The Immigration and Naturalization Service (“INS”) appeals from the September 21, 2001 judgment of the United States District Court for the Western District of New York (Richard J. Arcara, District Judge), which denied the INS’s motion to dismiss petitioner-appellee Athanasios Theodoropoulos’s petition for a writ of ha-beas corpus, filed pursuant to 28 U.S.C. § 2241, and granted the writ for the limited purpose of remanding Theodoropoulos’s case to the Board of Immigration Appeals (“BIA”) for further proceedings. In his petition, Theodoropoulos sought release from detention, a stay of deportation, and an order vacating his deportation order, claiming that because he was convicted before the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-1323, 110 Stat. 1214 (“AEDPA”), and the Illegal Immigration *165 Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (“IIRIRA”), he should have been eligible for consideration of discretionary relief pursuant to § 212(c) of the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1101 et seq. (“INA”). See 8 U.S.C. § 1182(c) (West 1996) (codification of former § 212(c)) (repealed as of April 1, 1997 by IIRIRA § 304(b)).
We conclude that Theodoropoulos failed to exhaust his administrative remedies and, thus, that the district court lacked jurisdiction to entertain the petition under 8 U.S.C. § 1252(d). Accordingly, we reverse the judgment of the district court in its entirety and remand for entry of judgment dismissing the petition.
I. FACTUAL BACKGROUND
Habeas petitioner Athanasios Theodoro-poulos, a native and citizen of Greece, was admitted to the United States as an immigrant on May 15, 1969. On March 29, 1988, Theodoropoulos was convicted in the United States District Court for the Eastern District of Pennsylvania, after a jury trial, of drug conspiracy, distribution of cocaine, possession of cocaine with intent to distribute, and aiding and abetting.
See United States v. Theodoropoulos,
A. INS Removal Proceedings
Theodoropoulos was granted parole by the United States Parole Commission on August 26, 1999, after almost twelve years of incarceration. The INS immediately took custody of him and began deportation proceedings. On September 9, 1999, Theodoropoulos appeared before an Immigration Judge (“IJ”) for a removal hearing, who recounted the INS’s asserted basis for removal and explained the nature of the proceedings to Theodoropoulos. Theodo-ropoulos told the IJ that he was requesting relief from deportation pursuant to, inter alia, INA § 212(c), 8 U.S.C. § 1182(c) (West 1996), which permitted an IJ to issue a discretionary waiver of deportation under certain circumstances. 2 The IJ adjourned the proceedings until the next morning to allow Theodoropoulos to consider the evidence submitted by the INS in support of removal.
At the hearing the following day, the IJ issued an oral decision in which he held that § 212(c) had been repealed by IIRI-RA, which had replaced it with INA § 240A, entitled “Cancellation of Removal.” The IJ further held that Theodoro-poulos was statutorily ineligible for relief under § 240A because he had been convicted of an aggravated felony. See 8 U.S.C. §§ 1229b(a) & (b)(1)(c) (codifying § 240A); see also IIRIRA, § 304(b) (repealing § 212(c)). After concluding that Theodoropoulos was ineligible for any other form of relief, the IJ ordered his removal to Greece. The IJ explained the consequences of his ruling as follows:
Q: I have found that you are statutorily ineligible for any form of relief. I have found you are removable as charged and I have ordered your removal to Greece. If you disagree with my decision, sir, you may appeal it to a higher court, to the Board of Immigration Appeals, or if you are satisfied with my decision, you may accept it today as final. Do you wish to appeal my decision, sir, or accept it?
*166 A: No, Your Honor, I want to be removed as soon as possible to my country.
Q: So, you accept my decision as final? A: Yes, yes, I do.
Q: Government?
A: It’s final, Judge.
Q: Before I go off the record, though, sir, I want to alert you to a couple of things. First of all, because my decision is final today, you are no longer a permanent resident of the United States. Also, because of your drug conviction, which is classified as an aggravated felony, you could never live in the United States in the future.
A: Right.
Q: If, at any time in the future, you are found in the United States ... without having first obtained ... advanced permission, you will have committed a Federal crime, which carries a maximum sentence of 20 years in prison. Do you understand?
A: I am aware of it, Your Honor.
The IJ’s order of removal was issued that same day on a pre-printed form that contained a line at the bottom reading, “Appeal: Waived/Reserved Appeal Due By:”. In the order, the district court had crossed out the words, “Reserved Appeal Due By:,” leaving only the words “Appeal: Waived” unmarked.
On October 4, 1999, Theodoropoulos, then detained at the INS Federal Detention Facility in Batavia, New York, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in the Western District of New York as well as a notice of appeal to the BIA from the IJ’s September 10, 1999 removal order. Despite these filings, the INS deported Theodoropoulos on October 5,1999.
In a letter dated October 12, 1999, the BIA rejected Theodoropoulos’s appeal on procedural grounds. A week later, the Immigration Court sent a letter to Theo-doropoulos, informing him that based upon a review of his file, the court had found that Theodoropoulos had waived his right to appeal the IJ’s decision, and that because of this waiver, the INS had considered his removal order final and had deported him. See 8 C.F.R. § 3.39 (West 1999) (“Except when certified to the [BIA], the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.”); 8 C.F.R. § 3.38 (West 1999) (“A Notice of Appeal ... may not be filed by any party who has waived appeal.”).
B. District Court Proceedings
Theodoropoulos’s habeas petition proceeded in the federal district court. On January 14, 2000, the district court ordered the INS to file an answer to the petition before March 15, 2000. In lieu of an answer, the INS filed a motion to dismiss the petition on various jurisdictional grounds.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court assigned the matter to United States Magistrate Judge H. Kenneth Schroeder, Jr. On February 18, 2001, Judge Schroeder filed a Report and Recommendation (“R & R”) recommending that the motion to dismiss be denied and that the matter be remanded to the BIA. In the R
&
R, Judge Schroeder incorrectly found that Theodoropoulos was convicted on drug-related charges on the basis of a guilty plea, rather than following a jury trial. Based in part on this factual error, Judge Schroeder recommended that the district court apply the “constitutional exception” to the rule requiring a habeas petitioner to exhaust his or her administra
*167
tive remedies before seeking relief in a federal district court, see
Johnpoll v. Thornburgh,
The INS filed objections to the magistrate’s R
&
R arguing that
St. Cyr I
did not apply to aliens who, like Theodoropou-los, were convicted after a jury trial. Despite the INS’s objections, the district court, without correcting the magistrate’s erroneous factual finding, adopted the R & R, denied the motion to dismiss, and granted Theodoropoulos’s petition for the limited purpose of remanding the case to the BIA for further proceedings in line with the Supreme Court’s intervening affirmation of
St. Cyr. See INS v. St. Cyr,
Before this court, the INS renews its argument that the district court did not have jurisdiction to review Theodoropou-los’s petition for habeas corpus because (1) Theodoropoulos orally waived his right to appeal the IJ’s decision; (2) under 8 U.S.C. § 1252(d), Theodoropoulos was required to exhaust his administrative remedies before seeking review in federal court; (3) there are no exceptions to this statutory exhaustion requirement; (4) even if there was an exception for futility, it would not apply because appeal to the BIA would not have been futile; and (5) even if § 1252(d)’s administrative exhaustion requirement is inapplicable to habeas petitions, a judicially created exhaustion requirement exists and no constitutional exception to that requirement would apply because Theodoropoulos was convicted after a jury trial, not on a guilty plea.
Theodoropoulos argues, in return, that (1) he did not intend to waive his right to appeal; (2) section 1252(d) does not impose an exhaustion requirement on habeas petitions; (3) even if it does, an exception should be made because an appeal to the BIA would have been futile; and (4) Theo-doropoulos is excused from the judicially created exhaustion requirement because his claim raises a substantial constitutional question.
II. DISCUSSION
We review a district court’s grant of a writ of habeas corpus
de novo
and the factual findings supporting the grant for clear error.
Jenkins v. Artuz,
As an initial matter, we note that there are several potential bases for disposing of this case. For example, an issue not raised by the parties on appeal or considered by the district court, but apparent from the record, is whether Theodoropou-los would have been eligible for § 212(c) relief irrespective of the retrospective applicability of IIRIRA, given the fact that he served more than five years in prison
*168
on his 1988 narcotics conviction.
3
See Buitrago-Cuesta v. INS,
In addition, the fact that Theodoropou-los was deported the day after his § 2241 petition was filed raises the question of whether there is still a live “case or controversy” before us.
See
U.S. Const. Art. III, § 2;
cf. Perez v. Greiner,
Finally, during the pendency of Theodo-ropoulos’s appeal, this court has definitively rejected Theodoropoulos’s constitutional claim on the merits.
See Rankine v. Reno,
We do not reach any of these issues, however, because we determine that Theo-doropoulos’s failure to exhaust his administrative remedies deprived the district court of subject matter jurisdiction to entertain his habeas petition.
See Steel Co. v. Citizens for a Better Env’t,
A. Waiver of Right to Appeal to the BIA
Although Theodoropoulos argues that his statements before the IJ did not waive his right to appeal the IJ’s decision to the BIA, and thus do not preclude federal review of his claims, this court finds his statements to be clear evidence of waiver. After the IJ announced that Theodoropoulos was statutorily ineligible for relief and would be removed to Greece, he explained to Theodoropoulos that he could either accept the decision as final or appeal the decision to a higher court or the BIA. In response to the IJ’s query as to whether Theodoropoulos wanted to appeal the decision, Theodoropoulos stated, “No, Your Honor, I want to be removed as soon as possible to my country.” When the court again asked if Theodoropoulos accepted his decision as final, Theodoropou-los affirmed his satisfaction with the ruling for a second time. In light of the court’s clear explanation of the consequences of Theodoropoulos’s agreement with the decision and Theodoropoulos’s repeated acknowledgment of his acceptance of the decision, we find appeal to the BIA was waived. See Matter of Shih, 20 I. & N. Dec. 697, 697-99 (BIA 1993) (finding petitioner, who made statements more ambiguous than those here, had waived his right to appeal).
Having determined that there was a waiver, we further conclude that Theodo-ropoulos’s subsequent effort to file a Notice of Appeal was without effect. See 8 C.F.R. § 3.38 (West 1999) (“A Notice of Appeal ... may not be filed by any party who has waived appeal.”); see also 8 C.F.R. § 3.39 (West 1999) (“Except when certified to the [BIA], the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs first.”); Shih, 20 I. & N. Dec. at 699 (BIA 1993) (holding that because petitioner had waived appeal before IJ, timely notice of appeal was without effect). Accordingly, we turn to the question of whether Theodoropoulos’s waiver of his full administrative remedies deprived the district court of jurisdiction to consider his habeas petition.
B. Applicability of Statutory Administrative Exhaustion Requirement to Habeas Petitions
The INS argues that § 1252(d) of the INA required Theodoropoulos to exhaust his administrative remedies before seeking habeas review of the IJ’s order of deportation. Section 1252(d), entitled “Review of final orders,” provides that:
A court may review a final order of removal only if — (1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.
On its face, § 1252(d) seems to apply to all forms of review, including habeas review. Indeed, subsection (2)’s reference to other courts and prior judicial proceedings plainly contemplates habeas or collateral review. Moreover, the exhaustion requirement set forth in subsection (1) echoes that in 28 U.S.C. § 2254, which governs state habeas review and requires applicants to *170 have “exhausted the remedies available in the courts of the State” before seeking federal habeas review.
In
St. Cyr II,
however, the Supreme Court declined to read certain limitations imposed by AEDPA and IIRIRA on “judicial review” or “review” as applying to habeas review.
See
The
St. Cyr II
decision concerned provisions and circumstances distinct from those with which we are presented here. First, in
St. Cyr II,
the Court was considering provisions that stripped courts of jurisdiction to review immigration decisions.
See
AEDPA § 401(e) (repealing express grant of habeas jurisdiction contained in former INA § 1105a(10)); 8 U.S.C. § 1252(a)(2) (enumerating “[m]at-ters not subject to judicial review,” including final orders of removal entered on the basis of an alien’s conviction for certain offenses). Noting that there is “a strong-presumption in favor of judicial review of administrative action and [a] longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction,”
id.
at 298,
Accordingly, the Court applied the statutory canon of construction under which a court is obligated to construe a statute to avoid serious constitutional questions if an alternative interpretation is fairly possible.
See id.
at 299-300,
Significantly, the Court signaled that it might not have construed the terms “review” and “judicial review” narrowly as applying only to direct review had the alternative reading not created a substantial constitutional concern:
If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS’ reading of § 1252[ (a)(2) ]. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions. Accordingly, we conclude that habeas jurisdiction under § 2241 was not repealed by AED-PA and IIRIRA.
Id.
at 314,
The problems addressed by the Court in
St. Cyr II
are not present in this case. Specifically, to construe § 1252(d)’s limitations on “review” as applying to habeas corpus would not raise a significant constitutional question because that section does not purport to strip courts of jurisdiction altogether; it simply imposes an exhaustion requirement on such jurisdiction. Administrative exhaustion requirements, which are commonplace, do not conflict with the “strong presumption in favor of judicial review of administrative action” or trigger the “longstanding rule requiring a
*171
clear statement of congressional intent.”
St. Cyr II,
Thus, unlike the Court in
St. Cyr II,
we are not faced with a substantial constitutional question and, therefore, we need not resort to canons of statutory construction beyond the most basic one: construing § 1252(d) according to its plain meaning. Accordingly, we hold that, by its plain language, § 1252(d)’s mandate that unless a petitioner “has exhausted all administrative remedies available,” a “court may [not] review a final order of removal,” 18 U.S.C. § 1252(d), applies to all forms of review including habeas corpus. In doing so, we join those circuits that have specifically decided that issue, which have been unanimous in holding that the exhaustion requirement applies in the context of habe-as corpus proceedings.
See Duvall v. Elwood,
We recognize that reading the term “review” in § 1252(d) as applying to habeas review would mean that this court reads the same term in the same statute in two different ways, which would conflict with “the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.”
Gustafson v. Alloyd Co.,
C. Possible Exceptions to the Exhaustion Requirement
Theodoropoulos argues that even if § 1252(d) applies to habeas review, an exception to its administrative exhaustion requirement should be made because he raises a substantial constitutional claim and the BIA lacks jurisdiction to adjudicate constitutional issues.
See, e.g., United States v. Gonzalez-Roque,
Theodoropoulos further contends that, in any event, an appeal to the BIA would have been futile because it would not have overruled the IJ’s interpretation of IIRIRA. While the “[c]ommon law (or ‘judicial’) exhaustion doctrine ... recognizes judicial discretion to employ a broad array of exceptions that allow a plaintiff to bring his case in district court despite his abandonment of the administrative review process,” this array of exceptions — including futility — is simply not available when the exhaustion requirement is statutory.
Beharry,
There may be some limited circumstances in which an exception to the general rule might apply. In
Booth,
for example, the Supreme Court suggested that a party cannot be required to exhaust a procedure from which there is no possibility of receiving any type of relief.
Booth,
Specifically, the BIA could have overruled the IJ’s construction of IIRIRA’s repeal of § 212(c) as applying retrospectively to petitioners like Theodoropoulos. It is true that prior to Theodoropoulos’s hearing before the IJ, the Attorney General had issued an opinion stating that § 212(c) relief was not available to aliens whose applications for relief were pending when IIRIRA was enacted.
See Matter of Soriano,
21 I. & N. Dec. 516, 533,
Given the uncertain status of
Soriano,
the BIA’s prior adoption of an approach opposite to that set forth in
Soriano,
and
Dunbar’s
adoption of the view espoused by Theodoropoulos, it is more than a theoretical possibility that Theodoropoulos could have obtained some form of relief through an appeal to the BIA. Indeed, in January 2001, the Attorney General, responding to decisions by several federal courts and hundreds of challenges to
Sori-ano
that had been filed by aliens in federal courts, reversed her decision in
Soriano
in order to implement a uniform nationwide procedure.
See
Executive Office for Immigration Review, Final Rule, “Section 212(c) Relief for Certain Aliens in Deportation Proceedings Before April 24, 1996,” 66 FR 6436-01,
In light of the foregoing, we conclude that Theodoropoulos is not excused from his clear and unambiguous failure to exhaust his administrative remedies. This conclusion renders Theodoropoulos’s claims outside the jurisdiction of the federal courts. As such, we do not reach the question of whether Theodoropoulos was entitled to seek § 212(c) relief.
III. CONCLUSION
In conclusion, we find that Theodoropou-los failed to exhaust administrative remedies and that, in the absence of exhaustion, the district court lacked jurisdiction to review his habeas petition. Accordingly, we reverse the district court’s order denying the INS’s motion to dismiss and remanding Theodoropoulos’s claim for further BIA proceedings, and we remand to the district court for entry of judgment dismissing the petition for lack of subject matter jurisdiction. This opinion supersedes the previous opinion filed in connection with this appeal on December 18, 2002, which is hereby withdrawn.
Notes
. The Honorable Fred I. Parker, who was the principal author of Section I of this amended opinion, passed away on August 12, 2003. He participated fully in the decision reflected by this amended opinion. The Honorable John M. Walker, Jr., is the principal author of Sections II and III of this amended opinion. This opinion supersedes the previous opinion filed on December 18, 2002 and amended on December 20, 2002, which is hereby withdrawn.
. Although Theodoropoulos also sought other types of discretionary waiver, he has not argued on appeal that they were improperly denied. Accordingly, we do not address them.
. Former § 212(c) of the INA, as amended by § 511 of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 5042, provides:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
8 U.S.C.A. § 1182(c) (West 1996) (emphasis added).
. We note that earlier this year this court stated that "the Supreme Court’s decision in
St. Cyr
makes clear that a statute must, at a minimum, explicitly mention either 'habeas corpus’ or '28 U.S.C. § 224T in order to limit or restrict § 2241 jurisdiction.”
Wang v. Ashcroft,