RALPH RICHARDSON, Plaintiff-Appellee, versus JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commission, Immigration and Naturalization Service; ROBERT WALLIS, Acting District Director, Immigration and Naturalization Service; UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; UNITED STATES DEPARTMENT OF JUSTICE; and EXECUTIVE OFFICE OF IMMIGRATION REVIEW, Defendants-Appellants.
No. 98-4230
D. C. Docket No. 97-3799-CIV-DAVIS
United States Court of Appeals, Eleventh Circuit
December 9, 1998
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.
Appeal from the United States District Court for the Southern District of Florida
HULL, Circuit Judge:
I. FACTS AND PROCEDURAL HISTORY .............................3
II. RICHARDSON’S HABEAS CORPUS PETITION . . . . . . . . . . . . . . . . . . . . . 8
III. NEW IMMIGRATION LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. “Removal” Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Permanent Resident Criminal Aliens Returning From Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Supreme Court’s Fleuti Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Detention of Criminal Aliens “Seeking Admission” . . . . . . . . . . . . 19
E. Detention Under TPCRs in IIRIRA § 303(b)(3) . . . . . . . . . . . . . . 22
F. Detention Under INA § 236(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G. INA § 236(e) Restricts Review of Bond and Parole Decisions . . . . 29
H. Procedures for Removal Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 31
I. IIRIRA Consolidates Judicial Review in the Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
B. No Constitutional Infirmities to Avoid . . . . . . . . . . . . . . . . . . . . . . . 47
C. Eleventh Circuit’s Boston-Bollers Decision . . . . . . . . . . . . . . . . . . . 51
D. Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
E. Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
F. Suspension Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
G. Second Circuit’s Henderson Decision . . . . . . . . . . . . . . . . . . . . . . . 66
H. Ninth Circuit’s Magana-Pizano Decision . . . . . . . . . . . . . . . . . . . . . 69
I. Seventh Circuit’s Yang Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
J. INA §§ 242(b)(9) and (d) Require Final Removal Order . . . . . . . . . 83
K. Alternative Review Under INA Satisfies Suspension Clause . . . . . 87
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
This case presents issues of first impression in this Circuit regarding subject matter jurisdiction under the Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). After review, we find the district court lacked jurisdiction over the habeas corpus petition. We reverse and order the district court to dismiss the petition.
I. FACTS AND PROCEDURAL HISTORY
Appellee-petitioner Ralph Richardson (“Richardson”) is a native and citizen of Haiti who has been a lawful permanent resident alien in the United States since 1968. In 1984, Richardson was convicted of carrying a concealed weapon. In 1990, Richardson was convicted of trafficking cocaine and served five years in prison.1 The parties do not dispute that Richardson could have been deported under the immigration laws in existence in 1990 and could be deported under current immigration law but that deportation proceedings were never initiated.2
Through this inspection, the INS concluded that Richardson, although a lawful permanent resident alien, was no longer eligible to enter the United States under the new immigration laws due to his prior criminal convictions. During the inspection, Richardson admitted his criminal history including his cocaine-trafficking conviction, an aggravated felony under INA § 103(a)(43).3 Richardson was taken to the Krome Detention Center, Miami, Florida, and immediately was placed in “removal” proceedings under INA § 240.4
On November 18, 1997, while awaiting the district director’s response, Richardson also sought release on bond with the immigration judge at Krome. New INA § 101(a)(13)(C)(v)5 provides that a lawful permanent resident alien, returning from abroad, is not deemed to be seeking an official “admission” to the United States, and can be admitted summarily, unless the alien has been convicted of certain crimes. Since Richardson’s conviction for trafficking cocaine is a crime described in INA § 101(a)(13)(C)(v),6 the immigration judge found that Richardson was “seeking admission” to the United States, that aliens “seeking admission” at the border can request release only from a district director, and that immigration judges lack jurisdiction over such requests.7 On November 24, 1997, the immigration judge denied Richardson’s release request for lack of jurisdiction.8
On December 30, 1997, the magistrate judge issued a report finding statutory habeas jurisdiction under
On January 8, 1998, Richardson’s removal proceedings concluded with the immigration judge’s order that Richardson be removed to Haiti.9 After a hearing during which Richardson testified and was represented by counsel, the immigration judge found that, because of his criminal convictions, Richardson was “inadmissible” under INA §§ 212(a)(2)(A)(i)(I), 212(a)(2)(A)(i)(II), and 212(a)(2)(C)10 and not entitled to cancellation of removal under INA § 240A(a).11
On February 19, 1998 and over the INS’ objections, the district court adopted the magistrate judge’s report and recommendations, denied the INS’ motion to dismiss and granted Richardson’s petition. The district court ordered the immigration judge to hold “an individualized hearing within eleven (11) days from the date stamped on the Order, at which time the Immigration Judge should determine whether Petitioner is an arriving alien, and if not, whether and under what conditions Petitioner may be released from custody pending the completion of deportation proceedings.”
This appeal ensued. On February 23, 1998, this Court granted the INS’ motion to stay the district court’s order pending this appeal. Richardson remains in custody.
II. RICHARDSON’S HABEAS CORPUS PETITION
Before examining the new immigration laws, we outline Richardson’s claims. In this case, Richardson does not dispute that he is an alien, that he has a cocaine-trafficking conviction, and that cocaine trafficking is a basis for both inadmissibility and deportability under the INA.13 Instead, Richardson’s habeas corpus petition asserts, inter alia, that his constitutional and statutory rights were violated because:
- the INS ignored his thirty-year legal permanent resident alien status, misinterpreted INA § 101(a)(13)(C)14 in classifying Richardson as an arriving alien “seeking admission,” unlawfully detained him, and illegally denied him admission, as opposed to permitting entry into the United States and then initiating removal proceedings based on “deportability;”
- the Attorney General’s detaining and denying a legal permanent resident alien admission back into the United States and delegating her custody release authority to only the INS district director, without a bond hearing before an immigration judge, are ultra vires of the INA and illegal;
- the Attorney General’s detaining and denying a legal permanent resident alien admission and a bond hearing before the immigration judge solely because of his brief trip abroad violates that resident alien’s due process guarantees under the Due Process Clause of the Fifth Amendment; and
- the Attorney General’s allowing a bond hearing before an immigration judge for legal permanent resident aliens arrested in the United States, but denying a bond hearing to Richardson only because of his two-day sojourn abroad violates the equal-protection guarantees of the Due Process Clause of the Fifth Amendment.
III. NEW IMMIGRATION LAWS
In 1996, Congress twice revised the INA. The changes began incrementally with the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in April 1996 and accelerated with IIRIRA’s major structural revisions to the INA in September 1996.17 Congress’ reconstruction of the INA includes, inter alia, these key elements applicable to Richardson’s appeal:
- new custody rules mandating detention of aliens after a serious criminal conviction;
- new procedures for prompt removal of criminal aliens from the United States;
- new restrictions on judicial review that preclude all judicial involvement in the administrative agency removal and detention process until after a final removal order is entered by the BIA;
- new provisions directing that judicial review shall be exclusively under the INA and in only the court of appeals after a final BIA removal order; and
- new provisions removing all other formerly available federal-court jurisdiction over the detention and removal of criminal aliens, including repeal of statutory habeas under
28 U.S.C. § 2241 .
A. “Removal” Proceedings
Upon being denied entry, Richardson was detained and immediately placed in “removal” proceedings.18 As one of its broad structural changes to the INA, IIRIRA eliminated some of the distinctions between “deportation” and “exclusion” proceedings and created a unified set of proceedings in INA § 24019 called “removal proceedings.”20 New INA § 240(e)(2) defines the term “removable” as an alien who is “deportable” or an alien who is “inadmissible” (replacing the old term “excludable”).21 New INA § 240(a)(3) provides that unless specified otherwise under the INA, a removal proceeding “shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.”22
IIRIRA also altered the rules for permanent resident aliens returning from abroad, which is why the INS detained Richardson and immediately initiated “removal proceedings” against him. Under IIRIRA’s restructuring, most permanent resident aliens returning from abroad are summarily admitted back into this country.
In this regard, new INA § 101(a)(13)(c) provides that “an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien”:
(i) has abandoned or relinquished that status
(ii) has been absent from the United States for a continuous period in excess of 180 days
(iii) has engaged in illegal activity after having departed the United States
(iv) has departed the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2) of this Act [which includes controlled substances], unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
INA § 101(a)(13)(C) (emphasis supplied).26 Section 101(a)(13)(C)(v) references offenses in “section 212(a)(2),” which provides that any alien convicted of a controlled substance offense is inadmissible.27 Because Richardson was a lawful permanent resident with a cocaine-trafficking conviction covered by Section 1182(a)(2), the INS treated him as an arriving alien “seeking admission” to the United States under INA § 101(a)(13)(C) and subjected him to inspection as any other alien arriving to the United States.28
. . . any alien convicted of . . . a crime involving moral turpitude . . . or . . . 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 . . . is inadmissible.
Id. Pre-IIRIRA, certain criminal aliens could seek discretionary relief under INA § 212(h),
Immediately upon his detention, the INS initiated removal proceedings against Richardson. In turn, Richardson filed his § 2241 habeas petition in the district court. Richardson contended, inter alia, that the INS had interpreted erroneously new INA § 101(a)(13)(C), illegally considered him an arriving alien “seeking admission,” and therefore unlawfully detained him and denied him admission and bond.
Before 1996, INA § 101(a)(13) provided that a returning permanent resident alien shall not be regarded as making “an entry” into the United States if the alien’s presence abroad was not “intended or reasonably . . . expected.”29 In Rosenberg v. Fleuti, 374 U.S. 449 (1964), the Supreme Court interpreted “intended” in former INA § 101(a)(13) as an intent to depart the country in a manner “meaningfully interruptive of the alien’s permanent residence.” The Court held that a lawful permanent resident’s “innocent, casual and brief” excursion was not sufficiently interruptive of the alien resident’s status to be “intended” and would not be deemed an “entry.” Id.
Notes
(13) The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.
Id.
Instead, new INA § 101(a)(13)(C) provides that a lawful permanent resident “shall not be regarded as seeking admission,” and thus shall be summarily admitted back into the United States, unless the alien falls under one of the six subparagraphs (i) through (vi) of INA § 101(a)(13)(C) quoted above. Since Richardson’s cocaine-trafficking conviction is covered expressly by INA § 101(a)(13)(C)(v), the INS treated Richardson as an arriving alien “seeking admission.”32
D. Detention of Criminal Aliens “Seeking Admission”
While his BIA appeal proceeds, Richardson’s habeas claims also stem, in part, from IIRIRA’s new stringent custody rules for aliens with serious criminal convictions. INA § 235(b)(2)(A) provides that any alien “seeking admission” to the United States who “is not clearly and beyond a doubt entitled to be admitted” “shall be detained” for removal proceedings, as follows:
. . . in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240 [removal proceedings].
INA § 235(b)(2)(A) (emphasis supplied).36
(B) District directors are delegated the authority to grant or deny any application or petition submitted to the Service, except for matters delegated to asylum officers pursuant to part 208 and § 253.1(f) of this chapter, or exclusively delegated to service center directors, to initiate any authorized proceeding in their respective districts, and to exercise the authorities under § § 242.1(a), 242.2(a) and 242.7 of this chapter without regard to geographical limitations. District directors are delegated authority to conduct the proceeding provided for in § 252.2 of this chapter.
Id.
After initial custody and release determinations by the INS district director, aliens may seek release from the immigration judge. However, at the time of Richardson‘s attempted entry, the Attorney General‘s regulations provided that immigration judges lacked jurisdiction over release requests by “arriving aliens” facing removal proceedings.40
IIRIRA enacted new mandatory custody rules for certain criminal aliens in both
(A) In General - During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who -
- has been convicted of an aggravated felony (as defined under section 101(a)(43)) of the Immigration and Nationality Act, as amended by section 321 of [IIRIRA])
- is inadmissible by reason of having committed any offense covered in section 212 (a)(2) of such Act
- is deportable by reason of having committed any offense covered in section 241 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act (before redesignation under this subtitle), or
- is inadmissible under section 212(a)(3)(B) of such act or deportable under
section 241 (a)(4)(B) of such act (before redesignation under this subtitle) when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
Under the TPCRs, the Attorney General could not have released an alien detained because of an aggravated felony conviction because that alien is in a category mandatorily detained under the TPCR in
When Richardson attempted to enter the country, the Attorney General had implemented regulations delegating her detention and release authority under the TPCRs and
In addition to denying parole, the INS district director‘s letter, dated December 4, 1997, concluded that Richardson “would have no incentive to appear for Immigration hearings” and thus in effect denied bond as well. Although Richardson was subject to mandatory detention and not eligible for release on bond, it appears that the district director considered release on bond.
F. Detention Under INA § 236(c)
Although enacted by IIRIRA in 1996, new
New
However,
(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2),53
(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),54
(C) is deportable under section 237(a)(2)(A)(i)55 on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B),56 when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
G. INA § 236(e) Restricts Review of Bond and Parole Decisions
Of particular relevance to Richardson‘s situation is
(e) Judicial review
The Attorney General‘s discretionary judgment regarding the application of this section [236‘s custody rules] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
Richardson responds that
While only the INS district director decided Richardson‘s request for parole and bond, IIRIRA did not diminish Richardson‘s right to a full hearing before the immigration judge on the merits of his removal from the United States.61 Before issuing any removal order, an immigration judge still must hold a hearing62 in which the alien may be represented by counsel.63 The alien is entitled to present evidence and cross-examine witnesses presented by the United States.64 A complete record is required to be kept of all testimony and evidence produced at the hearing.65 A “criminal alien” subject to removal (either as inadmissible or deportable) has a right to appeal a removal order to the BIA,66 and the immigration judge “shall inform the alien of the right to appeal.”67
I. IIRIRA Consolidates Judicial Review in the Court of Appeals
IIRIRA also completed the major overhaul of federal-court jurisdiction over immigration matters begun by the AEDPA. Prior to 1996,
Five months after the AEDPA, Congress enacted IIRIRA.75 Section 306 of IIRIRA repealed the entire judicial-review scheme in
More importantly,
Except as provided in this section [242] 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 Act.
IIRIRA also mandated the timing of the INA‘s exclusive judicial review.
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 chapter shall be available only in judicial review of a final order under this section.
In these new INA provisions, Congress has abbreviated judicial review to one place and one time: only in the court of appeals and only after a final removal order and exhaustion of all administrative remedies. In IIRIRA, Congress strictly
J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal Aliens
Even within the INA‘s exclusive judicial-review scheme, Congress further limited what a court of appeals can review after a final removal order. Of particular relevance to Richardson is
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 section 212(a)(2) [covers certain controlled substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 237(a)(2)(A)(i).
K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions
IIRIRA also limits other aspects of the exclusive judicial review remaining for aliens under the INA.
Notwithstanding any other provision of law, no court shall have jurisdiction to review–
. . . (ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of relief under section 208(a).
IV. DISCUSSION
Against this backdrop, Richardson filed his habeas petition in the district court under
We begin by recognizing and applying established cannons of statutory construction applicable to immigration statutes. First, ambiguities in the law are to be interpreted in favor of the alien.86 Second, restrictions on jurisdiction are to be read narrowly, courts should not assume that jurisdiction is repealed unless the statute says so explicitly, and repeals by implication of jurisdictional statutes are disfavored.87
Although guided by these same principles, courts are divided on whether the new
After review, we conclude that
More importantly,
In addition, while
Second, in addition to the sweeping language of new
Richardson’s main argument is that
However, the jurisdictional repeal at issue in Felker was much narrower than the repealing language of
Based on the foregoing, we conclude that
B. No Constitutional Infirmities to Avoid
Richardson asserts that IIRIRA’s elimination of
The INS responds that
Goncalves, 144 F.3d at 122.105 Similarly, in Jean-Baptiste, the Second Circuit outlined how historically habeas was available to aliens, why permanent resident aliens enjoy procedural due process rights, and avoided what it foresaw as “serious constitutional issues” under the Suspension Clause and Due Process Clause.Finally, our refusal to find express repeal of
§ 2241 in newINA § 242(g) eliminates the need to address serious, novel and complex constitutional issues. We would be loathe to find a repeal where that repeal creates serious constitutional problems. We note these constitutional concerns briefly to underscore the wisdom of avoiding them.
We reject this “constitutional avoidance” approach for two reasons. First, although courts wisely prefer avoiding thorny constitutional issues, the language of
Second, examining, not avoiding, Richardson’s constitutional concerns, we find that
C. Eleventh Circuit’s Boston-Bollers Decision
This Circuit already has upheld as constitutional the similar, restricted judicial review afforded criminal aliens under former INA § 106(a)(10), enacted by the AEDPA. Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997). Although
Quoting from Reno v. Flores, 507 U.S. 292, 305 (1993), this Court recognized that the “responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government,” and that “over no conceivable subject is the legislative
Accordingly, this Court determined that INA § 106(a)(10) did not violate the Due Process Clause because deportation is not a criminal proceeding or punishment and no judicial review is guaranteed by the Due Process Clause, stating:
106 F.3d at 355.112This restriction of federal court jurisdiction does not violate the Due Process Clause. As the Supreme Court stated in Carlson v. Landon, “[t]he power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely though executive officers, with such opportunity for judicial review of their action as congress may see fit to authorize or permit.” 342 U.S. 524, 537 (1952) (internal quotation omitted). And since “[d]eportation is not a criminal proceeding and has never been held to be punishment . . . [n]o judicial review is guaranteed by the Constitution.” Id. at 537, 72 S. Ct. at 533 (footnote omitted). Because the Constitution does not give aliens the right to judicial review of deportation orders, section 440(a)(10) does not violate the Due Process Clause.
In addition, this Court concluded that former INA § 106(a)(10) did not offend Article III because Congress and the executive branch exercise plenary authority over immigration regulation. Id. at 355. We also recognized that “the federal appellate courts have ‘jurisdiction to review certain final orders of deportation and exclusion against aliens only because Congress has conferred it.’” 106 F.3d at 354 (quoting Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir. 1996). Accordingly, this Court concluded that INA § 106(a)(10)’s restricting judicial review of deportation orders against criminal aliens “not only does not violate Article III, it is illustrative of the concept of separation of powers envisioned by the Constitution.” Id.
Boston-Bollers would resolve Richardson’s constitutional concerns were it not for two facts: (1) when this Court interpreted former INA § 106(a)(10) in Boston-Bollers, IIRIRA’s repeal of
While Boston-Bollers informs our analysis, we recognize that it was decided under INA § 106(a)(10) as enacted by the AEDPA, was not colored by the same constitutional concerns created by IIRIRA’s repeal of
D. Due Process Clause
Permanent resident aliens are protected by the Due Process Clause of the Fifth Amendment which provides that “[n]o person shall be . . . deprived of life, liberty or property, without due process of law . . .”
While an alien seeking initial admission to the United States has no constitutional rights regarding an application for admission, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). The Supreme Court has held that a permanent resident alien “continuously present” in the United States has a right to procedural due process in any proceedings to
Removal proceedings under the INA are not criminal proceedings and are not summary ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th Cir. 1997). Instead, removal proceedings are imbued with procedural safeguards that satisfy the Due Process Clause. The alien has the right to notice, the
We recognize that Richardson also asserts that the INA’s limiting his bond requests in these removal proceedings to written request to the INS district director, without any judicial review by an immigration judge, deprives him of due process. We disagree. The sufficiency of that process is evaluated under the three factors outlined in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976): (1) a
In contrast, the INS’ interest is fairly high in its district director’s being able to make parole and bond decisions for arriving aliens facing removal proceedings in that district without a subsequent hearing before an immigration judge. Given the volume of arriving aliens and numerous ports of entry, it simplifies the procedures, expedites consideration, and reduces costs, while still giving the alien an opportunity to request bond and parole.119 Being the initial step in the removal
E. Article III
IIRIRA’s repeal of
F. Suspension Clause
Contending that he has no judicial review available under the INA, Richardson asserts that the Suspension Clause entitles him to judicial review, and thus Richardson argues
The rule which we reaffirm recognizes the legislative power to prescribe applicable procedures for those who would contest deportation orders. Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases in order to minimize opportunities for repetitious litigation and consequent delays as well as to avoid possible venue difficulties connected with any other type of action.
Id. at 237. Thus, Heikkila does not resolve the issue here of whether IIRIRA‘s repeal of
Unguided by direct Supreme Court precedent, the Second, Seventh, and Ninth Circuits have thoughtfully addressed and reached different conclusions about what level of judicial review is protected by the
The Second and Ninth Circuits have outlined in great detail the two-hundred year history of the
The Seventh Circuit took a different approach. After outlining the history of
Below we first discuss the different approaches of these three circuits in considerable detail. Second, we address IIRIRA‘s clear mandate that judicial review be exclusively after a final removal order – a factor we find not given sufficient weight by our sister circuits. Third, we outline why we find INA § 242(g)‘s repeal of
G. Second Circuit‘s Henderson Decision
When it decided Henderson, the Second Circuit in Jean-Baptiste already had held that INA § 242(g) did not repeal
However, in a footnote, the Second Circuit in Henderson expressly acknowledged that “[w]ere we not bound by Jean-Baptiste, the members of this panel would be strongly inclined to find that the proper mechanism for judicial review is by petition for review in the courts of appeals, rather than by
The Second Circuit in Henderson noted that Jean-Baptiste expressly had reserved the question of the extent and nature of judicial review remaining available under the INA post-IIRIRA.129 The Henderson panel rejected the INS’ contention that judicial review under IIRIRA is limited to “substantial
Ultimately, the Second Circuit in Henderson concluded only that whatever the remaining parameters of
H. Ninth Circuit‘s Magana-Pizano Decision
Two recent Ninth Circuit decisions also address INA § 242(g)‘s repeal of
The Ninth Circuit thus has adopted a hybrid approach to whether INA § 242(g) repeals
I. Seventh Circuit‘s Yang Decision
Although involving former INA § 106(a)(10),142 the Seventh Circuit‘s decision in Yang v. INS, 109 F.3d 1185, 1187 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997), also contains an instructive analysis of the
After finding that Yang‘s conviction for concealing stolen firearms was a deportable offense under INA § 241(a)(2)(C), the immigration judge ordered Yang deported because of this conviction, among other reasons.143 On his petition for direct review in the court of appeals, Yang argued, inter alia, that he was not
According to the INS, Yang was not entitled to judicial review of his final deportation order because the BIA already had determined that he was an alien deportable based on one of the sections referenced in INA § 106(a)(10).146 Like Boston-Bollers, the Seventh Circuit held that INA § 106(a)(10)‘s restrictions on judicial review of Yang‘s deportation order did not violate the Due Process Clause
Aliens may seek the writ that
Art. I § 9 cl. 2 preserves against suspension. But we are reluctant to place weight on its availability, because the Supreme Court long ago made it clear that this writ does not offer what our petitioners desire: review of discretionary decisions by the political branches of government. [Citations omitted.] There is a vast gulf between the non-suspendable constitutional writ and the Administrative Procedure Act. [Citations omitted.] Similarly, in cases under28 U.S.C. § 2254 , “[a] a federal court may not issue the writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 875, 79 L.Ed. 2d 29 (1984). [Citations omitted.] Likewise with errors of federal law. See United States v. Caceres, 440 U.S. 741, 752, 99 S. Ct. 1465, 1472, 59 L.Ed. 2d 733 (1979) (error “by an executive agency in interpreting its own regulations surely does not raise any constitutional concerns“); Czerkies, 73 F.3d at 1443 (“The government does not violate the Constitution every time it mistakenly denies a claim for benefits.“). As a practical matter, the right to obtain review, in any court, on the theories our petitioners advance is gone. That is the point of the legislation. Congress wanted to expedite the removal of criminal aliens from the United States by eliminating judicial review, not to delay removal by requiring aliens to start the review process in the district court rather than the court of appeals.
Yang, 109 F.3d at 1195 (emphasis supplied). The Seventh Circuit in Yang recognized, as did the Second Circuit in Henderson, that Congress wanted to
In addition to its
Therefore, the Seventh Circuit held that INA § 106(a)(10) permitted courts to exercise jurisdiction to determine these three threshold issues in order to decide whether the jurisdictional bar in INA § 106(a)(10) applies: (1) whether the person is an alien, (2) whether the alien is deportable, and (3) whether deportation is based on an enumerated criminal offense.153
Without as extensive a discussion as in Yang, the Fifth Circuit in Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997), likewise concluded that even under INA § 106(a)(10)‘s restrictions on judicial review, it could still exercise some jurisdiction over the alien‘s petition for review.154 The Fifth Circuit noted that under INA §
Despite its lack of extensive discussion, the Anwar decision illustrates the same concept followed in Yang. The Fifth Circuit did not simply decline to exercise jurisdiction based on the INS’ asserted grounds for deportation. Instead,
Moreover, in a subsequent decision, the Fifth Circuit expressly adopted the aspect of the Yang decision holding that the court of appeals can exercise jurisdiction in order to determine whether a jurisdictional bar precludes further jurisdiction. Okoro v. INS, 125 F.3d 920, 925 (5th Cir. 1997). Okoro involved a
To determine whether this jurisdictional bar applies to [the alien‘s] petition for review, we must examine whether the underlying offenses relied on by the INS to deport [the alien] are (1) crimes involving moral turpitude, (2) not arising out of a single scheme of criminal misconduct, and (3) for which [the alien] was
sentenced to one year or more of imprisonment, regardless of actual confinement.
Id. at 925 (citing Yang, 109 F.3d at 1192). After determining that all three of these elements applied to the alien, the court concluded that it lacked jurisdiction over the alien‘s petition for review.164
In this same vein, this Court‘s decision in Boston-Bollers also exercised jurisdiction both over the legal issue of whether AEDPA § 440(a)(10)‘s enactment of INA § 106(a)(10) applied retroactively and over whether that retroactive application violated Mr. Boston-Bollers’ constitutional rights. This Court in Boston-Bollers was not required to determine the three threshold issues that the courts did in Yang or Anwar, because the permanent resident alien facing deportation in Boston-Bollers conceded his alien status, criminal conviction, and deportability.165 The parties did not dispute that the alien‘s petition for direct review fell within the expressed jurisdiction-limiting language of INA § 106(a)(10). Nevertheless, in Boston-Bollers this Court exercised jurisdiction over the alien‘s petition for direct review in the court of appeals attacking the constitutionality of the judicial review restrictions in INA § 106(a)(10).
[T]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act . . . or any offense covered by section 241(a)(2)(A)(ii) of such Act . . . for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act . . . .
IIRIRA § 309(c)(4)(G).166 Rejecting the Yang approach, the court concluded that this language did not “permit the court to review the merits of whether an alien is
To permit judicial review into the validity of the INS‘s determination that an alien is deportable by reason of having committed one of the listed crimes, in the guise of making a determination as to the court‘s jurisdiction, is to permit review of the very fact or condition that the statute appears on its face to be precluding from review. We conclude that such review is contrary to Congress‘s intent to expedite deportation of criminal aliens.
However, we observe two additional points about the Tenth Circuit‘s holding in Berehe. First, although professing to follow Berehe, the Tenth Circuit in a subsequent case reviewed constitutional and statutory claims raised by an alien who had been found deportable for a reason enumerated in
J. INA §§ 242(b)(9) and (d) Require Final Removal Order
Before outlining our conclusions, we discuss another important IIRIRA mandate that our sister circuits, in our view, have not given sufficient weight. Prior to IIRIRA, judicial review of the INS’ deportation decisions was unavailable before the entry of a final deportation order. That result was implicit in former
Congress has chosen to delay federal court review of all claims of aliens against whom removal proceedings have been instituted until the conclusion of the administrative proceedings. Neither the district court nor this Court can override that decision. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (stating “where Congress specifically mandates, exhaustion is required“); Alexander v. Hawk, ___ F.3d ___ (11th Cir. Nov. 5, 1998). This exhaustion requirement is statutorily mandated by the INA and not judicially created. Although judicially developed exhaustion requirements might be waived for discretionary reasons by courts, statutorily created exhaustion requirements bind the parties and the courts. When a statute requires exhaustion, a petitioner‘s failure to do so deprives this court of jurisdiction. Importantly, mandatory statutory exhaustion is not satisfied by a judicial conclusion that the requirement need not apply due to futility.
IIRIRA‘s mandate is consistent with the long-established administrative law principle that courts should not intervene in an ongoing administrative agency process to reach potential constitutional issues.171 Deferring Richardson‘s claims until the entry of a final order of deportation does not raise substantial constitutional concerns. Congress has broad latitude to regulate the mode and timing of judicial review of administrative agency decisions, even where constitutional claims are involved. It is a familiar feature of administrative law that
This final-decision requirement avoids enmeshing courts in constitutional litigation about the scope of judicial review left under INA that might prove to be unnecessary. For example, Richardson raises numerous statutory issues before the BIA about
We are not required to resolve the circuits’ ongoing debate about whether judicial review under the Suspension Clause approximates
In most immigration cases, non-criminal aliens, and even certain criminal aliens, facing removal orders can seek adequate and effective judicial review under the INA by a petition for direct review in the court of appeals after a final removal order.
For several reasons, we reject Richardson‘s contention that he will not have adequate and effective review under the INA. First, Congress clearly has the power to repeal
Third, Congress has the power to mandate detention and removal of aliens with serious criminal convictions and to expedite their removal by limiting judicial review over their detention and removal to the fullest extent allowed under the Constitution. This is why Congress enacted, within the INA‘s judicial-review scheme, the additional restriction on judicial review found in
While
In addition to these three jurisdictional facts, a court of appeal retains jurisdiction to entertain a constitutional attack on this INA statute as part of an alien‘s petition for review of a final order under the INA.178 If judicial review of a
Thus, we find that the INA still assures Richardson a significant degree of judicial review in the court of appeals after a final removal order, despite
IIRIRA expressly provides for the severability of its numerous provisions.180
V. CONCLUSION
After careful consideration, we conclude that
This repeal also does not violate the Suspension Clause.
In enacting IIRIRA, Congress has mandated the detention and expedited the removal of aliens, including long-term permanent resident aliens, who commit serious criminal offenses while in the United States. Richardson correctly points
Accordingly, we REVERSE the decision of the district court, VACATE the stay entered by this Court on February 23, 1998, and direct the district court to dismiss Richardson‘s petition for lack of subject matter jurisdiction.
REVERSED AND VACATED.
Application to immigration judge. After an initial custody determination by the district director, including the setting of a bond, the respondent may, at any time before an order under
8 CFR part 240 becomes final, request amelioration of the conditions under which he or she may be released. Prior to such final order, and except as otherwise provided in this chapter, the immigration judge is authorized to exercise the authority in section 236 of the Act (or section 242(a)(1) of the Act as designated prior to April 1, 1997 in the case of an alien in deportation proceedings) to detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released, as provided in § 3.19 of this chapter. If the alien has been released from custody, an application for amelioration of the terms of release must be filed within 7 days of release. Once a removal order becomes administratively final, determinations regarding custody and bond are made by the district director.
(B) Release. - The Attorney General may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii) and -
- the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, . . .
Subsections (A)(ii) and (A)(iii) describe aliens inadmissible because of an offense described in
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to
section 3521 of Title 18 , that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
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)(i), shall not be subject to review by any court.
The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus
and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.
(2) Habeas corpus proceedings
Judicial review of any determination made undersection 235(b)(1) 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 lawfully admitted for permanent residence, has been admitted as a refugee undersection 207 , or has been granted asylum undersection 208 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant toSection 235(b)(1)(C) .
In 1867, Congress significantly expanded federal jurisdiction to issue writs of habeas corpus. 14 Stat. 385 (1867). The Supreme Court has recognized that this amendment to federal habeas jurisdiction increased the scope of habeas review beyond the “bare legal review” of the common-law writ. Johnson v. Zerbst, 304 U.S. 458, 466 (1938); see also McCleskey v. Zant 499 U.S. 467, 477 (1991) (noting inter alia that the 1867 amendments expanded availability of the writ in federal court to people held in state custody). Accordingly, the Court has concluded that this revision to habeas jurisdiction conferred on federal courts the ability to determine the legality and constitutionality of a person‘s detention even if “the proceedings resulting in incarceration may be unassailable on the face of the record.” United States v. Hayman, 342 U.S. 205, 212 (1952).
Over the years, Congress amended habeas jurisdiction several times. For the most part, these amendments have related to the form and procedure for seeking the writ and to the codification of federal statutes in 1874 and 1948. Rev. Stat. §§ 751-766 (1874); 62 Stat. 869 (1948). However, the Supreme Court has recently recognized that the Judiciary Act of 1789 is the “direct ancestor” of
Also, two dissents stated that judicial review is not required over constitutional claims challenging the validity of employment decisions by the Central Intelligence Agency. In his dissent, Justice Scalia pointed out that “the denial of all judicial review is not at issue,” but “merely the denial of review in United States district courts.” Id. at 611. Since
Affirming the district court‘s dismissal for lack of jurisdiction, the Ninth Circuit first noted that IIRIRA channeled judicial review to the court of appeals and that the language of INA § 242(g) was “clear” and sufficiently broad to convey congressional intent to repeal
Conversely, the court in Hose found the clear language of INA § 242(g) provided that unless jurisdiction otherwise existed under INA § 242, no court could exercise jurisdiction to review a removal order. Id. Finally, the court in Hose concluded that the
We note that the Fifth Circuit has recognized an inconsistency between an earlier Fifth Circuit decision, Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997), and a portion of the Anwar decision that is not at issue in this case. Okoro v. INS, 125 F.3d 920, 924-25 (5th Cir. 1997)(noting the inconsistency between these two decisions); Anwar, 116 F.3d at 143 n.2. In Pichardo, the Fifth Circuit applied the version of INA § 106(a)(10) that included IIRIRA‘s first amendment to this section - the amendment adding the phrase “without regard to the date of their commission” to INA § 106(a)(10). However, the court in Anwar applied INA § 106(a)(10) “unamended by IIRIRA.” 116 F.3d 143. The court in Okoro decided to follow the earlier decision of Pichardo. Okoro, 125 F.3d at 925. Nevertheless, neither Pichardo nor Okoro diminish the aspect of the Anwar decision that illustrates the jurisdictional analysis discussed in Yang. Indeed, as was the case in Anwar and Yang, the court in Pichardo also exercised its jurisdiction to the extent necessary to determine whether it could exercise further jurisdiction. 104 F.3d 758-59. In addition, as discussed below, Okoro expressly adopts a holding that is very similar to the holding in Yang. Okoro, 125 F.3d 925.
Also, without extensive discussion, the Ninth Circuit reached a similar conclusion in Coronado-Durazo v. INS, 108 F.3d 210, withdrawn by 123 F.3d 1322, 1323 (9th Cir. 1997). The alien facing deportation in Coronado-Durazo claimed that the immigration judge and BIA had erroneously concluded that the alien‘s conviction for solicitation to possess cocaine was a deportable offense under INA § 241(a)(2)(B)(i) as an offense “relating to a controlled substance.” 123 F.3d at 1324. In both of its opinions in Coronado-Durazo, the Ninth Circuit began with the premise that if the alien‘s conviction constituted a deportable offense, the court “lack[s] jurisdiction to review the final order of deportation issued by the INS” because of INA § 106(a)(10) as amended by the AEDPA. 108 F.3d at 211; 122 F.3d at 1323. Without discussing the issue, in both opinions, the Ninth Circuit proceeded on the premise that, under the terms of INA § 106 (10), it could review whether the offense upon which deportation was based was a deportable offense. 108 F.3d at 211; 123 F.3d at 1323. See also Mendez-Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997) (finding that the petitioner was deportable for conviction of an aggravated felony and therefore jurisdiction was barred); Perez v. INS, 116 F.3d 405, 408 (9th Cir. 1997) (reversing agency‘s findings that the petitioner‘s crime made him deportable and rendered judicial review unavailable).
IIRIRA § 309(c)(4)(G) is similar to both INA § 106(a)(10) as amended by IIRIRA and new INA § 242(a)(2)(C). See footnotes 74 and 83 supra and 170 infra. Since 1996, the following four distinct statutes have restricted the judicial review of orders deporting, excluding or removing certain criminal aliens from the United States: (1) INA § 106(a)(10) as enacted by the AEDPA § 440(d), (2) INA § 106(a)(10) as first amended by IIRIRA § 309(d), (3) INA § 242(a)(2)(C) as enacted by IIRIRA § 306(a)(2), and (4) the transitional rule in IIRIRA § 309(c)(4)(G) which was applied in Berehe. See footnote 83 supra for a discussion of the amendments to INA § 106(a)(10).
In McCarthy, the Supreme Court noted that where Congress specifically mandates, a plaintiff must exhaust the administrative remedies available to him before he may file in federal court, but held that there was no specific mandate in the pre-PLRA section 1997e(a) context. 503 U.S. at 144.
See, e.g., FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-45 (1980) (holding agency‘s issuance of an administrative complaint was not subject to review until final agency action despite its evident assumption that the propriety of the initial charging decision would not be subject to administrative review); United States v. Hollywood Motor Car Co., 458 U.S. 263, 268-70 (1982) (holding that criminal defendants could not immediately appeal the denial of motion to dismiss indictment based on prosecutorial vindictiveness); Massieu v. Reno, 91 F.3d 416, 424-26 (3d Cir. 1996) (holding “[a]lthough the immigration judge is not authorized to consider the constitutionality of the statute, this court can hear that challenge upon completion of the administrative proceedings” and dismissing alien‘s complaint alleging irreparable selective enforcement in retaliation for an exercise of First Amendment rights).
Although the immigration judge is not authorized to consider the constitutionality of
Contrary to Richardson‘s arguments, the potential for an incomplete record on appeal regarding alleged constitutional violations does not preclude any such violations from being presented during review in the court of appeals. Pursuant to
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 section 212(a)(2) [covers certain controlled substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 237(a)(2)(A)(i).
See full text of
See Morel v. INS, 144 F.3d 248 (3d Cir. 1998); Mansour v. INS, 123 F.3d 423, 426 (6th Cir. 1997); Boston-Bollers, 106 F.3d 352 (11th Cir. 1997); Okorov v. INS, 125 F.3d 920, 923 (5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154 (10th Cir. 1997) (noting the government conceded judicial review was available for “substantial” constitutional errors); Yang v. INS, 109 F.3d 1185 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 118 S. Ct. 624 (1997); Yeung v. INS, 76 F.3d 337 (11th Cir. 1995); Massieu v. Reno, 91 F.3d 416, 420-24 (3d Cir. 1996) (district court lacked jurisdiction to entertain constitutional challenge to deportation order, which court of appeals had exclusive jurisdiction to entertain); Perez-Oropeza v. INS, 56 F.3d 43, 45-46 (9th Cir. 1995); Raya-Ledesma v. INS, 42 F.3d 1263, 1265 (9th Cir.), modified by 55 F.3d 418 (9th Cir. 1994). But compare Chow v. INS, 113 F.3d 659, 667 (7th Cir. 1997) (deciding jurisdictional bar itself, in
In addition to his claim that
As a permanent resident alien, Richardson enjoys equal-protection rights. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Classifications in the immigration context are subject to the rational-basis standard under which a classification is valid if rationally related to a legitimate government purpose. Yeung v. INS, 76 F.3d 337, 339 (11th Cir. 1995) (addressing waivers under former
Although we briefly comment on the merits of Richardson‘s equal-protection claim, this claim is precisely the type of claim that Richardson must raise on a petition for review after a final removal order has been issued. Thus, we do not resolve the equal-protection issue or whether review of this type of constitutional claim is permitted under
IIRIRA Title VI subtitle E specifically provides for severability:
SEVERABILITY. – If any provision of this division or the application of such provision to any person or circumstances is held to be unconstitutional, the remainder of this division and the application of the provisions of this division to any person or circumstance shall not be affected thereby.
This applies not only to Richardson‘s claims about
Judicial review of statutory and legal errors is expressly provided for under
The Second Circuit reasoned, albeit in dicta, that the nature of the Suspension Clause suggests that it preserves a writ which encompasses statutory claims. In Henderson, the Second Circuit observed that “before the Constitution was enacted, the writ could only have been granted based on errors of law, since there was no such thing as a constitutional error.” 157 F.3d at 121 n.13. The court also noted that, especially since the Bill of Rights was not adopted until 1791, it would not “have made much sense for the framers to have intended the writ . . . to be available just for the enforcement of rights protected by the new Constitution.” Id. Thus, according to the Second Circuit “the Constitution itself inevitably seems to mandate habeas corpus review of some statutory questions.” Id. Perhaps as further support for this interpretation, statutory errors in executive detention historically have been reviewed under
Conversely, other courts have concluded that the judicial review under
We recognize that Richardson asserts other legal or statutory errors, such as the Fleuti issue, but no court should decide whether jurisdiction exists either under or despite
See footnotes 11 and 27 supra.
Whether Richardson may seek a writ pursuant to the
See, e.g., S. Rep. No. 104-48 at 2-6 (1995) (discussing the presence of at least “450,000 criminal aliens in the United States who are currently incarcerated or under some form of criminal justice supervision,” the fact that “the Federal Bureau of Prisons confines about 22,000 criminal aliens – 25 percent of the total Federal prison population,” the “confinement of criminal aliens in state and federal prisons costs . . . approximately $724,000,000 in 1990,” that the “INS is overwhelmed by the criminal alien problem,” and that “criminal aliens are . . . a growing drain on scarce criminal justice resources.“).