the Okoro court

examined its own jurisdiction in light of INA § 106(a)(10), as amended by IIRIRA,

which precluded judicial review of any final deportation order “against an alien

who is deportable by reason of having committed . . . any offense covered by

[INA] section 241(a)(2)(A)(ii)161 for which both predicate offenses are covered by

[INA] section 241(a)(2)(A)(i)162.”163 Thus, the court held that its jurisdiction

depended on whether the alien was deportable based on convictions covered by

INA § 241(a)(2)(A)(i) & (ii), as follows:

To determine whether this jurisdictional bar applies to [the alien’s] petition for review, we must examine whether the underlying offenses relied on by the INS to deport [the alien] are (1) crimes involving moral turpitude, (2) not arising out of a single scheme of criminal misconduct, and (3) for which [the alien] was

159 8 U.S.C. § 1251 (a)(2)(A)(i) (Supp. 1996). 160 125 F.3d at 922-23. 161 8 U.S.C. § 1251 (a)(2)(A)(ii) (Supp. 1996). 162 This section is the same jurisdictional bar interpreted by the court in Yang. Compare Okoro, 125 F.3d at 925 with Yang, 109 F.3d at 1188. For a discussion of the amendments to INA § 106 (a)(10) by both the AEDPA and IIRIRA and the successor to INA § 106(a)(10) now found in INA § 242(a)(2), see footnote 83 supra. 163 125 F.3d at 923.

79 sentenced to one year or more of imprisonment, regardless of actual confinement.

Id. at 925 (citing Yang, 109 F.3d at 1192). After determining that all three of these

elements applied to the alien, the court concluded that it lacked jurisdiction over

the alien’s petition for review.164

In this same vein, this Court’s decision in Boston-Bollers also exercised

jurisdiction both over the legal issue of whether AEDPA § 440(a)(10)’s enactment

of INA § 106(a)(10) applied retroactively and over whether that retroactive

application violated Mr. Boston-Bollers’ constitutional rights. This Court in

Boston-Bollers was not required to determine the three threshold issues that the

courts did in Yang or Anwar, because the permanent resident alien facing

deportation in Boston-Bollers conceded his alien status, criminal conviction, and

deportability.165 The parties did not dispute that the alien’s petition for direct

review fell within the expressed jurisdiction-limiting language of INA §

106(a)(10). Nevertheless, in Boston-Bollers this Court exercised jurisdiction over

the alien’s petition for direct review in the court of appeals attacking the

constitutionality of the judicial review restrictions in INA § 106(a)(10).

164 125 F.3d at 927. 165 Boston-Bollers, 106 F.3d at 353.

80 Before we conclude our discussion of the Yang decision, we note that the

Tenth Circuit in Berehe v. INS, 114 F.3d 159, 161 (10th Cir. 1997), declined to

follow the Yang approach. In Berehe, the court applied IIRIRA § 309(c)(4)(G),

which is a transitional rule restricting the judicial review of the deportation of

certain criminal aliens, as follows:

[T]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act . . . or any offense covered by section 241(a)(2)(A)(ii) of such Act . . . for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act . . . .

IIRIRA § 309(c)(4)(G).166 Rejecting the Yang approach, the court concluded that

this language did not “permit the court to review the merits of whether an alien is

166 According to the court in Berehe, the transitional rule found in IIRIRA § 309(c)(4)(G) applied when deportation proceedings were commenced before IIRIRA’s general effective date of April 1, 1997 but the final order of deportation or exclusion was entered more than thirty days after IIRIRA’s September 30, 1996 date of enactment. 114 F.3d at 161. Because the proceedings to deport the alien in Berehe commenced before April 1, 1997 and the order of deportation was issued after October 30, 1996, the court concluded that the transitional rule governed the judicial review of the alien’s deportation order. Id. IIRIRA § 309(c)(4)(G) is similar to both INA § 106(a)(10) as amended by IIRIRA and new INA §242(a)(2)(C). See footnotes 74 and 83 supra and 170 infra. Since 1996, the following four distinct statutes have restricted the judicial review of orders deporting, excluding or removing certain criminal aliens from the United States: (1) INA § 106(a)(10) as enacted by the AEDPA § 440(d), (2) INA § 106(a)(10) as first amended by IIRIRA § 309(d), (3) INA § 242(a)(2)(C) as enacted by IIRIRA § 306(a)(2), and (4) the transitional rule in IIRIRA § 309(c)(4)(G) which was applied in Berehe. See footnote 83 supra for a discussion of the amendments to INA § 106(a)(10).

81 validly deportable by reason of having committed one of the enumerated criminal

offenses.” Berehe, 114 at 161. In reaching this conclusion the court specifically

reasoned that:

To permit judicial review into the validity of the INS's determination that an alien is deportable by reason of having committed one of the listed crimes, in the guise of making a determination as to the court's jurisdiction, is to permit review of the very fact or condition that the statute appears on its face to be precluding from review. We conclude that such review is contrary to Congress's intent to expedite deportation of criminal aliens.

Id. at 162.

However, we observe two additional points about the Tenth Circuit’s

holding in Berehe. First, although professing to follow Berehe, the Tenth Circuit

in a subsequent case reviewed constitutional and statutory claims raised by an alien

who had been found deportable for a reason enumerated in INA § 106(a)(10)

before the court dismissed the case for lack of jurisdiction. Wittgenstein v. INS,

124 F.3d 1244, 1245 (10th Cir. 1997). Second, in Berehe, the Tenth Circuit did

not discuss IIRIRA’s elimination of § 2241 habeas jurisdiction to review

immigration matters, the fact that jurisdiction to review immigration matters

remains under only the INA, and the consequent effect of criminal aliens being

deprived of all judicial review under the INA. The Seventh Circuit in Yang

recognized these aspects of the problem and analyzed in considerable detail the

82 potential constitutional issues arising from the limitations placed on its jurisdiction.

Accordingly, in addition to being persuaded by the Seventh Circuit’s construction

of INA §106(a)(10), we are convinced that the court in Yang reached its

conclusion after giving appropriate consideration to the issues arising from such

severe restrictions on judicial review.

J. INA §§ 242(b)(9) and (d) Require Final Removal Order

Before outlining our conclusions, we discuss another important IIRIRA

mandate that our sister circuits, in our view, have not given sufficient weight.

Prior to IIRIRA, judicial review of the INS’ deportation decisions was unavailable

before the entry of a final deportation order. That result was implicit in former

INA § 106(a)167 which provided that review in the courts of appeal was the “sole

and exclusive procedure” for challenging a final deportation order, and which

required exhaustion of administrative remedies as a prerequisite to obtaining

judicial review.168 IIRIRA strengthened these pre-existing limitations on judicial

review. In addition to retaining a mandatory exhaustion provision, IIRIRA added

167 8 U.S.C. § 1105a (1994). 168 See Massieu v. Reno, 91 F.3d 416, 421 (3d Cir. 1996); see also INS v. Chadha, 462 U.S. 919, 938 (1983).

83 INA § 242(b)(9) which now expressly provides that judicial review is available of

only “a final order.”169

Congress has chosen to delay federal court review of all claims of aliens

against whom removal proceedings have been instituted until the conclusion of the

administrative proceedings. Neither the district court nor this Court can override

that decision. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (stating

“where Congress specifically mandates, exhaustion is required”); Alexander v.

Hawk, ___ F.3d ___ (11th Cir. Nov. 5, 1998). This exhaustion requirement is

statutorily mandated by the INA and not judicially created. Although judicially

developed exhaustion requirements might be waived for discretionary reasons by

courts, statutorily created exhaustion requirements bind the parties and the courts.

When a statute requires exhaustion, a petitioner’s failure to do so deprives this

court of jurisdiction. Importantly, mandatory statutory exhaustion is not satisfied

by a judicial conclusion that the requirement need not apply due to futility.

169 8 U.S.C. § 1252(b)(9). The judges dissenting to the denial of rehearing en banc in the Ninth Circuit’s decision of Reno v. American-Arab concluded that IIRIRA unambiguously foreclosed all judicial review of the non-criminal alien’s claims until the entry of a final deportation order, and that the INA § 242(g) so construed creates no genuine constitutional difficulty. Reno v. American-Arab Anti-Discrimination Comm., 132 F.3d 531 (9th Cir. 1998) (allowing aliens post-IIRIRA to seek an injunction in district court before a final removal order), cert. granted, 118 S. Ct. 2059 (June 1, 1998) (granting certiorari on “[w]hether, in light of the Illegal Immigration Reform and Immigrant Responsibility Act, the courts below had jurisdiction to entertain respondents’ challenge to the deportation proceedings prior to the entry of a final order of deportation”).

84 Weinberger v. Salfi, 422 U.S. 749, 766 (1975) (holding that where exhaustion is a

statutorily specified jurisdictional prerequisite, “the requirement . . . may not be

dispensed with merely by a judicial conclusion of futility”).170

IIRIRA’s mandate is consistent with the long-established administrative law

principle that courts should not intervene in an ongoing administrative agency

process to reach potential constitutional issues.171 Deferring Richardson’s claims

until the entry of a final order of deportation does not raise substantial

constitutional concerns. Congress has broad latitude to regulate the mode and

timing of judicial review of administrative agency decisions, even where

constitutional claims are involved. It is a familiar feature of administrative law that

170 In McCarthy, the Supreme Court noted that where Congress specifically mandates, a plaintiff must exhaust the administrative remedies available to him before he may file in federal court, but held that there was no specific mandate in the pre-PLRA section 1997e(a) context. 503 U.S. at 144. 171 See, e.g., FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-45 (1980) (holding agency’s issuance of an administrative complaint was not subject to review until final agency action despite its evident assumption that the propriety of the initial charging decision would not be subject to administrative review); United States v. Hollywood Motor Car Co., 458 U.S. 263, 268-70 (1982) (holding that criminal defendants could not immediately appeal the denial of motion to dismiss indictment based on prosecutorial vindictiveness); Massieu v. Reno, 91 F.3d 416, 424-26 (3d Cir. 1996) (holding “[a]lthough the immigration judge is not authorized to consider the constitutionality of the statute, this court can hear that challenge upon completion of the administrative proceedings” and dismissing alien’s complaint alleging irreparable selective enforcement in retaliation for an exercise of First Amendment rights).

85 a litigant may be required to obtain a final agency decision on all claims before

being able to seek judicial review.172

This final-decision requirement avoids enmeshing courts in constitutional

litigation about the scope of judicial review left under INA that might prove to be

unnecessary. For example, Richardson raises numerous statutory issues before the

BIA about INA § 101(a)(13)(C) and the Fleuti doctrine that, if decided in his favor,

would remove certain constitutional issues. This requirement also avoids

piecemeal review by consolidating all challenges to the deportation process into a

single judicial proceeding. Richardson’s contentions that the INA, especially INA

§ 242(a)(2)(B), unconstitutionally restricts his judicial review can be made in his

direct petition for review in the court of appeals, just as the alien did in Boston-

Bollers. Richardson does not need § 2241 habeas to do that.173

172 See Weinberger v. Salfi, 422 U.S. 749, 757 (1975). 173 Although the immigration judge is not authorized to consider the constitutionality of INA § 242(a)(2)(C), the court of appeals can hear such a challenge upon completion of the administrative proceedings. See INS v. Chadha, 462 U.S. 919, 938 (1983). Ramallo v. Reno, 114 F.3d 1210 (D.C. Cir. 1997). See footnote 178 infra. Contrary to Richardson’s arguments, the potential for an incomplete record on appeal regarding alleged constitutional violations does not preclude any such violations from being presented during review in the court of appeals. Pursuant to 28 U.S.C. § 2347(b)(3) (Supp. 1998), an appellate court can transfer a case to district court in order to develop a more complete factual record if deemed necessary. Accordingly, in the absence of a factual record of an alleged constitutional violation due to an immigration judge's inability to rule on such matters, the court of appeals can upon proffer transfer the case to the district court. See e.g. Coriolan v. INS, 559 F.2d 993, 1003 (5th Cir. 1977) (Tuttle, J.) (applying the procedures in § 2347 in the immigration context). In Richardson’s particular case, we note that the facts in his case are basically undisputed and that his constitutional claims raise primarily legal questions, such as the scope of

86 K. Alternative Review Under INA Satisfies Suspension Clause

We are not required to resolve the circuits’ ongoing debate about whether

judicial review under the Suspension Clause approximates § 2241 habeas

jurisdiction. This is so because the Supreme Court has held that the Suspension

Clause permits Congress to replace habeas corpus with another avenue of judicial

review as long as that alternative vehicle is adequate and effective. Swain v.

Pressley, 430 U.S. 372, 383-84 (1977); see also Lonchar v. Thomas, 116 S. Ct.

1293, 1298 (1996). Congress had done just that in enacting IIRIRA. We find that

the repeal of § 2241 habeas does not violate the Suspension Clause because the

INA, as amended by IIRIRA, still provides adequate and effective judicial review.

In most immigration cases, non-criminal aliens, and even certain criminal

aliens, facing removal orders can seek adequate and effective judicial review under

the INA by a petition for direct review in the court of appeals after a final removal

order. INA §§ 242(b)(2), 242(b)(9), & 242(d)(1).174 INA § 242(b)(9) expressly

provides that this judicial review covers “all questions of law and fact, including

interpretation and application of constitutional and statutory provisions.”175

judicial review required by the Suspension Clause, that are not fact intensive or necessarily in need of record development. 174 8 U.S.C. §§ 1252(b)(2), 1252 (b)(9), & 1252(d)(1) (Supp. 1998). 175 8 U.S.C. § 1252(b)(9) (Supp. 1998).

87 A complication arises for Richardson only because the INA, within the

confines of the INA, places additional restrictions on the INA-proscribed judicial

review for criminal aliens with certain enumerated serious criminal offenses.

Richardson asserts that INA § 242(a)(2)(C) precludes all judicial review of

removal orders against criminal aliens, and thus INA § 242(g)’s repeal of § 2241

habeas unconstitutionally removes his only remaining vehicle for judicial review.

Alternatively, Richardson argues that the INS’ proposition – that INA §

242(a)(2)(C) still permits review of “substantial constitutional claims” – does not

satisfy the Suspension Clause’s requirement of adequate and effective review

which, Richardson says, means judicial review of all constitutional and statutory

errors.

For several reasons, we reject Richardson’s contention that he will not have

adequate and effective review under the INA. First, Congress clearly has the

power to repeal § 2241 habeas jurisdiction over immigration decisions in the

inferior courts and to provide for judicial review of immigration decisions

exclusively under a different jurisdictional statute, to wit: the INA. Congress has

the power to remove all immigration decisions from the jurisdiction of the district

courts, which is exactly what Congress has done. Second, in enacting the INA,

Congress has the power to outline the mode and timing of judicial review under the

88 INA, to wit: only by direct petition for review in the court of appeals and only after

a final removal order.

Third, Congress has the power to mandate detention and removal of aliens

with serious criminal convictions and to expedite their removal by limiting judicial

review over their detention and removal to the fullest extent allowed under the

Constitution. This is why Congress enacted, within the INA’s judicial-review

scheme, the additional restriction on judicial review found in INA §

242(a)(2)(C).176

While INA § 242(a)(2)(C) significantly restricts Richardson’s judicial

review, we disagree with Richardson’s contention that this INA provision leaves

him without any judicial review in violation of the Suspension Clause. Courts of

appeal retain jurisdiction under INA § 242(a)(2)(C) to determine whether the

176 INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (Supp. 1998) (emphasis supplied), provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 212(a)(2) [covers certain controlled substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 237(a)(2)(A)(i).

Id. INA § 237 is codified in 8 U.S.C. § 1227 (Supp. 1998). INA § 212 is codified in 8 U.S.C. § 1182 (Supp. 1998).

89 jurisdictional bar in that section applies. See Yang, 109 F.3d at 1192; Okorov v.

INS, 125 F.3d at 925; Anwar, 116 F.3d at 144; Coronado-Durazo, 123 F.3d at

1323. But cf., Berehe v. INS, 114 F.3d at 161. INA § 242(a)(2)(C) does not state

that judicial review is prohibited if the Attorney General finds that the person being

removed is an alien and removable for a reason covered in INA § 242(a)(2)(C). To

the contrary, jurisdiction is prohibited if such conditions actually exist. Under the

language of INA § 242(a)(2)(C), in order to decide whether the jurisdictional bar

applies, courts must determine that the removal order: (1) “is against an alien” (2)

“who is removable” (3) “by reason of having committed a criminal offense

covered” in certain enumerated sections.177

In addition to these three jurisdictional facts, a court of appeal retains

jurisdiction to entertain a constitutional attack on this INA statute as part of an

alien’s petition for review of a final order under the INA.178 If judicial review of a

177 See full text of INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), at footnote 176 supra. 178 See Morel v. INS, 144 F.3d 248 (3d Cir. 1998); Mansour v. INS, 123 F.3d 423, 426 (6th Cir. 1997); Boston-Bollers, 106 F.3d 352 (11th Cir. 1997); Okorov v. INS, 125 F.3d 920, 923 (5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154 (10th Cir. 1997) (noting the government conceded judicial review was available for “substantial” constitutional errors); Yang v. INS, 109 F.3d 1185 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997); Yeung v. INS, 76 F.3d 337 (11th Cir. 1995); Massieu v. Reno, 91 F.3d 416, 420-24 (3d Cir. 1996) (district court lacked jurisdiction to entertain constitutional challenge to deportation order, which court of appeals had exclusive jurisdiction to entertain); Perez-Oropeza v. INS, 56 F.3d 43, 45-46 (9th Cir. 1995); Raya-Ledesma v. INS, 42 F.3d 1263, 1265 (9th Cir.), modified by 55 F.3d 418 (9th Cir. 1994). But compare Chow v. INS, 113 F.3d 659, 667 (7th Cir. 1997) (deciding jurisdictional bar itself, in INA § 106(a)(10) enacted by AEDPA § 440(a), did not

90 constitutional attack on a jurisdiction-stripping statute in this court of appeals was

not foreclosed by INA § 106(a)(10), Boston-Bollers, 106 F.3d at 352, it is not

foreclosed by INA § 242(a)(2)(C). This approach is consistent with the

admonition in Heikkila v. Barber, 345 U.S. 229, 234 (1953), that “Congress . . .

intended to make these administrative decisions non-reviewable to the fullest

extent possible under the Constitution.”

Thus, we find that the INA still assures Richardson a significant degree of

judicial review in the court of appeals after a final removal order, despite INA §

242(a)(2)(C). While that review is definitely restricted, INA § 242(a)(2)(C) does

not remove all judicial review. Any constitutional infirmities Richardson perceives

in that INA-proscribed judicial review must be raised in an attack on the

constitutionality of INA § 242(a)(2)(C) only in the court of appeals and only after a

violate Article III or Due Process Clause but declining to find sufficient jurisdiction under that jurisdictional bar to consider the alien’s other constitutional claims that procedures in the BIA proceedings violated his constitutional rights because Chow still had other potential avenues for relief remaining open for those constitutional claims such as a writ pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 1651 or Art. I, § 9 cl.2); Turkhan v. INS, 123 F.3d 487, 489 (7th Cir. 1997) (following Chow, and noting other avenues of habeas review were still available and therefore INA § 106(a)(10) is unlike other “true door-closing statutes – [where] the constitutional claims . . . would be reviewed either pursuant to the statutes at issue or not at all”). Lerma de Garcia v. INS, 141 F.3d 215, 217 (5th Cir. 1998) (holding INA § 106(a)(10) forecloses all judicial review including constitutional claims in the context raised as “criminal deportees retain some opportunity to apply for writs of habeas corpus”). Williams v. INS, 114 F.3d 82, 83-84 (5th Cir. 1997); Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997). The courts strictly foreclosing all review under INA § 106(a)(10) did so in large part because § 2241 habeas jurisdiction remained available. That is no longer the case.

91 final removal order.179 If review of such questions under INA § 242(a)(2)(C) does

not satisfy the Suspension Clause and INA § 242(a)(2)(C) is held to be

unconstitutional, then at worst Richardson will be left with the INA’s underlying

general judicial review of “all questions of law and fact” available under INA §§

242(b)(2) and 242(b)(9) in the court of appeals. Such judicial review clearly

satisfies the Suspension Clause.

179 In addition to his claim that INA § 242(a)(2)(C) conflicts with the Suspension Clause, we recognize that Richardson also alleges that he has been denied equal protection guaranteed under the Due Process Clause of the Fifth Amendment. An alien facing removal from the United States as inadmissible can request review of bond/release decisions only from the INS district director, but an alien being removed based on deportability can seek review from an immigration judge. Richardson contends that this disparate treatment constitutes a violation of equal protection. As a permanent resident alien, Richardson enjoys equal-protection rights. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Classifications in the immigration context are subject to the rational-basis standard under which a classification is valid if rationally related to a legitimate government purpose. Yeung v. INS, 76 F.3d 337, 339 (11th Cir. 1995) (addressing waivers under former INA § 212(h)). An arguable fatal defect in Richardson’s equal-protection argument is that most resident aliens returning to the United States can re-enter summarily. Thus, it is returning aliens with serious criminal convictions, not all returning aliens, that are deemed “seeking admission,” detained, and restricted to seeking bond from the INS district director. The INS has a valid interest in using ports of entry as a screening mechanism for removing criminal aliens expeditiously and restricting bond decisions to review by the district director, as opposed to admitting them and then instituting deportation proceedings. The Supreme Court has recognized that although a permanent resident alien who is returning from a brief trip abroad enjoys rights to procedural due process, such aliens do not have a right to “identical treatment” to a permanent resident alien who has not left the country. Landon v. Plasencia, 459 U.S. 21, 31 (1982). Although we briefly comment on the merits of Richardson’s equal-protection claim, this claim is precisely the type of claim that Richardson must raise on a petition for review after a final removal order has been issued. Thus, we do not resolve the equal-protection issue or whether review of this type of constitutional claim is permitted under INA § 242(a)(2)(C), or, if not, whether INA § 242(a)(2)(C) violates the Suspension Clause.

92 IIRIRA expressly provides for the severability of its numerous provisions.180

Therefore, even if a court of appeals were to find INA § 242(a)(2)(C) does not

satisfy the Suspension Clause, this does not mean that INA § 242(g)’s repeal of §

2241 habeas is unconstitutional. What it means is that without INA §

242(a)(2)(C)’s specific additional limitations on judicial review under the INA,

Richardson then could avail himself of the general judicial review provided under

INA §§ 242(b)(2) and 242(b)(9). Thus, Richardson’s concerns at most boil down

to whether INA § 242(a)(2)(C) is unconstitutional, and not whether INA § 242(g)’s

repeal of § 2241 is constitutional. IIRIRA mandates that constitutional claims

about the INA’s provisions be made in only one place and one time: in the court of

appeals and after a final removal order.181

180 IIRIRA Title VI subtitle E specifically provides for severability:

SEVERABILITY. – If any provision of this division or the application of such provision to any person or circumstances is held to be unconstitutional, the remainder of this division and the application of the provisions of this division to any person or circumstance shall not be affected thereby. 181 This applies not only to Richardson’s claims about INA § 242(a)(2)(C) but also to Richardson’s constitutional claims regarding the effect of INA § 236(e) (restricted judicial review of bond and parole decisions) and INA § 242(a)(2)(B)(ii) (restricted judicial review of discretionary decisions). Similar to footnotes 179 and 182, we do not address whether INA § 242(a)(2)(C) permits, or whether the Suspension Clause requires, the judicial review of all constitutional claims or only “substantial constitutional claims” as the INS contends. We do know, however, from Boston-Bollers and Yang that, at a minimum, judicial review exists under INA § 242(a)(2)(C) to determine whether that jurisdictional bar applies and whether that jurisdictional bar violates the Suspension Clause.

93 We pause to observe that Richardson’s removal order is based on his having

a cocaine-trafficking conviction, which is deemed an aggravated felony conviction

under the INA and is a basis for both inadmissibility and deportation under the

INA. We also note that Richardson does not dispute that he is an alien. Making

sure that the BIA record establishes the jurisdictional facts under INA §

242(a)(2)(C) – that the criminal alien: (1) is “an alien,” not a citizen; (2) “who is

removable”; (3) “by reason of having committed a criminal offense covered” in

certain enumerated sections – goes a long way, and very well may be sufficient in

this particular type case, to provide an adequate and effective collateral judicial

review of the validity of Richardson’s executive detention and removal order. This

is so at least where the sole basis of an alien’s being detained and removed is one

fact: his having committed an aggravated felony conviction as defined by the

94 INA.182 This is especially true since discretionary relief from, and cancellation of,

that type of removal is no longer allowed under the INA.183

182 Judicial review of statutory and legal errors is expressly provided for under INA §§ 242(b)(2) and 242(b)(9). In this case, we do not address whether INA § 242(a)(2)(C) permits, or whether the Suspension Clause requires, the judicial review of statutory or legal errors other than to the extent necessary to determine whether a jurisdictional bar to judicial review exists. Several courts have addressed this issue and reached different conclusions. The Second Circuit reasoned, albeit in dicta, that the nature of the Suspension Clause suggests that it preserves a writ which encompasses statutory claims. In Henderson, the Second Circuit observed that “before the Constitution was enacted, the writ could only have been granted based on errors of law, since there was no such thing as a constitutional error.” 157 F.3d at 121 n.13. The court also noted that, especially since the Bill of Rights was not adopted until 1791, it would not “have made much sense for the framers to have intended the writ . . . to be available just for the enforcement of rights protected by the new Constitution.” Id. Thus, according to the Second Circuit “the Constitution itself inevitably seems to mandate habeas corpus review of some statutory questions.” Id. Perhaps as further support for this interpretation, statutory errors in executive detention historically have been reviewed under § 2241 and its precursor statutes. See, e.g., Felker, 518 U.S. at 661; Delgadillo v. Carmichael, 332 U.S. 388, 390-91 (1947); Bridges v. Wilson, 326 U.S. 135, 149 (1945); Kessler v. Streckler, 307 U.S. 22, 35 (1939); Mahler v. Eby, 264 U.S. 32, 46 (1924); Gegiow v. Uhl, 239 U.S. 3 (1915); Gonzales v. Williams, 192 U.S. 1 (1904); The Japanese Immigrant Case, 189 U.S. 86 (1903); Ekiu v. United States, 142 U.S. 651 (1892). The precursor statute to § 2241 did not specifically mention that constitutional claims could support the issuance of a writ of habeas corpus until 1867. See Felker, 518 U.S. at 659-60. Conversely, other courts have concluded that the judicial review under § 2241 is significantly broader than the judicial review available in the writ protected by the Suspension Clause. The Seventh Circuit noted that “28 U.S.C. § 2241 offers an opportunity for collateral attack more expansive than the Great Writ preserved in the Constitution.” Yang v. INS, 109 F.3d at 1195. In this same vein, the Seventh Circuit also noted that “[t]here is a vast gulf between the non-suspendable constitutional writ and the Administrative Procedures Act.” Id.; see also Felker, 518 U.S. at 663 (“The class of judicial actions reviewable by the writ [as known to the Framers] was more restricted as well.”). We recognize that Richardson asserts other legal or statutory errors, such as the Fleuti issue, but no court should decide whether jurisdiction exists either under or despite INA § 242(a)(2)(C) to address those errors until after a final removal order. This is what IIRIRA mandates. We need not enter this debate about what the Suspension Clause requires and whether INA § 242(a)(2)(C)’s limitations on judicial review violate the Suspension Clause; even if that section were held unconstitutional, Richardson still has adequate and effective review under INA §§ 242(b)(2) and 242(b)(9). 183 See footnotes 11 and 27 supra.

95 In summary, Congress through IIRIRA indisputably intended to remove all

jurisdiction in the district courts and to abbreviate the judicial review of removal

orders against criminal aliens to the fullest extent allowed by the Constitution.

Preserving judicial review in the court of appeals under the INA, to the extent

necessary to pass constitutional muster, more closely approximates congressional

intent than the anomalous situation of disregarding the plain language of INA §

242(g) and preserving a layer of additional judicial review in the district courts for

criminal aliens for whom Congress intended to expedite removal by restricting

judicial review to the extent it could.184

V. CONCLUSION

After careful consideration, we conclude that INA § 242(g) repeals § 2241

habeas jurisdiction over immigration decisions. Even if this repeal leaves

Richardson with no judicial review of his detention or removal, the repeal of §

2241 does not violate the Due Process Clause or Article III. The Due Process

184 Whether Richardson may seek a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, or an Art. I § 9, cl.2 writ in the Supreme Court is an issue we need not address as Richardson sought only § 2241 habeas jurisdiction. Because we find, to the extent required by the Constitution, Richardson’s claims can be sufficiently reviewed under INA §§ 242(b)(2), 242(b)(9), and 242(a)(2)(C), we also do not address the INS’ alternative contention that INA § 242(g)’s repeal of § 2241 habeas does not violate the Suspension Clause because some form of “residual” habeas exists under a constitutional writ, unaided by statute, to address “fundamental miscarriage of justice” and that Richardson’s constitutional and legal claims do not rise to a “fundamental miscarriage of justice.”

96 Clause is not violated because Richardson’s constitutional rights as a permanent

resident alien are fully met by the INA’s extensive procedures for bond decisions,

parole decisions, and removal proceedings. Article III is not violated because

Article III does not mandate the judicial review of immigration matters but instead

leaves establishing the jurisdiction of the inferior federal courts to Congress.

This repeal also does not violate the Suspension Clause. INA § 242(a)(2)(C)

does not remove all judicial review. At a minimum, judicial review remains

available to Richardson under INA § 242(a)(2)(C) to determine if the specific

conditions exist that would bar jurisdiction. If the bar applies, jurisdiction remains

to consider whether the level of judicial review remaining in INA § 242(a)(2)(C) in

a particular case satisfies the Suspension Clause. If not, Richardson can pursue

adequate and effective judicial review of statutory and constitutional issues under

INA §§ 242(b)(2) and 242(b)(9). However, IIRIRA mandates the mode and timing

of any constitutional attack on INA § 242(a)(2)(C) or any other INA provisions:

only in the court of appeals, only after a final removal order has been issued, and

only after Richardson has exhausted all administrative remedies.

In enacting IIRIRA, Congress has mandated the detention and expedited the

removal of aliens, including long-term permanent resident aliens, who commit

serious criminal offenses while in the United States. Richardson correctly points

97 out many harsh consequences created by these new immigration laws, but those

consequences are not the result of constitutional violations but are the result of

political decisions made by Congress exercising its plenary power to regulate

immigration.185 As outlined in this decision, the Supreme Court has recognized

repeatedly that immigration decisions present peculiarly political issues to be

decided by the executive and legislative branches. Our judicial task is not to

rewrite these new immigration laws, but to apply these laws as written by Congress

to the full extent permitted by the Constitution. We have done so.

Accordingly, we REVERSE the decision of the district court, VACATE the

stay entered by this Court on February 23, 1998, and direct the district court to

dismiss Richardson’s petition for lack of subject matter jurisdiction.

REVERSED AND VACATED.

185 See, e.g., S. Rep. No. 104-48 at 2-6 (1995) (discussing the presence of at least “450,000 criminal aliens in the United States who are currently incarcerated or under some form of criminal justice supervision,” the fact that “the Federal Bureau of Prisons confines about 22,000 criminal aliens – 25 percent of the total Federal prison population,” the “confinement of criminal aliens in state and federal prisons costs . . . approximately $724,000,000 in 1990,” that the “INS is overwhelmed by the criminal alien problem,” and that “criminal aliens are . . . a growing drain on scarce criminal justice resources.”).