360 F.3d 414 | 3rd Cir. | 2004
CHERTOFF, Circuit Judges
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT (Filed: March 10, 2004 ) No. 02-4134 Steven A. Morley, Esq. (Argued) Morley, Surin & Griffin 325 Chestnut Street
MICHAEL BAKHTRIGER, Suite 1305 Appellant Philadelphia, PA 19106 Counsel for Appellant v. Sonya F. Lawrence, Esq. (Argued) KENNETH JOHN ELWOOD, ACTING Office of United States Attorney DISTRICT DIRECTOR OF THE 615 Chestnut Street PHILADELPHIA OFFICE OF THE Philadelphia, PA 19106
IMMIGRATION AND
NATURALIZATION SERVICE; Counsel for Appellees
THEODORE NORDMARK,
ASSISTANT DISTRICT DIRECTOR
FOR
DEPORTATION AND DETENTION;
OPINION
AND THE IMMIGRATION AND
NATURALIZATION SERVICE
CHERTOFF, Circuit Judge. Appellant Michael Bakhtriger, a lawful permanent resident in the United States, was convicted of a felony and
On Appeal from the United States subjected to immigration removal District Court for the Eastern District of proceedings. Bakhtriger challenged the Pennsylvania removal proceedings by petition for habeas (Dist. Court No. 02-cv-00535) corpus. The District Court determined that District Judge: Hon. Herbert J. Hutton Bakhtriger was essentially seeking review of a discretionary determination of the Immigration and Naturalization Service (INS). The District Court held, however,
Argued: October 14, 2003 that there is no jurisdiction under the habeas statute, 28 U.S.C. § 2241, to review discretionary determinations or factual (B) Controlled substances findings of the INS.
This question of the scope of (i) Conviction habeas jurisdiction is one of first impression in this Circuit. We agree with the District Court’s reading of the law and
Any alien who at any time we will affirm. after admission has been I. convicted of a violation of (or a conspiracy or attempt Bakhtriger entered the United to violate) any law or States in February 1993, from the former regulation of a State, the Soviet Republic of Moldova, his native United States, or a foreign country. He was granted the protection of country relating to a the United States as a refugee and became controlled substance (as a lawful permanent resident in April 1994. defined in section 802 of In April 1998, Bakhtriger was convicted of Title 21), other than a single possession of both cocaine base and heroin o f f e n s e i n v o l v i n g in the Court of Common Pleas in possession for one’s own Montgomery County, Pennsylvania. Less use of 30 grams or less of than a year later, in January and February marijuana, is [removable]. of 1999, Bakhtriger was arrested for violating his probation, and sentenced to 2- 12 months imprisonment.
8 U.S.C. § 1227(a)(2)(B). The INS Bakhtriger’s controlled substance initiated removal proceedings against conviction rendered him removable [1] under Bakhtriger on April 17, 2000. Before the 8 U.S.C. § 1227(a)(2)(B)(i), which Immigration Judge (IJ), Bakhtriger did not provides: contest that he was an alien or that he had
committed a removable offense. Rather, Bakhtriger applied for asylum and withholding of removal under 8 U.S.C. §
1 Under recent amendments to the 1158, and relief from removal under the Immigration and Nationality Act, the term Convention Against Torture, 8 U.S.C. § “removal” embraces concepts of both 1231. “deportation” and “exclusion.” See Illegal Immigration Reform and Immigrant Bakhtriger, through his own Responsibility Act, Pub. L. No. 104-208, testimony and that of his mother, Div. C, § 308, 110 Stat 3009-619. Saying attempted to show that he had a reasonable that Bakhtriger was “removable” is fear of persecution should he return to equivalent to saying that he was Moldova. The evidence presented by “deportable.” Bakhtriger focused on his history of past “marking” the apartment as one in which religious persecution as a member of the Jews lived. Bakhtriger recounted that Jewish faith in Moldova, and his fears of during a recent trip back to Moldova he what might befall him if he should return. was attacked in public and a necklace
bearing the Star of David was ripped from Bakhtriger’s mother recounted that his neck. her husband had been an officer in the Soviet army, but had been hampered in his The IJ credited the testimony of advancement as a result of his religion. both witnesses and found that Bakhtriger She also explained that Jews in Moldova had suffered past persecution. But the IJ were prevented from publicly practicing found that the INS had presented sufficient their religion. Both witnesses emphasized proof of “changed country conditions” in that anti-semitism was pervasive under the Moldova to rebut the presumption that old Soviet regime, and that the post-Soviet Bakhtriger had a well-founded fear of Moldovan government took no action to persecution. Even so, the IJ exercised his curb the open hostility emanating from discretion to grant asylum where the large segments of the public. applicant has “demonstrated compelling
reasons for being unwilling or unable to Other testimony indicated that, return to the country arising out of the while living in Moldova, Bakhtriger was severity of the past persecution.” 8 CFR § routinely harassed, called derogatory 208.13(b)(1)(iii)(A). names, and physically beaten as a result of his religion. According to his mother, The INS appealed the IJ’s decision Bakhtriger was prevented from attending to the Board of Immigration Appeals any prestigious colleges or universities. (BIA). The BIA deferred to the IJ’s Instead, he was directed to a trade school determination that Bakhtriger and his to learn television repair. At this school, mother were credible witnesses, and too, Bakhtriger was beaten by fellow accepted the IJ’s summary of the evidence. students. Later, mirroring the experience However, the BIA overturned the IJ’s of his father, Bakhtriger lost two grant of asylum and ordered that successive jobs in factories as a result of Bakhtriger be removed to Moldova. The his religion. BIA decided that even if the IJ accurately
described the level of persecution, Both Bakhtriger and his mother Bakhtriger’s experience did not rise to the recounted that anti-semitic signs and level found in previous cases where the graffiti regularly marred fences and Board determined to exercise its authority buildings. In the spring of 1992, the door to grant asylum for compelling reasons. of the apartment in which the Bakhtrigers lived was etched with a Star of David, Bakhtriger filed a petition for a writ something the Bakhtrigers took as a of habeas corpus in the Eastern District of threat—that anti-semitic elements were Pennsylvania. Before the District Court, Bakhtriger did not claim a denial of a This timely appeal followed. constitutional right or an error in
A district court’s determination that application of the statutory standards. it lacks subject matter jurisdiction is a Rather, he argued that the factual record determination of law over which we did not support the finding by both the IJ exercise plenary review. See Gould Elecs. and the BIA that there was no well- Inc. v. United States, 220 F.3d 169, 176 founded fear of future persecution because (3d Cir. 2000). Moreover, we exercise conditions in Moldova have changed. As plenary review where a district court he put it, “the IJ and BIA ignored evidence dismisses a habeas corpus petition based in the record of centuries of anti-semitism on a legal conclusion without holding an and persecution of Jews.” J.A. 7. evidentiary hearing. See Zettlemoyer v. Bakhtriger also urged that even if Fulcomer, 923 F.2d 284, 291 (3d Cir. there was no well-founded fear of 1991). persecution, the BIA wrongly reversed
II.
what was concededly the IJ’s “broadly define[d]” discretion to grant asylum based In 1996, Congress overhauled the on past persecution. J.A. 20. Again, in the Immigration and Nationality Act (INA), habeas petition’s own words, Bakhtriger see 8 U.S.C. § 1101 et seq., by enacting contended that the BIA wrongly two statutes in rapid succession, the determined that he “was not entitled to Antiterrorism and Effective Death Penalty asylum on a discretionary basis.” J.A. 7. Act (AEDPA), Pub L. No. 104-132, 110
Stat. 1214, and the Illegal Immigrant Based on the petition, the District Reform and Immigrant Responsibility Act Court reasoned that Bakhtriger sought (IIRIRA), Pub. L. No. 104-208, Div. C, review of a discretionary determination, 110 Stat. 3009-546. Under the amended and therefore dismissed the petition for INA, asylum remains a discretionary want of subject matter jurisdiction. The determination on the part of the INS. But District Court noted that habeas review of AEDPA and IIRIRA enacted two changes criminal alien removal proceedings falls curtailing court review of removal under the general habeas statute, 28 U.S.C. proceedings. [2] To understand these § 2241. The District Court held, however, that the scope of review of immigration proceedings under section 2241 is limited
2 In addition to imposing a new set to constitutional claims or errors of law. of permanent rules, IIRIRA provided for a The District Court reasoned that factual set of “transitional” rules. All removal and discretionary determinations are not cases commenced before April 1, 1997, in cognizable under section 2241, and the which a final order of deportation was federal courts therefore lack jurisdiction to filed after October 30, 1996 are subject to entertain such claims in habeas challenges the transitional rules. See Illegal to removal proceedings. Immigrant Reform and Imm igrant changes, we must briefly review the “except insofar as it was required by the development of judicial review of Constitution.” Heikkila, 345 U.S. at 235. immigration determinations.
In 1952, while the Heikkila case Until 1952, judicial jurisdiction to was pending, Congress reconfigured the review executive decisions relating to immigration laws. Heikkila itself declined immigration was founded exclusively on to rule on the amended act, 345 U.S. at the writ of habeas corpus. See United 232 n.4, but the Supreme Court soon had States v. Jung Ah Lung, 124 U.S. 621 the opportunity to address the new law. In (1888). During that period, “habeas Shaughnessy v. Pedreiro, the Court held corpus was the only remedy by which that the amended INA was subject to the deportation orders could be challenged in APA’s expanded review because the 1952 the courts.” Heikkila v. Barber, 345 U.S. revisions, passed after the APA became 229, 230 (1953). A challenge to the effective, did not “expressly” supersede or exclusivity of the habeas remedy was modify the expanded right of review briefly mounted after the 1946 passage of granted by the APA. 349 U.S. 48, 51-52 the Administrative Procedure Act (APA), (1955). which overhauled administrative law.
In 1961, Congress changed the Some aliens sought to appeal executive immigration statutes again. Under the immigration decisions under the APA’s 196 1 amendments, aliens f acin g general mandate that courts set aside any deportation were funneled into the courts administrative agency action that was an of appeals for direct review under a abuse of discretion or unsupported by standard similar to the APA standard. See substantial evidence. The Supreme Court 8 U.S.C. § 1105a(a) (1994); see also H.R. held the APA inapplicable, however, Rep. No. 87-1086 (1961), reprinted in reasoning that the then-existing specific 1961 U.S.C.C.A.N. 2950, 2967-76. Aliens immigration statute was meant to preclude subject to exclusion were not provided a judicial review of immigration decisions means of direct review. See H.R. Rep. No. 87-1086 (1961), reprinted in 1961 U.S.C.C.A.N. 2950, 2967-76. The 1961
Responsibility Act of 1996, Pub. L. No. amendments, however, clarified that all 104-208, Div. C, § 309, 110 Stat. 3009- aliens, whether facing deportation or 625. All cases commenced after April 1, subject to exclusion, were entitled to 1997 are subject to the permanent rules. review by habeas corpus. See id.; see also See Illegal Immigrant Reform and 8 U.S.C. §§ 1105a(a)(10) & 1105a(b) Immigrant Responsibility Act of 1996, (1994). [3] It is unclear—though irrelevant Pub. L. No. 104-208, Div. C, § 306(c), 110 Stat. 3009-612. Because Bakhtriger’s removal proceedings were commenced on April 17, 2000, we will restrict our 3 Section 1105a(a)(10) was discussion to the permanent rules. originally codified as section 1105a(a)(9). to our analysis—whether the provision for In addition to seeking to “zipper” habeas corpus review contained in new jurisdiction to review in the courts of INA sections 1105a(a)(10) and 1105a(b) appeals, AEDPA and IIRIRA excluded actually created independent bases for certain categories of INS decisionmaking habeas corpus jurisdiction or merely from this appellate judicial review reserved the availability of habeas corpus altogether. See 8 U.S.C. § 1252(a)(2)(C). pursuant to 28 U.S.C. § 2241. See INS v. Among the determinations deemed St. Cyr, 533 U.S. 289, 310 (2001). unreviewable were so-called “criminal
alien removal cases”—final orders of In 1996, Congress enacted AEDPA removal where the alien was removable and IIRIRA to reorder and curtail court for having committed controlled substance review of deportation and exclusion offenses, aggravated felonies, certain decisions. AEDP A re pealed the firearm offenses, miscellaneous national immigration habeas provision contained in security or defense-related crimes, or for 8 U.S.C. § 1105a(a) and IIRIRA having multiple convictions for crimes eliminated the remainder of 8 U.S.C. § involving moral turpitude. See 8 U.S.C. § 1105a. See AEDPA § 401(e), 110 Stat. 1252(a)(2)(C); see also Patel v. Ashcroft, 1268; IIRIRA § 306(b), 110 Stat. 3009- 294 F.3d 465, 468 & n.3 (3d Cir. 2002). [4] 612. IIRIRA also consolidated judicial review in the courts of appeals under a so- called “zipper clause,” which stated that “judicial review of all questions of law and 4 At first blush, a separate provision of the amended INA might suggest that fact, including interpretation and application of constitutional and statutory direct court of appeals review of asylum provisions, arising from any action taken determinations in criminal alien removal cases remains available notwithstanding or proceeding brought to remove an alien” must take place in the courts of appeals. 8 the zipper. In addition to eliminating U.S.C. § 1252(b)(9); see also 8 U.S.C. § direct review of criminal alien removal orders in section 1252(a)(2)(C), the 1252(a). In sum, these provisions appeared to consolidate all appeals of INS amended INA also provides that determinations in a single action, brought “ notwithstanding any other provision of only from a final order of removal, and law , . . . (ii) no court shall have brought only in the courts of appeals. See jurisdiction to review . . . any other decision or action of the Attorney General 8 U.S.C. §§ 1252(a)(1) and (b)(9).
the authority for which is . . . in the discretion of the Attorney General, other than the granting of relief under 8 U.S.C.
See Immigration Act of 1990, § 545(b)(2), § 1158(a) [asylum] of this title .” 8 U.S.C. Pub. L. No. 101-649, 104 Stat. 4978; H.R. § 1252(a)(2)(B) (emphasis added). One Rep. 87-1086 (1961), reprinted in 1961 possible reading of section 1252(a)(2)(B) U.S.C.C.A.N. 2950, 2967-76. is that courts retain jurisdiction to review
In cases where the basis for But that shifted the issue of reviewability removal is the commission of the crimes back to the district courts. The question enumerated in section 1252 the net effect arose whether in criminal alien removal of the 1996 immigration law amendment cases, the preclusion of direct review, was to eliminate direct review by the coupled with the zipper clause, eliminated courts of appeals of the BIA’s all court review, including collateral determination. We so held in Liang v. review under the original habeas corpus INS. 206 F.3d 308, 323 (3d Cir. 2000). [5] provision contained in section 2241.
In Liang, we held that collateral habeas review under section 2241 survived asylum determinations notwithstanding the the zipper in criminal alien removal cases. limitations of section 1252(a)(2)(C). A Id. at 323. The Supreme Court confronted closer reading of section 1252(a)(2)(B), this issue in St. Cyr. 533 U.S. at 292. however, and one that is more consonant There, the Court definitively agreed that with section 1252(a)(2)(C), is that section habeas review of criminal alien removal 1252(a)(2)(B) leaves untouched—neither cases under section 2241 was not limiting nor augmenting— the authority foreclosed by AEDPA or IIRIRA. Id. at courts would otherwise have to review 314. Endorsing the approach we took in asylum determinations. Said another way, Liang and earlier decisions, St. Cyr held section 125 2(a)(2 )(B) is n ot an that, absent a crystal clear repeal of independent grant of authority for courts to jurisdiction to consider habeas claims by review asylum determinations, but merely aliens, the provisions of AEDPA and an exemption of asylum determinations IIRIRA that preclude judicial review from the general class of discretionary would not be interpreted to repeal section determinations that the section makes 2241 jurisdiction. Id. At least part of the unreviewable. That being the case, the reasoning behind this ruling was the desire elimination by section 1252(a)(2)(C) of to avoid the thorny constitutional question jurisdiction to review any determination in posed if Congress had entirely pre-empted criminal alien removal cases also includes review of an alien’s claims. Id. elimination of jurisdiction to review asylum determinations in those cases. Such a reading was implicit in our holding in Ogbudimkpa v. Ashcroft, 342 F.3d 207, and whether he or she has been convicted 213 (3d Cir. 2003).
of an ‘aggravated felony’ within the 5 Whether the courts of appeals meaning of the statute)” has been the retain jurisdiction in criminal alien subject of some debate. See Calcano- removal cases to consider “challenges to Martinez v. INS, 533 U.S. 348, 350 n. 2 the factual determinations thought to (2001). We have read the statute to allow trigger the jurisdiction-stripping provisions such jurisdictional review. See Drakes v. (such as whether an individual is an alien Zimski, 240 F.3d 246, 247 (3d Cir. 2001).
Through its decision in St. Cyr, the questions to include issues of application Cou rt divide d the la ndsc ape of of law to fact, where the facts are immigration review into two parts. Non- undisputed and not the subject of criminal aliens retain a right under the challenge. Ogbudimkpa v. Ashcroft, 342
We believe that, under section exclusive judge of the 2241, habeas proceedings do not embrace existence of those facts, and review of the exercise of discretion, or the no other tribunal, unless sufficiency of the evidence. Our expressly authorized by law conclusion is supported by the history of to do so, is at liberty to interpretation of the general habeas reexamine or controvert the provision over the years; by the structure sufficiency of the evidence of the immigration laws as amended in on which he acted. 1996; and by the reasoning of St. Cyr
Id. itself. Until the 1952 amendments to the
A.
immigration law allowed broader APA- Over a century ago, Congress styl e j u d i c i a l r e v i e w f o r I N S enacted an early version of a zipper clause determinations, the Court had hewed by mandating that exclusion decisions of mainly to this circumscribed scope of immigration officials were to be final, review, with slight modification. See subject only to review within the executive Yamataya v. Fisher, 189 U.S. 86 , 97, 102 branch. Act of March 3, 1891, c. 517, § 5; (1903); United States ex rel. Vajtauer v. 26 Stat. 827, 828, 1115. Shortly thereafter, Commissioner of Immigration at Port of the Supreme Court considered an appeal New York, 273 U.S. 103 (1927); Bridges from the denial of a writ of habeas corpus v. Wixon, 326 U.S. 135, 149, 156 (1945); by an excluded citizen of Japan. The Estep v. United States, 327 U.S. 114, 122- Court acknowledged that because the 23 & n.14 (1946). So long as there was alien’s liberty was restrained, she was sufficient procedural fairness to comport “doubtless entitled to a writ of habeas with due process, courts were not to corpus to ascertain whether the restraint is “weigh the evidence” and were required to lawful.” Ekiu v. United States, 142 U.S. honor the administrative decisions “even 651, 660 (1892) (italics in original). But though they may be erroneous.” Estep, 327 U.S. at 122. [7] the court observed:
[T]he final determination of those facts may be entrusted by Congress to executive 7 Both Vajtauer and Estep indicated officers; and in such a case, that the writ of habeas corpus might issue as in all others, in which a where there is “no basis in fact”— i.e., no statute gives a discretionary evidence—for a determination. See power to an officer, to be Vajtauer, 273 U.S. at 110; Estep, 327 U.S. exercised by him upon his at 122. This may have been either as a own opinion of certain facts, matter of reviewing the legal basis for the he is made the sole and agency’s jurisdiction, Estep, 327 U.S. at
122-23, or as a matter of due process, see As we have already observed, when warranted a new hearing. the passage of the APA in 1946 first raised But the petitioner also raised the the prospect that immigration decisions contention that “‘in all similar cases the might be reviewable under the broader [ B IA ] ha [d ] e xe rcise d fa vorable standards of abuse of discretion and discretion.’” Id. at 264 n.5. This substantial evidence, the Supreme Court argument was rejected by the Supreme specifically rejected that approach in the Court, which pointedly observed: context of habeas corpus. Heikkila, 345 U.S. at 236-37. The Court held that, It is important to emphasize whatever the minor adjustments in the that we are not here measure of habeas review over the years, reviewing and reversing the habeas corpus must always be based on manner in which discretion bedrock requirements of due process, was exercised. If such were rather than the “very different . . . statutory the case we would be [i.e., APA] standard of review, e.g., discussing the evidence in deciding on ‘the whole record’ whether the record supporting or there is substantial evidence to support undermining the alien’s administrative findings of fact.” Id. at claim to discretionary relief. 236. Heikkila concluded that “it is the Rather, we object to the scope of inquiry on habeas corpus that Board’s alleged failure to differentiates use of the writ from judicial exercise its own discretion, review as that term is used in the contrary to existing valid Administrative Procedure Act.” Id. regulations.
United States ex rel Accardi v. Id. at 268. Shaughnessy, 347 U.S. 260 (1954), is Despite the Court’s essential particularly instructive on this point. The constancy in restricting the use of habeas habeas corpus petition in that case was corpus to assertions of constitutional or based, inter alia, on the argument that the statutory violations, the statutory landscape Attorney General had impermissibly changed in 1952. Congress’s choice in the interfered with the discretion that had been 1952 immigration law amendments not to delegated by regulations to the BIA, expressly supersede or modify the APA for thereby violating those regulations. The immigration determinations effectively Supreme Court held that this transgression broadened the scope of judicial review of of the regulations violated due process and INS determinations. See Shaughnessy v. Perdiero, 349 U.S. at 51-52. In point of fact, the broadened scope of review was
Heikkila 345 U.S. at 235-36 & n. 11; see literally applicable only to direct appeal of also Mahler v. Eby, 264 U.S. 32, 41-42 INS determinations under the APA. But it (1924); Zakonaite v. Wolf, 226 U.S. 272, was not long before courts viewed 274 (1912). Congress as having intended to augment require that in habeas cases: traditional habeas review with broader
[T]he appropriate standard APA-style review. Compare Jay v. Boyd, of review in such cases is 351 US. 345, 354-55 (1956) (explaining wh ethe r the a ge nc y’s that executive discretion to suspend decision is “arbitrary, deportation is “a matter of grace” and capricious, and abuse of “unfettered discretion”) with United States discretion or otherwise not ex rel Hintopolous v. Shaughnessy, 353 in accordance with the law.” U.S. 72, 77 (1957) (rejecting a challenge 5 U.S.C. § 706(2)(A) [the to suspension based on claim of abuse of
APA].
discretion and arbitrary and capricious reasoning). [8] Put another way, in effect . . . This standard of review courts began treating APA judicial review is consistent w ith the as one of the laws of the United States legislative history of the enforceable through the habeas statute. Immigration and Nationality
Act of 1952 . . . . Once the habeas provisions of the 746 F.2d 989, 991 (3d Cir. 1984). [9] immigration statute were added in 1961, they were viewed as consistent with a
It seems fair to say, then, that standard of judicial review calling for classic immigration cases under section APA-style examination of the exercise of 2241 before 1952 were reviewed for discretion and substantiality of evidence. constitutional and legal error only, and that In Moret v. Karn, this Court read the 1952 immigration cases that arose under the i m m i g r a t i o n a m e n d m e n t s ( a s habeas writ between 1952 and 1996 were supplemented by the 1961 legislation) to treated under the same standard of review as direct appeals from the BIA—that is to say, under broader APA review of
8 Because the Court in Hintopolous rejected a challenge based on abuse of discretion, the court did not actually consider whether such a challenge was 9 Some of the courts adopting the within the scope of habeas review. See view that section 1105a created a basis for Hintopolous, 353 U.S. at 78-79. habeas corpus jurisdiction independent
Decisions during the 1961 to 1996 from 28 U.S.C. § 2241 have found that, time-frame, however, appear to treat the from 1961 to 1996, broader review was APA standard of review as applicable available exclusively through 1105a without any distinction between direct habeas, and that 2241 habeas was available review under old section 1105a(a) and only to aliens asserting constitutional or habeas corpus under old section 1105a(b). statutory violations. See Gutierrez-Chavez See, e.g., Mondragon v. Ilchert, 653 F.2d v. INS, 298 F.3d 824, 827-28 (9th Cir. 1254, 1255-56 (9th Cir. 1980). 2002). discretion and of the sufficiency of the 1996 statutory “zipper” language that evidence. states:
B. Judicial review of all questions of law and fact, That brings us to the 1996 including interpretation and amendments under AEDPA and IIRIRA. application of constitutional The government initially advocated that and statutory provisions, the amendments to the INA enacted by arising from any action AEDPA and IIRIRA be treated as taken or proceeding brought precluding all judicial examination of to remove an alien from the removal determinations in the cases of United States under this criminal aliens. The Supreme Court, subchapter shall be available however, rejected that view. See St. Cyr, only in judicial review of a 533 U.S. at 312. The Court held that final order under this Congress succeeded only in repealing section. direct appellate review of such cases and the special immigration habeas provisions 8 U.S.C. § 1252(b)(9). The judicial review of section 1105a; what remained was the section, 8 U.S.C. § 1252, in turn provides original section 2241 habeas remedy. That for direct review by the courts of appeals fact in itself suggests that the scope of of BIA decisions, but prohibits it in the review one would expect to find under the case of criminal aliens. residual section 2241 is no greater than
The meaning of the term “judicial what existed before Congress began to review” became the critical interpretive graft APA-style review onto habeas issue presented to the Supreme Court. If jurisdiction in 1952. judicial review meant all review by any To be sure, St. Cyr does not court, as the government and the explicitly set forth the boundaries of dissenting Justices urged, then the zipper habeas review of removal actions under clause and the criminal alien preclusion section 2241, nor does it expressly address clause, taken together, made removal of whether review of discretion or criminal aliens totally unreviewable under administrative fact-finding is available. the statutory scheme. If “judicial review” See Sol, 274 F.3d at 651. But the actual was a term of art referring only to a certain reasoning in the St. Cyr decision compels type of court review, however, then what the conclusion that under section 2241 as was precluded was not all review by the it currently stands, the broader species of courts, but only review of a certain kind. review for substantial evidence and abuse
The majority in St. Cyr adopted the of discretion typical of APA challenges latter interpretation, seizing upon the must be wholly out of bounds. earlier decision in Heikkila to differentiate In St. Cyr, the Court confronted the between “judicial review” in a specific sense, and court review under the style “judicial review” for criminal aliens traditional habeas writ. See St. Cyr, 533 by eliminating direct “judicial review” in U.S. at 312 (citing Heikkila). The Court the courts of appeals. What remained for declared: “In the immigration context, criminal aliens facing removal was only ‘judicial review’ and ‘habeas corpus’ have the core section 2241 habeas provision historically distinct meanings.” St. Cyr, with its narrower scope of pure legal 533 U.S. at 311 (citing Heikkila, 345 U.S. review. at 236). But for this distinction to make
The Supreme Court in St. Cyr also sense in reading the 1996 zipper addressed the provision of AEDPA that amendments, there had to be some specifically eliminated one of the 1961 significant difference between the scope of special habeas provisions of the INA, by review under “judicial review” and that deleting 8 U.S.C. § 1105a(a)(10). St. Cyr, under section 2241 habeas corpus. 533 U.S. at 308-10. The Court held that Otherwise, the amendments’ withdrawal of the repeal of this section 1105a special “judicial review” on the one hand would habeas provisions did not implicitly repeal be nullified on the other hand by the the residual habeas statute, section 2241. retention of habeas corpus with identical Again, that interpretation can make sense scope of court review. In other words, a only if, as we have seen, section 2241 definition of habeas corpus jurisdiction residual habeas corpus is understood to that made the scope of claims available on carry a more limited scope of review than habeas review coextensive with the scope the broader APA-style review which the of claims available on direct review would courts applied under section 1105a. See necessarily render the preclusion provision Gutierrez-Chavez v. INS, 298 F.3d 824, of AEDPA and IIRIRA utterly pointless 828 (9th Cir. 2002). Were section 1105a and would create an internal contradiction review and section 2241 review to have within the immigration statutes. identical scope, the repeal by AEDPA and As a matter of logic, therefore, the IIRIRA of the former—and not the Court necessarily recognized that the latter—would appear to be a vain or “limited role played by the courts in incomplete legislative act. habeas corpus proceedings was far
In short, to accept Bakhtriger’s narrower than the judicial review contention here that section 2241 habeas authorized by the APA.” Id. at 312. In review incorporates an examination of the effect, the Court reaffirmed the rule set exercise of discretion or weight of the forth in Heikkila. And by drawing that evidence in the underlying removal distinction as to scope of review, the Court proceedings would be to erase the was able to give meaning to the 1996 distinction between “judicial review” and statutory preclusion provision. For under habeas review that was an indispensable this interpretation, AEDPA and IIRIRA ingredient in the reasoning of St. Cyr. See succeeded in precluding broader APA- 533 U.S. at 311-12. Bakhtriger’s argument would also wholly nullify the of asylum. For the reasons stated above, content of the preclusion provisions that these matters are not reviewable under the Congress enacted and would defy decades residual habeas provision—28 U.S.C. § of the history of interpretation of section 2241. Indeed, the BIA’s determination 2241. Accordingly, we believe that the that the circumstances of Bakhtriger’s case scope of review under section 2241 must do not rise to the level of other cases in be confined to questions of constitutional which the authorities have exercised their and statutory law. discretion in favor of asylum is precisely
the sort of application of discretion that the Our interpretation is consistent with Supreme Court declined to review in decisions in other circuits. In the wake of Accardi, 347 U.S. at 264. In Accardi, the St. Cyr, we are not aware of any cases that petitioner’s challenge to the exercise of have upheld habeas review of factual discretion by the immigration officials was findings or discretionary determinations in effectively the same as that mounted by criminal alien removal cases. Rather, all Bakhtriger—the “allegation that the circuits to decide the issue have limited appellant was treated differently from criminal alien habeas petitions to other aliens similarly situated.” 206 F.2d constitutional challenges or errors of law. at 901. The Supreme Court expressly See Bravo v. Ashcroft, 341 F.3d 590, 592- affirmed the court of appeals in its refusal 93 (5th Cir. 2003); Gutierrez-Chavez, 298 to entertain that challenge to discretion F.3d at 828; Carranza v. INS, 277 F.3d 65, (although the Court ultimately reversed on 72 (1st Cir. 2002); Sol, 274 F.3d at 651; another ground). Accardi, 347 U.S. at 264 Bowrin v. INS, 194 F.3d 483, 490 (4th Cir. n. 5. We reject Bakhtriger’s identical 1999). [10] challenge to discretion here. We join them. Perhaps recognizing that his effort IV. to obtain review of discretion and evidence would be ill-fated, Bakhtriger tries to Bakihtriger’s habeas petition repackage these claims as matters of law challenges both the underpinnings of the by pointing out that the reason he is BIA factual findings and the BIA’s subject to removal is pursuant to a law of decision not to exercise discretion in favor the United States, and that the “substantial evidence” standard under APA-style review is established as a legal
10 Yang v. INS, 109 F.3d 1185, requirement. The fact that there are legal 1195-96 (7th Cir. 1997) takes the same principles that govern these matters, position, but we do not rely on it because however, does not convert every question the Seventh Circuit appears to have relied of fact or discretion into a question of law. in part on its view that IIRIRA had If it did, rivers of ink expended in case law abolished review under section 2241, a distinguishing between legal and factual position later repudiated by St. Cyr. questions would have been spilled for no reason. Similarly, although review as a matter of law encompasses deciding whether legal principles have been properly applied to undisputed facts, see Ogbudimkpa, 342 F.3d at 222, it does not encompass deciding the factual issues themselves.
We will not delineate the precise boundaries between permitted review of legal questions and forbidden review of factual issues or matters of discretion in this opinion. What is clear in this case is that the review Bakhtriger seeks is squarely on the forbidden side of the line. The District Court correctly determined that it lacked jurisdiction to review the claims in Bakhtriger’s habeas petition.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
NOTES
F.3d 207, 222 (3d Cir. 2003).
[6] statute to deferential, but still substantive, direct review in the courts of appeals. See But if that marks the minimum 8 U.S.C. § 1252(a)(1); Dia v. Ashcroft, review available under general habeas 353 F.3d 228 (3d Cir. 2003) (en banc). corpus, does it also mark the maximum Criminal aliens have no right to direct review? Or, as Bakhtriger contends, are review, but retain the residual right to seek federal courts in habeas cases entitled to relief under the traditional habeas statute. address whether removal of a criminal See St. Cyr, 533 U.S. at 314. Having alien, while not erroneous as a matter of resolved this threshold jurisdictional issue, constitutional or statutory interpretation, is the Court specifically left open the scope nevertheless an abuse of discretion or of review available under residual section unsupported by substantial evidence? 2241. That set the stage for what has This, of course, is the APA-style standard become the most recent chapter in the of review that is afforded when courts of debate: Precisely what kinds of challenges appeals directly review decisions of the are cognizable in criminal alien removal BIA, as is permitted in the cases of non- habeas petitions? criminal aliens. 8 U.S.C. § 1252(a)(1); III . see, Dia, 353 F.3d at 228. In answering this question we do not paint on a blank canvas. 6 In Sol v. INS, 274 F.3d 648, 651 The Supreme Court and this Court have recently construed the range of (2d Cir. 2001), the Second Circuit read our earlier decision in Catney v. INS, 178 F.3d section 2241 review at least so far as to 190, 195 (3d Cir. 1999), as holding that establish what it comprehends at a minimum. In St. Cyr, the Supreme Court section 2241 review does not embrace “‘denial of discretionary relief to a rejected the Government’s argument that classic habeas review encompassed only criminal alien.’” Respectfully, this reading of our decision in Catney was incorrect. review of substantial constitutional or While the context of our comment on jurisdictional questions. The Supreme Court ruled that “pure questions of scope of review may have been somewhat ambiguous, it actually related to review on law”—such as whether the Attorney direct appeal of a deportation order from General had legal authority to waive removal— fell within the ambit of the BIA, and did not address habeas review. At any rate, the Second Circuit traditional habeas review. Id. at 301. This correctly anticipated the position that we Court has recently interpreted such now take in this decision.