Plaintiffs Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana appeal from a judgment of the United States District Court for the Eastern District of New York (Johnson, J.), entered February 27, 1997, granting the motion of defendants Janet Reno, Attorney General of the United States, and the United States Immigration and Naturalization Service (INS) to dismiss plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b)(6).
All three of the plaintiffs in this case are aliens who have been granted permanent residency in the United States. The INS ordered their deportation following their criminal convictions for drug offenses. Plaintiffs commenced the present suit in the district court challenging the deportation procedures followed by the INS under recently-enacted immigration laws. They alleged that those procedures violated their Fifth Amendment rights to due process.
It is true that the immigration laws appear at times to be a monstrous legislative mo
BACKGROUND
The Plaintiffs
Plaintiff Neil Jean-Baptiste is a 27-year-old national of Haiti who became a legal permanent resident of the United States in 1972 at the age of two. In 1989, after pleading guilty, he was convicted in New York state court for criminal possession of a controlled substance in violation of N.Y. Penal Law § 220.18 (McKinney 1989 & Supp.1998). Based on this conviction, the Immigration Court ordered him deported on August 9, 1996 pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Naturalization Act (INA). See 8 U.S.C. §§ 1251(a)(2)(B)(i); 1251(a)(2)(A)(iii) (1994).
Plaintiff Gustavo Enrique Cepeda-Torres is a 23-year-old national of Colombia who became a lawful permanent resident of the United States in 1982 at the age of eight. In 1995 he pled guilty and was convicted in New York state court of the criminal sale of a controlled substance in violation of N.Y. Penal Law § 220.31 (McKinney 1989). Like Jean-Baptiste, he was ordered deported in 1996, pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA.
Plaintiff Victor Israel Santana, a 36-year-old national of the Dominican Republic, entered the United States in 1989 as a conditional permanent resident. He too was convicted in 1995 in New York state court of the criminal sale of a controlled substance in violation of N.Y. Penal Law § 220.39 (McKinney 1989 & Supp.1998) and was ordered deported based on that conviction by the Immigration Court in 1996. Plaintiffs’ appeals to the Board of Immigration Appeals (BIA) from their deportation orders were dismissed.
The Relevant Statutory Scheme
The Immigration Court ordered plaintiffs deported pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA. Section 241(a)(2)(B)(i), now codified at 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996), stated at the relevant time that “[a]ny alien who at any time after entry has been convicted 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.” Section 241(a)(2)(A)(iii), codified at 8 U.S.C. § 1251(a)(2)(A)(iii) (Supp. II 1996), then provided that “[a]ny alien who is convicted of an aggravated felony at any time after entry is deportable.” There is no requirement in the INA that legal aliens granted permanent residency in the United States be given notice that they could lose such status were they to be convicted of committing these crimes. Nor were any of the plaintiffs, in fact, given such notice.
The Decision Below
Plaintiffs filed a proposed class action suit in the Eastern District before Judge Sterling Johnson, Jr. on August 19, 1996, challenging the procedures employed by the INS with respect to their deportations. They alleged that they, lawful permanent residents who have been convicted of certain criminal acts after their entry and grant of permanent resident status, were entitled to notice that engaging in criminal behavior could subject them to consequences under the immigration laws. They asserted that this lack of notice violates their constitutional rights under the Fifth Amendment’s guarantee of due process. Because they had not received such notice, they argued that the INS should be enjoined from enforcing the deportation orders that have been filed against them. In response defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6), but agreed not to deport appellants until the dismissal motion was judicially resolved.
Regarding the lack of jurisdiction claim, defendants asserted that INA § 242(g), codified at 8 U.S.C. § 1252(g) (Supp. II 1996), divested the district court of jurisdiction over the case. Section 242(g) states
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 [the INA].
Section 242(g) was enacted on September 30, 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Immigration Reform Act), Pub.L. No. 104-208, 110 Stat. 3009 (1996). That Act was the second of two signed into law in 1996 that substantially curtailed federal courts’ jurisdiction over claims raised by aliens in deportation proceedings. The first was the Anti-terrorism and Effective Death Penalty Act of 1996 (Antiterrorism Act), Pub.L. No. 104-132, 110 Stat. 1214 (1996), signed into law five months earlier on April 24, 1996.
Prior to the passage of the Antiterrorism Act, resident aliens facing deportation could seek federal judicial review under INA § 106(a)(10), which 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) (1994) (amended 1996 and repealed 1996). Section 440(a) of the Antiterrorism Act, Pub.L. No. 104-132 at 440(a), 110 Stat. 1214, 1276-77 (1996) (hereinafter Anti-terrorism Act § 440(a)), however, amended the text of INA § 106(a)(10) in April of 1996 and significantly withdrew federal jurisdiction over claims brought by aliens who have been ordered deported because of convictions for specified offenses. It read as follows
(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.
Antiterrorism Act § 440(a). The Immigration Reform Act repealed the amended § 106(a)(10) five months later, but enacted similar language in the new INA § 242(a)(2)(C). See 8 U.S.C. §§ 1105a & 1252(a)(2)(C) (Supp. II 1996).
Although the Immigration Reform Act specifically provided that its amendments to the INA would take effect on April 1, 1997, the general effective date of the Act, see Pub.L. No. 104-208, § 309(a), 110 Stat. 3009, 3009-625 (1996) (hereinafter Immigration Reform Act § 309(a)), it also stated that INA § 242(g) “shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” Pub.L. No. 104-208, § 306(c)(1), 110 Stat. 3009, 3009-612 (1996) (hereinafter Immigration Reform Act § 306(c)(1)). The defendants argued that this provision meant the district court was divested of jurisdiction as of September 30,1996, the date the Immigration Reform Act was enacted. The district court disagreed and held that § 242(g) would become effective on April 1, 1997, as provided by Immigration Reform Act § 309(a). See Jean-Baptiste v. Reno, No. 96 CV 4077,
2. Failure to State a Claim
With respect to the merits of the ease, plaintiffs’ “collateral attack” on the manner in which the defendants administer the deportation process against lawful permanent residents, the district court judge agreed with the defendants that plaintiffs had failed to state a claim. It observed that even though legal permanent residents are not informed that certain kinds of convictions might cause their deportation, such a lack of warning did not violate the Constitution or
Further, the district court held that the duty to inform legal permanent residents that they could be deported as a result of certain criminal convictions,' if there indeed were one, was satisfied by the provisions of the INA, which clearly state that aliens convicted of certain crimes are deportable. See id. As such, the court continued, plaintiffs’ own ignorance of this law could not form a basis for challenging the deportation procedures used against them. See id. The trial court noted that the INS met due process requirements here because the plaintiffs had received notice of their deportation pursuant to the order to show cause filed by the INS. Hence, the district court dismissed plaintiffs’ case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. See id. Plaintiffs appeal this dismissal.
DISCUSSION
The district court, in determining that the effective date of INA § 242(g) was April 1, 1997, also stated that Immigration Reform Act § 306(e)(1) makes the provision explicitly retroactive so as to apply to cases pending on the September 30, 1996 enactment date of the Act. See Jean-Baptiste,
The Effect of § 242(g) on Courts’ Jurisdiction as Interpreted . by Other Circuits
Other federal courts of appeals have already grappled with this question and, at least on the basis of the facts in the individual eases, come to different conclusions. The first case'decided on § 242(g) was Ramallo v. Reno,
. After the district court rendered its judgment, however, Congress enacted the Immigration Reform Act. Thus, on appeal, the D.C. Circuit had to consider that statute’s effect on Ramallo’s case. It concluded that the revised § 242(g) stripped it of jurisdiction to decide the appeal because the action had arisen from the decision or action of the Attorney General to execute a removal order against Ramallo. See id. at 1213 (holding that the “[Immigration Reform Act] now indisputably deprives both courts of appeals and district courts of jurisdiction to decide the instant action”). The Circuit Court asserted jurisdiction over the case for the limited purpose of vacating the district court decision and remanding with instructions to dismiss, stating: “[G]iven the firm command of 8 U.S.C. § 1252(g), we believe that Congress intended to afford this court residual jurisdiction to clear the decks of cases in which the District Court has entered judgment, but in which there can be no review by the Court of Appeals due to its lack of jurisdiction pursuant to [the new law].” Id. (emphasis added). .
The next case was Auguste v. Attorney General,
On appeal, the Eleventh Circuit ruled that Auguste’s petition for habeas corpus had been filed pursuant to the old § 106 of the INA. See id. at 725. Since the Immigration Reform Act had repealed that section of the INA and replaced it with new § 242 during the intervening time period, the appellate court concluded that it did not have jurisdiction over Auguste’s case. See id. at 725-26. It followed the result of Remallo, stating that although it lacked jurisdiction over the appeal, it retained residual jurisdiction over Auguste’s case in order to vacate the district court’s judgment and remanded with instructions to dismiss. See id. at 727.
In American-Arab Anti-Discrimination Committee v. Reno,
The Ninth Circuit disagreed, stating that even though § 242(g) applied retroactively to cases pending on the Immigration Reform Act’s April 1, 1997 effective date, such did not end the discussion regarding whether it had jurisdiction to consider the aliens’ First Amendment claims. See id. at 1372. It pointed to the section’s introductory phrase, “except as provided in this [new] section, [8 U.S.C. § 1252],” and concluded that the provision expressly incorporates certain exceptions from 8 U.S.C. § 1252 when § 242(g) applies to pending cases. See id. Were the court to interpret § 242(g) as precluding all judicial review of aliens’ colorable constitutional claims, such as the plaintiffs’ First Amendment claims, the Ninth Circuit continued, “serious constitutional questions] ... would arise.” See id. (quoting Webster v. Doe,
The Ninth Circuit proceeded to discuss which provisions of 8 U.S.C. § 1252 are incorporated by reference into § 242(g). In particular, it looked at 8 U.S.C. § 1252(f), which limits a court’s authority to enjoin the operation of INA provisions related to entry and exclusion, other than with respect to their application to an “individual alien” against whom proceedings under such provisions have been initiated. The court held that § 1252(f) allowed federal jurisdiction over the aliens’ pending First Amendment claims. See id.at 1372-73.
■ In Ramallo, the D.C. Circuit had held that it did not need to decide whether § 242(g) posed such constitutional problems because it determined that habeas review was available to the plaintiff in that case to raise whatever constitutional questions were implicated. See
The Effect of § 242(g) in this Case
With the legislation and case law construing it in mind, we turn to the matter before us. We read amended § 242 to divest this Court and the district court of jurisdiction to decide these plaintiffs’ claims. The claims were made “by or on behalf of [aliens] arising from the decision of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders” against them, just as those made in Ramallo and Auguste. Congress in this statute has terminated the jurisdiction of federal courts to hear this sort of appeal. We are precluded therefore from entertaining or deciding it.
In holding that § 242(g) divests us and the district court of jurisdiction over plaintiffs’ claims, we recognize the plenary power Congress has in the immigration field. As the Supreme Court noted
[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government____ [0]ver no conceivable subject is the legislative power of Congress more complete.... Thus, in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.
Reno v. Flores,
The Availability of 28 U.S.C. § 2241 Habeas Review After the Enactment of the Immigration Reform Act'
As we dismiss plaintiffs’ claims for lack of jurisdiction, we must give thought to whether a statute that eliminates on jurisdictional grounds review of such a constitutional challenge passes constitutional muster.itself. See Webster v. Doe,
The Constitution provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const., art. I, § 9, cl. 2. In addition, § 2241 of Title 28 of the U.S.Code empowers Supreme Court Justices and circuit and district court judges to grant a writ of habeas corpus to an individual “in custody in violation of the Constitution or laws dr treaties of the United States.” 28 U.S.C. § 2241(e)(3) (1994). Moreover, the availability of habeas to challenge deportation orders has long been recognized. See Heikkila v. Barber,
Further, we heretofore have recognized the need for some judicial review of aliens’ constitutional challenges in Hincapie-Nieto v. INS,
Even though Congress exercises broad power over immigration matters, the Supreme Court has ruled that aliens who have established permanent residency ‘in this country are entitled to assert their constitutional rights. See INS v. Chadha,
Defendants argue that the Immigration Reform Act does not deprive an individual of a forum in which to adjudicate his or her constitutional rights, but rather removes district court jurisdiction over deportation matters and channels such actions directly to the courts of appeals. The courts of appeals did have jurisdiction over individual orders of deportation under. INA § 106(a), 8 U.S.C. § 1105a(a), but Congress eliminated such review for individuals found deportable for certain criminal convictions in Antiterrorism Act § 440(a). As discussed above, we subsequently upheld § 440(a)’s elimination of courts of appeals’ jurisdiction over petitions to review final orders of deportation in Hincapie-Nieto,
In sum, we join other courts in holding that § 2241 habeas review survives the amendments to the INA enacted by the Immigration Reform Act. See Ramallo,
Whatever the permissible scope of review, we do not believe this case implicates the jurisdiction of the federal courts under § 2241. Plaintiffs sought federal question jurisdiction under 28 U.S.C. § 1331, not habeas jurisdiction under 28 U.S.C. § 2241. INA § 242(g) deprives us and the district court of such jurisdiction.
As a consequence, we, as our sister circuits, assert residual jurisdiction over the plaintiffs’ claims in order to affirm the district court’s judgment dismissing this case, although such dismissal should have been under Fed.R.Civ.P. 12(b)(1) (lack of jurisdiction) instead of Fed.R.Civ.P. 12(b)(6) (failure to state a claim upon which relief can be granted).
CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment insofar as it dismisses plaintiffs’ claims, but we do so pursuant to Fed.R.Civ.P. 12(b)(1) rather than Fed.R.Civ.P. 12(b)(6).