Auguste v. Attorney General , 118 F.3d 723 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-5555
D.C. Docket No.95-2001-CIV-SH
HERVE AUGUSTE,
Plaintiff-Appellee,
versus
ATTORNEY GENERAL, UNITED STATES, Janet Reno, IMMIGRATION AND
NATURALIZATION SERVICE, UNITED STATES, DISTRICT DIRECTOR FOR
THE IMMIGRATION AND NATURALIZATION SERVICE, Walter Cadman,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Florida
(May 12, 1998)
Before TJOFLAT and EDMONDSON, Circuit Judges, and O’NEILL*,
Senior District Judge.
____________________
*Honorable Thomas N. O’Neill, Jr., Senior U.S. District Judge for
the Eastern District of Pennsylvania, sitting by designation.
ON PETITION FOR REHEARING
TJOFLAT, Circuit Judge:
On petition for rehearing, appellee Herve Auguste contends
1
that, in our initial disposition of this appeal, see Auguste v.
Attorney Gen., 118 F.3d 723 (11th Cir. 1997), we erred in holding
that the federal courts hold no jurisdiction over the appeals of
transitional claimants--that is, claimants whose cases were
pending upon the effective date of recent amendments to the
Immigration and Nationality Act (“INA”)--such as himself. We
conclude that Auguste’s protest regarding our jurisdictional
holding is correct, and therefore grant the petition for
rehearing and modify our earlier opinion. We then address the
Government’s appeal on the merits and hold that the district
court erred in finding that Auguste’s waiver of his right to a
deportation proceeding was insufficient.
I.
Under the Visa Waiver Pilot Program ("VWPP"), see 8 U.S.C. §
1187 (1994); see also 8 U.S.C.A. § 1187 (West supp. 1998), an
alien from a qualifying country who meets certain requirements
not relevant here may enter the United States without a visa for
no more than ninety days if the alien waives "any right . . . to
contest, other than on the basis of an application for asylum,
any action for deportation against the alien." 8 U.S.C. §
1187(b)(2)(1994).1 On October 13, 1994, Auguste entered the
1
For reasons given in the text, we review Auguste’s
petition under the INA as it existed prior to the extensive
amendments passed in 1996.
2
United States pursuant to the VWPP after signing a waiver form.2
He remained in the United States beyond the authorized ninety-day
period, which expired on January 12, 1995. While in the country,
he obtained a fraudulent work permit and Social Security card and
signed a contract to purchase a hotel in Pompano Beach, Florida,
for $7.3 million.
The Border Patrol eventually located Auguste at his Florida
residence and took him into custody on September 4, 1995. That
day, Walter Cadman, District Director of the INS, issued an order
of deportation because Auguste had violated the conditions of his
admission to the United States under the VWPP by staying beyond
ninety days. No hearing was held, in conformity with the
procedures outlined in the INS regulations that were promulgated
pursuant to the VWPP.3 Cadman scheduled Auguste's deportation
2
The waiver provision of that form read as follows:
WAIVER OF RIGHTS: I hereby waive any rights to review
or appeal of an immigration officer’s determination as
to my admissibility, or to contest, other than on the
basis of an application for asylum, any action in
deportation.
CERTIFICATION: I certify that I have read and
understood all the questions and statements on this
form. The answers I have furnished are true and
correct to the best of my knowledge and belief.
3
These regulations state, in relevant part:
An alien who has been admitted to the United States
under the provisions of [the VWPP] who is determined by
an immigration officer to be deportable from the United
States . . . shall be removed from the United States to
his or her country of nationality or last residence.
Such removal for deportation shall be determined by the
district director who has jurisdiction over the place
where the alien is found, and shall be effected without
3
for September 12, 1995.
On September 12, Auguste filed a petition for review of his
deportation, pursuant to 8 U.S.C. § 1105a (1994),4 in the
District Court for the Southern District of Florida. He alleged,
inter alia, that his waiver of any right to a deportation hearing
was not "knowing and intelligent." The district court granted a
stay of deportation and, after conducting emergency hearings on
September 12 and 15, found "the record woefully inadequate to
support a finding that Herve Auguste made an intelligent and
knowing waiver of his due process right to deportation
proceedings." It therefore granted Auguste's petition and
ordered that formal deportation proceedings be conducted and that
referral of the alien to an immigration judge for a
determination of deportability . . . .
8 C.F.R. S 217.4(c) (1997).
4
That section provided, in relevant part, that "any alien
held in custody pursuant to an order of deportation may obtain
judicial review thereof by habeas corpus proceedings." 8 U.S.C. §
1105a(a)(10) (1994). As discussed in the text, section 1105a was
repealed in 1996 to eliminate review of orders of removal. See 8
U.S.C.A. § 1105a(a) (West supp. 1998).
Auguste's counsel filled out and filed a standardized form
created by the Administrative Office of the United States Courts
for state prisoners seeking a writ of habeas corpus under 28
U.S.C. § 2254 (1994). On the top of the form, the number 2254
was crossed out and the number 2241 was handwritten above,
suggesting that Auguste sought a writ of habeas corpus under 28
U.S.C. § 2241.
A review of the district court record reveals, however, that
Auguste's petition has been consistently treated as a petition
for relief pursuant to 8 U.S.C. § 1105a(a)(10). The district
court explicitly refers to Auguste's petition as a section 1105a
petition in its memorandum opinion and elsewhere. Moreover,
Auguste's petition and the arguments he presented in the district
court, in his appellate brief, and at oral argument on appeal all
indicate that he is seeking judicial review of his deportation
order under section 106 of the INA, 8 U.S.C. § 1105a (1995).
4
Auguste be released on bond pending conclusion of the
proceedings.
The Attorney General appealed from this judgment. On appeal
we held that the district court lacked jurisdiction to hear
Auguste’s petition, and that we lacked jurisdiction to hear the
appeal, because of amendments to the Immigration and Nationality
Act (INA) enacted in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Div. C, Omnibus
Appropriations Act, 1997, Pub.L. No. 104-208, 1996 U.S.C.C.A.N.
(110 Stat.) 3009-546 (codified in scattered sections of 8
U.S.C.), that were passed while Auguste’s appeal was pending.
Section 306 of the IIRIRA completely restructured judicial review
of deportation orders, which were renamed "orders of removal."
That section repealed section 106 of the INA, 8 U.S.C. § 1105a
(1995), in its entirety, see § 306(b), 1996 U.S.C.C.A.N. (110
Stat.) at 3009-612, and replaced it with a new section 242, see §
306(a), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-607 to -612
(codified at 8 U.S.C. § 1252, see 8 U.S.C.A. § 1252 (West Supp.
1998)). Amended section 242(g), titled "Exclusive Jurisdiction,"
now states:
Except as provided in this section and notwithstanding
any other provision of law, no court shall have
jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien
under [the INA].
Pub.L. No. 104-208, § 306(a)(2), 1996 U.S.C.C.A.N. (110 Stat.) at
3009-612 (codified at 8 U.S.C. § 1252(g), see 8 U.S.C.A. § 12525
(West Supp. 1998)). This provision is made applicable “without
limitation to claims arising from all past, pending, or future
exclusion, deportation, or removal proceedings under” the INA.5
Pub.L. No. 104-208, § 306(c)(1), 1996 U.S.C.C.A.N. (110 Stat.) at
3009-612.
The new section 242(g) went into effect on April 1, 1997.
See INS v. Yang, 519 U.S. 26, --- n. 1, 117 S.Ct. 350, 352 n. 1,
136 L.Ed.2d 288 (1996); Ramirez-Centeno v. Wallis, 957 F.Supp.
1267, 1269 (S.D.Fla. 1997). As stated supra, pursuant to the
IIRIRA, section 242(g) applies "without limitation to claims
arising from all past, pending, or future exclusion, deportation,
or removal proceedings under [the INA]." § 306(c)(1), 1996
U.S.C.C.A.N. (110 Stat.) at 3009-612. Auguste's petition is
clearly a "claim by [an] alien arising from the decision ... by
the Attorney General to ... execute removal orders against [the]
alien under" the INA, as contemplated by section 242(g). We
therefore held, in our initial opinion, that since April 1, 1997,
no court has had jurisdiction to review Auguste's deportation
order, except as provided by newly amended 8 U.S.C. § 1252.
Under section 1252, as amended by the IIRIRA, judicial
review of orders of removal may only be initiated in a court of
appeals. See 8 U.S.C. §§ 1252(a)(1), 1252(b)(2) (West supp.
5
We conclude that the reference to “such Act” at the end
of this section is a reference to the INA and not to the IIRIRA
because a “past proceeding,” by definition, could not have arisen
under the new act.
6
1998). Auguste did not comply with this procedure,6 as he filed
his petition with the district court.7 We therefore held that
the district court lacked jurisdiction to hear Auguste’s
petition, and that we lacked jurisdiction over this appeal. See
Auguste, 118 F.3d at 725-27.
On petition for rehearing, Auguste points to section 309(c)
of the IIRIRA, which provides as follows:
(c) TRANSITION FOR ALIENS IN PROCEEDINGS--
(1) GENERAL RULE THAT NEW RULES DO NOT APPLY.--
Subject to the succeeding provisions of this
subsection, in the case of an alien who is in exclusion
or deportation proceedings as of the title III-A
effective date--
(A) the amendments made by this subtitle shall not
apply, and
(B) the proceedings (including judicial review
thereof) shall continue to be conducted without regard
to such amendments.
Pub.L. No. 104-208 § 309(c), 1996 U.S.C.C.A.N. (110 Stat.) at
3009-625 (emphasis added). Auguste argues that this section
carves out an exception to section 306(g)’s general abrogation of
the federal courts’ jurisdiction over deportation proceedings not
conducted pursuant to 8 U.S.C. § 1252. We agree. We therefore
hold that, pursuant to section 309(c) of the IIRIRA, we retain
6
We presume, without deciding, that the new judicial review
scheme applies to orders of removal issued pursuant to the VWPP;
as discussed in the text, however, we review Auguste’s appeal
under the pre-IIRIRA statutes. Whether or not judicial review
under 8 U.S.C. § 1252 is available for aliens who are ordered
removed pursuant to the VWPP, it is clear that no other form of
judicial review is authorized.
7
This "mistake" was certainly not Auguste's or his
counsel's fault: the IIRIRA was not enacted until September 30,
1996, more than a year after Auguste filed his petition pursuant
to the then-in-force judicial review procedures of the INA.
7
jurisdiction to review deportation proceedings for aliens whose
proceedings were pending on April 1, 1997.
II.
Because we conclude that we do have jurisdiction over this
appeal, we now address the merits of the appeal. As noted supra,
Auguste filed a petition for a writ of habeas corpus in the
district court, alleging that his waiver of any right to a
deportation hearing was not "knowing and intelligent," as is
generally required of waivers of constitutional rights in
criminal proceedings. See Illinois v. Rodriguez, 497 U.S. 177,
183, 110 S.Ct. 2793, 2798, 11 L.Ed.2d 148 (1990).
The district court agreed and therefore granted Auguste's
petition. The court ordered that formal deportation proceedings
be conducted and that Auguste be released on bond pending
conclusion of the proceedings. The Attorney General appeals from
this judgment. We conclude that the district court erred in
assuming that Auguste was entitled to any deportation hearing at
all, such that Auguste’s waiver of his right to a deportation
proceeding would have to be “knowing and intelligent.”8
Congress’ power to regulate the treatment of aliens is
plenary. Although the Constitution contains no direct mandate
regarding immigration matters, the federal courts have long
8
We review this question de novo. See United States v.
Moya, 74 F.3d 1117, 1119 (11th Cir. 1996) (reviewing de novo
legal conclusions involved in determination that alien was
entitled to Miranda warnings).
8
recognized that the political branches of the federal government
have plenary authority to establish and implement substantive and
procedural rules governing the admission of aliens to this
country. See Jean v. Nelson, 727 F.2d 957, 964 (11th Cir. 1984)
(en banc), citing Chae Chan Ping v. United States (The Chinese
Exclusion Case), 130 U.S. 581, 609, 9 S.Ct. 623, 631, 32 L.Ed.
1068 (1889). "[T]he responsibility for regulating the
relationship between the United States and our alien visitors has
been committed to the political branches [as opposed to the
judicial branch] of the Federal Government. Over no conceivable
subject is the legislative power of Congress more complete."
Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 1449, 123
L.Ed.2d 1 (1993) (internal quotation marks and citations
omitted).9 "The power to expel aliens, being essentially a power
of the political branches of government, the legislative and the
executive, may be exercised entirely through executive officers,
with such opportunity for judicial review of their action as
Congress may see fit to authorize or permit." Carlson v. Landon,
9
We note that this case does not involve a petition for
the Great Writ protected by the Constitution, see U.S. Const.,
art. I, § 9, cl. 2 ("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."), and codified by 28
U.S.C. § 2241 (1994). While Auguste's petition below was labeled
"§ 2241," it clearly sought judicial review of an INS decision.
See supra note 3. Indeed, Auguste freely admits that he is an
alien who was admitted into the country under the provisions of
an immigration statute, specifically the VWPP, and that his
current detention and imminent deportation are authorized by that
same statute. He also does not assert that District Director
Cadman’s order of deportation was not entered in accordance with
law. We find it difficult to imagine a court granting the Great
Writ under these circumstances.
9
342 U.S. 524, 537, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952)
(internal quotation marks omitted).
Congress and the INS have provided some aliens with
deportation proceedings. See 8 U.S.C.A. §§ 1225(b)(2)(A), 1229
(1997). Under the Visa Waiver Pilot Program, however, Congress
and the INS do not provide deportation or removal hearings to
VWPP aliens who have overstayed the authorized ninety-day period;
instead, the INS district director handles the case and issues
the order of deportation. See supra note 2. With the Visa
Waiver Pilot Program, Congress has created a set of expeditious
procedures for the processing of certain aliens--visitors, such
as tourists and business travelers. Thus, any rights to a
deportation or removal hearing, and to any sort of process at
such a hearing, that VWPP aliens might have are wholly statutory
and administrative, granted by the Congress (through the INA) and
the INS10--and those authorities have decided not to grant any
such rights. We therefore conclude that the district court erred
in assuming that VWPP aliens are entitled to the same deportation
10
In the parlance of the field, VWPP aliens are thus
“excludable” aliens and not “deportable” aliens. See Kwong Hai
Chew v. Colding, 344 U.S. 590, 600, 73 S.Ct. 472, 479, 97 L.Ed.
576 (1953) ("'excludable' aliens ... are not within the
protection of the Fifth Amendment"); see also, e.g., 8 U.S.C. §
1187(a)(3)(A) (1990) (requiring that the VWPP waiver form provide
“a summary description of the conditions for excluding
nonimmigrant visitors from the United States . . . under the
program”) (emphasis added). That the procedures by which VWPP
aliens are removed from the country were referred to by the pre-
1996 INA as “deportation” proceedings was, we think, merely an
unfortunate misnomer. Whether such proceedings are referred to
as exclusion proceedings, deportations, or (as under the INA as
amended by the IIRIRA) removal proceedings does not change the
analysis.
10
or removal proceedings that other aliens are entitled to.
Congress has specified, by statute, that the VWPP waiver
shall be obtained with the use of a waiver form. See 8 U.S.C. §
1187(b)(3)(B) (1990) (repealed 1990) (directing Attorney General
to develop a form providing for a waiver under the pilot
program); 8 U.S.C. § 1187(a)(3) (West supp. 1998) (requiring that
VWPP aliens complete the waiver form). Moreover, by providing no
adversarial hearing for the purpose of determining whether a VWPP
alien knowingly and intelligently executed the waiver, Congress
and the INS have expressed an intention that the mere execution
of the VWPP waiver form would conclusively establish a knowing
and voluntary waiver.11 This is consistent with the political
branches’ plenary authority to establish the procedures for
admitting and excluding aliens. Because, in the absence of any
constitutional concerns, Congress’ power over immigration
regulation is plenary, we defer to Congress’ judgment.
Accordingly, we REVERSE the judgment of the district court.
SO ORDERED.
11
Auguste has made no claim that the substantive component
of the Due Process Clause obligates Congress to establish a forum
in which he could litigate the question whether his waiver was
knowing and voluntary.
11