*1 Jaysukh ZALAWADIA, Petitioner-
Appellant, ASHCROFT, Attorney
John Gener
al; Ziglar; Lynne Underdown; James Immigration
Bureau of and Customs
Enforcement; Depart United States Justice, Respondents-Appel
ment of
lees.
No. 03-30115. Appeals,
United States Court of
Fifth Circuit.
June *2 Guadagno (argued), L. Bretz &
Matthew Coven, City, Petitioner-Ap- New York for pellant. Blaya,
Robbin K. Terri Jane Scadron Justice, Div. (argued), Dept, of Civil Dc, Immigration Litigation, Washington, Respondents-Appellees. WIENER, Before Circuit JOLLY WALTER, Judge.* District Judges, and * designation. Judge, District United States District Court Louisiana, sitting by the Western District of JOLLY, Judge: portable “aggravated Circuit
E. GRADY felonies” as defined they Act1 nor did meet the condi- Jaysukh deported Zalawadia was to In- necessary deportable tions to constitute appeal challenging dia while his habeas turpitude.”2 “crimes of moral These con- legality pend- order was *3 victions did possibility create the that Za- ing. appeal requires This us to determine lawadia could be rendered inadmissible of a deportation petition- the effect country attempt should he leave the and to (1) ability has on our to exercise contin- er re-enter; 212(a)(2)(A)(i)(I), § under INA (2) jurisdiction petition ued over that 1182(a)(2)(A)(i)(I), § per- U.S.C. lawful scope of the nature and habeas relief avail- manent resident who had been convicted deported able to an alien under defective involving turpitude” a “crime moral would order. For deportation the reasons ex- deemed inadmissible should that resi- below, plained we hold that we have habe- dent leave the United States and later jurisdiction petition. over as We va- However, reentry. seek the Supreme deportation cate this order and also hold interpreted only Court had this condition that, because of the limited nature habe- apply to to travel outside the United as, action, authority, we lack in this habeas “brief, not States casual or inno- beyond simply vacating to Fleuti, Rosenberg cent.” defective order under which he was de- (1963) L.Ed.2d 1000 ported. petitioner, in- liberty The whose (holding permanent lawful residents rights longer terests and are now no en- admitted, who travel abroad should be order, cumbered must inadmissible, even if otherwise if their remedies, procedural turn to other if any, innocent”). “brief, casual, travel was or In for further relief. addition, provision the INA contained a granting Attorney General of the Unit- I ed States the broad discretion to admit Zalawadia, Jaysukh a native and citizen aliens who were otherwise excludable on India, was admitted into the United prior the basis of a criminal conviction. in September States he act, § any lawfully Under of that pleaded guilty charge to a of burglary and admitted alien temporarily proceeded “who felony theft and was sentenced to two voluntarily abroad ... and who [is] years probation required pay resti- turning unrelinquished a lawful domicile time, guilty tution. At the plea his had no years” of seven was eligible for this discre- immediate effect on immigration his sta- 212(c), § tionary waiver. INA 8 U.S.C. ed.). tus. Immigration (1994 Thus, § Under and Nation- under the law (INA) ality existed, Act existed, as it then convic- as then Zalawadia’s criminal tion of these offenses did not render him conviction would affect immigration subject deportation; they only not de- if were status his travel outside the United "aggravated felony" 1. The INA turpitude defined 2. Conviction aof crime of moral "murder, any trafficking any illicit con- deportable was a offense the con- when (as trolled substance defined in ... section years origi- viction came within five after the including any drug trafficking crime ... or entry nal date of and resulted in confinement any trafficking any illicit de- firearms or prison year longer. for one or 8 U.S.C. any structive ... devices or crime of violence 1251(a)(2)(A)(i). § Zalawadia’s conviction ... imprisonment for which the term of im- satisfies neither of these conditions. posed (regardless any suspension of such ...”). imprisonment) years least 5 1101(a)(43)(1994 ed.). § U.S.C. “brief, Appear charging innocent” him with casual or inadmissibil- States was then, ity eligible he would be as a result of his 1995 convictions. In and even discretionary original relief with the At- removal apply for before prove years immigration judge, he seven an torney General could Zalawadia con- removability requested ceded unrelinquished domicile. cancel- pursuant lation of his removal order of the Antiterrorism and passage The 240A(a) provision INA—the (AEDPA) Act Penalty Death Effective 212(c). replaced § had immigration Immi Immigration Reform and Illegal judge found that Zalawadia’s convictions (IIRIRA) in Act grant Responsibility him prevented meeting from the residen- im specific had two effects Zalawadia’s *4 cy requirements for cancellation of re- First, the IIRIRA’s migration status. (seven years moval law- unrelinquished ostensibly super INA amendments to the domicile) ful and ordered him removed. Fleuti; under the rule announced seded INA, timely appeal amended U.S.C. Zalawadia filed a 1101(a)(13)(C)(v), There, time, § BIA. for interpreted apparently the first (BIA), a he Immigration Appeals Board of contended he was entitled to claim permanent eligibility lawful resident could be barred for a waiver under the old Immi- 212(c). Act, Nationality § reentry regardless gration from of the nature dismissed, country. That appeal travel outside the See In re was his because Collado-Munoz, 1061, 1997 BIA repeal 21 I. & N. Dec. found that the IIRIRA’s 1997).3 (BIA § In applied retroactively. addi should be WL 805604 Dec. tion, specifically repealed IIRIRA Zalawadia’s motion to reconsider and re- 212(c), 240A, § open § it also replacing with U.S.C. was dismissed. longer eligible § 1229b. Zalawadia was no petition Zalawadia then filed a for a writ discretionary
for a
waiver from the Attor
of habeas
in federal district court.5
ney
provision.4
this new
General under
There,
that his
he contended
detention and
illegal
felt the effects of these
removal order were
because the
Zalawadia soon
statutory changes.
briefly
improperly applied retroactively
In
he
had
IIRIRA,
country
trip
provisions
thereby
a
er-
left
business
roneously determining
ineligible
him to be
Upon returning,
abroad.
because the
petition
§
for
relief. The habeas
INS had concluded that Fleuti’s rule no
dismissed,
request
longer applied,
was treated as an ar- was
as was Zalawadia’s
he
alien, detained,
stay
the removal order. Zalawa-
riving
and issued a Notice
aggravated
appears
yet
things,
been convicted of an
It
no court has
reviewed the
had
1229b(a).
§
BIA's determination that Fleuti s rule was su-
felony. 8 U.S.C.
The IIRIRA
perseded
There is no need for us
statute.
enlarged the definition of offenses constitut-
detail,
any
this
how-
to examine
conclusion
include,
alia,
ing aggravated
inter
felonies
ever,
challenged
as it has not been
here. All
burglary
for which a one-
and theft offenses
important
immigra-
that is
in this case is that
imposed.
year
imprisonment
term of
longer
tion officials assumed that Fleuti no
1101(a)(43)(G).
§
U.S.C.
applied,
leading them to detain Zalawadia
country.
attempted
when he
to reenter the
filing
petition,
5.Before
his habeas
Zalawadia
appeal of the BIA’s decision with this
filed an
provision considerably
4. The new
restricted
sought
stay
We
and also
of removal.
court
eligible
discretionary
the class of aliens
jurisdiction
petition for lack of
dismissed the
Attorney
Under its
relief from
General.
terms,
stay
See Zalawadia v.
and denied the
motion.
Attorney
General was barred from
INS,
21, 1999).
who,
(5th
among
granting
other
No. 99-60593
Cir. Oct.
waivers to aliens
court,
(2002).6
this
but while his L.Ed.2d 272
appealed
Accordingly,
dia
he
he
appeal
pending,
deported.
urges
was
We
us to
habeas relief
revers-
appeal.
ing
then
his
That dismissal
judg-
dismissed
the district court
case,
however.
ment and remanding
did not end
to that court with
that it
instructions
remand the case to the
our
Following
dis-
BIA, directing it to consider his claims
appeal,
peti-
of his
Zalawadia filed a
missal
212(c).
under
tion for a
of certiorari with the Su-
writ
Court,
preme
granted.
which was
response,
government
concedes
judg-
Court vacated this court’s
that the district court committed error in
light
Cyr,
ment
INS
St.
533 considering
eligibility for relief
Zalawadia’s
novo;
de
concedes
in accordance
(2001),
holding,
Ventura,
a 2001 case
relevant
questions
with
such
are for the
part,
apply
that the IIRIRA did not
retro- BIA to determine in the first
instance.
actively. We then vacated the decision of
Irrespective of whether the district court
the district court and remanded for further
respect,
erred
its error is irrelevant
Cyr.
consideration consistent with Si
to a determination
appeal.
of this
More
fundamentally,
government
contends
*5
remand, magistrate
After
judge rec-
that the district
juris-
court had no habeas
ommended that
peti-
Zalawadia’s habeas
diction to
place.
hear this case in the first
tion be denied because he had not accrued
It
asserts
because Zalawadia has been
years of unrelinquished
seven
lawful domi-
deported,
satisfy
he cannot
the “in custo-
cile at the time of
in
plea agreement
dy” requirement
juris-
for federal habeas
precondition
his criminal case—a
to eligi-
Alternatively,
government
diction.
bility
§
relief. See 8 U.S.C.
jurisdiction
contends that even if habeas
1182(c) (1994 ed.).
short,
§
In
magis-
exist,
does
Zalawadia is still not entitled to
trate found that Zalawadia was not enti-
any relief as removed aliens are not au-
tled to habeas relief because the order of
thorized
regulation
apply
statute or
deportation did not violate Zalawadia’s
relief from abroad.
dis-We
rights under
the statute. The district
agree
jurisdiction.
that we lack habeas
adopted
magistrate’s
court
recommen-
however,
agree,
do
We
we do not have
dation and this appeal followed.
authority as a habeas court to order the
seeks,
relief Zalawadia
albeit for different
II
urged
reasons than those
govern-
Zalawadia now contends that the district
ment. We hold that
in
this habeas
court
in considering
erred
the merits of his
proceeding
is limited to
the order
eligibility
claim of
for relief instead of re-
of deportation.
(which
manding the matter
had
not had the chance
argu-
to consider his
Ill
seven-year
ments on the
require-
domicile
ment),
matter,
as it should have under INS v.
As a threshold
we must
Ventura,
537 U.S.
123 S.Ct.
154 determine whether the district court had
Ventura,
Supreme
properly
In
agencies
Court held that
involve themselves after the
generally empowered
federal courts are not
underlying
have first considered the
merits of
inquiries
conduct initial
into matters that stat-
claim,
appellate
and then
in an
place primarily
agency
utes
hands.
In
16-17,
view fashion.
which him of the statute, applicable benefits of the was ille- IV Moreover, gal. explained, as we have al- government contends though Zalawadia has been released from jurisdiction if we do have even over this detention, he still faces concrete collateral matter, court affirm should the district consequences arising illegal out of that judgment court’s because no statute or order. Accordingly, Zalawadia is entitled regulation authorizes an alien who has to appropriate quite habeas relief aside been removed from the United States particular government from how a regula- apply gov for section relief. The tion him apply question now. The that according ernment notes to federal appropriate is what relief is in this habeas regulations BIA, governing the “a motion proceeding. reopen or to reconsider shall not be Zalawadia contends that the acknowl- by or person made on behalf of a who is edgment invalidity of the order of removal, subject deportation, or ex *7 deportation requires a remand to the BIA proceedings subsequent clusion to his or with instructions to hold a deportation new departure her from the United States.” 8 proceeding which request Zalawadia’s § 1003.2(d). C.F.R. It upon asserts that properly relief consid- order, lawful execution of his removal the n examining arguments, ered. After his Zalawadia, against removal case for all however, only we conclude that the form of purposes, completed. substantive Ac habeas relief appropriate here is for the argues it cordingly, that he is unable to original district court to vacate the depor- bring this claim before the BIA because any tation order. Ordering other relief regulations federal bar the BIA from hear would be inconsistent with the limited au- ing argument it. This akin seems to 1 thority possesses. a habeas court We argument mootness removal —that must underscore what this case is and any mooted claim might for relief that what it is not. This case is not the direct otherwise be available to him. decision, appeal of the BIA’s in which we event, any finally
In resolving par- scope could review the full of Zalawadia’s question regulation ticular of the federal claims and order the to correct its not necessary in order to reach conclu- mistakes. IIRIRA has indeed
299
jurisdiction.7
government
justi
This fact
function: it forces the
of such
stripped us
scope of our re-
narrows the
significantly
fy
a decision to hold an individual
custo
and,
extension, the nature of the
view
Writ,
dy.
very
“The
office of the Great
its
available.
function, is
only
inquire
legality
into the
custody.”
of the detention of one in
explicitly
Cyr,
In
St.
Heflin
States,
421,
415,
acknowledged
significant
distinction v. United
358 U.S.
79
review and habeas review
451,
(1959);
between direct
S.Ct.
see also
immigration
Specifically,
context.
Davis,
678, 699,
Zadvydas v.
533
121
U.S.
scope
stated that “it is the
the Court
(2001)
2491, 150
(holding
S.Ct.
L.Ed.2d 653
on habeas
that differenti-
inquiry
purpose
that the “historic
of the writ
[is]
judicial
review from
review.”
ates habeas
relieve detention
executive authorities
312,
(quoting
at
121
2271
533 U.S.
S.Ct.
trial”)
judicial
(quoting
without
Brown v.
Barber,
229, 236,
v.
345 U.S.
Heikkila
Allen,
S.Ct.
(1953)).
603,
vices
(1982),
States,
211, 221-23,
224,
3231, L.Ed.2d 928
nor can it “be
329 U.S.
67 S.Ct.
73
(1946) (conviction
a
collat
utilized to
refusal
Therefore, Zalawadia’s contention up: We sum Because Zalawadia filed his writ, court, granting the the district petition habeas while in custody he was proceeding, this should order and continues to legal face a collateral hearing rights hold a new to consider his consequence of placing the order him § 212 to under determine whether he there, we hold that the district court had deported rejected should be anew is jurisdiction. hold, habeas We also howev- beyond reviewing the bounds of his “de- er, that a habeas authority court lacks the simpliciter.” Having tention reached the the relief Zalawadia seeks—either vacating deportation conclusion that to order the INS to readmit Zalawadia and beginning order is end of the country into the or to direct the BIA to have, authority habeas we we do not need conduct a new proceeding on to address Zalawadia’s entitlement to oth- Zalawadia’s behalf—as either of these er forms of relief in this action. beyond forms relief are the discrete request These include his that we order nature of a habeas action. The sole reme- country the INS to readmit him into the dy available under habeas here is for the purposes for the of a hearing.9 district court to vacate the removal order. Accordingly, we and reaching
We should be clear:
this
reverse
vacate the
conclusion,
suggest
judgment
denying
we do not
that Zalawa-
of the district court
ha-
way
obtaining
dia has no
other non- beas relief.
remand with
We
instructions
habeas remedies. Once his removal order
that the district court enter an appropriate
vacated,
eligible
has been
he
judgment
grants
order that vacates its
apply
reentry
with the BIA. That
for
petition
only
us,
question
is not before
however. Once
the extent of
prior
the BIA’s
or-
again,
engaging
against
we are not
of deportation
direct
der
Zalawadia.10
1895,
authority
Wong,
Our
to order Zalawadia to be re
426 U.S.
101 n.
96 S.Ct.
country
admitted into the
is not
con
See also Harisiades v.
review;
580, 596-97,
Shaughnessy,
strained
the nature of habeas
this
342 U.S.
72 S.Ct.
J.,
subject
(1952) (Frankfurter,
case also concerns
matter in which
REVERSED, distressing and RE- the unavoidable conclusions VACATED (1) INSTRUCTIONS. majority’s reasoning MANDED WITH panel is wholly Supreme irreconcilable with the WIENER, in Judge, concurring Circuit case, very in this prior Court’s decision dissenting part: part and (2) majority’s of the panel and the effect majority’s conclu- panel I concur cabining powers of the remedial of federal “in that Mr. Zalawadia satisfies the sion nugatory habeas courts is to render for federal habeas custody” requirement express Court’s directive its all jurisdiction. respect, With due For these remand of this case to us. however, company panel with the part I reasons, below, I as fleshed out must re- to majority proceeds when it auto-emascu- spectfully dissent. powers of federal courts late the restricting range of remedies severely Analysis I. Spe- that I to be available habeas. find majority’s opinion The is con- statutory juris- no or cifically, I can find (1) proffered structed on two foundations: support majority’s for the con- prudential authority Zalawadia re- Our to Mr. though we can and must clusion even “undoing current or future lief is limited Mr. Zalawadia’s removal order and vacate legal flowing restraints on freedom [his] court, to the remand his case district we (2) detention”1; illegal from an and be- to instruct the district court powerless are already has been de- cause Mr. Zalawadia for it to consider remand (“collateral such restraint ported, the affording opportunity him the to seek And, I discretionary consequence”) empowered relief. find that we are way press in its remand of this case to "irreconcilable” with the directive p. 302. In its succinct re- us.” Dissent Court's remand in this case. case, "Judg- mand of this the Court stated: Secondly, we are a bit baffled the dis- vacated, and remanded to ment case sent's claim that Zalawadia is entitled Appeals Court of for the Fifth United States granted "more” we have than light further Circuit for consideration in Indeed, him. we cannot conceive the form Cyr." Ashcroft, Zalawadia v. INS v. St. take, such additional relief would short of L.Ed.2d 742 ordering the defendants to readmit Zalawadia cursory non-specific and nature country into the that the dissent ex- —relief typical of the remand in this case is of other plicitly concedes is unavailable. The dissent’s pending remands of cases on certiorari before proposed specifically, "additional” relief— Supreme Court that are affected opportunity plead the BIA "an his case to analogous Court decision issued in another ... seek relief”—is not addition- [and] fashion, case. In characteristic the remand al at all: The Zalawadia could best result simply here directed lower courts to recon- opportunity a BIA obtain from such an is light sider Zalawadia's case in the ruling that he indeed had been entitled to a and, recently-decided Cyr implicitly, St. deportation, depor- waiver that the order of grant any appropriate corresponding relief. error, corresponding tation was order precisely we fol- This course is what have deportation the erroneous order We lowed in this case. have determined that him; against yet precisely the relief we control, this is Cyr depor- that the St. does order of invalid, already granted vacatur have him—the against tation issued Zalawadia was Thus, order. dissent's con- appropriate correspond- and that the form of Thus, unjustifiably improp- we ing tention that are relief is vacatur of this order. erly circumscribing scope may disagree of habeas reme- while the dissent with our con- concerning vacatur clusions whether dies available to Zalawadia seems flawed relief, appropriate corresponding wrong. form of simply there is no basis for its contention that any Opinion p. other our decision is inconsistent or *11 remedy statutory 5-year is the ban on re- wadia should have been allowed apply to one entry ironically, consequence for a 212(c), § waiver under former INA — automatically that will be removed when eligible which allows an returning alien to we vacate his removal order.2 combina- be “in admitted the discretion of the Attor- tion, underpinnings these two are ad- ney General.”4 This opportunity was im- majority by panel support- vanced properly denied him through retroactive ing its ultimate conclusion even application By contrast, of IIRIRA. when though Mr. Zalawadia is entitled to habeas applies Mr. Zalawadia for readmission fol- non, only specific relief vel relief that lowing order, our vacatur of his removal he grant empowered we are is vacatur of required will still be to obtain a waiver to the unlawful removal order under which he re-enter country; but he will not be was, fact, deported. Satisfied that the 212(c) permitted try § to do so under majority incorrectly has panel assessed the Instead, owing to IIRIRA. Mr. Zalawadia consequences by collateral faced Mr. Zala- apply must for a waiver under 8 U.S.C. removal, wadia as a result of his which 1182(h), § require which will him to dem- fatally flawed assessment undermines the onstrate “to the satisfaction of the Attor- majority’s application the first of its ney General that denial of [his] admission I supports, disagree foundational must would result in hardship extreme strenuously overly [his] opinion’s with the regarding strictive conclusion the nature United States citizen or lawfully resident and extent of the relief that au- we have ... parent[s].”5 Clearly, this is a different thority to fashion. and, terms, practical a much standard —
higher establishing eligibility hurdle —for 1. Remaining consequences” “collateral for readmission. Zalawadia’s removal unlawful That the standard Mr. would Zalawadia notes, majority petitioner pres- As the a hearing face is discretionary is controversy ents an Article III or case of no practical importance;
when he demonstrates that he from suffers Cyr Court itself noted in'St that its own consequences” “collateral from a conviction precedent long provided has that “a de- despite an end to his Al- incarceration.3 portable right challenge alien [has] though is true that our Mr. Executive’s failure to exercise the discre- Zalawadia’s removal order will remove one And, despite tion authorized the law.”6 consequence 5-year such ban on re- —the the discretionary nature of relief entry that he would otherwise face—vacar (and the ihischaracterization nothing rectify tur would do the stan- majority), relief that Mr. Zalawa- dard for readmission that he would need dia is seeking opportunity now is the Specifically, to meet on his return. at the time of his removal Mr. plead Zala- his case to the BIA for an opportu- ("[W]e 297; opinion p. authority Opinion p. See lack Spencer see also v. Kem na, 1, 7, 523 U.S. 140 L.Ed.2d beyond in this habeas action to (1998). simply vacating the defective order.... petitioner, liberty rights whose interests and Cyr, 4. See INS v. St. longer are no encumbered order, procedural must turn to other reme- 1182(h)(1)(B) added). dies, relief.”). (emphasis 5. 8 U.S.C. any, if for further Cyr,
6. St.
atU.S.
so.15 characterization example, in For v. Shillinger, Osborn of a remand with instructions as “addition- Circuit upheld Tenth a district court (entered in order a proceeding) (as al” to op- 'removal order a allowing defendant guilty to withdraw his “different”) posed the wa- muddies one, a plea, enter new and be tried and discussed, ter. simply As a remand would state court sentenced—before different be equitable designed eliminate judge in a venue.18 consider- different consequence collateral district ing the State’s that the contention condi- admittedly illegal appli- court’s retroactive imposed tions the district court exceed- cation of IIRIRA. authority, quoted ed its Circuit Tenth (1993)("Concerns Opinion p. 14. 301-02 n. 10. equity 407 ... resonate throughout jurisprudence.”); our habeas 6, supra, 15. accompanying See note text. Wilson, 436, 447, Kuhlmann 477 U.S. v. 106 2616, (1986)(“In S.Ct. deci See, 19-20, e.g., infra, accompa- *14 can procedures of his fective at issue.23 This we suppression pa- the ceived but for ”20 enjoy Even we do the though .... do: pers of of leverage the threat forced readmis- that in certainly typically It true is —and to to the sion to enforce an order remand remand the noted above—the both cases hearing, BIA for a the district court would possibility pris- tied the of the order is accept bound our decision.24 still be release, con- and could be oner’s labeled view, my convincing true In the though, the writ.21 It is also most ditional of equitable power that do have the that our of remedies evidence we arsenal the “big not contain the of remand with such instructions —the does stick” (or, in granting outright “proof’ particular “pudding”' of this threat of release —lies situation, analogue, Supreme original in the decision its forced readmis- Court’s this easily Capps pattern also v. bined to create a fact that is not 19. Id. The Tenth Circuit held in Sullivan, 350, (1993) existing jurisprudence, "bar- in our and un- 13 F.3d 352 that found permissible likely ring a new is a form of to reoccur in the future. trial case, "necessary judgment” in a habeas when corpus juris- 308, protect purpose See, of habeas the e.g., Dugger, U.S. 23. Parker v. 498 forming 322-23, 731, basis for diction when the error the 111 S.Ct. pro- ("We the relief cannot be corrected in further (1991) ... and with reverse remand ceedings.” explained "the dis- The court case instructions to return the to the District grant any power court trict had the directing of Court to enter an order the State of form added). necessaty...." (emphasis Id. appropriate in Florida to initiate state court so that Parker's death sentence 262, light U.S. 71 L.Ed. 20. 340 95 entire be reconsidered in added). hearing (1951)(emphasis sentencing record of his trial and judge's findings.”); the trial Richmond Lewis, fact, Osborn, the char- 21. In in Tenth Circuit (1992) ("We stating ... and just way, L.Ed.2d reverse acterized the relief remand with instructions to return the case to district 'remand' that it the court’s "view[ed] as, effect, granting an the District Court to enter order order the issuance of a condition- Osborn, petition the for a writ of habeas unless F.2d at al writ.” peri- the State of within a Arizona reasonable the od of time either corrects constitutional Specifically, this case arises out of imposes ... or error vacates the sentence and immigration occurred landmark reform that law.”). a lesser sentence consistent with coupled with the district court’s ille- law, gal application retroactive of that we, course, government's are follow deport decision to while Mr. 24. Just bound to Supreme appeal pending, on remand— Zalawadia's habeas was still Court’s directions ignorance something infra, panel subsequent court’s as I discuss and the district opinion majority com- to do. of INS v. These factors have fails Ventura. Remember, very acknowledging and order in this case. it illegality order [the] 1999 that Zalawa- ... by vacating was back October Mr. the order ... petition, listing dia first filed his habeas federal habeas court has answered and action, including fact, four causes of erroneous question.”28 addressed this be- relief). (not hearing denial of a cause the issue Supreme decided court peti- After the district dismissed that Court was but one of four causes of action jurisdiction tion for lack we dis- that formed the basis of Mr. Zalawadia’s —and missed Mr. Zalawadia’s for the appeal petition, is all the more obvious granted Supreme same reason —the Court majority’s under the reasoning that petition remedy for certiorari and open considered to the Court would be to time, his ease. all, At that his case was vacate the removal order. After today, i.e., exactly posture the same as it “already is Court had made clear considering was not order under which decision,”25 appeal “direct [a] BIA[ ] Zalawadia had been legally detained was acting Thus, pursuant rather was flawed.”29 according its authority. According majori- to the panel majority’s “logic”, there was neither the ty, obligat- this means the Court need authority nor the to remand with scope ed to “confíne its review to instructions. Yet that what precisely *15 considering legality custody of the at Supreme the the Court did! panel majority, issue.”26 To the the Su- I that emphasize the situation as it exist preme enjoyed Court then no more au- ed indistinguishable then is from what we thority no less—than dowe now —but (1) face now: The Supreme Court was
when it
to granting appropriate
comes
re-
(2)
sitting
court;
aas
it had al
lief under the writ.
ready
prior
determined that
proceed
the
Thus,
panel
the
majority’s logic,
ings
under
tainted —at
stage, by
were
that
retro
Supreme
only
IIRIRA;
(3)
the
had
form
one
of
active
of
application
and
it
it
open
relief
after it
Mr.
considered
remanded to us with instructions to cor
viz.,
defect, i.e.,
appeal,
Zalawadia’s habeas
to vacate
rect the
for “further consider
illegal
According
the
removal order.
light
Cyr.’30
ation in
of INS v. St.
(1)
panel majority, any
the
other
would exact parallel:
sitting
We
are
(2)
“beyond
reviewing
court;
be
already
the bounds of
Zala- habeas
we have
deter
”27
wadia’s
simpliciter.’
through
‘detention
This is
nothing
gov
less than the
mined —
so,
panel
insists
majority,
the
because
ernment’s own
prior
concession31—that the
only
presented
tainted,
question
“[t]he
habe-
[a]
were
time
legality
as case concerns the
through
of the order
the district
failure to
court’s
ad
(3)
upon
Ventura;32
which
By
detention was
[the]
based.
here to INS v.
Mr.
Opinion
brief,
p.
25.
298.
appellate
at
31.
government
In its
the
con-
"Should
cedes:
the Court
that Zalawadia
find
Opinion
26.
p.at
299.
litigate
continue
his section
claim,
agrees
the Government
that the case
Opinion
p.
27.
301.
be
should
remanded to
to decide
the Board
Opinion
p.
28.
301.
212(c) eligibility
Zalawadia’s section
in the
first instance.”
Opinion
29.
p.at
Ashcroft,
30. Zalawadia v.
154 L.Ed.2d
(citation
(2001)
S.Ct.
omitted).
power
eq-
the
to fashion
appropriate
that we remand
have
Zalawadia asks
as,
case,
it re-
instructions that
court with
uitable relief—such
in this
district
his
hearing
for a
to the BIA
mand
manding with instructions to remand to
which would cure
eligibility,33
BIA—to
such collateral con-
eliminate
(as
essentially
a com-
would
defect
Indeed,
sequences.
federal courts have
granted
the relief earlier
parison point to
done so
decades.35
Court)
consider-
Supreme
“further
by the
Several of the eases relied on
pan-
light
of
When
ation
Ventura.”
majority
factually
are so
distin
pow-
we are
majority
without
el
states
guishable
they
from the instant case
of the
to do this because
nature
er
of
support
majority
no
for the
provide
real
unit,
telling
it is
Court—
limits of our
opinion’s assessment
it
with-
unwittingly, I am sure —that was
authority.
Lycoming
In Lehman
power when
first considered
out such
County
Agency, for
Children’s Services
petition.
Even
Mr. Zalawadia’s
example,
unintentionally,
petitioner sought
follow
this is audacious.
(1)
ing forms of relief:
invalidation
conceivably
Court cannot
pa
her
state statute that had terminated
panel majority’s assess-
agree with the
(2)
rights,
rental
a declaration that she
ment, however,
remanding
to us
because
legal
parent
was the
the children at
precisely
instructions the Court did
with
(3)
issue, and
releasing
an order
chil
panel majority
no federal
what the
insists
custody.36 Notably,
dren to her
this re
my
further
court can do.34 This
buttresses
custody
quest
imposed
was unrelated to
(1) merely vacating
unequivocal belief
had
any sort: Petitioner
never been “in
removal order does
Mr. Zalawadia’s
custody,” and the Court noted that her
all of
collateral
conse-
legal
remove
(2)
detention,
‘custody1
children were “not
illegal
quences
*16
the
sitting
courts
as habeas courts do
sense in which that term has
federal
State
panel majority
subject
questioning
asserts that Mr. Zala-
this
was addressed after
33. The
requested
wadia
that we readmit him for the
by
panel
point. Setting
the
on the
aside for
212(c) hearing
purposes
Opinion
of a
at
{see
the moment that it is far
certain that
from
Mr.
p.-),
but the fact is that he did not. Mr.
required
Zalawadia would be
to attend such a
orig
request
Zalawadia's
for relief in both his
counsel,
hearing,
ably represented by
ishe
reply
simple:
“requests
and
briefs is
He
inal
appeal
exclusively
fact is
the
that his
focuses
the
Court's
that this Court reverse
District
improper
on the district court's
consideration
and
his case
Board of
decision
remand
to the
denial)
(and
eligibility
of
ultimate
for
Immigration Appeals for further consider
212(c)
question
The
relief:
of his readmission
light
Supreme
ation in
of the
Court’s decision
has never been before us.
alternative,
Cyr,
v. St.
or in the
find
in INS
212(c)
eligible
is
and order
[he]
that
for
relief
note, also,
34.
I
that the Court's remand in this
[BIA]
that this matter be remanded to the
grant
could
termed a
case
not be
conditional
212(c)
hearing
with instructions to hold
on
writ; i.e.,
say
the Court
not
"con-
did
possibility
Mr.
raised the
relief.”
Zalawadia
proceedings
Cyr
duct
St.
consistent with
or
purpose
attending a
readmittance for the
of
petitioner”;
simply
or
the
release
readmit
212(c) hearing only
re
reply
in his
brief in
instructions, just
remanded with
as Mr. Zala-
(1)
arguments
sponse
government’s
that
requests
we do
wadia
that
now.
regulations precluded
Mr. Zalawadia
(2)
continuing
govern
his case and
the
from
See,
19-20,
e.g.,
accompa-
supra,
*17
Constitution,
tion be consistent with the
exist-
remedy
See
addressed.”
Leh-
law,
ing
Supreme
precedent.
Court
In
man,
(quoting
reality, eligibility a standard high to an
reentry impossibly that we raise
level, i.e., markedly than higher a hurdle 212(c) hearing. in a Sec- applicable
ond, principles equity, under have remanded instruc-
courts often with BAZE, Jr., Ralph Stephens remedy constitutionally defective tions Petitioner-Appellant, yet majority us proceedings, prevents Third, doing that. from Kentucky Philip PARKER, Warden, very remand in this case—em-
Court’s Penitentiary, Respondent- State the exact of relief bodying as does form Appellee. requests Zalawadia and the Mr. now majority denies—confirms that we abso- No. 03-5112. have kind lutely power do order the Appeals, United Court of States he asks. equitable which Circuit. Sixth Fourth, limited remanding unduly panel majority basis set forth evis- Dec. Argued: cerates the decision Court’s Filed: Decided and June case and to follow overarch- fails *18 dispose peti- maxim that ing we justice require.”
tions “as law and open Undermining in all still Court’s remand retroactive effect cases way in this violates an intuitive un- Harper Dep’t Va. direct review....” v. derstanding Taxation, 86, 97, of how we should honor Su- decisions, specific Supreme preme Court (1993). L.Ed.2d precedent as well: “When this Court parties applies a rule law of federal LaVallee, Carafas it, controlling interpre- before that rule is the given full tation of federal law must be notes decades, past sions of two or three ... nying text. corpus Court reaffirmed that has 'habeas has traditionally regarded governed by been as See, Delo, 298, 319, e.g., Schlup v. 513 U.S. " Noia, Fay equitable principles.’ quoting v. 851, (1995)('‘[T]he 115 S.Ct. L.Ed.2d 130 808 391, 438, 372 U.S. 83 9 L.Ed.2d principle Court has habe- adhered (1963), citing 837 United ex rel. States Smith is, core, at its an reme equitable Baldi, 561, 573, 73 S.Ct. dy.”)(Partially abrogated, grounds, on other (1953)(dissenting opinion)). L.Ed. 549 by the and Effective Pen Antiterrorism Death 1996);' Williams, alty Act of Withrow v. (10th 1988). L.Ed.2d 18. 861 F.2d Cir. sion) § court compel available to district justice” language the “law and with remand comply or the our “[did] that it not believe and concluded instructions, But typically the case. its broad discretion as is court lower abused more a function of the confluence state be ”19 this is that new requiring strange procedural factors led to the under circumstances.... held [those] case,22 ex rel. and is not determi- posture v. United Similarly, Dowd States authority provide appro- our Cook, 2243 native of quoted remand, My point equitable Dis- relief. priate “[o]n and ordered that are aforementioned cases as well as enter such orders as trict Court should others, many reason- the habeas courts remanded allow State a appropriate to equitably crafted specific afford the with instructions respondent able time which remedy of the de- he have re- the collateral effects appellate review would full
Notes
35. notes authority holding was “aware of no that ment nying text. aliens, Zalawadia, such as have removed 'right' litigate for discre continue claims tionary 36. 458 U.S. relief under former section Similarly, argument L.Ed.2d from abroad.” oral by determining ly opposite used this Court on been both counts: The collateral availability the of the writ of cor- consequence under discussion here arises context, directly pus.”37 hardly it is sur- from detention, that Mr. Zalawadia’s prising that the Court stated that habeas already been illegality the of which has by the Supreme not established Court. generally “a available federal reme- It was rights:”38 dy every precisely violation of federal the illegality identified however, custody issue, It was the that district court’s improperly Courtn-the determinative,39 is not foreclosing any that issue possibility of relief— (as concedes) majority panel a-factor that injury caused the for which Mr. Zala- in the instant case. wadia now seeks redress. Nelson, Similarly, in Amanullah v. cited my This leads to point: final The panel majority on 299 and pages' majority’s opinion illusory prior renders all 300, the Circuit noted including the Su First that decisions case— preme Court’s ! The Court remanded for corpus “cannot be utilized to a re review fusal to collateral re Cyr, with St. proceedings administrative consistent legality custody,”40 lief, unrelated to the district court’s purported conduct of and, case, in-that “the appellants such [had] remand itself violated shown their detention INS v. Ventura.42 Identi violates the mandate ineluctably law.”41 two facts cally, Those led our refusal to remand with instruc Am- appellants conclusion tions further remand to the BIA now (because anullah they were not entitled to the of our purported inability to em sought evidentiary ploy very mandate conduct same form of relief that the —-a hearings. instant already employed case is diametrical- has comports 37. Id. at alone with Court's re- 301-02, opinion p. mand in this case. See Although "cursory non-specific," n. 10. I Id. obvious think it that the Court’s directive that n (in words) panel majority’s "lower courts originally 39. The court had district held that light ... reconsider Zalawadia’s case in the Respondent custody "the maintained ” dictates, recently-decided Cyr St. at a over the Lehman three children is not that minimum, any district court reconsidera- type custody to which the federal habeas