The consolidated cases before the Court require us to interpret the effect of the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), on the jurisdiction of federal courts to hear challenges raised by criminal aliens with respect to removal proceedings commenced by the Immigration and Naturalization Service (“INS”). In three opinions handed down in the last three years, we considered the effect of various provisions of the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996) and the transitional rules of IIRIRA on a federal court’s jurisdiction to review removal proceedings. This is our first occasion to examine the effect of IIRIRA’s permanent rules in the same context.
In enacting the AEDPA and IIRIRA in 1996, Congress reworked the role of the courts in immigration decisions by severely limiting judicial review of final orders of deportation for certain classes of aliens. By enacting thesе laws, Congress clearly meant to speed the removal of legal permanent residents convicted of certain crimes from the United States by curtailing the availability of judicial review of their removal orders. See H.R.Rep. No. 104-879 at 251-61 (1997),
The three petitioners before us, Deboris Calcano-Martinez, Sergio Madrid, and Fa-zila Khan, are legal permanent residents of the United States who have been ordered depоrted because of prior criminal eonvic-
The INS argues that this Court does not have jurisdiction tо hear these petitions. We hold, for the reasons set forth herein, that INA § 242(a)(2)(C) bars this Court from reviewing claims against final orders of removal filed by certain classes of criminal aliens, including the petitioners. We also hold that IIRIRA’s permanent rules do not repeal a federal court’s jurisdiction to review criminal aliens’ removal orders by writ of habeas corpus under 28 U.S.C. § 2241. In doing so, we follow decisions by the Third and Ninth Circuit Courts of Appeals and the principles set forth in our prior cases interpreting the immigration laws. Accordingly, we dismiss the petitions without prejudice to the same claims being brought pursuant to habeas petitions.
I. BACKGROUND
A. Deboris Calcano-Martinez.
Deboris Calcano-Martinez is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident in 1971, when she was three years old. She has four children who are United States citizens. On October 9,1996, Calcano was sentenced to one to three years’ imprisonment bаsed on her April 24, 1996, guilty plea to attempted criminal sale of heroin in the third degree, in violation of §§ 110 and 220.39 of the New York Penal Law.
On June 16, 1997, the INS commenced removal proceedings against Calcano-Martinez by filing a Notice to Appear. See 8 C.F.R. § 239.1(a) (1999). The notice charged that Calcano-Martinez’s narcotic conviction rendered her deportable from the United States pursuant to INA §§ 237(a)(2)(A)(iii) and (a)(2)(B)(i), codified at 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i) (1999), as an alien convicted of an aggravated felony and as an alien convicted of a violation of a controlled substance law.
A removal hearing, at which Calcano-Martinez was represented by counsel, was held before an Immigration Judge (“IJ”). At the end of the hearing, the IJ ordered Calcano-Martinez deportable as charged by the INS and ruled that, based on her criminal convictions, she was statutorily ineligible for any relief from removal. Calcano-Martinez timely appеaled the IJ’s decision to the BIA. The BIA dismissed her appeal. On January 29, 1998, Calcano filed a petition for review in this Court. On October 13, 1999, Calcano filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. See Calcano-Martinez v. Reno, No. 99 Civ. 10481 (S.D.N.Y. filed Oct. 13, 1999). By stipulation and order dated December 20, 1999, Calcano’s habeas petition was dismissed without prejudice to refiling after this Court’s mandate in the instant case.
Sergio Madrid is a native and citizen of Mexico who remained in the United States unlawfully until his status was adjusted to lawful permanent resident of the United States at the age of seventeen. On September 6, 1994, Madrid was sentenced to a prison term of four years to life based on his conviction for the criminal sale of a controlled substance in the second degree, in violation of § 220.41 of the New York Penal Law.
On June 24, 1997, the INS commenced removal proceedings against Madrid by filing a Notice to Appear. The notice charged that Madrid’s narcotic conviction rendered him deportable from the United States as an alien convicted of an aggravated felony and as an alien convicted of a violation of a controlled substance law. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C. § 1101(a)(43).
C. Fazila Khan.
Fazila Khan is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident on September 2, 1987. Khan’s family, including her mother and sister as wеll as five of her aunts and uncles, are also United States citizens. She also has a four-year-old daughter who is a United States citizen. On February 13, 1997, Khan was sentenced to a prison term of four months, to be followed by a period of supervised release for one year, in connection with her November 6, 1996, guilty plea to the use of a telephone to facilitate the distribution of heroin in violation of 21 U.S.C. §§ 843(b), (d).
In May 1997, the INS commenced removal proceedings against Khan by filing a Notice to Appear. The notice charged that her offense rendered her deportable as an alien convicted of an aggravated felony. See INA § 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1127(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(B).
A removal hearing was held before an IJ and Khan, represented by counsel, denied that she was deportable as charged. On July 24, 1997, the IJ ordered her deportable. Khan timely appealed the IJ’s decision. On May 28, 1997, the BIA issued a decision dismissing Khan’s appeal. On June 29, 1998, Khan filed a petition for review in this Court. On October 13, 1998, Khan also challenged her removal order by filing a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Khan v. Reno, No. CV 99-6515 (E.D.N.Y. filed Oct. 13, 1999). That petition is pending.
D.INA § 212(c) Waiver from Deportation.
Under former INA § 212(c), codified at 8 U.S.C. § 1182(c) (1996), the Attorney General had discretionary authority to waive the deportation of an alien deporta-ble because of a prior conviction where deportation would cause extraordinary hardship to the deportee or his or her family. The permanent rules of IIRIRA, effective April 1, 1997, repealed § 212(c) in its entirety and replaced it with another form of relief entitled “cancellation of removal,” found at new INA § 240A, codified at 8 U.S.C. § 1229b (1999). See IIRIRA
In their petitions for review to this Court, the petitioners argue that the BIA erred by interpreting IIRIRA § 304’s repeal of § 212(c) relief and replacement with “cancellation of removal” to apply retroactively to an alien who is convicted before April 1, 1997, the effective date of IIRIRA § 304(a).
II. DISCUSSION
We must consider whether we have jurisdiction over the petition before us. Implicit in this question is whether IIRIRA’s permanent rules repealed habeas сorpus jurisdiction to review final removal orders entered against a legal resident alien who is removable because of a prior conviction. See Liang v. INS,
A. The AEDPA.
In April of 1996, Congress enacted the AEDPA, which included two provisions relevant to the judicial review of immigration decisions. Prior to the enactment of the AEDPA, INA § 106(a)(10) provided that “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.” 8 U.S.C. § 1105a(a)(10) (1996). Sеction 401(e) of the AEDPA, entitled “Elimination of Custody Review by Habeas Corpus,” explicitly repealed prior INA § 106(a)(10). See AEDPA § 401(e),
(10) Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241 (a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)®, shall not be subject to review by any court.
AEDPA § 440(a),
In Hincapie-Nieto,
Our suggestion in Hincapie-Nieto that AEDPA § 440(a)’s bar of judicial review under the INA was constitutional because courts might review deportation orders through habeas сorpus petitions was in accord with the vast majority of courts of appeals to consider the same issue. See Mansour v. INS,
B. IIRIRA’s Transitional Rules.
Five months after enacting the AEDPA, on September 30, 1996, Congress enacted IIRIRA, which further narrowed judicial review for legal residents ordered removable because they were convicted of certain crimes. IIRIRA contains two sets of provisions. The transitional rules (which are not codified in the U.S.Code) control deportation proceedings commenced prior to April 1, 1997. See IIRIRA § 309(c),
In addition, IIRIRA § 306(a)' amends INA § 242(g) to provide:
Exclusive Jurisdiction. Except as provided in this section and notwithstаnding 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.
IIRIRA § 306(a),
In Jean-Baptiste,
We reasoned, however, that all review had not been eliminated by INA § 242(g) or the AEDPA. See id. Relying on the doctrine articulated in Felker v. Turpin,
Nothing in the language of either the [AEDPA] or [IIRIRA] suggests that Congress expressly repealed § 2241, limited its scope, or eliminated the jurisdiction of the district courts under that statute to entertain petitions seeking writs of habeas corpus. Those two Acts therefore do not specifically exclude ha-beas review in deportation cases under § 2241....
Id. at 219. Therefore, in Jean-Baptiste, this Court concluded that the AEDPA and IIRIRA’s transitional rules did not repeal the habeas jurisdiction granted to federal courts by Congress in 28 U.S.C. § 2241 to review challenges to final deportation orders. We left open the question of the scope оf the habeas review of immigration decisions available under 28 U.S.C. § 2241. See id. at 220.
Our decision in J ean-Baptiste is in accord with the majority of circuits also to hold that the language of § 242(g) did not repeal habeas jurisdiction over immigration decisions. The First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals held that habeas jurisdiction to review final deportation decisions survived the AEDPA and IIRIRA transitional rules’ streamline of the judicial review available under the INA. See Magana-Pizano v. INS,
In Henderson,
We also considered in Henderson the breadth of review available under habeas corpus, the question left open after Jean-Baptiste. The INS argued that review only of “substantial” constitutional claims remained and that the courts were without power to review the Attorney General’s interpretation of the immigration laws. See Henderson,
C. IIRIRA’s Permanent Rules.
The permanent rules of IIRIRA govern deportation proceedings initiated after April 1, 1997. See IIRIRA § 309(c), 110
The INS argues that the court of appeals is the exclusive forum for all immigration matters, invoking several provisions of the permanent rules in support of its position that IIRIRA, in its final form, divests district courts of their habeas jurisdiction. The INS calls our attention to newly added INA §§ 242(a)(1), 242(a)(2)(C), 242(e)(2), 242(g) and 242(b)(9). See IIRIRA § 306(a),
Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28 [the Hobbs Act]....
8 U.S.C. § 1252(a)(1) (1999). The INS argues that because the Hobbs Act gives exclusive jurisdiction to the court of appeals, see 28 U.S.C. § 2342 (“The court of appeals ... has exclusive jurisdiction” over specified agency orders), § 242(a)(1) evidences Congress’s intent to eradicate habeas review.
Section 242(a)(2)(C) of the INA is the successor to AEDPA § 440(a) and IIRIRA § 309(c)(4)(g) and in its final form now states:
Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [the deportation sections of the INA],
8 U.S.C. § 1252(a)(2)(C) (1999). The INS argues that when it added the “notwithstanding any other provision of law” phrase to the final incarnation of this section, Congress explicitly repealed habeas jurisdiction.
The INS also relies on INA § 242(e)(2). This section provides:
Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus- proceedings, but shall be limited to determinations of — (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lаwfully admitted for permanent residence, has been admitted as a refugee under section 1157, or has been granted asylum under section 1158, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 12255(b)(1)(C) of this title.
8 U.S.C. § 1252(e)(2) (1999). The INS contends that because INA § 242(e)(2) provides for statutory habeas review under the delineated circumstances, Congress knew how to create habeas review under the INA when it so desires. It follows, according to the INS, that Congress’s decision to omit analogous language in regard to an alien’s challenge to his or her final deportation order demonstrates its intent that this review be unavailable.
The INS additionally points to INA § 242(g), a section already considered by this Court in Henderson. Section 242(g) provides:
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.
8 U.S.C. § 1252(g) (1999).
Finally, § 242(b)(9), upon which the INS rests its principal argument provides:
*336 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 shall be available only in judicial review of a final order under this section.
8 U.S.C. § 1252(b)(9) (1999). The INS argues that because INA § 242(b)(2) requires that all petitions for review “be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” § 242(b)(9) necessarily divests any court of jurisdiction other than the appropriate court of appeals. In support of this argument, the INS points to the Supreme Court’s recent characterization in dicta of § 242(b)(9) as a “zipper clause” that channels all review of removal decisions under the INA into the court of appeals. See Reno v. American-Arab Anti-Discrimination Comm.,
Four courts of appeals have considered arguments similar to those presented by the INS in this case. The Fifth and Eleventh Circuit Courts of Appeals adopted the INS’s position; the Third and Ninth rejected it.
In Richardson v. Reno,
In Max-George v. Reno,
In Liang v. INS,
The Ninth Circuit, following the lead of the Third Circuit, held that IIRIRA’s permanent rules do not use language explicit enough to repeal a federal court’s habeas jurisdiction to review final removal orders. See Flores-Miramontes v. INS,
We are persuaded by the Third and Ninth Circuits’ reasoning in Liang v. INS and Flores-Miramontes v. INS that Article III courts continue to have habeas jurisdiction under 28 U.S.C. § 2241 over legal challenges to final removal orders. We conclude that the scope of this review includes statutory claims such as those raised by the petitioners in this case. We do not read any exceptions into INA § 242(a)(2)(C) that bars our jurisdiction over petitions to review removal orders against aliens convicted of certain crimes. It is also our view that our preservation of habeas jurisdiction under the permanent rules avoids the novel and profound constitutional questions that would arise were we to find that IIRIRA eliminates habeas jurisdiction over final immigration decisions.
We will not strain to infer that Congress radically repealed the federal courts’ habeas jurisdiction to review final orders of removal. In Felker,
In Jean-Baptiste,
Nothing in IIRIRA’s permanent provisions requires us to stray from our determination in Jean-Baptiste that habeas review survives IIRIRA. Although the language is arguably more restrictive, there is still nothing in IIRIRA’s permanent provisions that constitutes a sufficiently clear statement of congressional intent to repeal the habeas jurisdiction granted Article III courts by 28 U.S.C. § 2241. Although each new provision works to narrow or limit the judicial review available to the criminal aliens under the INA, INA §§ 242(a)(1), 242(a)(2)(C), 242(e)(2), and 242(g)
Felker’s requirement that Congress provide an explicit statement in order to repeal habeas jurisdiction is particularly relevant in this case. As the Ninth Circuit pointed out, Felker was decided three months before IIRIRA became law. We assume that Congress is aware of the law, see U.S. v. Georgopoulos,
The INS rests heavily on the phrase “notwithstanding any other provision of law” added to INA § 242(a)(2)(C), codified at 8 U.S.C. § 1252(a)(2)(C) (1999). However, we were not persuaded that the same exact phraseology repealed § 2241 habeas jurisdiction when, in Jean-Baptiste, we examined the effect on habeas jurisdiction of INA section 242(g). See
As for the INS’s reliance on § 242(b)(9), we first recognize that § 242(b)(9) does not expressly mention habeas jurisdiction or § 2241. INA § 242(b)(9) is a congressional limitation on judicial review and does not concern habeas jurisdiction. Thus, under Felker and our decision in Jean-Baptiste, § 242(b)(9) does not constitute a repeal of habeas corpus.
Furthermore, we are not persuaded by the INS that the Supreme Court’s characterization of INA § 242(b)(9) as a “zipper clause” requires us to hold that it effects a repeal of habeas jurisdiction. In AADC, a group of temporary residents, who belonged to the Popular Front for the Liberation of Palestine, sought injunctive and declaratory relief on the ground that the INS was selectively enforcing the immigration laws against them in violation of their First and Fifth Amendment rights. See
The Court’s description of INA § 242(b)(9) as a “zipper clаuse” that “channels judicial review” of immigration decisions to the court of appeals was not a holding that § 242(b)(9) divests federal courts of § 2241 habeas jurisdiction. The discussion of § 242(b)(9) in AADC pertained to whether § 242(g) was redundant of § 242(b)(9). By interpreting § 242(g) narrowly, the Supreme Court held that the apparent redundancy was a “mirage.” Id. at 482,
As the Ninth Circuit points out, our interpretation that INA § 242(b)(9) does not eradicate 28 U.S.C.-§ 2241 habeas jurisdiction does not render that section meaningless. See Flores-Miramontes,
The INS argues that a constitutional question does not arise if 28 U.S.C. § 2241 jurisdiction is repealed because the constitutionally-mandated amount of judicial review remains under the INA. Specifically, although it acknowledges the broad preclu-sive language of § 242(a)(2)(C) and the majority of courts’ interpretation of it, see supra at II. A, the INS assures us that a criminal alien may still obtain review of his or her removal orders pursuant to a petition for review in a court of appeals. It argues that this review includes all that is required by the Constitution — “substantial” constitutional claims and “certain jurisdictional facts” including whether the petitioner is an alien who is removable by reason of having committed a specified criminal offense.
It is true that the Supreme Court has held that Congress may divest the district courts of habeas jurisdiction without violating the Constitution so long as it substitutes “a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.” Swain v. Pressley,
The INS’s interpretation of INA § 242(a)(2)(C) and its definition of what review is required by the Constitution is a misapprehension of the law, in conflict with our prior decisions, and difficult to reconcile with the INS’s earlier position taken in Hincapie-Nieto. Although a federal court of appeals generally retains jurisdiction under INS § 242(a)(1) to review a legal resident alien’s challenge to his or her final order of removal, INA § 242(a)(2)(C) excepts this review for a petition filed by a detained alien ordered removable because of a criminal conviction. See 8 U.S.C. § 1252(a)(2)(C). Thus, in Hincapie-Nieto and Jean-Baptiste, we interpreted § 242(a)(2)(C) as barring all review of a final order of removal entered against an alien removable because of a prior conviction. Hincapie-Nieto,
Furthermore, in Jean-Baptiste, we rejected the very same argument presented by the INS in this case. There, the INS argued that it was unnecessary to preserve habeas jurisdiction to avoid a constitutional question because review of constitutional questions remained available under the INA. Relying on our prior decision in Hincapie-Nieto, we held that the INA as amended by IIRIRA takes away that review for legal residents ordered removable because of prior convictions. See Jean-Baptiste,
In addition, the INS’s formulation of the review required by the Constitution falls short of the review that we held in Henderson is mandated. We found there that even a partial repeal of habeas jurisdiction to hear an executively detained alien’s statutory challenges may violate the Suspension Clause. See
is drawn from the very different context of successive federal habeas corpus petitions by prisoners in state custody who have already had one or more opportunities for full judicial process and appeals in the state system, with an opportunity for further review in the Supreme Court by a writ of certiorari, and one or more opportunities for review in the federal judiciary on their first habeas petition.
Id. (quoting Goncalves,
Furthermore, the language of 28 U.S.C. § 2241 does not contemplate that the writ only extends to a person in custody in violation of the Constitution. Rather, the statute also provides habeas jurisdiction over claims that a person is in custody in violation of federal laws and treaties. See 28 U.S.C. § 2241 (providing that the writ of habeas corpus shall extend to a person in custody “in violation of the Constitution or laws or treaties of the United States”). Hence, the literal terms of 28 U.S.C. § 2241 contemplate statutory claims against executive detention.
The substitution of judicial review only of substantial constitutional questions for the habeas review guaranteed under 28 U.S.C. § 2241 therefore does nоt cure the constitutional infirmity that could result from a repeal of the habeas statute. Without habeas jurisdiction to review final orders, there is currently no judicial review at all of a removal order issued against a non-citizen who is ordered removable because he or she committed a certain crime. Because habeas jurisdiction is constitutionally required where the immigration laws have been interpreted to bar other forms of judicial review under § 242(a)(2)(C), our decision that habeas review remains for a criminal alien’s legal challenge to his or her deportation order obviates the profound constitutional questions that would arise if we concluded that all judicial review had been eradicated.
Although not all challenges that an alien may launch against his removal are cognizable under habeas, purely legal statutory and constitutional claims are within § 2241’s scope. Thus, a federal court’s habeas review includes the claim raised by the petitioners in these consolidated cases — that IIRIRA does not apply to bar the availability of § 212(c) relief for convictions that occurred prior to its enactment. The petitioners challenge the government’s refusal to consider an application for a waiver from deportation and do not ask the court to determine whether the BIA exercised its discretion appropriately. Their claim is a purely legal question that is cognizable under the habeas statute.
We note, as did the Third Circuit in Liang, that if we were legislators, rather than judges, we might opt for a statutory scheme under which an alien’s constitutional and statutory challenges are cognizable in the court of appeals pursuant to a petition for review. This would eradicate habeas corpus’s duplicative review of legal questions in the district court and the
Notwithstanding, the question raised by the petitioners is a purely legal matter appropriate for a court, rather than the BIA, to determine. See Mayers,
III. CONCLUSION
We affirm our adherence to the proposition that had Congress intended to strip federal courts of habeas jurisdiction under 28 U.S.C. § 2241 over criminal aliens’ statutory and constitutional challenges, it would have done so by making its intent explicit. Because the permanent rules do not mention a repeal of 28 U.S.C. § 2241 or habeas jurisdiction generally, we hold that they do not deprive a federal court of its habeas jurisdiction under § 2241 to review the purely legal claims of criminal aliens against final orders of removal. Because we lack jurisdiction under INA § 242(a)(2)(C) over the petitions for review brought by Calcano-Martinez, Madrid, and Khan challenging their final orders of removal, we dismiss the petitions without prejudice to Khan’s pending petition or to the same claims being brought by Calca-no-Martinez and Madrid under habeas corpus.
Notes
. INA § 237(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” INA § 237(a)(2)(B)(i) states that "[a]ny alien who at any time after admission has been cоnvicted of a violation of ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... is deportable.”
. INA § 101(a)(43), codified at 8 U.S.C. § 1101(a)(43), defines "aggravated felony” as a crime involving "illicit trafficking in a controlled substance.”
. At argument, counsel for the petitioners alternatively argued that IIRIRA §§ 304(a), (b) should not apply retrospectively to guilty pleas entered to deportable crimes prior to IIRIRA's effective date.
. Indeed, the INS's argument that INS § 242(g) repeals § 2241 habeas jurisdiction over final deportation orders is foreclosed by the Supreme Court's decision in AADC, interpreting § 242(g) to apply only to the three discrete immigration decisions identified in the section. See
. The Supreme Court thus held that INA § 242(g) applies in a very narrow class of cases. This holding is contrary to our interpretation of that section in Jean-Baptiste where we assumed that it governed in the case before us. This distinction has no bearing, however, on our holding in Jean-Baptiste that the language of § 242(g) was insufficient to repeal § 2241.