Michael BAKHTRIGER, Appellant v. Kenneth John ELWOOD, Acting District Director of the Philadelphia Office of the Immigration and Naturalization Service; Theodore Nordmark, Assistant District Director for Deportation and Detention; and the Immigration and Naturalization Service.
No. 02-4134
United States Court of Appeals, Third Circuit
March 10, 2004
Argued Oct. 14, 2003.
360 F.3d 414
To be sure, this procedure requires the arbitrators to decide that they are prepared to suffer some inconvenience of their own in order to mandate what is, in reality, an advance production of documents. But that is not necessarily a bad thing, since it will induce the arbitrators and parties to weigh whether advance production is really needed. And the availability of this procedure within the existing statutory language should satisfy the desire that there be some mechanism “to compel pre-arbitration discovery upon a showing of special need or hardship.” COMSAT Corp. v. Nat‘l Sci. Found., 190 F.3d 269, 276 (4th Cir.1999).
Steven A. Morley, (Argued), Morley, Surin & Griffin, Philadelphia, for Appellant.
Sonya F. Lawrence, (Argued), Office of United States Attorney, Philadelphia, for Appellees.
Before SLOVITER, ROTH and CHERTOFF, Circuit Judges.
OPINION
CHERTOFF, Circuit Judge.
Appellant Michael Bakhtriger, a lawful permanent resident in the United States, was convicted of a felony and subjected to immigration removal proceedings. Bakhtriger challenged the removal proceedings by petition for habeas corpus. The District Court determined that Bakhtriger was essentially seeking review of a discre
This question of the scope of habeas jurisdiction is one of first impression in this Circuit. We agree with the District Court‘s reading of the law and we will affirm.
I.
Bakhtriger entered the United States in February 1993, from the former Soviet Republic of Moldova, his native country. He was granted the protection of the United States as a refugee and became a lawful permanent resident in April 1994. In April 1998, Bakhtriger was convicted of possession of both cocaine base and heroin in the Court of Common Pleas in Montgomery County, Pennsylvania. Less than a year later, in January and Fеbruary of 1999, Bakhtriger was arrested for violating his probation, and sentenced to 2-12 months imprisonment.
Bakhtriger‘s controlled substance conviction rendered him removable1 under
(B) Controlled substances
(i) Conviction
Any alien who at any time after admission has been convicted of 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 (as defined in section 802 of Title 21), other
than a single offense involving possession for one‘s own use of 30 grams or less of marijuana, is [removable].
Bakhtriger, through his own testimony and that of his mother, attempted to show that he had a reasonable fear of persecution should he return to Moldova. The evidence presented by Bakhtriger focused on his history of past religious persecution as a member of the Jewish faith in Moldova, and his fears of what might befall him if he should return.
Bakhtriger‘s mother recounted that her husband had been an officer in the Soviet army, but had been hampered in his advancement as a result of his religion. She also explained that Jews in Moldova wеre prevented from publicly practicing their religion. Both witnesses emphasized that anti-semitism was pervasive under the old Soviet regime, and that the post-Soviet Moldovan government took no action to curb the open hostility emanating from large segments of the public.
Other testimony indicated that, while living in Moldova, Bakhtriger was routinely harassed, called derogatory names, and physically beaten as a result of his religion. According to his mother, Bakhtriger was prevented from attending any prestigious colleges or universities. Instead, he was directed to a trade school to learn television repair. At this school, too, Bakhtriger was beaten by fellow students. Later, mirroring the experience of his father, Bakhtriger lost two successive jobs in factories as a result of his religion.
Both Bakhtriger and his mother recounted that anti-semitic signs and graffiti regularly marred fences and buildings. In the spring of 1992, the door of the apartment in which the Bakhtrigers lived was etched with a Star of David, something the Bakhtrigers took as a threat—that anti-semitic elements were “marking” the apartment as one in which Jews lived. Bakhtriger recounted that during a recent trip back to Moldova he was attacked in public and a necklace bearing the Star of David was ripped from his neck.
The IJ credited the testimony of both witnesses and found that Bakhtriger had suffered past persecution. But the IJ found that the INS had presented sufficiеnt proof of “changed country conditions” in Moldova to rebut the presumption that Bakhtriger had a well-founded fear of persecution. Even so, the IJ exercised his discretion to grant asylum where the applicant has “demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”
The INS appealed the IJ‘s decision to the Board of Immigration Appeals (BIA). The BIA deferred to the IJ‘s determination that Bakhtriger and his mother were credible witnesses, and accepted the IJ‘s summary of the evidence. However, the BIA overturned the IJ‘s grant of asylum and ordered that Bakhtriger be removed to Moldova. The BIA decided thаt even if the IJ accurately described the level of persecution, Bakhtriger‘s experience did not rise to the level found in previous cases where the Board determined to exercise its authority to grant asylum for compelling reasons.
Bakhtriger filed a petition for a writ of habeas corpus in the Eastern District of
Bakhtriger also urged that even if there was no well-founded fear of persecution, the BIA wrongly reversed what was concededly the IJ‘s “broadly define[d]” discretion to grant asylum based on past persecution. J.A. 20. Again, in the habeas petition‘s own words, Bakhtriger contended that the BIA wrongly determined that he “was not entitled to asylum on a discretionary basis.” J.A. 7.
Based on the petition, the District Court reasoned that Bakhtriger sought review of a discretionary determination, and therefore dismissed the petition for want of subject matter jurisdiction. The District Court noted that habeas review of criminal alien removal proceedings falls under the general habeas statute,
This timely appeal followed.
A district court‘s determination that it lacks subject matter jurisdiction is a determination of law over which we exercise plenary review. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). Moreover, we exercise plenary review where a district court dismisses а habeas corpus petition based on a legal conclusion without holding an evidentiary hearing. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir.1991).
II.
In 1996, Congress overhauled the Immigration and Nationality Act (INA), see
Until 1952, judicial jurisdiction to review executive decisions relating to immigration was founded exclusivеly on the writ of habeas corpus. See United States v. Jung Ah Lung, 124 U.S. 621, 8 S.Ct. 663, 31 L.Ed. 591 (1888). During that period, “habeas corpus was the only remedy by which
In 1952, while the Heikkila case was pending, Congress reconfigured the immigration laws. Heikkila itself declined to rule on the amended act, 345 U.S. at 232 n. 4, but the Supreme Court soon had the opportunity to address the new law. In Shaughnessy v. Pedreiro, the Court held that the amended INA was subject to the APA‘s expanded review because the 1952 revisions, passed after the APA became effective, did not “expressly” supersede or modify the expanded right of review granted by the APA. 349 U.S. 48, 51-52, 75 S.Ct. 591, 99 L.Ed. 868 (1955).
In 1961, Congress changed the immigration statutes again. Under the 1961 amendments, aliens facing deportation were funneled into the courts of appeals for direct review under a standard similar to the APA standard. See
In 1996, Congress enacted AEDPA and IIRIRA to reorder and curtail court review of deportation and exclusion decisions. AEDPA repealed the immigration hаbeas provision contained in
In addition to seeking to “zipper” jurisdiction to review in the courts of appeals, AEDPA and IIRIRA excluded certain categories of INS decisionmaking from this appellate judicial review altogether. See
In cases where the basis for removal is the commission of the crimes enumeratеd in section 1252 the net effect of the 1996 immigration law amendment was to eliminate direct review by the courts of appeals of the BIA‘s determination. We so held in Liang v. INS, 206 F.3d 308, 323 (3d Cir.2000).5 But that shifted the issue of reviewability back to the district courts. The question arose whether in criminal alien removal cases, the preclusion of direct review, coupled with the zipper clause, eliminated all court review, including collateral review under the original habeas corpus provision contained in section 2241.
In Liang, we held that collateral habeas review under section 2241 survived the zipper in criminal alien removal cases. Id. at 323. The Supreme Court confronted this issue in St. Cyr. 533 U.S. at 292, 121 S.Ct. 2271. There, the Court definitively agreed that habeas review of criminal alien removаl cases under section 2241 was not
Through its decision in St. Cyr, the Court divided the landscape of immigration review into two parts. Non-criminal aliens retain a right under the statute to deferential, but still substantive, direct review in the courts of appeals. See
III.
In answering this question we do not paint on a blank canvas.
The Supreme Court and this Court have recently construed the range of section 2241 review at least so far as to establish what it comprehends at a minimum. In St. Cyr, the Supreme Court rejected the Government‘s argument that classic habeas review encompassed only review of substantial constitutional or jurisdictional questions. The Supreme Court ruled that “pure questions of law“—such as whether the Attorney General had legal authority to waive removal—fell within the ambit of traditional habeas review. Id. at 301, 121 S.Ct. 2271. This Court has recently interpreted such questions to include issues of application of law to fact, where the facts are undisputed and not the subject of challenge. Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222 (3d Cir.2003).6
But if that marks the minimum review available under general habeas corpus, does it also mark the maximum review? Or, as Bakhtriger contends, are federal courts in habeas cases entitled to address whether removal of a criminal alien, while not erroneous as a matter оf constitutional or statutory interpretation, is nevertheless an abuse of discretion or unsupported by substantial evidence? This, of course, is the APA-style standard of review that is afforded when courts of appeals directly review decisions of the BIA, as is permitted in the cases of non-criminal aliens.
We believe that, under section 2241, habeas proceedings do not embrace review of the exercise of discretion, or the sufficiency of the evidence. Our conclusion is sup
A.
Over a century ago, Congress enacted an early version of a zipper clause by mandating that exclusion decisions of immigration officials were to be final, subject only to review within the executive branch. Act of March 3, 1891, c. 517, § 5; 26 Stat. 827, 828, 1115. Shortly thereafter, the Supreme Court considered an appeal from the denial of a writ of habeas corpus by an excluded citizen of Japan. The Court acknowledged that because the alien‘s liberty was restrained, she was “doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 35 L.Ed. 1146 (1892) (italics in original). But the court observed:
[T]he final determination of those facts may be entrusted by Congress to executive officers; and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to reexamine or controvert the sufficiency of the evidence on which he acted.
Until the 1952 amendments to the immigration law allowed broader APA-style judicial review for INS determinations, the Court had hewed mainly to this circumscribed scope of review, with slight modification. See Yamataya v. Fisher, 189 U.S. 86, 97, 102, 23 S.Ct. 611, 47 L.Ed. 721 (1903); United States ex rel. Vajtauer v. Commissioner of Immigration at Port of New York, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560 (1927); Bridges v. Wixon, 326 U.S. 135, 149, 156, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); Estep v. United States, 327 U.S. 114, 122-23 & n. 14, 66 S.Ct. 423, 90 L.Ed. 567 (1946). So long as there was sufficient procedural fairness to comport with due process, courts were not to “weigh the evidence” and were required to honor the administrative decisions “even though they may be erroneous.” Estep, 327 U.S. at 122, 66 S.Ct. 423.7
As we have already observed, when the passage of the APA in 1946 first raised the prospect that immigration decisions might be reviewable under the broader standards of abuse of discretion and substantial evidence, the Supreme Court specifically rejected that approach in the context of habeas corpus. Heikkila, 345 U.S. at 236-37, 73 S.Ct. 603. The Court held that, whatever the minor adjustments in the measure of habeas review over the years, habeas corpus must always be based on bedrock requirements of due process, rather than the “very different statutory [i.e., APA] standard of review, e.g., deciding on ‘the whole record’ whether there is substantial evidence to support administrative findings of fact.” Id. at 236. Heikkila concluded that “it is the scope of inquiry on habeas corpus that differentiates use of
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), is particularly instructive on this point. The habeas corpus petition in that case was based, inter alia, on the argument that the Attorney General had impermissibly interfered with the discretion that had been delegated by regulations to the BIA, thereby violating those regulations. The Supreme Court held that this transgression of the regulations violated due process and warrantеd a new hearing.
But the petitioner also raised the contention that ” in all similar cases the [BIA] ha[d] exercised favorable discretion.” Id. at 264 n. 5, 74 S.Ct. 499. This argument was rejected by the Supreme Court, which pointedly observed:
It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. If such were the case we would be discussing the evidence in the record supporting or undermining the alien‘s claim to discretionary relief. Rather, we object to the Board‘s alleged failure to exercise its own discretion, contrary to existing valid regulations.
Despite the Court‘s essential constancy in restricting the use of habeas corpus to assertions of constitutional or statutory violations, the statutory landscape changed in 1952. Congress‘s choice in the 1952 immigration law amendments not to expressly supersede or modify the APA for immigration determinations effectively broadened the scope of judicial review of INS determinations. See Shaughnessy v. Pedreiro, 349 U.S. at 51-52, 75 S.Ct. 591. In point of fact, the broadened scope of review was literally applicable only to direct appeal of INS determinations under the APA. But it was not long before courts viewed Congress as having intended to augment traditional habeas review with broader APA-style review. Compare Jay v. Boyd, 351 U.S. 345, 354-55, 76 S.Ct. 919, 100 L.Ed. 1242 (1956) (explaining that executive discretion to suspend deportation is “a matter of grace” and “unfettered disсretion“) with United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957) (rejecting a challenge to suspension based on claim of abuse of discretion and arbitrary and capricious reasoning).8 Put another way, in effect courts began treating APA judicial review as one of the laws of the United States enforceable through the habeas statute.
Once the habeas provisions of the immigration statute were added in 1961, they were viewed as consistent with a standard of judicial review calling for APA-style examination of the exercise of discretion and substantiality of evidence. In Moret v. Karn, this Court read the 1952 immigration amendments (as supplemented by the 1961 legislation) to require that in habeas cases:
[T]he appropriаte standard of review in such cases is whether the agency‘s decision is “arbitrary, capricious, and abuse
of discretion or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A) [the APA]. . . . This standard of review is consistent with the legislative history of the Immigration and Nationality Act of 1952. . . .
746 F.2d 989, 991 (3d Cir.1984).9
It seems fair to say, then, that classic immigration cases under section 2241 before 1952 were reviewed for constitutional and legal error only, and that immigration cases that arose under the habeas writ between 1952 and 1996 were treated under the same standard of review as direct appeals from the BIA—that is to say, under broader APA review of discretion and of the sufficiency of the evidence.
B.
That brings us to the 1996 amendments under AEDPA and IIRIRA. The government initially advocated that the amendments to the INA enacted by AEDPA and IIRIRA be treated as precluding all judicial examination of removal determinations in the cases of criminal aliens. The Supreme Court, however, rejected that view. See St. Cyr, 533 U.S. at 312, 121 S.Ct. 2271. The Court held that Congress succeeded only in repealing direct appellate review of such cases and the special immigration habeas provisions of section 1105a; what remained was the original section 2241 habeas remedy. That fact in itself suggests that the scope of review one would expect to find under the residual section 2241 is no greater than what existed before Congress began to graft APA-style review onto habeas jurisdiction in 1952.
To be sure, St. Cyr does not explicitly set forth the boundaries of habeas review of removal actions under section 2241, nor does it expressly address whether review of discretion or administrative fact-finding is available. See Sol, 274 F.3d at 651. But the actual reasoning in the St. Cyr decision compels the conclusion that under section 2241 as it currently stands, the broader species of review for substantial evidence and abuse of discretion typical of APA challenges must be wholly out of bounds.
In St. Cyr, the Court confronted the 1996 statutory “zipper” language that states:
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 subchapter shаll be available only in judicial review of a final order under this section.
The meaning of the term “judicial review” became the critical interpretive issue presented to the Supreme Court. If judicial review meant all review by any court, as the government and the dissenting Justices urged, then the zipper clause and the criminal alien preclusion clause, taken together, made removal of criminal aliens totally unreviewable under the statutory scheme. If “judicial review” was a term of art referring only to a certain type of court review, however, then what was prеcluded
The majority in St. Cyr adopted the latter interpretation, seizing upon the earlier decision in Heikkila to differentiate between “judicial review” in a specific sense, and court review under the traditional habeas writ. See St. Cyr, 533 U.S. at 312, 121 S.Ct. 2271 (citing Heikkila). The Court declared: “In the immigration context, ‘judicial review’ and ‘habeas corpus’ have historically distinct meanings.” St. Cyr, 533 U.S. at 311, 121 S.Ct. 2271 (citing Heikkila, 345 U.S. at 236, 73 S.Ct. 603). But for this distinction to make sense in reading the 1996 zipper amendments, there had to be some significant difference between the scope of review under “judicial review” and that under section 2241 habeas corpus. Otherwise, the amendments’ withdrawal of “judicial review” on the one hand would be nullified on the othеr hand by the retention of habeas corpus with identical scope of court review. In other words, a definition of habeas corpus jurisdiction that made the scope of claims available on habeas review coextensive with the scope of claims available on direct review would necessarily render the preclusion provision of AEDPA and IIRIRA utterly pointless and would create an internal contradiction within the immigration statutes.
As a matter of logic, therefore, the Court necessarily recognized that the “limited role played by the courts in habeas corpus proceedings was far narrower than the judicial review authorized by the APA.” Id. at 312, 73 S.Ct. 603. In effect, the Court reaffirmed the rule set forth in Heikkila. And by drawing that distinction as to scoрe of review, the Court was able to give meaning to the 1996 statutory preclusion provision. For under this interpretation, AEDPA and IIRIRA succeeded in precluding broader APA-style “judicial review” for criminal aliens by eliminating direct “judicial review” in the courts of appeals. What remained for criminal aliens facing removal was only the core section 2241 habeas provision with its narrower scope of pure legal review.
The Supreme Court in St. Cyr also addressed the provision of AEDPA that specifically eliminated one of the 1961 special habeas provisions of the INA, by deleting
In short, to accept Bakhtriger‘s contention here that section 2241 habeas review incorporates an examination of the exercise of discretion or weight of the evidencе in the underlying removal proceedings would be to erase the distinction between “judicial review” and habeas review that was an indispensable ingredient in the reasoning of St. Cyr. See 533 U.S. at 311-12, 121 S.Ct. 2271. Bakhtriger‘s argument would also wholly nullify the content of the preclusion provisions that Congress enacted and would defy decades of the history of interpretation of section 2241. Accordingly, we believe that the scope of review under section 2241 must be confined to questions of constitutional and statutory law.
We join them.
IV.
Bakhtriger‘s habeas petition challenges both the underpinnings of the BIA factual findings and the BIA‘s decision not to exercise discretion in favor of asylum. For the reasons stated above, these matters are not reviewable under the residual habeas provision—
Perhaps recognizing that his effort to obtain review of discretion and evidence would be ill-fated, Bakhtriger tries to repackage these claims as matters of law by pointing out that the reason he is subject to removal is pursuant to a law of the United States, and that the “substantial evidence” standard under APA-style review is established as a legal requirement. The fact that there are legal principles that govern these matters, however, does not convert every question of fact or discretion into a question of law. If it did, rivers of ink expended in case law distinguishing between legal and factual 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 faсtual 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.