Bowrin v. INSBowrin v. INS
COUNSEL
COUNSEL: Lee P. Gelernt, AMERICAN CIVIL LIBERTIES UNION, New York, New York; David Goren, LAW OFFICE OF DAVID GOREN, Silver Spring, Maryland, for Petitioner. Jeffrey Jay Bernstein, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Richard M. Evans, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
OPINION
PER CURIAM:
In 1996, Congress passed two statutes that narrowed the rights of certain classes of immigrants and restricted federal court jurisdiction to review these immigrants’ claims. They are the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA“), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). This case requires us to determine the effect of these statutes on federal court jurisdiction to grant a writ of habeas corpus sought by an immigrant in the custody of the Immigration and Naturalization Service (“INS“) awaiting deportation. We hold that these two statutes do not preclude federal court review of habeas corpus petitions raising questions of pure law filed by immigrants imprisoned under a final order of deportation.
I.
Bowrin is a British citizen born on the island of Nevis. He entered the United States on April 2, 1977 as the dependent of a temporary
On May 10, 1994, Bowrin was convicted by the Circuit Court for the County of Prince Georges, Maryland for conspiracy to possess marijuana with intent to distribute. He was sentenced to five years in prison -- with all but 45 days suspended -- and two years probation. Due to his conviction, the INS issued Bowrin a show cause order on May 10, 1994, alleging deportability pursuant to INA §§ 241(a)(2)(B)(i),
In May, 1995, Bowrin conceded deportability and filed an application for relief from deportation under the Immigration and Nationality Act (“INA“) § 212(c). See
Meanwhile, on April 24, 1996, Congress enacted the AEDPA. Among the AEDPA‘s numerous amendments to the INA was the addition of § 440(d) which precluded aliens
deportable by reason of having committed any 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)
from relief under INA § 212(c). AEDPA § 440(d).
In light of the AEDPA amendments to INA § 212(c), the INS moved to dismiss Bowrin‘s petition for relief in August 1996. The Immigration Judge denied the motion, citing the Board of Immigration (“BIA“) decision in In re Soriano, Int. Dec. 3289, 1996 WL 426888 (BIA June 27, 1996). In Soriano, the BIA held that AEDPA
While the INS‘s appeal was pending before the BIA, the Attorney General vacated the BIA‘s holding in Soriano. See In re Soriano, Int. Dec. 3289, 1996 WL 426888, at *38 (Op. Att‘y Gen. Feb. 21, 1997). The Attorney General held that the AEDPA‘s amendments to § 212(c) applied to all applications regardless of when they were filed. Based on the Attorney General‘s reversal, the INS moved for summary judgment on its appeal pending before the BIA. The BIA sustained the INS‘s appeal and ordered Bowrin deported on grounds that the Attorney General‘s ruling in Soriano rendered Bowrin ineligible for § 212(c) relief. Bowrin appealed the BIA‘s ruling to this Court in September 1997.
While awaiting action on his direct BIA appeal, Bowrin filed a habeas corpus petition in the United States District Court for the District of Maryland. The district court dismissed the petition for lack of jurisdiction recommending that in the interest of justice the case be transferred to this Court. On November 13, 1998, we consolidated Bowrin‘s two appeals and calendared the case for oral argument.
II.
First we must determine whether we have jurisdiction to hear Bowrin‘s direct appeal from the BIA‘s decision denying his eligibility for § 212(c) relief. At oral argument, Bowrin‘s counsel acknowledged and we agree that our recent decision in Hall v. INS, 167 F.3d 852 (4th Cir. 1999), is dispositive on this issue. In Hall, we held that the “IIRIRA removes our jurisdiction over the appeals of those aliens who are deportable by reason of their conviction of certain offenses.” 167 F.3d at 854.
Bowrin conceded deportability due to his criminal convictions prior to his hearing before the Immigration Judge. This concession means that Bowrin has acquiesced that his case presents the necessary jurisdictional facts and his counsel as much as conceded this at oral argument. On that ground, we must dismiss his direct appeal.
III.
Having dismissed Bowrin‘s direct appeal, we now address his habeas corpus petition. Because jurisdiction is the first hurdle to be cleared in every case, the primary question we must address is whether the district court properly held that the AEDPA and the IIRIRA divested it of jurisdiction over Bowrin‘s habeas corpus petition. The jurisdictional issues presented here have been chronicled extensively in several federal appellate opinions and we do not endeavor to repeat that which has already been detailed effectively and at length. Our statutory analysis is only complete, however, if it is given in context.
Before 1952 brought changes in the area of immigration law, habeas corpus was the traditional method by which aliens obtained review of deportation decisions pursuant to the general habeas corpus statute,
In 1952, Congress enacted new statutes that channeled review of most deportation matters to the courts of appeals. See Shah v. Reno,
Under this scheme, aliens like Bowrin who conceded deportation, but still desired § 212(c) relief, could file a petition for direct review in the court of appeals following a final deportation order by the BIA. The court of appeals could then review questions of constitutional and statutory law, as well as issues of discretion and fact -- although under a narrowed standard of review. See Shah, 184 F.3d at 721.
The passage of the AEDPA in 1996 dramatically changed this system. The AEDPA included jurisdictional changes -- including the repeal of INA § 106(a)(10) -- and the addition of AEDPA § 440(d) which excluded aliens convicted of certain enumerated criminal offenses from eligibility for § 212(c) discretionary relief.
The IIRIRA was enacted several months later on September 30, 1996, and further altered the statutory landscape. Although passed in 1996, the IIRIRA did not take effect until April 1, 1997, but includes transitional rules which apply to cases, like Bowrin‘s, pending prior to its effective date. See IIRIRA § 309(c); Selgeka v. Carroll, 184 F.3d 337, 341 (4th Cir. 1999). Section 309(c)(1) of the transitional rules provides that the new IIRIRA rules for removing aliens, including the new restrictive judicial-review procedures of INA § 242(g), 8
In apparent conflict with these transitional rules, IIRIRA § 306(c)(1) directs that § 1252(g) shall apply without limitation to all past, pending, and future cases. See Selgeka, 184 F.3d at 341. Section 1252(g) provides that:
Except as provided in this section 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 chapter.
If the jurisdiction-excluding language of § 1252(g) precludes all other sources of jurisdiction in deportation cases and incorporates the other jurisdiction-related provisions provided in § 1252, then it would directly conflict with the transitional rules as set out in § 309(c)(1). Furthermore, on its face, § 1252(g) appears to insulate from review by any court decisions of the Attorney General on all deportation-related cases including final orders of deportation. Such a statutory scheme would likely raise substantial constitutional problems. Fortunately, recent Supreme Court authority has clarified both of these issues.
In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court deciphered this apparent conflict and helped us avoid constitutional problems by construing § 1252(g) narrowly. 525 U.S. 471, 119 S. Ct. 936 (1999) (“AADC II“). Although AADC II did not directly present the question of whether § 1252(g) precludes judicial review of habeas corpus petitions in district court, as we noted in Selgeka, the Court “rejected the notion that section 1252(g) `covers the universe of deportation claims.‘” Selgeka, 184 F.3d at 341 (quoting AADC II, 525 U.S. at ___, 119 S. Ct. at 943). The Court concluded instead that § 1252(g) applies only to the “three discrete actions that the Attorney General may take: her `decision or action’
If § 1252(g) does not govern our review of Bowrin‘s § 2241 habeas petition, then what does? The transitional rules of the IIRIRA, specifically § 309(c)(4)(G). As previously stated, because he was already involved in deportation proceedings when the IIRIRA took effect on April 1, 1997, Bowrin‘s petition is subject to the transitional rules. Subsection G provides that “there shall be no appeal permitted in the case of an alien who is . . . deportable by reason of having committed” certain enumerated criminal offenses, a list including that for which Bowrin has been convicted. IIRIRA § 309(c)(4)(G). Under § 309(c)(4)(G), therefore, an “appeal” is explicitly unavailable to Bowrin.
We believe that when it used the term “appeal,” Congress meant the process of ordinary appellate review commenced with the filing of a notice of appeal or a petition for review in the courts of appeals. See Shah, 184 F.3d at 722-23. Although Bowrin filed a direct appeal over which we have already determined we lack jurisdiction, he also filed a petition for a writ of habeas corpus in the district court, which is the only issue remaining before us. IIRIRA § 309(c)(4)(G) does not mention habeas corpus petitions under § 2241, nor does it appear to preclude district court jurisdiction over such habeas petitions. We do not believe, therefore, that the preclusion of jurisdiction over an alien‘s direct appeal applies to prohibit general habeas jurisdiction in the district court pursuant to § 2241.
Finding no such specific reference to § 2241, we apply the longstanding rule disfavoring repeal of jurisdictional provisions by implication. See Felker v. Turpin, 518 U.S. 651, 660-62 (1996). The applicable provisions of the AEDPA refer explicitly to repealing habeas jurisdiction as provided under INA § 106(a)(10), but there is no mention of § 2241, the general federal habeas statute, even though it was the traditional basis for judicial review of executive decisions in immigration matters. We believe that had Congress intended to eliminate all habeas jurisdiction under § 2241, it would have done so by using the same explicit references it used to repeal INA § 106(a)(10). Its failure to do so, we believe, means that the remedy remains intact. Furthermore, the implicit repeal of federal habeas jurisdiction would potentially raise serious constitutional questions we think are avoidable given this logical statutory construction.
In summary, we join several of our sister circuits in holding that, absent express congressional intent in the language of either the AEDPA or the IIRIRA to eliminate the general federal habeas corpus review pursuant to
Having determined that the district court had jurisdiction over Bowrin‘s habeas petition pursuant to § 2241, we next address the scope of that review. The First, Second, Third, Eighth, and Ninth Circuits have all held that § 2241 jurisdiction includes not only constitutional claims, but also statutory claims like the one presented in Bowrin‘s petition. See Goncalves, 144 F.3d at 124-25 (“The pure statutory claims Goncalves makes here are well within precedent interpreting the core habeas protection provided by § 2241.“); Henderson, 157 F.3d at 122 (holding that statutory claims “affecting the substantial rights of aliens of the sort the courts have secularly enforced” are subject to habeas review); Sandoval, 166 F.3d at 238 (“[T]he Supreme Court has repeatedly recognized that aliens may press statutory claims in habeas proceedings.“); Shah, 184 F.3d 724 (“[T]he writ . . . would be limited to those kinds of questions normally reviewable on habeas at the time the Constitution was written . . . [which] included statutory issues.“); Magana-Pizano, 152 F.3d at 1221, vacated on other grounds, 119 S. Ct. 1137 (1999) (concluding that habeas remedies afforded pursuant to § 2241 include review of statutory questions). The Seventh and D.C. Circuits have taken the opposite position. See LaGuerre, 164 F.3d at 1040 (finding it unnecessary to address this question after determining that habeas corpus jurisdiction pursuant to § 2241 did not survive the enactment of the AEDPA and the IIRIRA but implying that no such jurisdiction remained); Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C. Cir. 1997) (suggesting that § 1252(g) repealed statutory habeas jurisdiction, but not constitutional habeas jurisdiction).
We cast our lot with those circuits that have found that statutory habeas jurisdiction lies firmly within the scope of judicial review of a § 2241 habeas petition. Historically, the Supreme Court has recognized that aliens could obtain review of statutory questions in habeas proceedings, even when “judicial review in the immigration context was reduced to the minimum required by the Constitution.” Sandoval, 166 F.3d at 238 (citation omitted). This precedent supports our holding that district court habeas review under § 2241 includes the ability to review Bowrin‘s petition for both statutory and constitutional questions.
Further supporting this conclusion is the fact that the INS‘s argument, that § 2241 habeas review is limited to constitutional questions, is based on a different context in which prisoners in state custody can file successive federal habeas petitions and often have the ability to obtain full judicial process through the entire state and federal systems. See Goncalves, 144 F.3d at 118 n.8; Henderson, 157 F.3d at 120. Bowrin‘s case is quite different and involves executive detention in which aliens have never had their claims reviewed by any court, federal or state. We find, therefore, that district courts reviewing aliens’ habeas petitions filed pursuant to § 2241 may consider both statutory and constitutional questions when presented.
Like our sister circuits, we wish to underscore that our holding here is a narrow one. Only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited. Thus, we do not suggest that review of § 2241 habeas petitions is as broad as it was under INA § 106. See Goncalves, 144 F.3d at 125; Henderson, 157 F.3d at 122. We do hold, however, that statutory claims affecting the substantial rights of aliens that have traditionally been judicially enforced are cognizable on § 2241 habeas. Accord id.
V.
For the foregoing reasons, we dismiss Bowrin‘s direct appeal for lack of jurisdiction. Second, we hold that the district court had jurisdiction to review Bowrin‘s habeas petition pursuant to § 2241 and
No. 97-2276 - DISMISSED
No. 98-592 - REVERSED AND REMANDED