Rusu v. RenoRusu v. Reno
- Reporters:
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- Before:
- Conlon
MEMORANDUM OPINION AND ORDER
CONLON, District Judge.
loan Rusu (“Rusu”) petitions for a writ of habeas corpus pursuant to
BACKGROUND 1
Rusu is a native and citizen of Romania. Pet. ¶ 11; Resp. Ex. 1. He entered the United States as a “visitor for pleasure” on November 15, 1991, at Chicago, Illinois. Resp. Ex. 1; Pet. Ex. 6. On October 7, 1993, the INS instituted deportation proceedings against Rusu pursuant to
A deportation hearing before an immigration judge was held on August 2, 1995. Resp. Ex. 1. At the hearing, Rusu admitted the factual allegations in the order to show cause and conceded deportability.
Id.
The immigration judge then proceeded to rule on the merits of Rusu’s application for asylum and withholding of deportation pursuant to
*1206
sections 208(a) and 243(h) of the INA.
Rusu appealed the decision of the immigration judge to the Board of Immigration Appeals (“BIA”). Resp. Ex. 2. In a per curiam decision dated October 11, 1996, the BIA affirmed the immigration judge’s denial of Rusu’s applications for asylum and withholding of deportation. Id. In brief, the BIA found that Rusu’s allegations of past persecution, including a brief period of confinement for his political opposition, did not rise to the level of persecution required to justify a’ grant of asylum. Id. As to Rusu’s claimed fear of future persecution, the BIA held Rusu had not shown a reasonable person in his circumstances would fear persecution on account of his political opinion, religion or social group. Id. Accordingly, the BIA dismissed Rusu’s appeal. However, the BIA granted a thirty-day extension of Rusu’s voluntary departure period. Id.
Next, Rusu appealed the BIA decision to the Court of Appeals for the Seventh Circuit. In an unpublished order issued August 7, 1997, the Seventh Circuit affirmed the BIA’s decision. Resp. Ex. 3; Rusu v. INS, 124 F.3d 205, 1997 WL 461545 (7th Cir.1997). Rusu filed the present petition for a writ of habeas corpus on January 6, 1998. Rusu’s petition contains two substantive constitutional claims. Rusu first asserts a due process claim. He alleges he is in the process of seeking landed immigrant status in Canada and hopes to be approved in the next several months. Pet.. ¶ 5. He fears his chances of immigrating to Canada will be jeopardized if the INS executes his deportation. Id. In light of these circumstances, Rusu’s counsel is allegedly in the process of preparing a request for an extension nunc pro tunc of Rusu’s voluntary departure period and alternatively, for a stay of deportation pending Rusu’s achievement of landed immigrant status in Canada. Pet. ¶ 6. According to Rusu, it would violate due process of law to deport him prior to INS adjudication of those requests. Id.
Second, Rusu alleges the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-100, 111 Stat. 2193-2201, enacted November 19, 1997, violates his right to equal protection. Pet. ¶¶ 9-12. The Act provides specified relief in the form of eligibility for adjustment of status to nationals of Nicaragua and Cuba, and suspension of deportation to nationals of former Soviet Bloc countries (including Romania). Id. Rusu asserts the Act deprives him of equal protection in two respects. First, section 202 of the Act renders Nicaraguan and Cubans who have been “physically present in the United States for a continuous period, beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment ... is filed” eligible for an adjustment of status to permanent residence. § 202(b)(1), 111 Stat. 2193, 2194. Rusu contends section 202’s extension of eligibility solely to natives of Nicaragua and Cuba is arbitrary and capricious. Pet. ¶ 12. Second, Rusu focuses on the Act’s criteria for eligibility for a suspension of deportation, found in section 203. Section 203 amends the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208; div. C, 110 Stat. 3009. In pertinent part, the section confers eligibility for suspension of deportation to Soviet nationals and nationals of the former Soviet Union “who entered the. United States on or before December 31, 1990, who filed an application for asylum on or before December 31, 1991 ____” § 203(5)(C)(V), 111 Stat. 2193, 2197. Although Rusu filed an application for asylum prior to December 31,1991, he did not enter the country until November 15, 1991. Pet. ¶ 11. Rusu contends that the Act’s deadline of December 31, 1990 for entry into the United States is arbitrary and capricious. Id.
In response to the petition, respondents move to dismiss for lack of subject matter *1207 jurisdiction and for failure- to state a claim. Rusu cross-moves for summary judgment on the merits of the petition and moves for release on bond. Respondents filed a timely reply to the cross-motion for summary judgment.
DISCUSSION
1. JURISDICTION
The court must first address whether the jurisdictional restrictions enacted by IIRIRA, Pub.L. 104-208, div. C, 110 Stat. 3009 (1996), deprive it of subject matter jurisdiction over Rusu’s petition for a writ of habeas corpus. Rusu’s petition alleges jurisdiction under
A. Legislative Background
The jurisdictional provisions of the INA have undergone a rapid succession of legislative amendments in past years, many of them aimed at curtailment of federal court jurisdiction over INS administrative decisions and adjudications. In particular, Congress has taken steps arguably intended to eliminate the federal courts’ jurisdiction over petitions for habeas corpus seeking review of INS administrative decisions. First, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”) on April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214. Section § 404(e) of the AEDPA, entitled “Elimination of Custody Review by Habeas Corpus,” eliminated the
former INA
provision governing habeas corpus review of deportation proceedings. Formerly, INA § 106(a)(10) provided: “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.”
Next, on September 30, 1996, Congress enacted IIRIRA. Pub.L. No. 104-208, div. C, 110 Stat. 3009 (1996). Section 306 of IIRIRA repealed § 106 of the INA and replaced it with a new INA § 242 entitled “Judicial Review of Orders of Removal.” IIRIRA § 306 (codified at
Except as provided in this section and notwithstanding any other provisions of law, no court shall have jurisdiction to hear *1208 any cause or claim by or on behalf of any alien arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.
B. Applicability of § 242(g)
As an initial matter, the court must address the question whether § 242(g) governs Rusu’s ease, which was pending before the BIA on IIRIRA’s date of enactment. A resolution of this question depends on the effective date of IIRIRA’s statutory provisions. In general, the effective date of IIRIRA’s amendments is “the first day of the first month beginning more than 180 days after the date of enactment [September 30, 1996]” or April 1, 1997. § 309(a). Yet, § 309(a) excepts §§ 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) from the general effective date. The effective date provision for § 242(g) is found in § 306(c)(1). The section, as amended by technical corrections on October 11, 1996, Pub.L. 104-302, 110 Stat. 3656, 3657, provides:
(c) EFFECTIVE DATE
(1) IN GENERAL — Subject to paragraph (2) , the amendments made by subsections (a) and (b) shall apply as provided under section 309, except that subsection (g) of section 242 of the Immigration and Nationality Act (as added by subseetion(a)), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act.
§ 306(c)(1) (emphasis added). Athough manifesting a clear intent that the provision be applied retroactively, Congress failed to provide an effective date for § 242(g). Thus, the question arises whether § 242(g) was meant to take effect on the date of IIRIRA’s enactment, as opposed to April 1,1997.
The Seventh Circuit resolved this problem in Lalani v. Perryman, 105 F.3d 334 (7th Cir.1997) (per curiam). In Lalani, the government argued that § 242(g) took effect on the date of enactment and thus deprived the court of jurisdiction over the appeal. The Seventh Circuit rejected this construction of the statute. The Seventh Circuit recognized that to interpret the statute in this manner would render meaningless “the provisions of the IIRIRA [the transition rules] deferring application of its procedures for six months ... because [the court] would have no jurisdiction in all cases immediately.” Id. at 336. 5 Noting that § 306(e) refers back to § 309, the Seventh Circuit held that § 242(g) would not take effect until April 1, 1997 — the general effective date provision. Thus, on April 1, 1997, § 242(g), unlike the other subsections, applies retroactively to past and pending deportation proceedings. Id. Accordingly, the fact that Rusu’s deportation proceedings were commenced before April 1, 1997 does not preclude application of § 242(g).
C. Jurisdiction Under
The court must next address respondents’ argument that § 242(g) divests this court of subject matter jurisdiction over habeas review of orders of deportation under both
Rusu contends that § 242(g) does not apply to deprive this court of habeas corpus jurisdiction pursuant to
In
Laguerre,
the court also concluded that it retained jurisdiction over habeas review pursuant to
The court must now conclusively determine whether § 242(g) does indeed divest federal. courts of statutory jurisdiction over habeas corpus petitions for judicial review of attorney general actions to execute final orders of removal. There is a split in authority among the district courts that have directly addressed the continuing availability of habeas jurisdiction in light of IIRIRA. Some district courts have held that jurisdiction to entertain applications for habeas corpus under
Indeed, the language of § 242(g) could not be clearer in its intent to eliminate other
loci
of jurisdiction. To reiterate, the provision states “notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of an alien — ” § 242(g). Only through a contorted reading of the provision could a court conclude that “any other provision of law” does not include statutory habeas jurisdiction pursuant to
The courts that have reached the contrary conclusion have found the presumption against repeal of habeas jurisdiction by implication discussed in
Felker v. Turpin,
518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), dictates that habeas jurisdiction under
This court finds
Felker
distinguishable in the context of § 242(g). Unlike the AEDPA provision at issue in
Felker,
the text of IIRIRA § 242(g) employs broad, sweeping language that does not require any repeal implication.
See Charan,
1997 WL at *4 (§ 242(g) “meets the ‘clear directive’ requirement of
Felker
”). AEDPA § 106(b)(3)(E) announced a bar on specific forms of Supreme Court review, for example a petition for writ of certiorari. The writ of habeas corpus available under
The demonstrable difference between the provision at issue in Felker and § 242(g) is well-illustrated by the Seventh Circuit’s discussion of § 440(a) of the AEDPA in Chow v. INS, 113 F.3d 659 (7th Cir.1997). In Chow, the Seventh Circuit discussed whether § 440(a) divested it of appellate jurisdiction to review final orders of deportation. After concluding that § 440(a) did deprive it of jurisdiction, the Seventh Circuit addressed whether this restriction on review of deportation orders offended due process. The court determined that the due process question hinged, in part, on whether alternative avenues of relief remained available under § 404(a). As part of this inquiry, the court considered whether the language of § 440(a) evidenced “Congressional intent to preclude all forms of judicial relief.” 113 F.3d at 668. The court then reasoned as follows:
Section 440(a) does not state that the prescribed final orders of deportation “shall not be subject to review by an court.” However, elsewhere in the AEDPA Congress has used more definite language to express its intent to preclude all forms of judicial review and relief. For example, Congress clearly expressed its intent to preclude judicial review of any type of claim relating to a decision issued under section 235(b)(1) of the INA, which allows an immigration officer to exclude without a hearing certain aliens seeking entry if the aliens do not intend to seek asylum. To this end, section 423(a) of the AEDPA amends section 106 of the INA to read:
(e)(1) Notwithstanding any other provision of law, and except as provided in this section, no court shall have jurisdiction to review any individual determination, or to entertain any other cause or claim, arising from or relating to the implementation or operation of section 235(b)(1). Regardless of the nature of the action or claim, or the party or parties bringing the claim, no court shall have jurisdiction or authority to enter declaratory, injunctive, or other equitable relief not specifically in this subsection nor to certify a class underRule 23 of the Federal Rules of Civil Procedure .
§ 423(a), 110 Stat. at 1272 (emphasis added). Because section 440(a) does not include this type of sweeping prohibition on judicial review of deportation orders, we will not read section 440(a) as foreclosing all avenues of judicial review. Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 2338-9, 135 L.Ed.2d 827 (1996) (defining to find implied repeal of Supreme Court habeas jurisdiction where other sections of the AEDPA expressly amended appellate court habeas jurisdiction).
Id. at 668. In conclusion, the Chow court held that § 440(a) did not offend due process because “other avenues of judicial review remain open to permanent resident aliens and because the Constitution does not guarantee direct judicial review of deportation orders.” Id. at 669.
Similar reasoning applies here, especially given the evident textual similarity of § 423(a) and § 242(g). In contrast to the limited language of § 404(a), § 242(g)’s broad prohibition of the exercise of jurisdiction forecloses all forms of judicial relief available in the district court, including habeas corpus. The court therefore respectfully declines to follow the district courts that have found continuing availability of habeas jurisdiction pursuant to
It merits mention that the new INA § 242 does preserve some limited form of habeas review. For instance, § 242(e) expressly contemplates habeas proceedings for review of orders under INA § 1225(b)(1). Section 1225(b)(1) provides for the inspection and expedited removal, by immigration officers, of aliens who have just arrived in the United States. The question remains in what venue these particular habeas proceedings would take place.- For insight, the court looks to the language of § 242(g). Section 242(g) commences “[ejxcept as provided in this section [§ 242], no court shall have jurisdiction ... ”. Section 242(a)(1) vests exclusive jurisdiction for review of orders of removal in the court of appeals. It follows from this that the habeas proceedings referenced in § 1225(b)(1) are meant to take place in the court of appeals because they are but one *1212 form of review of an order of removal. This reading of § 242 is consonant with that of several other courts. See, e.g., Auguste v. Attorney General, 118 F.3d 723, 725 (11th Cir.1997) (habeas petition dismissed for lack of jurisdiction because alien filed petition in district court as opposed to the appellate court, where § 242’s procedures dictate the petition should be filed); Bagshaw, 1997 WL 726444 at *3 (district court dismissed habeas petition for lack of jurisdiction and stated that petition was improperly filed in the district court). Unfortunately for Rusu, however, he does not benefit from this limited preservation of habeas review.
D. Jurisdiction under the Suspension Clause
The final question is whether the district court retains jurisdiction under the Suspension Clause of the Constitution. 9 The Suspension Clause, found in Article I, section 9, clause 2, states: “The 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.” The court looks to dicta in Yang for guidance as to the scope of habeas review the Suspension Clause requires in immigration eases. In Yang, the Seventh Circuit confessed considerable skepticism as to the scope of review available under the Suspension Clause. The court expressed, in relevant part:
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. See, e.g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 304, 71 L.Ed. 560 (1927) (“Deportation without a fair hearing on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus. But a want of due process is not established by showing merely that the decision is erroneous.”); United States ex rel. Tisi v. Tod, 264 U.S. 131, 132, 134, 44 S.Ct. 260, 260, 261, 68 L.Ed. 590 (1924) (“Tisi’s claim to be discharged on habeas corpus rests wholly upon the contention that he has been denied due process of law----[Mjere error, even if it consists in finding an essential fact without adequate supporting evidence, is not a denial of due process of law.”).
109 F.3d at 1195. The two district courts that have addressed the availability of habeas jurisdiction under the Suspension Clause in the IIRIRA context have reached conclusions consistent with this narrow view of the jurisdiction available to immigrants. See Charan, 1997 WL at *3-5 (petitioner’s habeas claims did not fall within narrow jurisdictional scope of the Suspension Clause); accord Mayers, 977 F.Supp. at 1461-62. In light of the Seventh Circuit’s view and the sound reasoning of the Mayers and Charan courts; this court does not find jurisdiction over Rusu’s petition under the Suspension Clause.
This conclusion is mandate.d to some extent by a fundamental axiom of federal jurisdiction. The lower federal courts are themselves creatures of statute. “[Cjourts created by statute have no jurisdiction other than that which has been conferred upon them by statute. Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850).” Chow, 113 F.3d at 669. § 242(g) deprives the courts of all statutory jurisdiction and leaves the “constitutional writ, unaided by statute.” Yang, 109 F.3d at 1195. Because the Suspension Clause does not specifically invest the district court with jurisdiction over claims similar to Rusu’s, this court lacks any basis, statutory or otherwise, to exercise jurisdiction over his claims.
*1213 E. Motion for Release on Bond
As a final matter, the court also lacks jurisdiction over Rusu’s motion for release on bond. IIRIRA § 303(a) amended
CONCLUSION
Section 242(g) divests this court of subject matter jurisdiction to review Rusu’s petition for a writ of habeas corpus. Accordingly, respondents’ motion to dismiss for lack of subject matter jurisdiction is granted. Rusu’s petition for a writ of habeas corpus is dismissed for lack of jurisdiction. Rusu’s cross-motion for summary judgment and motion for release on bond are denied.
Notes
. The following facts are drawn from Rusu’s petition (cited as “Pet. ¶_”), exhibits appended to Rusu’s cross-motion for summary judgment (cited as “Pet. Ex._”) and selected portions of the certified administrative record submitted by respondents (cited as “Resp. Ex__”).
. In keeping with this observation, district courts have concluded that federal habeas jurisdiction remains trader
. The IIRIRA replaces the familiar term “deportation” with the term “removal.”
. IIRIRA’s amendments to the former judicial review provision were clearly designed to expedite the removal of aliens by requiring them to start the review process in the court of appeals. See H. Rep. No. 104-469(1), 104th Cong., 2d Sess. 359, 463 (1996) (commenting on an earlier version of IIRIRA).
. § 309(c) creates certain transitional rules delaying implementations of IIRIRA’s amendments for aliens in exclusion or deportation proceedings before April 1, 1997.
.
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the districts 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 restrain complained of is had.
. The All Writs Act provides:
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
. Deportation orders “become final upon the earlier of — (i) a determination by the Board of Immigration Appeals affirming such order or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.”
. Respondents take a peculiar position with respect to the availability of jurisdiction under the Suspension Clause. They entitle one argument section of their opening memorandum of law “The Court Lacks Jurisdiction Under Article I, Section 9, Clause 2 of the Constitution.” Yet, confusingly, they proceed to argue the merits of Rusu‘s habeas petition in that section. They fail to explain what the requirements of jurisdiction under the Suspension Clause are and why the court lacks jurisdiction thereunder. Despite this odd lapse, the district court must first determine whether any jurisdiction is available under the Suspension Clause. This determination does not involve a discussion of the merits of Rusu’s constitutional claims.