Richardson v. INS , 162 F.3d 1338 ( 1998 )


Menu:
  •                                  United States Court of Appeals,
    
                                            Eleventh Circuit.
    
                                              No. 98-4230.
    
                               Ralph RICHARDSON, Plaintiff-Appellee,
    
                                                    v.
    
    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.
    
                                              Dec. 9, 1998.
    
    Appeal from the United States District Court for the Southern District of Florida. (No. 97-3799-
    CIV-EBD), Edward B. Davis, Chief Judge.
    
    Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.
    
           HULL, Circuit Judge:
    
           TABLE OF CONTENTS
    
    
    
           I. FACTS AND PROCEDURAL HISTORY                      777
    
           II. RICHARDSON'S HABEAS CORPUS PETITION                      779
    
           III. NEW IMMIGRATION LAWS 780
    
                   A.     "Removal" Proceedings          781
    
                   B.     Permanent Resident Criminal Aliens Returning From Abroad             782
    
                   C.     Supreme Court's Fleuti Doctrine       783
    
                   D.     Detention of Criminal Aliens "Seeking Admission" 784
    
                   E.     Detention Under TPCRs in IIRIRA § 303(b)(3)           785
    
                   F.     Detention Under INA § 236(c)          787
                   G.     INA § 236(e) Restricts Review of Bond and Parole Decisions           788
    
                   H.     Procedures for Removal Hearings       789
    
                   I.     IIRIRA Consolidates Judicial Review in the Court of Appeals          790
    
                   J.     INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal
    Aliens 791
    
                   K.     INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions
           792
    
           IV. DISCUSSION         792
    
                   A.     INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration
    Decisions      793
    
                   B.     No Constitutional Infirmities to Avoid        796
    
                   C.     Eleventh Circuit's Boston-Bollers Decision 798
    
                   D.     Due Process Clause     800
    
                   E.     Article III     802
    
                   F.     Suspension Clause      803
    
                   G.     Second Circuit's Henderson Decision           806
    
                   H.     Ninth Circuit's Magana-Pizano Decision        807
    
                   I.     Seventh Circuit's Yang Decision       808
    
                   J.     INA §§ 242(b)(9) and (d) Require Final Removal Order         813
    
                   K.     Alternative Review Under INA Satisfies Suspension Clause             815
    
           V. CONCLUSION          820
    
           This appeal arises from a district court's order granting a writ of habeas corpus to a
    
    thirty-year permanent resident alien petitioner with a cocaine-trafficking conviction who was
    
    detained as he attempted to enter the United States after a two-day trip to Haiti. The INS district
    
                                                    2
    director denied bond pending the outcome of petitioner's removal proceedings. Petitioner filed his
    
    habeas corpus petition under 28 U.S.C. § 2241 asserting that the INS' illegal detention, denial of
    
    admission, and denial of a bond hearing violated his constitutional and statutory rights as a lawful
    
    permanent resident alien.
    
            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
    
            On October 24, 1997, Richardson left the United States and traveled to Haiti. On October
    
    26, 1997, Richardson attempted to re-enter the United States at the Miami International Airport, but
    
    
    
       1
        Richardson initially served only three years of his five-year sentence on the drug-trafficking
    offense. In 1993, he was arrested for violating his probation by eluding police and served the
    remainder of his sentence in prison. He was released from prison on January 11, 1994.
       2
       8 U.S.C. § 1251(a)(1)(1990); 8 U.S.C. § 1182(a)(10)(1990); 8 U.S.C. § 1227(a)(2)(b)(i)
    (Supp.1998).
    
                                                     3
    was not allowed to enter. At the initial immigration checkpoint, Richardson presented an expired
    
    "I-151" card, also called an Alien Resident Card, and a valid Haitian passport. Richardson's use of
    
    an expired card caused him to be referred to a secondary immigration inspector for a more detailed
    
    interview regarding his eligibility to enter the United States.
    
           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 cocainetrafficking 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 13, 1997, Richardson's attorney sent a letter to the INS district director in
    
    Miami requesting release from custody. On December 4, 1997, the district director denied
    
    Richardson's request.
    
           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
    
    
       3
        8 U.S.C. § 1101(a)(43) (Supp.1998). This opinion utilizes the section numbers of the INA
    and IIRIRA because the text of those statutes references INA and IIRIRA sections and because
    certain parts of IIRIRA are not codified. See footnote 42 infra. At the Miami International
    Airport, the immigration inspector prepared a four-page sworn statement signed by Richardson
    that outlined his criminal history.
       4
        8 U.S.C. § 1252 (Supp.1998). An INS "notice to appear," dated October 26, 1997 was
    served on Richardson alleging that he was an arriving alien who was a citizen of Haiti, not the
    United States, and was subject to removal due to his criminal convictions.
       5
        8 U.S.C. § 1101(a)(13)(C)(v) (Supp.1998).
    
                                                      4
    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 November 26, 1997, Richardson filed in the district court a petition for writ of habeas
    
    corpus pursuant to 28 U.S.C. § 2241. Richardson filed an amended petition on December 10, 1997.
    
    Richardson's petition asserted, inter alia, that he was being illegally detained and, at a minimum,
    
    was entitled to a hearing before an immigration judge on his release request and not merely
    
    consideration by the district director. The INS moved to dismiss Richardson's petition for lack of
    
    subject matter jurisdiction.
    
              On December 30, 1997, the magistrate judge issued a report finding statutory habeas
    
    jurisdiction under 28 U.S.C. § 2241 and recommending that Richardson be given "an individualized
    
       6
        Id.
       7
       See 8 C.F.R. § 103.1(g)(2)(ii)(B) (1997); 62 Fed.Reg. 10312, 10360 (1997) (codified in 8
    C.F.R. § 236.1(c)(5) (Jan. 1, 1998)); see footnotes 38 and 40 infra.
       8
        The proceedings before the immigration judge on Richardson's release request were not
    recorded or transcribed. On November 24, 1997, the immigration judge signed a form bond
    order with blanks to check for granting or denying release. The immigration judge checked the
    box stating that the request for release was denied and wrote "arriving alien" at the bottom of the
    form. Although nothing in the record clearly establishes that the basis of the immigration judge's
    decision was a lack of jurisdiction, both parties agree that the immigration judge did not conduct
    a bond hearing, although witnesses were present ready to testify, and that the immigration judge
    indicated lack of jurisdiction over Richardson's release request due to his status as an alien
    seeking admission.
    
                                                      5
    hearing, within 14 days of any order adopting this recommendation at which time the immigration
    
    judge should considered [sic] whether petitioner is an arriving alien, and if not, whether and under
    
    what circumstances petitioner may be released from custody pending the completion of deportation
    
    proceedings."
    
              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 Richardson's
    
    appeal of the removal order to the Board of Immigration Appeals ("BIA") remains pending.12
    
              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
    
    
    
       9
       In the Matter of Ralph Richardson, Respondent: In Removal Proceedings, Case # A17-566-
    876 (Immigration Court, January 1, 1998).
       10
            8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1182(a)(2)(A)(i)(II), & 1182(a)(2)(C) (Supp.1998).
       11
         8 U.S.C. § 1229b (Supp.1998). Denying cancellation of removal under INA § 240A(a), the
    immigration judge found that Richardson was statutorily ineligible due to his cocaine-trafficking
    conviction, deemed an aggravated felony under INA § 101(a)(43). 8 U.S.C. § 1101(a)(43)
    (Supp.1998). INA § 240A (a), 8 U.S.C. § 1229b(a) (Supp.1998), provides that the "Attorney
    General may cancel removal in the case of an alien who is inadmissible or deportable from the
    United States if the alien—(a) has been an alien lawfully admitted for permanent resident for not
    less than five years, (2) has resided in the United States continuously for seven years after having
    been admitted in any status, and (3) has not been convicted of any aggravated felony."
    (Emphasis supplied.)
       12
        Richardson's brief was filed with the BIA on October 15, 1998, and the INS brief was due
    on November 28, 1998.
    
                                                       6
    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:
    
              (1) 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;"
    
    
    
    
       13
         In the removal hearing before the immigration judge, Richardson contended that the INS'
    evidence of his criminal conviction for cocaine trafficking was improperly certified, but the
    judge admitted this evidence of his conviction. The INS also introduced Richardson's sworn
    statement at inspection that he had a cocaine-trafficking conviction. At the removal hearing,
    Richardson testified that while he signed the statement, he did not read it because he was
    "confused," "shocked," and "upset." The immigration judge found that the INS had proved a
    cocaine-trafficking conviction. This is one of many issues Richardson has raised on appeal to
    the BIA; however, this issue was not raised in the district court.
       14
            8 U.S.C. § 1101(a)(13)(C) (Supp.1998).
    
                                                       7
              (2) 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;
    
              (3) 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
    
              (4) 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.
    
              In explaining why he filed his habeas petition while his BIA appeal remained pending,
    
    Richardson contends that exhaustion of administrative remedies is futile because the INA, as
    
    amended by IIRIRA, eliminates judicial review in the courts of appeals over any prospective BIA
    
    final order removing him as a criminal alien, and forecloses appeal of the INS' district director's
    
    bond decisions to an immigration judge.          Finally, Richardson asserts that INA § 242(g)'s
    
    exclusive-jurisdiction provision15 does not repeal habeas jurisdiction under 28 U.S.C. § 2241 and
    
    does not prevent the district court from hearing a permanent resident alien's habeas petition alleging
    
    unlawful executive detention in violation of the INA and the Constitution.
    
              Since Richardson attempted to enter the United States on October 26, 1997, IIRIRA's
    
    extensive revisions to the INA undisputedly govern this case.16
    
    
       15
            8 U.S.C. § 1252(g) (Supp.1998).
       16
            IIRIRA was signed into law on September 30, 1996 and became effective on April 1, 1997.
    
                                                       8
                                    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:
    
            (1) new custody rules mandating detention of aliens after a serious criminal conviction;
    
            (2) new procedures for prompt removal of criminal aliens from the United States;
    
            (3) 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;
    
            (4) 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
    
            (5) 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.
    
            Simply put, IIRIRA strips all jurisdiction, including § 2241 habeas, from the district courts,
    
    places exclusive judicial review in the court of appeals, and delays even that judicial review until
    
    after a final administrative agency order. Congress has reduced judicial review to one time in one
    
    place in an effort to expedite the removal of resident aliens with serious criminal convictions. Since
    
    
    
    
       17
        Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat.
    1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"),
    Pub.L. No. 104-208, 110 Stat. 3009 (1996).
    
                                                      9
    these legislative revisions to the INA are extensive, complicated, and affect so many resident aliens
    
    with criminal convictions in such a significant manner, we outline them in detail.
    
    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
    
              Under the unified framework in INA § 240, many of the procedures in "removal
    
    proceedings" are now the same regardless of whether the alien is seeking admission to the United
    
    
    
       18
         Before IIRIRA, the INA separated the concepts of exclusion proceedings and deportation
    proceedings. Different procedural rules applied to proceedings to exclude an alien from entering
    the United States. Compare 8 U.S.C. § 1226 (1996) with 8 U.S.C. § 1252b (1996).
       19
            8 U.S.C. § 1229a (Supp.1998).
       20
          8 U.S.C. § 1229a(a)(1) (Supp.1998). Removal proceedings were created in INA § 240.
    Other sections of the INA established the procedures to be employed in removal proceedings.
    For example, INA § 239, 8 U.S.C. § 1229 (Supp.1998), established the procedures for the
    initiation of removal proceedings. INA § 240A, 8 U.S.C. § 1229b (Supp.1998), established the
    procedures for the cancellation of removal proceedings.
       21
            8 U.S.C. § 1229a(e)(2) (Supp.1998).
       22
            8 U.S.C. § 1229a(a)(3) (Supp.1998).
    
                                                     10
    States or the alien is being deported from the United States.23 In contrast, the substantive grounds
    
    for determining "inadmissibility" and "deportability" are still handled in several separate parts of
    
    the INA and vary considerably.24 However, Richardson's cocaine-trafficking conviction is a
    
    sufficient basis alone for both deportation and inadmissibility under the INA.25
    
    B. Permanent Resident Criminal Aliens Returning From Abroad
    
            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
    
       23
         Within INA § 240's framework, certain procedures are still differentiated based on whether
    deportability or inadmissibility is the subject of the removal proceeding. 8 U.S.C. § 1229a
    (Supp.1998). For example, INA § 240(c)(2)(A) provides that an alien has the burden of
    establishing eligibility for admission "clearly and beyond doubt" or "by clear and convincing
    evidence that the alien is lawfully present in the United States pursuant to a prior admission;"
    whereas, INA § 240(c)(3)(A) provides that the INS has the burden of establishing by clear and
    convincing evidence "that the alien is deportable." 8 U.S.C. §§ 1229a(c)(2)(A) (Supp.1998) &
    1229a(c)(3)(A) (Supp.1998). As discussed infra in footnotes 38 and 40, the INS district director
    decides bond requests for arriving aliens detained while seeking admission into the United
    States; whereas, aliens being deported may request bond from an immigration judge.
       24
        Compare admission qualifications for aliens covered by 8 U.S.C. §§ 1181-1189
    (Supp.1998), with the basis for deporting aliens in 8 U.S.C. § 1227 (Supp.1998).
       25
         See 8 U.S.C. § 1182(a)(2) (Supp.1998) (listing criminal inadmissibility grounds); Id. §
    1227(a)(2) (listing criminal deportability grounds). A permanent resident alien is "deportable"
    for many more crimes than a permanent resident alien is deemed "seeking admission" and
    "inadmissible." Id.
    
                                                    11
            (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 from 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
    
    
    
    
       26
        8 U.S.C. § 1101(a)(13) (Supp.1998). INA §§ 212(a)(2) and (h) are codified in 8 U.S.C. §
    1182(a)(2) and (h) (Supp.1998). INA § 240A(a) is codified in 8 U.S.C. § 1229b(a) (Supp.1998).
       27
        INA § 212(a)(2)(A)(i)(I) and (II), 8 U.S.C. § 1182(2)(A)(i)(I) and (II) (Supp.1998), includes
    controlled substance offenses as follows:
    
                   ... 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), 8 U.S.C. § 1182(h) (1995), or suspension of deportation under INA § 244, 8
            U.S.C. § 1254 (1995). Post-IIRIRA an alien, including a permanent resident alien,
            convicted of an aggravated felony as defined under INA § 101(a)(43), 8 U.S.C. §
            1101(a)(43) (Supp.1998), is statutorily ineligible for a waiver under INA § 212(h), 8
            U.S.C. § 1182(h) (Supp.1998), and also statutorily ineligible for cancellation of removal
            under INA § 240A(a), 8 U.S.C. § 1229b(a) (Supp.1998). See footnote 11 supra.
    
                                                      12
    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
    
    C. Supreme Court's Fleuti Doctrine
    
              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
    , 
    83 S. Ct. 1804
    , 10
    
    
       28
         Since under INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (Supp.1998), Richardson was
    "seeking admission" at a port of entry, the INS treated Richardson an "arriving alien" under INS
    regulation 62 Fed.Reg. 10312, 10330 (1997) (currently codified in 8 C.F.R. § 1.1(q) (1998)),
    which states: "The term arriving alien means an alien who seeks admission to or transit through
    the United States ..."
       29
            INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994), provided:
    
                      (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.
    
                                                      
    13 L. Ed. 2d 1000
     (1963), 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.
    
              Unfortunately for Richardson, IIRIRA replaces former INA § 101(a)(13) with an entirely
    
    new statutory scheme.30 New INA § 101(a)(13)(A) replaces the term "entry" with the terms
    
    "admission" and "admitted," which are defined as "the lawful entry of the alien into the United
    
    States after inspection and authorization by an immigration officer."31 The statute no longer
    
    references an alien's intent. 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
    
              In the district court, the INS stressed that, in another case, the BIA had held that Fleuti 's
    
    "innocent, casual, and brief" rule no longer applies because IIRIRA repealed the statutory language
    
    relied upon in Fleuti.33 The INS emphasized that INA § 101(a)(13)(C) no longer defines
    
       30
        IIRIRA § 301(a) enacted the new version of INA § 101(a)(13), 8 U.S.C. § 1101(a)(13)
    (Supp.1998).
       31
            8 U.S.C. § 1101(a)(13)(A) (Supp.1998).
       32
            See footnote 28 supra.
       33
            See Matter of Collado-Munoz, Int. Dec. No. 3333 (BIA Dec. 18, 1997).
    
                                                       14
    "admission" with reference to an alien's intent, thus removes the entire Fleuti concept, and requires
    
    the INS to treat Richardson as "seeking admission."34 Rejecting the INS' position, the district court
    
    determined that the INS was not required to treat Richardson as "seeking admission." The district
    
    court interpreted new INA § 101(a)(13)(C) as specifying only when a returning alien may not be
    
    regarded as "seeking admission," as opposed to shall be regarded as "seeking admission." The INS
    
    submits that the language of INA § 101(a)(13)(C) is explicit and nondiscretionary and that the
    
    district court circumvented its plain language.35
    
             The proper construction of INA § 101(a)(13)(C) and the Fleuti issue are some of the issues
    
    Richardson has raised before the BIA in his pending appeal of the immigration judge's removal
    
    order.
    
    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:
    
    
       34
        Fleuti addressed the harsh result of a legal permanent resident alien suddenly being
    excludable from the United States just because he left the country a few days, while not being
    deportable for the same conduct. The INS stresses the concern in Fleuti is not applicable here as
    Richardson is both inadmissible and deportable for his crimes. 8 U.S.C. § 1182(a)(2)
    (Supp.1998); 8 U.S.C. § 1227(a)(2)(B) (Supp.1998). New INA § 101(a)(13)(C) is also arguably
    more favorable for most legal permanent residents as they are able to re-enter the United States
    automatically for up to 180 days (as opposed to just after a brief trip abroad under Fleuti ),
    unless they fall into one of the six categories in INA § 101(a)(13)(C)(i-vi).
       35
        The INS also asserts that the Attorney General is entitled to deference if her interpretation of
    an immigration statute is reasonable, citing Chevron USA v. Natural Resources Defense Council,
    
    467 U.S. 837
    , 
    104 S. Ct. 2778
    , 
    81 L. Ed. 2d 694
     (1984). Perlera-Escobar v. Executive Office for
    Immigration, 
    894 F.2d 1292
    , 1296 (11th Cir.1990) (quoting Chevron ).
    
                                                        15
              ... 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
    
              An alien so detained may seek parole into the United States temporarily.              INA §
    
    212(d)(5)(A) provides that the Attorney General "may in his discretion ... parole into the United
    
    States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent
    
    humanitarian reasons or significant public benefit or for reasons deemed strictly in the public interest
    
    any alien applying for admission to the United States."37 At the time of Richardson's attempted
    
    entry, the Attorney General's regulations delegated to the INS district director the authority to review
    
    "parole" requests.38 On December 4, 1997, the district director sent Richardson's counsel a letter
    
    
    
    
       36
        8 U.S.C. § 1225(b)(2)(A) (Supp.1998). INA § 240 is codified in 8 U.S.C. § 1229a
    (Supp.1998).
       37
            8 U.S.C. § 1182(d)(5)(A) (Supp.1998).
       38
            8 C.F.R. § 103.1(g)(2)(ii)(B) (1997) stated:
    
                      (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.
    
                                                       16
    outlining Richardson's criminal convictions and denying parole on the basis of no showing of a
    
    significant public benefit or urgent humanitarian reasons.39
    
            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
    
    
    
    
       39
         Noting that Richardson's criminal convictions included an aggravated felony as defined by
    INA § 101(a)(43), the district director's letter, dated December 4, 1997, stated: "The release of
    Mr. Richardson into the community will be of no significant public benefit. Mr. Richardson has
    not shown that his release would be warranted based upon urgent humanitarian reasons."
       40
         62 Fed.Reg. 10312 (1997) (currently codified in 8 C.F.R. § 236.1(d)(1) (Nov. 3, 1998))
    stated:
    
                   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.
    
            Id. However, 62 Fed.Reg. 10312, 10360 (1997) (codified in 8 C.F.R. § 236.1(c)(5)(i)
            (Jan. 1, 1998)) stated:
    
                   An immigration judge may not exercise the authority provided in this section, and
                   the review process described in paragraph (d) of this section shall not apply, with
                   respect to ... [a]rriving aliens as described in § 1.1(q) of this chapter....
    
            Id. This provision was subsequently modified in 8 C.F.R. § 236.1(c)(11) (Nov. 3, 1998).
    
                                                     17
    E. Detention Under TPCRs in IIRIRA § 303(b)(3)
    
           IIRIRA enacted new mandatory custody rules for certain criminal aliens in both INA §
    
    236(c) and the Transition Period Custody Rules ("TPCRs") in IIRIRA § 303(b)(3). When
    
    Richardson attempted to enter the United States, the TPCRs mandated the detention of certain
    
    criminal aliens, as follows:
    
                  (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—
    
                          (i) 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]
    
                           (ii) is inadmissible by reason of having committed any offense covered in
                   section 212(a)(2) of such Act
    
                           (iii) 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
    
                          (iv) 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.
    
    
    
    
                                                     18
    IIRIRA § 303(b)(3)(A).41          The TPCRs mandated Richardson's detention because his
    
    cocaine-trafficking conviction is an aggravated felony under the INA42 and thus falls under
    
    subparagraph (i) of the TPCR in IIRIRA § 303(b)(3)(A).             Richardson's cocaine-trafficking
    
    conviction is also an offense covered by INA §§ 212(a)(2), 241(a)(2), 212(a)(3)(B), and
    
    241(a)(4)(B),43 and thus is also covered by the other three subparagraphs (ii), (iii), and (iv) of the
    
    TPCR in IIRIRA § 303(b)(3)(A).
    
              The TPCRs also significantly restricted the Attorney General's release authority for the
    
    criminal aliens subject to the TPCRs' mandatory detention. The TPCR in IIRIRA § 303(b)(3)(B)
    
    provides that the Attorney General "may release" an alien but only if the alien is an alien described
    
    in subparagraphs (A)(ii) or (A)(iii) of the TPCR in IIRIRA § 303(b)(3), is lawfully admitted, will
    
    not pose a danger and is likely to appear for any scheduled proceeding.44
    
    
       41
         The TPCRs are not codified. The text of the TPCRs can be found in the historical notes
    following 8 U.S.C. § 1226 (Supp.1998). Richardson argues that the interim TPCRs apply to
    aliens detained while attempting to gain admission to the United States. Whether these rules
    apply only to aliens within the United States or to any alien detained by the INS is not material
    to the resolution of this appeal. The Court assumes without deciding that the detention and
    release provisions of the TPCRs apply to aliens seeking admission and aliens already in the
    United States. INA § 101(a)(43) is codified in 8 U.S.C. § 1101(a)(43) (Supp.1998). INA § 212
    is codified in 8 U.S.C. § 1182 (Supp.1998). INA § 241 is codified in 8 U.S.C. § 1227
    (Supp.1998).
       42
         Successive definitions of the term "aggravated felony" have been enacted in INA §
    101(a)(43), 8 U.S.C. § 1101(a)(43). As initially enacted in 1988, the term covered only a few
    serious offenses, such as murder, drug trafficking, and illicit trafficking in firearms. The
    definition has expanded continually to include less serious offenses. The adverse immigration
    consequences legislated by Congress for permanent resident aliens with an aggravated felony
    conviction, as defined under the INA, have likewise continued to expand.
       43
            8 U.S.C. §§ 1182(a)(2), 1227(a)(2), 1182(a)(3)(B), & 1227(a)(4)(B) (Supp.1998).
       44
            The TPCR in IIRIRA § 303(b)(3)(B) states:
    
                             (B) Release.—The Attorney General may release the alien only if the alien
    
                                                     19
                  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 IIRIRA § 303(b)(3)(A)(i) and is not in an (A)(ii) or (A)(iii) category subject to release
    
    under the TPCR in IIRIRA § 303(b)(3)(B).45
    
                  When Richardson attempted to enter the country, the Attorney General had implemented
    
    regulations delegating her detention and release authority under the TPCRs and INA § 236(c).
    
    Under those regulations, the INS district director made an initial determination regarding custody
    
    and release of criminal aliens under both the TPCRs and INA § 236(c).46 After the district director's
    
    initial determination, an alien could seek release from an immigration judge.47                However,
    
    
    
    
                         is an alien described in subparagraph (A)(ii) or (A)(iii) and—
    
                                (i) 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 INA § 212(a)(2) or deportable because of an offense described in INA §§
                  241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D). The TPCR in IIRIRA §§ 303(b)(A)(ii) &
                  303(b)(A)(iii).
       45
         Commentators note that since criminal aliens, even if legal permanent resident aliens, are
    now clearly removable for certain crimes, the mandatory custody rules for criminal aliens were
    intended to insure removal because criminal aliens no longer have incentive to show up
    voluntarily for removal proceedings. See, e.g., Peter H. Schuck, INS Detention and Removal: A
    "White Paper", 11 Geo. Immigr. L.J. 667, 671 (1997). Similarly, the INS acknowledged at oral
    argument that it is discovering permanent residents convicted of serious crimes when they seek
    re-entry in part because of the difficulty of finding them through the myriad state courts.
       46
            See footnote 40 supra.
       47
            Id.
    
                                                          20
    immigration judges lacked jurisdiction over release requests of "arriving aliens" facing removal
    
    proceedings.48
    
                  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 INA § 236(c) was not in effect when Richardson
    
    attempted to enter the United States on October 24, 1997.49 IIRIRA § 303(b)(2) allowed the
    
    Attorney General to delay the implementation of INA § 236(c) for up to two years by providing
    
    notice to Congress that the INS lacked sufficient space and personnel to accommodate the mandate
    
    of INA § 236(c). The Attorney General twice provided such notice and delayed the effective date
    
    of INA § 236(c) until October 10, 1998. During the two-year interim, the TPCR in IIRIRA §
    
    303(b)(3) supplanted INA § 236(c).50 As of October 10, 1998, INA § 236(c)(1) also mandates
    
    Richardson's detention, whether he is considered inadmissible or deportable, for his criminal
    
    convictions, as explained below.
    
                  New INA § 236 contains some general custody rules for aliens in removal proceedings and
    
    some specific, more stringent, custody rules for certain criminal aliens. Under INA § 236(a) "[o]n
    
    a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision
    
    
    
       48
            Id.
       49
            INA § 236(c), 8 U.S.C. § 1226(c) (Supp.1998).
       50
            Id.
    
                                                         21
    on whether the alien is to be removed from the United States."51 Under INA § 236(a) and (b), the
    
    Attorney General may grant bond or parole and may revoke bond or parole for an alien so arrested.52
    
              However, INA § 236(c) provides for mandatory detention of certain criminal aliens, whether
    
    inadmissible or deportable. Subparagraph (1) of new INA § 236(c), entitled "Detention of criminal
    
    aliens," mandates that the Attorney General shall take into custody a criminal alien who falls into
    
    one of these four categories:
    
                     (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
    
    
    
    
       51
            8 U.S.C. § 1226(a) (Supp.1998) (emphasis supplied).
       52
            8 U.S.C. § 1226(a) and (b) (Supp.1998).
       53
         INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (Supp.1998), covers certain crimes involving "moral
    turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a
    crime," or "a violation of (or a conspiracy or attempt to violate)" any state, federal, or foreign
    law "relating to a controlled substance."
       54
        These sections cover certain multiple criminal convictions in INA § 237(a)(2)(A)(ii), an
    aggravated felony in § 1227(a)(2)(A)(iii), certain controlled substance offenses in INA §
    237(a)(2)(B), certain firearm offenses in INA § 237(a)(2)(C), and other miscellaneous crimes in
    INA § 237(a)(2)(D). INA §§ 237(a)(2)(A)(ii), (A)(iii), (B), (C) & (D), 8 U.S.C. §§
    1227(a)(2)(A)(ii), (A)(iii), (B), (C) & (D) (Supp.1998).
       55
         INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (Supp.1998), covers crimes involving
    moral turpitude committed within a certain time frame after the date of admission and for which
    a sentence of one year or longer may be imposed.
    
                                                       22
                     (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.
    
    INA § 236(c)(1).57 Next, subparagraph (2) of new INA § 236(c) provides that the Attorney General
    
    "may release" an alien in one of these four mandatory detention classes "only if the Attorney
    
    General decides" that the alien's release is necessary to the protection of someone cooperating in the
    
    investigation of major criminal activity, and the alien satisfies the Attorney General that the alien
    
    will not pose a danger to the safety of others and is likely to appear at any scheduled hearing.58
    
    Richardson's cocaine-trafficking offense brings him within several mandatory detention categories
    
    in INA § 236(c)(1), but he does not fall within the discretionary release option in INA § 236(c)(2).
    
    G. INA § 236(e) Restricts Review of Bond and Parole Decisions
    
    
    
    
       56
        INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (Supp.1998), and INA § 237(a)(4)(B), 8
    U.S.C. § 1227(a)(4)(B) (Supp.1998), cover certain "terrorist activities."
       57
            8 U.S.C. § 1226(c)(1) (Supp.1998).
       58
            INA § 236(c)(2), entitled "Release," provides:
    
                              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.
    
              INA § 236(c)(2), 8 U.S.C. § 1226(c)(2) (Supp.1998).
    
                                                       23
              Of particular relevance to Richardson's situation is INA § 236(e) which applies to detention
    
    and release decisions under both INA § 236(c)59 and the TPCR in IIRIRA § 303. INA § 236(e)
    
    significantly restricts the judicial review of the Attorney General's decisions as follows:
    
              (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.
    
    INA § 236(e).60 Thus, the INS contends that the district court had no jurisdiction to review the INS
    
    district director's discretionary decision to grant or deny Richardson bond or parole.
    
              Richardson responds that INA § 236(e) applies to only final, not interim, orders, and that
    
    historically bond decisions were considered collateral to the removal proceedings and cognizable
    
    under § 2241 habeas in immigration cases. However, INA § 236(e), by its plain language, bars
    
    judicial review of the INS' discretionary bond and parole decisions. Nonetheless, we note that
    
    
    
    
       59
            8 U.S.C. § 1226(c) (Supp.1998).
       60
         8 U.S.C. § 1226(e) (Supp.1998). Richardson contends that INA § 236(e) does not apply to
    this case because he was detained while the TPCRs were in place. Although Richardson
    correctly argues that the TPCRs (and not INA § 236(c)) applied to his detention from October
    26, 1997 to October 9, 1998, the TPCRs appear to supplant only INA § 236(c) and not INA §
    236(e) for the reasons below.
    
                      IIRIRA § 303(b)(2), the effective date provision for IIRIRA § 303(a), allows the
              Attorney General to delay for up to two years the effective date of INA § 236(c). During
              the period when INA § 236(c) is not in effect, the TPCRs apply instead of INA § 236(c).
              However, IIRIRA § 303(b)(2) does not provide that the Attorney General can delay the
              effective date of new INA § 236(e). Instead, INA § 236(e) is governed by the
              effective-date provision in IIRIRA § 303(b)(1) which provides the general rule that INA
              § 236 is effective the same day as the rest of Title III of IIRIRA. In any event, we need
              not resolve this issue because the two-year delay has expired and INA § 236(e) is now
              clearly effective.
    
                                                      24
    Richardson is not actually seeking review of those INS discretionary decisions but instead review
    
    of his constitutional claim that denial of bond without a hearing before an immigration judge violates
    
    his constitutional rights.
    
    H. Procedures for Removal Hearings
    
              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
    
    
    
       61
            Compare 8 U.S.C. § 1252 (1995) with 8 U.S.C. § 1229a(a)(1) (Supp.1998).
       62
         The hearing can take several forms—a hearing with the alien present, a hearing without the
    alien's presence if the alien so consents, through a video conference, or over the telephone if the
    alien so consents. INA § 240(b)(2), 8 U.S.C. § 1229a(b)(2) (Supp.1998).
       63
        Although an alien subject to removal may secure his or her own counsel, according to INA
    § 240(b)(4)(A) the government is not required to provide counsel to the alien. 8 U.S.C. §
    1229a(b)(4)(A) (Supp.1998).
       64
            INA § 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B) (Supp.1998).
       65
            INA § 240(b)(4)(C), 8 U.S.C. § 1229a(b)(4)(C) (Supp.1998).
       66
            8 C.F.R. § 3.1(b)(3) (1998).
       67
            INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (Supp.1998).
    
                                                     25
                  Represented by counsel, Richardson received a hearing before an immigration judge on the
    
    merits of his removal from the United States and has appealed the judge's removal order to the BIA.
    
    As of this date, the BIA has not issued its decision.
    
    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, INA § 106 set out the judicial-review scheme for
    
    deportation and exclusion orders.68 INA § 106(a)(2) provided for petition for review in the court
    
    of appeals.69 In addition, INA § 106(a)(10) allowed aliens in custody to seek habeas corpus review
    
    of final deportation orders under the INA.70 Aliens also could rely on 28 U.S.C. § 2241 habeas
    
    corpus to challenge INS detention or deportation proceedings.71
    
                  On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of
    
    1996 ("AEDPA").72 AEDPA § 44073 repealed INA § 106(a)(10), which had allowed habeas corpus
    
    review under the INA. In its place, AEDPA § 440(a) enacted a new INA § 106(a)(10), which states
    
    
    
    
       68
            See generally 8 U.S.C. § 1105a (1995).
       69
            8 U.S.C. § 1105a(a)(2) (1995).
       70
         8 U.S.C. § 1105a(a)(10) (1995). See general discussion of the old scheme of judicial review
    and Congress' attempts as early as 1961 to streamline judicial review of deportations to avoid
    "interminable procedural delays" in deportations through overlapping modes of judicial review.
    United States, ex rel. Marcello v. District Director, 
    634 F.2d 964
    , 967-72 (5th Cir. Jan.1981)
    (INA § 106(a)(q) discussed in Marcello became INA § 106(a)(10).)
       71
            See, e.g., Orozco v. INS, 
    911 F.2d 539
    , 541 (11th Cir.1990).
       72
            Pub.L. No. 104-132, 110 Stat. 1214 (1996).
       73
            Id.
    
                                                         26
    that a final deportation order against an alien deportable for certain criminal offenses "shall not be
    
    subject to review by any court."74
    
              Five months after the AEDPA, Congress enacted IIRIRA.75 Section 306 of IIRIRA repealed
    
    the entire judicial-review scheme in INA § 106 and replaced it with a new judicial-review scheme
    
    in INA § 242. IIRIRA did not eliminate all judicial review. Instead, IIRIRA removed all
    
    jurisdiction from the district courts and consolidated judicial review into the court of appeals.76 INA
    
    § 242(b)(2) provides that the venue for judicial review is only in the court of appeals.77
    
    
    
       74
            AEDPA § 440(a) amended INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995), to read:
    
                     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.
    
              Id. See footnote 83 infra for IIRIRA's amendments to INA § 106(a)(10). INA § 241 is
              codified in 8 U.S.C. § 1227 (Supp.1998).
       75
            Pub.L. No. 104-208, 110 Stat. 3009 (1996).
       76
         As outlined infra at footnote 93, INA § 242(e)(2) does provide for a truncated form of
    habeas review for non-resident aliens summarily rejected at ports of entry without any removal
    proceedings. 8 U.S.C. § 1252(e)(2) (Supp.1998). Throughout the remainder of this opinion, we
    repeatedly note that IIRIRA consolidates all judicial review into one procedure—a petition for
    review in the court of appeals after a final removal order has been issued. We note that INA §
    242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp.1998), remains a narrow exception to our statement about
    IIRIRA's providing for judicial review in only the court of appeals. Since that narrow exception
    applies only to non-resident aliens in limited circumstances, it has no applicability here or to any
    immigration cases involving resident aliens.
       77
            INA § 242(b)(2), 8 U.S.C. § 1252(b)(2) (Supp.1998), provides:
    
                     The petition for review shall be filed with the court of appeals for the judicial
                     circuit in which the immigration judge completed the proceedings.
    
              Id.
    
                                                      27
              More importantly, INA § 242(g), entitled "Exclusive Jurisdiction," provides that except as
    
    provided in INA § 242, no court shall have jurisdiction over aliens' claims arising from the Attorney
    
    General's decisions or actions, as follows:
    
                      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.
    
    INA § 242(g).78
    
              IIRIRA also mandated the timing of the INA's exclusive judicial review. INA § 242(b)(9)
    
    proscribes that judicial review shall be only after a final removal order, as follows:
    
                     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.
    
    INA § 242(b)(9).79 INA § 242(d)(1) mandates that "a court may review a final order of removal only
    
    if ... the alien has exhausted all administrative remedies available ..."80
    
    
    
       78
         8 U.S.C. § 1252(g) (Supp.1998). This Court recently held that INA § 242(g) divests district
    courts of jurisdiction over removal orders under former INA § 106(a)(10) and that "judicial
    review of orders of removal may only be initiated in the court of appeals" under the INA.
    Auguste v. Reno, 
    152 F.3d 1325
    , 1328 (11th Cir.1998). Auguste did not address judicial review
    under § 2241 habeas because Auguste, a non-criminal alien in custody, filed a habeas petition in
    the district court pursuant to only INA § 106(a)(10) which provided for habeas review under the
    old INA. The AEDPA repealed the habeas review in INA § 106(a)(10) and replaced it with the
    version of INA § 106(a)(10) that restricted judicial review of deportation orders against criminal
    aliens. Thus, whether INA § 242(g) repealed § 2241 was not discussed in Auguste.
       79
            INA § 242(b)(9), 8 U.S.C. § 1252(b)(9) (Supp.1998).
       80
         8 U.S.C. § 1252(d)(1) (Supp.1998). IIRIRA imposes other timing requirements to expedite
    judicial review. The petition for direct review in the court of appeals must be filed 30 days after
    a final order, as opposed to 90 days under the pre-IIRIRA version of the INA. Compare INA §
    242(b)(1), 8 U.S.C. § 1252(b)(1) (Supp.1998), with former INA § 106a(a)(1), 8 U.S.C. §
    1105a(a)(1) (Supp.1996).
    
                                                       28
              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 regulated the exclusive mode and timing of
    
    judicial review in order to remove overlapping jurisdiction and to prevent dilatory tactics previously
    
    used to forestall departure of aliens.
    
    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
    
    INA § 242(a)(2)(C), which provides that no court shall have jurisdiction to review "any final order
    
    of removal against an alien who is removable" because of certain criminal convictions, as follows:
    
                     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).
    
    INA § 242(a)(2)(C).81 Section 212(a)(2)82 includes Richardson's cocaine-trafficking conviction.
    
              New INA § 242(a)(2)(C) is similar to former INA § 106(a)(10) which also placed restrictions
    
    on judicial review of deportation orders against criminal aliens.83 As detailed later, this Court has
    
       81
        8 U.S.C. § 1252(a)(2)(C) (Supp.1998). INA § 212(a)(2) is codified in 8 U.S.C. §
    1182(a)(2). INA § 237(a)(2) is codified in 8 U.S.C. § 1227(a)(2) (Supp.1998).
       82
            8 U.S.C. § 1182(a)(2) (Supp.1998).
       83
         See footnotes 74 and 176 in order to compare INA § 106(a)(10), as amended by the
    AEDPA, with INA § 242(a)(2)(C), as amended by IIRIRA. IIRIRA made two amendments to
    INA § 106(a)(10). First, IIRIRA § 306(d) eliminated the phrase "any offense covered by section
    241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)" and
    replaced it with the phrase "any offense covered by section 241(a)(2)(A)(ii) for which both
    predicate offenses are, without regard to the date of their commission, otherwise covered by
    
                                                       29
    upheld the judicial review restrictions in former INA § 106(a)(10) as constitutional. Boston-Bollers
    
    v. INS, 
    106 F.3d 352
     (11th Cir.1997).
    
    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. INA § 242(a)(2)(B)(ii) limits judicial review of the Attorney General's discretionary
    
    decisions, as follows:
    
            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).
    
    INA § 242(a)(2)(B)(ii).84
    
    
    
    section 241(a)(2)(A)(i)." IIRIRA § 306(d). This amendment was effective immediately and has
    been applied by several circuits. Id.
    
                    IIRIRA's second amendment to INA § 106(a)(10) included more substantial
            changes, although the end result—new INA § 242(a)(2)(C)—is overall very similar to its
            predecessor. As a technical matter, IIRIRA repealed INA § 106(a)(10) and replaced it
            with new INA § 242(a)(2)(C). Altering the language of INA § 106(a)(10) in several
            respects, IIRIRA added the introductory phrase "Notwithstanding any other provision of
            law, no court shall have jurisdiction to review (4)27" and replaced INA § 106(a)(10)'s
            reference to a final order of "deportation" with a reference to a final order of "removal."
            Similarly, IIRIRA changed the citations listing the criminal offenses that precluded
            judicial review to the citations corresponding to the sections amended under IIRIRA.
            The cumulative result of the two amendments enacted by IIRIRA is new INA § 242(a)(2)
            which limits the judicial review of removal orders based on certain criminal convictions
            with language similar to that in former INA § 106(a)(10).
       84
        8 U.S.C. § 1252(a)(2)(B)(ii) (Supp.1998). INA § 208(a) is codified in 8 U.S.C. § 1158(a)
    (Supp.1998). The INS asserts that INA § 242(a)(2)(B)(ii) is a complete bar to judicial review of
    any discretionary decision to deny bond and parole to Richardson. Even if that position is well
    founded, Richardson points out that he is not seeking review of the discretionary denial of bond
    and parole or the discretionary authority to delegate bond decisions to the INS district director.
    
                                                    30
                                               IV. DISCUSSION
    
              Against this backdrop, Richardson filed his habeas petition in the district court under 28
    
    U.S.C. § 2241. Given IIRIRA's overhaul of the judicial-review scheme in immigration cases, the
    
    first question we must address is whether INA § 242(g), as enacted by IIRIRA, has eliminated
    
    federal jurisdiction under § 2241 over Richardson's habeas petition.85
    
    A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions
    
               We begin by recognizing and applying established canons 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
    
    
    
    
    Instead, Richardson seeks review of his constitutional claims that denial of a bond by the INS
    district director, without a bond hearing before an immigration judge, violated his constitutional
    rights under the Due Process Clause of the Fifth Amendment. See footnote 179 infra.
       85
            28 U.S.C. § 2241 (1994) states:
    
                      (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.
    
              Id.
       86
       INS v. Cardoza-Fonseca, 
    480 U.S. 421
    , 449, 
    107 S. Ct. 1207
    , 
    94 L. Ed. 2d 434
     (1987); Fong
    Haw Tan v. Phelan, 
    333 U.S. 6
    , 9-10, 
    68 S. Ct. 374
    , 
    92 L. Ed. 433
     (1948).
    
                                                       31
    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 INA §
    
    242(g) abrogates statutory habeas, as provided in § 2241, over an alien's petition challenging
    
    detention or a final removal order. See Hose v. INS, 
    141 F.3d 932
    , 934-35 (9th Cir.1998) (holding
    
    that INA § 242(g) deprives district court of habeas corpus jurisdiction pursuant to 28 U.S.C. §
    
    2241);88 Cabrera v. Reno, 
    5 F. Supp. 2d 244
    , 245-46 (D.N.J.1998) (same); Ray v. Reno, 
    3 F. Supp. 2d 1249
    , 1251 (D.Utah 1998) (same); Rusu v. Reno, 
    999 F. Supp. 1204
    , 1209-10 (N.D.Ill.1998) (same);
    
    Mendez-Tapia v. Sonchik, 
    998 F. Supp. 1105
    , 1107 (D.Ariz.1998) (same); Marriott v. Ingham, 
    990 F. Supp. 209
    , 213-14 (W.D.N.Y.1998) (same); Mustata v. United States Dep't of Justice, 
    979 F. Supp. 536
    , 539 (W.D.Mich.1997) (same);            Mayers v. Reno, 
    977 F. Supp. 1457
    , 1461
    
    (S.D.Fla.1997) (same); Udenze v. Strapp, 
    977 F. Supp. 418
    , 421 (N.D.Tex.1997) (same); Moore
    
    v. District Director, INS, 
    956 F. Supp. 878
    , 882 (D.Neb.1997) (same); see also Yang v. INS, 
    109 F.3d 1185
    , 1195 (7th Cir.) (stating in dicta that "effective April 1, 1997, § 306(a) of the IIRIRA
    
    [INA § 242] abolishes even review under § 2241, leaving only the constitutional writ, unaided by
    
    statute"), cert. denied sub nom, Katsoulis v. INS, --- U.S. ----, 
    118 S. Ct. 624
    , 
    139 L. Ed. 2d 605
    
    
       87
        See McNary v. Haitian Refugee Ctr., 
    498 U.S. 479
    , 496, 
    111 S. Ct. 888
    , 
    112 L. Ed. 2d 1005
    (1991); Bowen v. Michigan Academy of Family Physicians, 
    476 U.S. 667
    , 670-72, 
    106 S. Ct. 2133
    , 
    90 L. Ed. 2d 623
     (1986).
       88
         Although Hose v. INS held that INA § 242(g) repealed § 2241 habeas over a noncriminal
    alien's claims for discretionary relief, the Ninth Circuit subsequently held that INA § 242(g) is
    unconstitutional when applied to certain criminal aliens who cannot obtain judicial review under
    INA § 242(a)(2)(C). Magana-Pizano v. INS, 
    152 F.3d 1213
     (9th Cir.1998). Therefore, the
    Ninth Circuit concluded that INA § 242(g) does not repeal § 2241 in its entirety but that criminal
    aliens may proceed in the district court under § 2241, whereas the non-criminal alien in Hose
    could not proceed under § 2241.
    
                                                   32
    (1997). But see Goncalves v. Reno, 
    144 F.3d 110
    , 113, 120-21 (1st Cir.1998) (holding that IIRIRA
    
    did not eliminate § 2241 habeas corpus jurisdiction); Jean-Baptiste v. Reno, 
    144 F.3d 212
    , 218-20
    
    (2d Cir.1998)89 (same); Tam v. INS, 
    14 F. Supp. 2d 1184
    , 1187-88 (E.D.Cal.1998) (same); Lee v.
    
    Reno, 
    15 F. Supp. 2d 26
    , 37 (D.D.C.1998) (same); Barrett v. INS, 
    997 F. Supp. 896
    , 900 (N.D.Ohio
    
    1998) (same); Gutierrez-Martinez v. Reno, 
    989 F. Supp. 1205
    , 1209 (N.D.Ga.1998) (same);
    
    Morisath v. Smith, 
    988 F. Supp. 1333
    , 1338 (W.D.Wash.1997) (same); Mojica v. Reno, 
    970 F. Supp. 130
    , 157 (E.D.N.Y.1997) (same).
    
               After review, we conclude that INA § 242(g) abrogates jurisdiction over Richardson's §
    
    2241 habeas corpus petition for several reasons. First, the language of INA § 242(g) is plain and
    
    clear. INA § 242(g)'s language that "[e]xcept as provided in this section [242] ... no court shall have
    
    jurisdiction" clearly and unequivocally precludes any jurisdiction in the district court except that
    
    provided in INA § 242.90 INA § 242 does not permit the kind of habeas corpus review in the district
    
    court Richardson sought. Instead, INA § 242 provides for judicial review for aliens only in the court
    
    of appeals and only after a final removal order.
    
              More importantly, INA § 242(g)'s broad admonition that it applies "notwithstanding any
    
    other provision of law" sufficiently and clearly encompasses other provisions of law, such as §
    
    2241.91 When Congress says "any," it means "any" law, which necessarily includes § 2241.92
    
       89
         A subsequent Second Circuit decision in Henderson v. INS, 
    157 F.3d 106
    , 119 n. 9 (2d
    Cir.1998), followed Jean-Baptiste but noted that "[w]ere we not bound by Jean-Baptiste, the
    members of the 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 § 2241 habeas in the
    district courts."
       90
            See Auguste v. Reno, 
    152 F.3d 1325
    , 1328 (11th Cir.1998), and footnote 78 supra.
       91
         8 U.S.C. § 1252(g) (emphasis supplied). See, e.g., United States v. Gonzales, 
    520 U.S. 1
    , ---
    -, 
    117 S. Ct. 1032
    , 1035, 
    137 L. Ed. 2d 132
     (1997) ("Read naturally the word "any' has an
    
                                                       33
            In addition, while INA § 242 consolidates judicial review in the court of appeals for aliens,
    
    there is another section within INA § 242 that does permit limited habeas corpus review under INA
    
    § 242(e)(2)93 for certain non-resident arriving aliens. INA § 235(b)(1) permits a single immigration
    
    officer to remove summarily a non-resident arriving alien without a removal hearing or review,
    
    
    
    expansive meaning, that is "one or some indiscriminately of whatever kind.' ") (citation omitted);
    Merritt v. Dillard Paper Co., 
    120 F.3d 1181
    , 1185 (11th Cir.1997) (" "Congress did not add any
    language limiting the breadth of that word,' so "any' means all.") (quoting in part Gonzales,
    supra ).
       92
         On other occasions, this Court found that "notwithstanding any other provision of law"
    means precisely "notwithstanding any other provision of law," especially where the Court's
    jurisdiction is involved. Allen v. David, 
    334 F.2d 592
    , 597-98 (5th Cir.1964); United States v.
    Sykes, 
    310 F.2d 417
    , 419-20 (5th Cir.1962).
       93
        INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp.1998), provides for habeas review for
    non-resident arriving aliens subject to expedited and summary removal under 8 U.S.C. §
    1225(b)(1):
    
                   (2) Habeas corpus proceedings
    
                   Judicial review of any determination made under section 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 under section 207, or has been granted asylum under section
                   208 of this title, such status not having been terminated, and is entitled to such
                   further inquiry as prescribed by the Attorney General pursuant to Section
                   235(b)(1)(C).
    
            INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp.1998). INA § 235(b)(1) is codified in 8
            U.S.C. § 1225(b)(1) (Supp.1998). INA § 207 is codified in 8 U.S.C. § 1157 (Supp.1998).
            INA § 208 is codified in 8 U.S.C. § 1158 (Supp.1998). This procedure, originally called
            "summary exclusion," was created by the AEDPA but modified by IIRIRA before taking
            effect.
    
                                                     34
    unless the alien indicates an intention to apply for asylum or indicates fear of persecution.94
    
    Therefore, INA § 242(e)(2) provides for statutory habeas review under the INA in this narrowly
    
    limited situation.95 This evidences Congress' ability to create statutory habeas review under the INA
    
    when it so desires. Congress' express provision of some limited habeas review within § 242 of the
    
    INA underscores Congress' clear intent in INA § 242(g) that no court shall have jurisdiction over
    
    immigration decisions except as provided under INA § 242.96
    
               Second, in addition to the sweeping language of new INA § 242(g), the elimination of INA
    
    § 106(a)(10)'s habeas corpus review by the AEDPA further evidences congressional intent to
    
    preclude statutory habeas corpus review over immigration decisions. AEDPA § 440 first eliminated
    
    the specific habeas review granted under former INA § 106(a)(10).97 Then IIRIRA enacted the
    
    broad language of INA § 242(g) that "notwithstanding any other provision of law, no court shall
    
    have jurisdiction except as provided under INA § 242."98 Thus, the AEDPA and IIRIRA reflect
    
    Congress' clear intent to avoid unduly protracted litigation over removal orders against resident
    
    aliens by consolidating all judicial challenges in the courts of appeals under INA § 242(b)(2) after
    
    a final removal order, and by removing all district-court jurisdiction, including § 2241 habeas
    
    
    
    
       94
            INA § 235(b)(1), 8 U.S.C. § 1255(b)(1) (Supp.1998).
       95
            See footnote 93.
       96
         See, e.g., United States v. White, 
    118 F.3d 739
    , 742 (11th Cir.1997) ("The selection of the
    statutes set forth [in the Act] reflects an intent to omit all others."); United States v. Koonce, 
    991 F.2d 693
    , 698 (11th Cir.1993) ("The canon of statutory construction that the inclusion of one
    implies the exclusion of others is well-established.").
       97
            Pub.L. No. 104-132, 110 Stat. 1214 (1996).
       98
            8 U.S.C. § 1252(g) (Supp.1998).
    
                                                     35
    jurisdiction, over immigration decisions.99 Accordingly, we conclude that INA § 242(g) repeals any
    
    statutory jurisdiction over immigration decisions other than that conferred by INA § 242. That
    
    repeal includes § 2241 habeas jurisdiction over immigration decisions by the Attorney General under
    
    the INA.
    
             Richardson's main argument is that § 2241 habeas corpus jurisdiction survives IIRIRA's
    
    enactment of new INA § 242(g) because INA § 242(g) fails to mention § 2241 expressly.100
    
    Richardson emphasizes the presumption against implied repeal of habeas corpus jurisdiction
    
    addressed in Felker v. Turpin, 
    518 U.S. 651
    , 
    116 S. Ct. 2333
    , 
    135 L. Ed. 2d 827
     (1996).
    
             However, the jurisdictional repeal at issue in Felker was much narrower than the repealing
    
    language of INA § 242(g). AEDPA § 106(b)(3)(E) repealed a narrow class of Supreme Court
    
    jurisdiction—the Court's review of a court of appeals decision denying or granting authorization to
    
    file a second or successive habeas corpus petition.101 In addition, AEDPA § 106(b) specifically cited
    
    
       99
         See, e.g., H. Rep. No. 104-469(I) (1996). Indeed, INA § 242(g), along with INA §
    242(b)(9), should be properly understood not as an attempt to divest the courts of jurisdiction
    they previously possessed, but as Congress' effort to make absolutely clear what should have
    been apparent under the INA and AEDPA all along: that review of INS' conduct of deportation
    proceedings is available only after the entry of a final order of deportation, and only under the
    INA provisions specifically provided for that purpose.
       100
          Richardson also asserts that INA § 242(g) affects only final removal orders and that the
    INS ignores the critical distinction between review of interim detention orders—denying
    admission, bond and parole—and review of final removal orders. We disagree. The INS'
    interim orders and actions are not collateral proceedings but are inextricably part of the removal
    proceedings and covered by the broad language of INA § 242(g). See, e.g., United States v.
    Chadha, 
    462 U.S. 919
    , 938, 
    103 S. Ct. 2764
    , 
    77 L. Ed. 2d 317
     (1983); Massieu v. Reno, 
    91 F.3d 416
     (3d Cir.1996).
       101
          Felker, 518 U.S. at 661, 
    116 S. Ct. 2333
    . Specifically, AEDPA § 106(b)(3)(E) states "the
    grant or denial of an authorization by a court of appeals to file a second or successive application
    shall not be appealable and shall not be the subject of a petition for rehearing or for writ of
    certiorari." 28 U.S.C. § 2244(b)(3)(E) (Supp.1998).
    
                                                     36
    § 2244(b) as the statute it amended. In Felker, the Supreme Court determined that this express
    
    prohibition of a specific, limited form of judicial review of second or successive habeas corpus
    
    petitions, did not also repeal by implication the Supreme Court's original jurisdiction to entertain
    
    habeas petitions.102
    
               Conversely, the repeal of jurisdiction under INA § 242(g) is much broader. INA § 242(g)
    
    does not address a limited set of statutory provisions. Instead, the jurisdiction-repealing language
    
    in INA § 242(g) states comprehensively that "[e]xcept as provided in this section and
    
    notwithstanding any other provision of law, no court shall have jurisdiction" over the specified
    
    claims.103 INA § 242(g) expressly repeals any and all jurisdiction except that conferred by INA §
    
    242. Unlike Felker, the language of INA § 242(g) does not require repeal by implication. Indeed,
    
    Congress could hardly have chosen broader language to convey its intent to repeal any and all
    
    jurisdiction except that provided by INA § 242.
    
               Based on the foregoing, we conclude that INA § 242(g) repealed § 2241 habeas jurisdiction
    
    over Richardson's claims challenging his executive detention without bond and removal order and
    
    that the district court erred in exercising jurisdiction under § 2241.
    
    B. No Constitutional Infirmities to Avoid
    
               Richardson asserts that IIRIRA's elimination of § 2241 jurisdiction means he has no judicial
    
    review of his executive detention. Although conceding many aliens can still obtain judicial review
    
    in the court of appeals under the INA, Richardson stresses that other limitations within the INA's
    
    judicial-review scheme result in his having no judicial review whatsoever. Richardson contends,
    
    
       102
             Felker, 518 U.S. at 660, 
    116 S. Ct. 2333
    .
       103
             8 U.S.C. § 1252(g) (Supp.1998).
    
                                                        37
    for example, that INA § 242(a)(2)(C) adds other limits to the judicial review available to criminal
    
    aliens and thus he has no judicial review under the INA. Richardson argues that no judicial review
    
    whatsoever of his executive detention violates the Due Process Clause, Article III, and the
    
    Suspension Clause. For those reasons, Richardson submits INA § 242(g) cannot repeal § 2241
    
    habeas.
    
               The INS responds that INA § 242(g)'s repeal of § 2241 habeas jurisdiction over immigration
    
    decisions creates no constitutional infirmities because the INA does not eliminate all judicial review
    
    for Richardson. According to the INS, these new INA provisions, enacted by IIRIRA, do not
    
    "operate to bar the court of appeals from redressing substantial claims of constitutional error as part
    
    of the petition for review" of any final removal order against criminal aliens. The INS and
    
    Richardson vigorously dispute how much judicial review is required under the INA to avoid
    
    constitutional infirmities arising from the INA's repeal of § 2241 habeas jurisdiction over
    
    immigration decisions. The INS concedes only that any constitutionally required judicial review
    
    of administrative agency decisions must occur under the INA and in the form of a petition for review
    
    in the court of appeals after a final removal order.
    
               Richardson rejoins that the other circuits have held that INA § 242(g) does not repeal § 2241
    
    habeas, in large part, to avoid what the Second Circuit described as "serious constitutional issues"
    
    in Jean-Baptiste104 or what the First Circuit termed "serious, novel and complex constitutional
    
    issues" in Goncalves, stating:
    
               Finally, our refusal to find express repeal of § 2241 in new INA § 242(g) eliminates the need
               to address serious, novel and complex constitutional issues. We would be loathe to find a
    
    
    
       104
             144 F.3d at 219.
    
                                                        38
             repeal where that repeal creates serious constitutional problems. We note these
             constitutional concerns briefly to underscore the wisdom of avoiding them.
    
    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. Jean-Baptiste, 144 F.3d at 219. The Second Circuit worried that
    
    without § 2241 habeas, a permanent resident criminal alien would lack a forum in which to vindicate
    
    substantial constitutional rights. Id.106 We agree with Richardson that both the First and Second
    
    
       105
          Goncalves was a 25-year permanent resident alien subject to a deportation order because of
    certain criminal convictions. 144 F.3d at 114. His application for discretionary relief under
    former INA § 212(c), 8 U.S.C. § 1182(c), was denied by the INS because the AEDPA made him
    ineligible for such relief. Id. AEDPA § 440(d) greatly expanded the category of criminal
    convictions rendering an alien ineligible to apply for INA § 212(c) relief. Id. Goncalves filed a §
    2241 habeas, rather than a petition for direct review in the court of appeals. Id. at 115. The First
    Circuit held that jurisdiction existed under § 2241 habeas, that § 2241 habeas encompassed legal
    issues based on statutory construction as well as constitutional claims, and that the AEDPA §
    440(d) did not apply retroactively to Goncalves. Id. at 123. But compare Boston-Bollers v. INS,
    
    106 F.3d 352
     (11th Cir.1997) (holding AEDPA § 440(d), effective April 24, 1996, applies
    retroactively and listing six other circuits reaching same result). See footnote 110 infra.
       106
          In Jean-Baptiste, two permanent resident aliens and one conditional permanent resident
    alien faced deportation under INA §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) for criminal
    convictions involving controlled substances. 144 F.3d at 214. Alleging that the INS' deportation
    procedures deprived them of due process, the aliens filed a proposed class action in district court
    in which they sought to enjoin their deportation proceedings. Id. The district court dismissed the
    aliens' complaint for failure to state a claim upon which relief could be granted under
    Fed.R.Civ.P. 12(b)(6), and the aliens appealed. Id.
    
                     Holding that INA § 242(g) eliminated the district court's jurisdiction over the
             aliens' proposed class action, the Second Circuit affirmed the district court's dismissal of
             the complaint. Id. at 218-20. Nevertheless, the court held that INA § 242(g) did not
             repeal § 2241 jurisdiction over petitions for habeas relief by aliens facing removal from
             the United States. Id. at 220. The Second Circuit still dismissed the aliens' complaint
             because they "sought federal court jurisdiction under 28 U.S.C. § 1331, not habeas
             jurisdiction under U.S.C. § 2241." Id. at 220. However, the court noted that "in finding
             that § 2241 habeas review remains available for aliens deemed deportable under certain
    
                                                      39
    Circuits' holdings that INA § 242(g) did not repeal § 2241, stemmed from their adopting a principle
    
    of "constitutional avoidance," as opposed to following the plain language of INA § 242(g).
    
               We reject this "constitutional avoidance" approach for two reasons. First, although courts
    
    wisely prefer avoiding thorny constitutional issues, the language of INA § 242(g), in our view, is
    
    plain, unambiguous, and yields only one permissible statutory construction. See United States v.
    
    Locke, 
    471 U.S. 84
    , 96, 
    105 S. Ct. 1785
    , 
    85 L. Ed. 2d 64
     (1985) ("[c]ourts cannot press statutory
    
    construction "to the point of disingenuous evasion' even to avoid a constitutional question.");
    
    American-Arab Anti-Discrimination Comm. v. Reno, 
    132 F.3d 531
    , 532-33 (9th Cir.1997)
    
    (O'Scannlain, J., dissenting from the denial of rehearing en banc) ("Whatever the merits of
    
    constitutional avoidance might be, no court may "avoid' a perceived conflict when the text is
    
    unambiguous, as it is here. The avoidance canon, invoked with such abandon, amounts to nothing
    
    less than rewriting the statute."), cert. granted, --- U.S. ----, 
    118 S. Ct. 2059
    , 
    141 L. Ed. 2d 137
     (June
    
    1, 1998).107
    
               Second, examining, not avoiding, Richardson's constitutional concerns, we find that INA §
    
    242(g)'s repeal of § 2241 habeas jurisdiction over immigration decisions does not violate the Due
    
    Process Clause and Article III because neither provision mandates judicial review of immigration
    
    decisions. This repeal also does not violate the Suspension Clause because Richardson still has
    
    adequate and effective judicial review available under the INA. In light of these significant
    
    constitutional issues, we outline why in considerable detail.
    
    
    
    
               circumstances to raise constitutional questions, we express no opinion on the permissible
               scope of that review." Id.
       107
             See footnote 169 infra.
    
                                                      40
    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 decided before the effective date of IIRIRA's repeal
    
    of § 2241108 and involving a slightly different statute, Boston-Bollers is our necessary starting point
    
    because it held that INA § 106(a)(10)'s precluding judicial review of a deportation order against a
    
    permanent resident criminal alien109 did not violate the Due Process Clause or Article III.110
    
             Quoting from Reno v. Flores, 
    507 U.S. 292
    , 305, 
    113 S. Ct. 1439
    , 
    123 L. Ed. 2d 1
     (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 power of Congress more complete." Boston-
    
    
    
    
       108
          Boston-Bollers was decided on February 5, 1997. Although Congress enacted IIRIRA on
    September 30, 1996, with some limited technical amendments thereafter in October 1996,
    IIRIRA § 309(a) provided for a general effective date of April 1, 1997. Although there is some
    dispute over whether certain parts of IIRIRA were effective immediately on September 30, 1996,
    or only after April 1, 1997, Lalani v. Perryman, 
    105 F.3d 334
    , 336 (7th Cir.1997), that question
    is of no continuing significance because both dates have now passed.
       109
         Paul Boston-Bollers entered the United States as a lawful permanent resident in January
    1987. 106 F.3d at 353. In 1992, Boston-Bollers pled guilty to second-degree murder which
    made him deportable under INA § 241(a)(2)(A)(iii) for a conviction of an "aggravated felony" as
    defined under the INA. Id.
       110
         In holding that AEDPA applied retroactively to Boston-Bollers' pending appeal, this Court
    found that INA § 106(a)(10), as enacted by AEDPA § 440(d), did not impair Boston-Bollers'
    substantive rights but was a jurisdiction-eliminating statute. Therefore, this Court declined to
    apply the Supreme Court's presumption against the retroactive application of statutes which
    impair substantive rights, citing Landgraf v. USI Film Products, 
    511 U.S. 244
    , 265, 
    114 S. Ct. 1483
    , 
    128 L. Ed. 2d 229
     (1994). Boston-Bollers, 106 F.3d at 354 (listing six other circuits
    reaching same result). See footnote 105 supra.
    
                                                      41
    Bollers, 106 F.3d at 355.111 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:
    
             This 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, 
    72 S. Ct. 525
    ,
             532-33, 
    96 L. Ed. 547
     (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.
    
    106 F.3d at 355.112
    
             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
    
    
       111
          See also Shaughnessy v. United States ex rel. Mezei, 
    345 U.S. 206
    , 210, 
    73 S. Ct. 625
    , 
    97 L. Ed. 956
     (1953) (noting that this Court's decisions "have long recognized the power to expel or
    exclude aliens as a fundamental sovereign attribute exercised by the Government's political
    departments largely immune from judicial control."); Fiallo v. Bell, 
    430 U.S. 787
    , 794-95, 
    97 S. Ct. 1473
    , 
    52 L. Ed. 2d 50
     (1977); Kleindienst v. Mandel, 
    408 U.S. 753
    , 765-67, 
    92 S. Ct. 2576
    ,
    
    33 L. Ed. 2d 683
     (1972); Harisiades v. Shaughnessy, 
    342 U.S. 580
    , 588-90, 
    72 S. Ct. 512
    , 
    96 L. Ed. 586
     (1952).
       112
          In Carlson v. Landon, 
    342 U.S. 524
    , 528-29, 
    72 S. Ct. 525
    , 
    96 L. Ed. 547
     (1952), the alien
    brought a habeas corpus petition alleging his detention without bond violated the Due Process
    Clause of the Fifth Amendment and the Eighth Amendment. Because the alien had access to a
    petition for habeas, there was no claim of conflict with the Suspension Clause. Id. at 528, 
    72 S. Ct. 525
    . The Supreme Court found no Due Process Clause or Eighth Amendment violation for
    the reasons quoted above in Boston-Bollers. Carlson, 342 U.S. at 537, 
    72 S. Ct. 525
    . However,
    in between these quotations about the executive and legislative power over expelling aliens, the
    Supreme Court also stated: "This power is, of course, subject to judicial intervention under the
    "paramount law of the Constitution.' " Carlson, 342 U.S. at 537 n. 27, 
    72 S. Ct. 525
     (citing a
    long line of Supreme Court precedent).
    
                                                      42
    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 §
    
    2241 was not yet effective, and (2) in a footnote, this Court in Boston-Bollers expressly recognized
    
    that whether INA § 106(a)(10) precluded judicial review of deportation orders against criminal
    
    aliens "via a writ of habeas corpus" was not presented in that appeal. Id. at 354 n. 1.113
    
             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 § 2241 habeas in INA § 242(g), and did not address the restrictions now in
    
    INA § 242(a)(2)(C) on judicial review of deportation orders against criminal aliens. Nonetheless,
    
    we find that these additional circumstances still do not create constitutional infirmities in IIRIRA's
    
    
    
       113
         Boston-Bollers was before this Court on a petition for direct review of a final deportation
    order. Both parties agreed "that the issue of whether section 440(a)(10) precludes judicial
    review of deportation orders via a writ of habeas corpus is not presented in this appeal." 106
    F.3d at 354 n. 1. In Yang v. INS, 
    109 F.3d 1185
    , 1195 (7th Cir.), cert. denied sub nom, Katsoulis
    v. INS, --- U.S. ----, 
    118 S. Ct. 624
    , 
    139 L. Ed. 2d 605
     (1997), the Seventh Circuit noted that four
    courts of appeal have rejected contentions that INA § 106(a)(10) violates the Constitution but the
    Yang court pointed out that "they observe that limited opportunity to apply for a writ of habeas
    corpus may remain," citing Kolster v. INS, 
    101 F.3d 785
    , 790-91 (1st Cir.1996); Hincapie-Nieto
    v. INS, 
    92 F.3d 27
    , 30-31 (2d Cir.1996); Duldulao v. INS, 
    90 F.3d 396
    , 399-400 & n. 4 (9th
    Cir.1996). See also Morel v. INS, 
    144 F.3d 248
    , 251 (3d Cir.1998); Mansour v. INS, 
    123 F.3d 423
    , 426 (6th Cir.1997); Williams v. INS, 
    114 F.3d 82
    , 83-84 (5th Cir.1997); Fernandez v. INS,
    
    113 F.3d 1151
    , 1154 (10th Cir.1997).
    
                                                       43
    new judicial-review scheme. We reach this conclusion not only for the reasons outlined in Boston-
    
    Bollers but also because Congress clearly has the authority (a) to repeal § 2241 jurisdiction over
    
    immigration decisions, (b) to legislate that all judicial review of immigration decisions must be
    
    exclusively under the INA, and (c) to regulate the exclusive mode and precise timing of that judicial
    
    review within the INA's provisions. As shown below, Congress' repeal of § 2241 and its enactment
    
    of the requirement that all judicial review now be exclusively under the INA, in the court of appeals,
    
    and after a final removal order do not violate the Due Process Clause, Article III, or the Suspension
    
    Clause. We now examine each such constitutional provision in turn.
    
    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 ..." U.S. Const. amend. V. Although the political branches exercise plenary control over the
    
    admission and removal of aliens, INS v. Chadha, 
    462 U.S. 919
    , 
    103 S. Ct. 2764
    , 
    77 L. Ed. 2d 317
    
    (1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press,
    
    
    347 U.S. 522
    , 531, 
    74 S. Ct. 737
    , 
    98 L. Ed. 911
     (1954); Carlson v. Landon, 
    342 U.S. 524
    , 533, 
    72 S. Ct. 525
    , 
    96 L. Ed. 547
     (1952).
    
            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, 
    70 S. Ct. 309
    , 
    94 L. Ed. 317
     (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, 
    103 S. Ct. 321
    , 
    74 L. Ed. 2d 21
     (1982). The Supreme Court has held that
    
    a permanent resident alien "continuously present" in the United States has a right to procedural due
    
    
                                                      44
    process in any proceedings to remove that alien from the country.114 See, e.g., Reno v. Flores, 
    507 U.S. 292
    , 
    113 S. Ct. 1439
    , 
    123 L. Ed. 2d 1
     (1993); Landon v. Plasencia, 459 U.S. at 21, 
    103 S. Ct. 321
    .115 At the core of the alien's due process rights is the right to notice of the nature of the charges
    
    and a meaningful opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 
    344 U.S. 590
    ,
    
    596-98, 
    73 S. Ct. 472
    , 
    97 L. Ed. 576
     (1953).
    
             Removal proceedings under the INA are not criminal proceedings and are not summary
    
    ejection proceedings. See Boston-Bollers v. I.N.S., 
    106 F.3d 352
    , 355 (11th Cir.1997). Instead,
    
    
    
    
       114
          Although Richardson's leaving the United States may have changed his legal status under
    INA § 101(a)(13)(C) to an arriving alien "seeking admission" due to his criminal convictions, we
    assume solely for purposes of this case that it did not change his constitutional status in light of
    his thirty-year permanent residency in the United States.
    
                     Specifically, the Supreme Court instructs that "[w]e do not regard the
             constitutional status which petitioner indisputably enjoyed prior to his voyage as
             terminated by that voyage. From a constitutional point of view, he is entitled to due
             process without regard to whether or not, for immigration purposes, he is to be treated as
             an entrant alien." Kwong Hai Chew v. Colding, 
    344 U.S. 590
    , 600, 
    73 S. Ct. 472
    , 
    97 L. Ed. 576
     (1953). The alien in Chew was a lawful permanent resident who worked on an
             American ship. Id. at 592, 
    73 S. Ct. 472
    . He was on a voyage to the Far East for about
             four months. Id. at 594, 
    73 S. Ct. 472
    . Upon his return, he was denied entry to the United
             States under an immigration regulation which allowed the Attorney General to exclude
             certain aliens without a hearing when information relating to the exclusion would "be
             prejudicial to the public interest." Id. Thus, not only was Chew excluded and detained,
             he also was denied any notice of the reasons for his exclusion and any opportunity to
             challenge those reasons. In contrast, Richardson has been afforded extensive procedural
             safeguards in his removal proceedings.
       115
          In Landon v. Plasencia, 
    459 U.S. 21
    , 31, 
    103 S. Ct. 321
    , 
    74 L. Ed. 2d 21
     (1982), the Supreme
    Court stated: "although we have only rarely held that the procedures provided by the executive
    were inadequate, we developed the rule that a continuously present permanent resident alien has
    a right to due process ...," citing United States ex rel. Vajtauer v. Com'r of Immigration, 
    273 U.S. 103
    , 106, 
    47 S. Ct. 302
    , 
    71 L. Ed. 560
     (1927); Japanese Immigrant Case, 
    189 U.S. 86
    , 100-101,
    
    23 S. Ct. 611
    , 
    47 L. Ed. 721
     (1903); United States ex rel. Tisi v. Tod, 
    264 U.S. 131
    , 133, 
    44 S. Ct. 260
    , 
    68 L. Ed. 590
     (1924); Low Wah Suey v. Backus, 
    225 U.S. 460
    , 
    32 S. Ct. 734
    , 
    56 L. Ed. 1165
    (1912).
    
                                                       45
    removal proceedings are imbued with procedural safeguards that satisfy the Due Process Clause.
    
    The alien has the right to notice, the opportunity to present evidence and cross examine witnesses,
    
    and the right to do so with the assistance of counsel at a hearing before an immigration judge.116
    
    Given these procedural safeguards, no judicial review is required to provide the process due to a
    
    permanent resident alien facing removal. See, e.g., Carlson v. Landon, 
    342 U.S. 524
    , 537, 
    72 S. Ct. 525
    , 
    96 L. Ed. 547
     (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 
    109 F.3d 1185
    , 1196-
    
    97 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, --- U.S. ----, 
    118 S. Ct. 624
    , 
    139 L. Ed. 2d 605
    
    (1997).117 Therefore, the fact that IIRIRA repeals § 2241 habeas jurisdiction over immigration
    
    decisions, provides for exclusive judicial review under the INA, and within that INA scheme further
    
    limits the mode, timing and types of issues for which Richardson can seek judicial review under the
    
    INA, does not violate the Due Process Clause.
    
               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, 
    96 S. Ct. 893
    , 
    47 L. Ed. 2d 18
     (1976):(1) a petitioner's interest in additional procedures; (2) the "risk" of the
    
    procedure; and (3) the government's interest in the procedure. Richardson's "liberty interest" under
    
    
    
    
       116
             See footnotes 62-67 supra.
       117
         "The role of the judiciary is limited to determining whether the procedures meet the
    essential standard of fairness under the Due Process Clause and does not extend to imposing
    procedures that merely displace congressional choices of policy." Landon v. Plasencia, 
    459 U.S. 21
    , 32-33, 
    103 S. Ct. 321
    , 
    74 L. Ed. 2d 21
     (1982) (emphasis supplied).
    
                                                       46
    the Due Process Clause is weighty, although slightly attenuated given his resident alien status.118
    
    However, the "risk" factor is low, as Richardson's counsel was able to make written bond and parole
    
    requests to the INS district director, supported by evidence, which here included several documents
    
    and affidavits on Richardson's behalf.
    
             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
    
    proceedings, the INS' bond and parole procedures also must be evaluated in light of the many
    
    procedural safeguards in the overall removal proceedings. Indeed, Richardson received a plenary
    
    removal hearing before an immigration judge. Richardson has shown no due process violation.
    
    E. Article III
    
             IIRIRA's repeal of § 2241 habeas over INS decisions also does not violate Article III. While
    
    § 2 of Article III extends the judicial power to "all cases ... arising under the Constitution," § 1 of
    
    
       118
        See, e.g., Matthews v. Diaz, 
    426 U.S. 67
    , 80, 
    96 S. Ct. 1883
    , 
    48 L. Ed. 2d 478
     (1976)
    ("Congress regularly makes rules that would be unacceptable if applied to citizens.").
       119
         Congress acts well within its plenary power in mandating detention of a criminal alien with
    an aggravated felony conviction facing removal proceedings. See INA § 236(c), 8 U.S.C. §
    1226(c) (Supp.1998); TPCRs in IIRIRA § 303(b)(3). This poses no constitutional issue, for the
    Supreme Court already has stated that "[t]he Eighth Amendment has not prevented Congress
    from defining the classes of cases in which bail shall be allowed ..." Carlson v. Landon, 342 U.S.
    at 545, 
    72 S. Ct. 525
    . The Supreme Court has determined that bail need not be provided in all
    immigration cases. Id. at 546, 
    72 S. Ct. 525
    . More importantly, Richardson does not challenge
    the INS district director's denial of his release request as incorrect under the INS regulations or
    show why the opportunity to be heard by the regulations governing bond and parole was
    inadequate.
    
                                                        47
    Article III provides that this judicial power shall be vested "in one supreme Court, and in such
    
    inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III
    
    §§ 1, 2. Even if Richardson had no judicial review available in the district court under § 2241 or in
    
    the court of appeals under the INA, Article III does not mandate the judicial review of immigration
    
    decisions in any inferior court. Instead, Congress possesses the sole authority to establish the
    
    jurisdiction of the inferior federal courts.120
    
             The jurisdiction of the inferior federal courts are created by statute and jurisdiction does not
    
    exist except to the extent conferred by statute. Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 
    12 L. Ed. 1147
     (1850). Therefore, inferior federal courts must have some statutory basis upon which to retain
    
    jurisdiction regardless of the character of Richardson's claims. Similar to many congressionally
    
    enacted limits on federal jurisdiction, Article III does not preclude Congress from removing all
    
    judicial review over immigration decisions from the inferior courts.121
    
    
       120
          See Morel v. INS, 
    144 F.3d 248
    , 251 (3d Cir.1998); Chow v. INS, 
    113 F.3d 659
    , 668 (7th
    Cir.1997); Yang v. INS, 
    109 F.3d 1185
    , 1196 (7th Cir.) cert. denied sub nom, Katsoulis v. INS, --
    - U.S. ----, 
    118 S. Ct. 624
    , 
    139 L. Ed. 2d 605
     (1997). In finding lack of jurisdiction under former
    INA § 106(a)(10) over Morel's appeal of a final deportation order, the Third Circuit stated that
    "we do not see any deprivation of his rights which is of constitutional proportion," noting "the
    INS concedes that § 440(a) [INA § 106(a)(10) ] does not preclude Article III court review of
    claims of substantial Constitutional error." Morel, 144 F.3d at 251. Finding Morel's appeal
    raised only a "question of law," the Third Circuit concluded that "relevant Supreme Court
    authority does not mandate judicial review by an Article III court of questions of law underlying
    legislatively-created public rights such as immigration. See Crowell v. Benson, 
    285 U.S. 22
    , 
    52 S. Ct. 285
    , 
    76 L. Ed. 598
     (1932) (drawing a distinction between public and private rights and
    listing immigration as an exemplar of a public right)." Morel, 144 F.3d at 252.
       121
         Congress has established significant limits on federal jurisdiction throughout history and
    continuing today. For example, during the first century of the nation's existence, the inferior
    courts lacked federal-question jurisdiction; and, until 1976 the federal-question jurisdiction
    remained restricted by an amount-in-controversy requirement. Yang v. INS, 109 at 1195. The
    Seventh Circuit in Chow v. INS, 
    113 F.3d 659
    , 668 (7th Cir.1997), also outlined the following
    reasons why the AEDPA's enacting INA § 106(a)(10), restricting judicial review of deportation
    
                                                       48
    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 INA § 242(g)
    
    cannot be read to repeal § 2241 habeas. The Suspension Clause provides that "[t]he Privilege of the
    
    Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
    
    public Safety may require it." U.S. Const. art. I § 9. Since "the traditional Great Writ was largely
    
    a remedy against executive detention,"122 the INS concedes that the Suspension Clause requires some
    
    limited judicial review of Richardson's executive detention. The INS emphasizes, however, that any
    
    constitutionally required judicial review (a) must be found under the INA and not § 2241 habeas,
    
    
    
    
    orders against criminal aliens, does not offend Article III. Although Article III enumerates cases
    over which the judicial power shall extend, Article III, however, grants Congress the power "to
    ordain and establish" such lower federal courts and courts of appeal. Keene Corp. v. United
    States, 
    508 U.S. 200
    , 207, 
    113 S. Ct. 2035
    , 
    124 L. Ed. 2d 118
     (1993); Northern Pipeline Const.
    Co. v. Marathon Pipeline Co., 
    458 U.S. 50
    , 57-60, 
    102 S. Ct. 2858
    , 
    73 L. Ed. 2d 598
     (1982);
    Chow, 113 F.3d at 670. The Constitution does not prescribe how much judicial power must vest
    in the inferior courts and leaves it to Congress to make that decision. Id. Thus, the Seventh
    Circuit found that the INA, that limits the lower courts' jurisdiction, is not unconstitutional
    unless it confers powers not enumerated in the Constitution. Sheldon, 49 U.S. (8 How.) at 449.
    Therefore, the court concluded that the INA does not offend Article III or the separation of
    powers. Id.
       122
         Swain v. Pressley, 430 U.S. at 386, 
    97 S. Ct. 1224
     (Burger, C.J., concurring). The Second
    Circuit also emphasized that "[t]he primary historical use of the writ of habeas corpus was
    precisely against executive detention. See Felker, 518 U.S. at 663, 
    116 S. Ct. 2333
     (noting that
    the writ originally only extended to prisoners in federal custody who were not "detained in
    prison by virtue of the judgment of a court' (citation and internal quotation marks omitted))."
    Henderson, 157 F.3d at 120; see also Brown v. Allen, 
    344 U.S. 443
    , 533, 
    73 S. Ct. 397
    , 
    97 L. Ed. 469
     (1953) (Jackson, J., concurring) ("[T]he historic purpose of the writ has been to relieve
    detention by executive authorities without judicial trial.").
    
                                                    49
    and (b) is limited to only "substantial constitutional claims" or "substantial claims of constitutional
    
    error."123
    
             The Supreme Court has not defined the level of judicial review preserved by the Suspension
    
    Clause, unaided by § 2241 or its precursor statutes, because statutory habeas review historically has
    
    been available since 1789.124 Both parties repeatedly cite Heikkila v. Barber, 
    345 U.S. 229
    , 
    73 S. Ct. 123
          The Second Circuit in Henderson observed that "the government itself does not argue that
    the 1996 amendments completely forbid judicial review of deportation against criminal aliens....
    In its view, the courts are only empowered to examine petitions presenting "substantial' or
    "colorable' constitutional claims, and not petitions involving "mere' questions of statutory law."
    Henderson, 157 F.3d at 119. As the Second Circuit also noted, "[a]nd well [the INS] might
    concede this point, for the Supreme Court decided more than seventy-five years ago that the
    Constitution required judicial review of the executive's decision that a person facing deportation
    was a non-citizen." Henderson, 157 F.3d at 122 n. 14 (citing Ng Fung Ho v. White, 
    259 U.S. 276
    , 
    42 S. Ct. 492
    , 
    66 L. Ed. 938
     (1922)). In Ng Fung Ho, the Supreme Court stated that the
    precise question in that habeas petition was whether a claim of citizenship by a resident entitles
    him to judicial review of his claim. 
    259 U.S. 276
    , 282, 
    42 S. Ct. 492
    , 
    66 L. Ed. 938
     (1922). The
    Court held that "[j]urisdiction in the executive to order deportation exists only if the person
    arrested is an alien. The claim of citizenship is thus a denial of an essential jurisdictional fact."
    Id. at 284, 
    42 S. Ct. 492
    .
       124
         The United States Constitution became effective on March 4, 1789. In September 1789,
    the First Congress passed the Judiciary Act of 1789. Section 14 of the Judiciary Act granted the
    federal courts jurisdiction to issue writs of habeas corpus. 1 Stat. 81 (1789).
    
                     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,
             
    58 S. Ct. 1019
    , 
    82 L. Ed. 1461
     (1938); see also McCleskey v. Zant 
    499 U.S. 467
    , 477, 
    111 S. Ct. 1454
    , 
    113 L. Ed. 2d 517
     (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, 
    72 S. Ct. 263
    , 
    96 L. Ed. 232
     (1952).
    
                    Over the years, Congress amended habeas jurisdiction several times. For the
    
                                                      50
    603, 
    97 L. Ed. 972
     (1953), in which the Supreme Court held that "the 1917 Immigration Act ...
    
    clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was
    
    required by the Constitution." Id. at 234-35, 
    73 S. Ct. 603
    . The Supreme Court upheld the
    
    preclusion of judicial review in the 1917 Act, but in the context of statutory habeas remaining
    
    available, stating:
    
             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, 
    73 S. Ct. 603
    . Thus, Heikkila does not resolve the issue here of whether IIRIRA's repeal
    
    of § 2241 habeas would violate the Suspension Clause if Richardson has no judicial review under
    
    the INA.125
    
    
    
             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 28 U.S.C. § 2241(a) and the 1867
             amendments to the Judiciary Act are the "direct ancestor" of 28 U.S.C. § 2241(c).
             Felker, 518 U.S. at 659 n. 1 & 2, 
    116 S. Ct. 2338
     n. 1 & 2; see also Hayman, 342 U.S. at
             211 n. 11, 
    72 S. Ct. 263
     (noting that the 1867 Act is [n]ow incorporated in 28 U.S.C.
             (Supp.IV) § 2241 et seq.)
       125
          Both Richardson and the INS cite Webster v. Doe, 
    486 U.S. 592
    , 603, 
    108 S. Ct. 2047
    , 
    100 L. Ed. 2d 632
     (1988), which involved a discharge of a government employee based on sexual
    preference. Chief Justice Rehnquist's majority opinion in Webster states it reached certain
    conclusions "to avoid the "serious constitutional question' that would arise if a federal statute
    were construed to deny any judicial forum for a colorable constitutional claim." (quoting Bowen
    v. Michigan Academy of Family Physicians, 
    476 U.S. 667
    , 681 n. 12, 
    106 S. Ct. 2133
    , 
    90 L. Ed. 2d 623
     (1986)). Since we find that certain judicial review remains under the INA, as outlined infra,
    this case also does not present a denial of all judicial review.
    
                    Also, two dissents stated that judicial review is not required over constitutional
             claims challenging the validity of employment decisions by the Central Intelligence
    
                                                      51
           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 Suspension Clause, what scope of judicial review the INA provides, and whether
    
    constitutional infirmities are created by INA § 242(g)'s repeal of § 2241 habeas jurisdiction over
    
    immigration decisions. The Second and Ninth Circuits have outlined in great detail the two-hundred
    
    year history of the Suspension Clause and why the Great Writ protected by the Suspension Clause
    
    (whether under an originalist approach as it existed in 1789 or today) requires judicial review of an
    
    alien's executive detention that is the equivalent of § 2241 habeas. Magana-Pizano v. INS, 
    152 F.3d 1213
    , 1217-21 (9th Cir.1998); Henderson v. INS, 
    157 F.3d 106
    , 112-21 (2d Cir.1998). In Magana-
    
    Pizano, the Ninth Circuit concluded that INA § 242(g)'s repeal of § 2241 habeas violated the
    
    Suspension Clause. In Jean-Baptiste v. Reno, 
    144 F.3d 212
     (2d Cir.1998), the Second Circuit, in
    
    order to avoid the Suspension Clause issue, held that INA § 242(g) did not repeal § 2241 habeas.
    
    A subsequent panel of the Second Circuit in Henderson followed yet questioned the correctness of
    
    the Jean-Baptiste decision.
    
           The Seventh Circuit took a different approach. After outlining the history of § 2241 habeas
    
    and the Suspension Clause, the Seventh Circuit agreed that "[a]liens may seek the writ that Art. I
    
    § 9 cl. 2 preserves against suspension." Yang v. INS, 
    109 F.3d 1185
    , 1195 (7th Cir.1997). However,
    
    
    
           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,
           
    108 S. Ct. 2047
    . Since Article III, § 1 provides that the judicial power shall be vested "in
           one supreme Court, and in such inferior Courts as the Congress may from time to time
           ordain and establish," Justice Scalia stressed that "[w]e long ago held that the power not
           to create any lower federal courts at all includes the power to invest them with less than
           all the judicial power." Id. His dissent concluded that Congress can prescribe that for
           certain jobs, the dismissal decision is "committed to agency discretion by law" and "that
           not all constitutional claims require a judicial remedy." Id. at 614, 
    108 S. Ct. 2047
    .
    
                                                     52
    the Seventh Circuit found that "28 U.S.C. § 2241 offers an opportunity for collateral attack more
    
    expansive than the Great Writ preserved in the Constitution." Id. While Yang 's direct holding
    
    involved the restrictions on a criminal alien's judicial review under former INA § 106(a)(10), the
    
    Seventh Circuit noted that "effective April 1, 1997, § 306(a) of the IIRIRA [INA § 242] abolishes
    
    even review under § 2241, leaving only the constitutional writ, unaided by statute." Id. The Seventh
    
    Circuit found that the particular errors of law and discretionary INS decision of which Yang, a
    
    criminal alien in custody, sought judicial review were simply not protected by the "Great Writ." Id.
    
    Similarly, the Seventh Circuit noted there is a "vast gulf between the non-suspendable constitutional
    
    writ" and certain other forms of judicial review, such as under the Administrative Procedures Act.
    
    Id.
    
           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 § 2241 habeas and its requirement of exclusive judicial review under
    
    the INA do not conflict with the Suspension Clause.
    
    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 § 2241 habeas. Jean-Baptiste v. Reno, 
    144 F.3d 212
    , 218-19 (2d Cir.1998);
    
    Henderson v. INS, 
    157 F.3d 106
    , 119 (2d Cir.1998). Subsequently, in Henderson the Second Circuit
    
    revisited whether constitutional issues under the Suspension Clause are actually implicated by
    
    
    
    
                                                     53
    IIRIRA's repeal of § 2241 habeas. Noting that it was bound by Jean-Baptiste, the Second Circuit
    
    in Henderson held that INA § 242(g) did not repeal § 2241.126
    
               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 § 2241 habeas in the district courts."127 The Henderson panel noted that Congress
    
    "clearly" meant to streamline judicial review and concluded that "it seems perverse to find that the
    
    new laws [IIRIRA] actually added a layer of review in the district courts that did not generally exist
    
    before."128
    
               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 constitutional issues."130 Instead, the Second Circuit indicated that
    
    
    
       126
             Henderson, 157 F.3d at 119.
       127
             Id. at 119 n. 9.
       128
             Id. (emphasis supplied).
       129
             Henderson, 157 F.3d at 119.
       130
          Id. at 120. The Second Circuit also noted that the INS borrowed this standard from the
    standard for reviewing successive habeas petitions but observed that this standard arose in an
    entirely different context than presented under the immigration laws. Id. Specifically, the
    Second Circuit recognized that the substantial-constitutional-question standard applied to
    petitioners in state custody who had necessarily enjoyed several opportunities to challenge their
    detention before in a judicial forum. Id. (citing Goncalves, 144 F.3d at 118 n. 8). Conversely,
    according to the Henderson panel, aliens detained pending removal from the country are
    detained by the executive with no prior judicial review of their detention. Henderson, 157 F.3d
    at 120.
    
                                                      54
    judicial review post-IIRIRA " "is much like it was prior to the enactment of the INA' and is similar
    
    to that which existed under the early statutes that were "intended to make these administrative
    
    decisions nonreviewable to the fullest extent possible under the Constitution.' "131 The Second
    
    Circuit then noted that the Attorney General's position that no court has power to review her
    
    interpretation of immigration laws "is, to put it mildly, not only at war with the historical record
    
    described earlier in this opinion—for at least a hundred years, the courts have reviewed the
    
    executive branch's interpretation of the immigration laws, and have deemed such review to be
    
    constitutionally mandated—it is also hard to square with the core conception of habeas corpus as
    
    it has been applied over many centuries."132
    
               Ultimately, the Second Circuit in Henderson concluded only that whatever the remaining
    
    parameters of § 2241 relief in the immigration context, the claims presented by the Henderson aliens
    
    facing deportation fell within the remaining scope of § 2241.133 As its holding, the Second Circuit
    
    stated "federal courts have jurisdiction under § 2241 to grant writs of habeas corpus to aliens when
    
    those aliens are "in custody in violation of the Constitution or laws or treaties of the United States.'
    
    "134 But, the Second Circuit immediately qualified that holding by stating that "[t]his is not to say
    
    that every statutory claim that an alien might raise is cognizable on habeas."135 Instead, the court
    
    
       131
             Id. at 119.
       132
             Id.
       133
          Id. at 122. The aliens in Henderson presented questions of pure law. The Second Circuit
    also noted, almost in passing, that judicial review under the INA as long as "the equivalent of
    habeas" would avoid any conflict with the Suspension Clause. Henderson, 157 F.3d at 119 n.
    10.
       134
             Id. at 122 (quoting 28 U.S.C. § 2241).
       135
             Id.
    
                                                      55
    concluded that the range of claims available under § 2241 consisted of "the sort that the courts have
    
    secularly enforced ... in the face of statutes seeking to limit judicial jurisdiction to the fullest extent
    
    constitutionally possible."136
    
    H. Ninth Circuit's Magana-Pizano Decision
    
               Two recent Ninth Circuit decisions also address INA § 242(g)'s repeal of § 2241 habeas. In
    
    Hose v. INS, 
    141 F.3d 932
    , 935 (9th Cir.1998), the Ninth Circuit first held that INA § 242(g)
    
    repealed § 2241 jurisdiction, noting that the noncriminal alien in that case still could seek judicial
    
    review of the BIA's final deportation order under INA § 242(b)(2) in the court of appeals.137
    
    
       136
             Id.
       137
          In Hose, after receiving a final exclusion order on April 25, 1997, the alien filed a § 2241
    habeas petition in the district court which was dismissed for lack of jurisdiction under INA §
    242(g). 141 F.3d at 933-34. The alien appealed the district court's dismissal, but did not file a
    petition for direct review in the court of appeals and, importantly, did not request that the court
    of appeals treat her appeal of the district court's order as a petition for review. Id. at 934.
    
                       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 § 2241 jurisdiction. Id. at 935. The court reasoned that the rule
               disfavoring implicit repeals of jurisdictional statutes was followed in Felker v. Turpin,
               
    518 U.S. 651
    , 
    116 S. Ct. 2333
    , 
    135 L. Ed. 2d 827
     (1996), because it was interpreting the
               AEDPA's repeal of a "specific avenue for review" (appellate jurisdiction over a
               successive habeas petition) and that repeal did not implicitly repeal another separate and
               distinct avenue for review (the Supreme Court's original habeas jurisdiction) which was
               not mentioned in the AEDPA. Hose, 141 F.3d at 935.
    
                       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
               Suspension Clause did not prohibit this repeal because no suspension of the writ occurs if
               a substitute procedure exists that is "neither inadequate nor ineffective to test the legality
               of a person's detention." Id. at 936 (citing Swain, 430 U.S. at 381, 
    97 S. Ct. 1224
    ). Since
               judicial review of exclusion orders remained available under IIRIRA in the form of direct
               review in the court of appeals, the court held that Ms. Hose had failed to demonstrate
    
                                                        56
    Subsequently, in Magana-Pizano v. INS, 
    152 F.3d 1213
    , 1220 (9th Cir.), modified, 
    159 F.3d 1217
    
    (9th Cir.1998), the Ninth Circuit held that, unlike the alien in Hose, a criminal alien cannot obtain
    
    full judicial review in the court of appeals due to INA § 242(a)(2)(C), that INA § 242(g)'s repeal of
    
    § 2241 jurisdiction as applied in that different context violated the Suspension Clause, and thus, §
    
    2241 jurisdiction still existed over Magano-Pizano's deportation order.
    
               In light of Hose 's holding that INA § 242(g) repealed § 2241, the Ninth Circuit could not
    
    construe INA § 242(g) to avoid constitutional issues. The Ninth Circuit found that Heikkila
    
    established the minimum constitutionally permissible level of judicial review in immigration cases
    
    and required the conclusion that, when Congress limits judicial review over immigration matters to
    
    the extent permitted by the Constitution, habeas remains available. In other words, the Ninth Circuit
    
    found that "[s]imply put, elimination of all judicial review of executive detention violates the
    
    Constitution."138 Based on this premise, the Ninth Circuit concluded that, as interpreted in Hose and
    
    applied to cases for which no judicial review is available, INA § 242(g)'s repeal of § 2241 was
    
    invalid under the Suspension Clause.139
    
               The Ninth Circuit thus has adopted a hybrid approach to whether INA § 242(g) repeals §
    
    2241. For cases where judicial review remains in the court of appeals under the INA, the Ninth
    
    Circuit has interpreted INA § 242(g) as repealing § 2241 jurisdiction.140 Conversely, for cases in
    
    which the Ninth Circuit finds that there is no judicial review under the INA, the Ninth Circuit has
    
    
    
               how such review was either inadequate or ineffective to contest her detention.
       138
             Magana-Pizano, 152 F.3d at 1220.
       139
             Id.
       140
             Hose, 141 F.3d at 936.
    
                                                       57
    concluded that INA § 242(g) cannot constitutionally repeal § 2241 habeas and that some form of
    
    habeas relief remains available.141
    
    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, --- U.S. ----, 
    118 S. Ct. 624
    , 
    139 L. Ed. 2d 605
     (1997), also contains an instructive analysis of the Suspension Clause and
    
    Congress' plenary power to remove judicial review over immigration decisions to the full extent
    
    permitted by the Constitution. The specific facts and legal issues in Yang are an important
    
    background to its holding that the INA does not preclude all judicial review of deportation orders
    
    against criminal aliens.
    
               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 deportable under INA § 241(a)(2)(C) because his conviction for concealing
    
    stolen firearms was not a crime involving the "possession" of a firearm.144 Although prior to
    
    IIRIRA's repeal of § 2241 habeas, Yang was still faced with a similar judicial review bar in former
    
    INA § 106(a)(10) which provided that "[a]ny final order of deportation against an alien who is
    
    
    
       141
             Magana-Pizano, 152 F.3d at 1220.
       142
           The Seventh Circuit in Yang interpreted INA § 106(a)(10) as it existed following IIRIRA's
    first amendment, but before it was amended the second time and moved to INA § 242(a)(C)(2).
    See footnotes 74 and 83 supra and 176 infra.
       143
             Id. at 1189.
       144
             Id. at 1191.
    
                                                       58
    deportable by reason of having committed a criminal offense covered in section [designated sections
    
    omitted] ... shall not be subject to review by any court."145
    
               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 or Article III.147 The Seventh Circuit also discussed how the review protected by the
    
    Suspension Clause is not co-extensive with § 2241 habeas as follows:
    
               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 under 28 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
    
    
    
       145
             INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995).
       146
          Id. at 1192. The Yang case actually involved petitions for review by four aliens in separate
    deportation proceedings. Id. According to the Seventh Circuit, in three of these four
    consolidated cases, the INS contended that the court lacked jurisdiction if the BIA determined
    that an alien was deportable based on one of the referenced criminal offenses. Id. Conversely,
    the court noted that in one of these cases, the INS adopted a different position. Id. Specifically,
    in the fourth case, the INS argued that the court retained jurisdiction over whether the alien
    facing deportation was actually an alien deportable for an enumerated offense. Id.
       147
             Id. at 1197.
    
                                                        59
               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 eliminate review in the district courts and
    
    allow review only in the court of appeals.
    
               In addition to its Suspension Clause discussion, the Seventh Circuit in Yang explained how
    
    the INA does not abrogate all judicial review for criminal aliens because courts always have
    
    jurisdiction to determine whether a jurisdictional bar applies and to consider constitutional attacks
    
    on any such jurisdictional bar.148 The Seventh Circuit explained succinctly that "a court has
    
    jurisdiction to determine whether it has jurisdiction."149 The Seventh Circuit found that the language
    
    of INA § 106(a)(10) did not condition its restriction on judicial review merely on the Attorney
    
    General's saying that an alien is deportable for one of the enumerated criminal offenses.150 Instead,
    
    the language of INA § 106(a)(10) conditioned its restriction on judicial review on there being "an
    
    alien" "who is deportable" "by reason of having committed a criminal offense" enumerated in the
    
    statute.151 The Seventh Circuit noted that "[w]hen judicial review depends on a particular fact or
    
    legal conclusion, then a court may determine whether that condition exists."152 Therefore, the
    
    Seventh Circuit held that INA § 106(a)(10) permitted courts to exercise jurisdiction to determine
    
    
    
       148
             Id. at 1192.
       149
             Id.
       150
             Id.
       151
             Id.
       152
          Id. at 1192 (citing Land v. Dollar, 
    330 U.S. 731
    , 
    67 S. Ct. 1009
    , 
    91 L. Ed. 1209
     (1947), for
    the proposition that the court retains jurisdiction to determine its own jurisdiction).
    
                                                        60
    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
    
    
       153
             Id. at 1191-92.
       154
          As did the Ninth Circuit in Coronado-Durazo v. INS, 
    123 F.3d 1322
     (9th Cir.1997), the
    Fifth Circuit in Anwar applied the pre-IIRIRA version of INA § 106(a)(10). 116 F.3d at 144.
    However, unlike in Coronado-Durazo, the fact that the pre-IIRIRA version of INA § 106(a)(10)
    applied in Anwar meant that the court could exercise jurisdiction over the alien's petition for
    review. Specifically, the court in Anwar noted that prior to IIRIRA, INA § 106(a)(10) precluded
    the judicial review of a deportation order of an alien who was deportable under INA §
    212(a)(2)(A)(ii) (i.e. for multiple criminal convictions of crimes involving moral turpitude) only
    if both "predicate offenses" were also covered by INA § 212(a)(2)(A)(i). Id. An alien was
    deportable under INA § 212(a)(2)(A)(i) only if the alien had been convicted of a crime involving
    moral turpitude which crime occurred within five years of when the alien entered the United
    States and for which the alien was sentenced to confinement for one year or more. Id. Because
    one of Anwar's crimes had occurred more than five years after he entered the United States, the
    court concluded that his multiple convictions did not fall under INA § 212(a)(2)(A)(i) and thus
    did not fall under the jurisdictional bar of the pre-IIRIRA INA § 106(a)(10). Id.
    
                       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 at 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
    
                                                       61
    Fifth Circuit noted that under INA § 106(a)(10), "unamended by IIRIRA," judicial review was
    
    precluded if deportation was based on two convictions for a crime involving moral turpitude only
    
    if both of the convictions occurred within five years of when the alien entered the United States.155
    
    Because one of Mr. Anwar's criminal convictions occurred more than five years after he entered the
    
    United States, the Fifth Circuit concluded that the jurisdictional bar of INA § 106(a)(10) did not
    
    apply.156 Accordingly, the Fifth Circuit proceeded to review the alien's petition.157
    
               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, the Fifth Circuit conducted its own review of the
    
    allegations supporting deportation to determine whether these allegations prohibited further judicial
    
    review. Finding that the judicial-review limiting provisions of INA § 106(a)(10) did not apply, the
    
    Fifth Circuit proceeded to entertain the alien's claims.158
    
    
               the holding in Yang. Okoro, 125 F.3d at 925.
       155
             Id. at 143-44.
       156
             Id.
       157
             Id. at 144.
       158
          Likewise, the First Circuit in Choeum v. INS, 
    129 F.3d 29
    , 38 (1st Cir.1997), found the
    jurisdictional bar in INA § 106(a)(10) did not apply because the deportation order was based on
    a criminal offense not covered by that section. Although the alien had other criminal offenses
    which were not charged in the deportation proceedings, the court held "that the INS cannot,
    consistent with due process and the statutory and regulatory requirements governing its own
    proceedings, substitute new grounds for deportation at this stage of the proceedings, solely for
    the purposes of depriving the federal courts of jurisdiction." 129 F.3d at 40.
    
                      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
    
                                                      62
               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 petition for review by an alien facing deportation under INA §
    
    241(a)(2)(A)(ii),159 which provided for the deportation of any alien with two or more convictions
    
    of crimes involving moral turpitude.160 As a "threshold matter," the Okoro court examined its own
    
    jurisdiction in light of INA § 106(a)(10), as amended by IIRIRA, which precluded judicial review
    
    of any final deportation order "against an alien who is deportable by reason of having committed ...
    
    any offense covered by [INA] section 241(a)(2)(A)(ii)161 for which both predicate offenses are
    
    
    
    
               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, 123 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).
       159
             8 U.S.C. § 1251(a)(2)(A)(i) (Supp.1996).
       160
             125 F.3d at 922-23.
       161
             8 U.S.C. § 1251(a)(2)(A)(ii) (Supp.1996).
    
                                                         63
    covered by [INA] section 241(a)(2)(A)(i)162."163 Thus, the court held that its jurisdiction depended
    
    on whether the alien was deportable based on convictions covered by INA § 241(a)(2)(A)(i) & (ii),
    
    as follows:
    
               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
    
    
    
    
       162
         This section is the same jurisdictional bar interpreted by the court in Yang. Compare
    Okoro, 125 F.3d at 925 with Yang, 109 F.3d at 1188. For a discussion of the amendments to
    INA § 106(a)(10) by both the AEDPA and IIRIRA and the successor to INA § 106(a)(10) now
    found in INA § 242(a)(2), see footnote 83 supra.
       163
             125 F.3d at 923.
       164
             125 F.3d at 927.
       165
             Boston-Bollers, 106 F.3d at 353.
    
                                                         64
    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).
    
             Before we conclude our discussion of the Yang decision, we note that the Tenth Circuit in
    
    Berehe v. INS, 
    114 F.3d 159
    , 161 (10th Cir.1997), declined to follow the Yang approach. In Berehe,
    
    the court applied IIRIRA § 309(c)(4)(G), which is a transitional rule restricting the judicial review
    
    of the deportation of certain criminal aliens, as follows:
    
             [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 validly deportable by reason of
    
    having committed one of the enumerated criminal offenses." Berehe, 114 at 161. In reaching this
    
    conclusion the court specifically reasoned that:
    
    
       166
          According to the court in Berehe, the transitional rule found in IIRIRA § 309(c)(4)(G)
    applied when deportation proceedings were commenced before IIRIRA's general effective date
    of April 1, 1997 but the final order of deportation or exclusion was entered more than thirty days
    after IIRIRA's September 30, 1996 date of enactment. 114 F.3d at 161. Because the
    proceedings to deport the alien in Berehe commenced before April 1, 1997 and the order of
    deportation was issued after October 30, 1996, the court concluded that the transitional rule
    governed the judicial review of the alien's deportation order. Id.
    
                     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).
    
                                                       65
            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.
    
    Id. at 162.
    
            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 INA § 106(a)(10) before the court dismissed the case for lack of jurisdiction.
    
    Wittgenstein v. INS, 
    124 F.3d 1244
    , 1245 (10th Cir.1997). Second, in Berehe, the Tenth Circuit did
    
    not discuss IIRIRA's elimination of § 2241 habeas jurisdiction to review immigration matters, the
    
    fact that jurisdiction to review immigration matters remains under only the INA, and the consequent
    
    effect of criminal aliens being deprived of all judicial review under the INA. The Seventh Circuit
    
    in Yang recognized these aspects of the problem and analyzed in considerable detail the potential
    
    constitutional issues arising from the limitations placed on its jurisdiction. Accordingly, in addition
    
    to being persuaded by the Seventh Circuit's construction of INA § 106(a)(10), we are convinced that
    
    the court in Yang reached its conclusion after giving appropriate consideration to the issues arising
    
    from such severe restrictions on judicial review.
    
    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
    
    
    
    
                                                       66
    was implicit in former INA § 106(a)167 which provided that review in the courts of appeal was the
    
    "sole and exclusive procedure" for challenging a final deportation order, and which required
    
    exhaustion of administrative remedies as a prerequisite to obtaining judicial review.168 IIRIRA
    
    strengthened these pre-existing limitations on judicial review. In addition to retaining a mandatory
    
    exhaustion provision, IIRIRA added INA § 242(b)(9) which now expressly provides that judicial
    
    review is available of only "a final order."169
    
               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, 
    112 S. Ct. 1081
    , 
    117 L. Ed. 2d 291
     (1992) (stating "where Congress specifically
    
    mandates, exhaustion is required"); Alexander v. Hawk, 
    159 F.3d 1321
     (11th Cir.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
    
    
       167
             8 U.S.C. § 1105a (1994).
       168
         See Massieu v. Reno, 
    91 F.3d 416
    , 421 (3d Cir.1996); see also INS v. Chadha, 
    462 U.S. 919
    , 938, 
    103 S. Ct. 2764
    , 
    77 L. Ed. 2d 317
     (1983).
       169
          8 U.S.C. § 1252(b)(9). The judges dissenting to the denial of rehearing en banc in the
    Ninth Circuit's decision of American-Arab Anti-Discrimination Committee v. Reno concluded
    that IIRIRA unambiguously foreclosed all judicial review of the non-criminal alien's claims until
    the entry of a final deportation order, and that the INA § 242(g) so construed creates no genuine
    constitutional difficulty. American-Arab Anti-Discrimination Committee v. Reno, 
    132 F.3d 531
    (9th Cir.1997) (allowing aliens post-IIRIRA to seek an injunction in district court before a final
    removal order), cert. granted, --- U.S. ----, 
    118 S. Ct. 2059
    , 
    141 L. Ed. 2d 137
     (June 1, 1998)
    (granting certiorari on "[w]hether, in light of the Illegal Immigration Reform and Immigrant
    Responsibility Act, the courts below had jurisdiction to entertain respondents' challenge to the
    deportation proceedings prior to the entry of a final order of deportation").
    
                                                      67
    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. Weinberger v. Salfi, 
    422 U.S. 749
    , 766, 
    95 S. Ct. 2457
    , 
    45 L. Ed. 2d 522
     (1975) (holding
    
    that where exhaustion is a statutorily specified jurisdictional prerequisite, "the requirement ... may
    
    not be dispensed with merely by a judicial conclusion of futility").170
    
               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 a litigant may be required to obtain
    
    a final agency decision on all claims before being able to seek judicial review.172
    
    
    
    
       170
          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, 
    112 S. Ct. 1081
    .
       171
          See, e.g., FTC v. Standard Oil Co. of Cal., 
    449 U.S. 232
    , 239-45, 
    101 S. Ct. 488
    , 
    66 L. Ed. 2d 416
     (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, 
    102 S. Ct. 3081
    , 
    73 L. Ed. 2d 754
     (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).
       172
             See Weinberger v. Salfi, 
    422 U.S. 749
    , 757, 
    95 S. Ct. 2457
    , 
    45 L. Ed. 2d 522
     (1975).
    
                                                       68
             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 INA § 101(a)(13)(C) and the
    
    Fleuti doctrine that, if decided in his favor, would remove certain constitutional issues. This
    
    requirement also avoids piecemeal review by consolidating all challenges to the deportation process
    
    into a single judicial proceeding. Richardson's contentions that the INA, especially INA §
    
    242(a)(2)(B), unconstitutionally restricts his judicial review can be made in his direct petition for
    
    review in the court of appeals, just as the alien did in Boston-Bollers. Richardson does not need §
    
    2241 habeas to do that.173
    
    K. Alternative Review Under INA Satisfies Suspension Clause
    
             We are not required to resolve the circuits' ongoing debate about whether judicial review
    
    under the Suspension Clause approximates § 2241 habeas jurisdiction. This is so because the
    
    
    
       173
         Although the immigration judge is not authorized to consider the constitutionality of INA §
    242(a)(2)(C), the court of appeals can hear such a challenge upon completion of the
    administrative proceedings. See INS v. Chadha, 
    462 U.S. 919
    , 938, 
    103 S. Ct. 2764
    , 
    77 L. Ed. 2d 317
     (1983). Ramallo v. Reno, 
    114 F.3d 1210
     (D.C.Cir.1997). See footnote 178 infra.
    
                     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 28 U.S.C. §
             2347(b)(3) (Supp.1998), an appellate court can transfer a case to district court in order to
             develop a more complete factual record if deemed necessary. Accordingly, in the
             absence of a factual record of an alleged constitutional violation due to an immigration
             judge's inability to rule on such matters, the court of appeals can upon proffer transfer the
             case to the district court. See e.g. Coriolan v. INS, 
    559 F.2d 993
    , 1003 (5th Cir.1977)
             (Tuttle, J.) (applying the procedures in § 2347 in the immigration context). In
             Richardson's particular case, we note that the facts in his case are basically undisputed
             and that his constitutional claims raise primarily legal questions, such as the scope of
             judicial review required by the Suspension Clause, that are not fact intensive or
             necessarily in need of record development.
    
                                                      69
    Supreme Court has held that the Suspension Clause permits Congress to replace habeas corpus with
    
    another avenue of judicial review as long as that alternative vehicle is adequate and effective. Swain
    
    v. Pressley, 
    430 U.S. 372
    , 383-84, 
    97 S. Ct. 1224
    , 
    51 L. Ed. 2d 411
     (1977); see also Lonchar v.
    
    Thomas, 
    517 U.S. 314
    , 322-33, 
    116 S. Ct. 1293
    , 1298, 
    134 L. Ed. 2d 440
     (1996). Congress had done
    
    just that in enacting IIRIRA. We find that the repeal of § 2241 habeas does not violate the
    
    Suspension Clause because the INA, as amended by IIRIRA, still provides adequate and effective
    
    judicial review.
    
               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. INA §§ 242(b)(2), 242(b)(9), &
    
    242(d)(1).174 INA § 242(b)(9) expressly provides that this judicial review covers "all questions of
    
    law and fact, including interpretation and application of constitutional and statutory provisions."175
    
               A complication arises for Richardson only because the INA, within the confines of the INA,
    
    places additional restrictions on the INA-proscribed judicial review for criminal aliens with certain
    
    enumerated serious criminal offenses. Richardson asserts that INA § 242(a)(2)(C) precludes all
    
    judicial review of removal orders against criminal aliens, and thus INA § 242(g)'s repeal of § 2241
    
    habeas unconstitutionally removes his only remaining vehicle for judicial review. Alternatively,
    
    Richardson argues that the INS' proposition—that INA § 242(a)(2)(C) still permits review of
    
    "substantial constitutional claims"—does not satisfy the Suspension Clause's requirement of
    
    
    
    
       174
             8 U.S.C. §§ 1252(b)(2), 1252(b)(9), & 1252(d)(1) (Supp.1998).
       175
             8 U.S.C. § 1252(b)(9) (Supp.1998).
    
                                                      70
    adequate and effective review which, Richardson says, means judicial review of all constitutional
    
    and statutory errors.
    
               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 § 2241 habeas
    
    jurisdiction over immigration decisions in the inferior courts and to provide for judicial review of
    
    immigration decisions exclusively under a different jurisdictional statute, to wit: the INA. Congress
    
    has the power to remove all immigration decisions from the jurisdiction of the district courts, which
    
    is exactly what Congress has done. Second, in enacting the INA, Congress has the power to outline
    
    the mode and timing of judicial review under the INA, to wit: only by direct petition for review in
    
    the court of appeals and only after a final removal order.
    
               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 INA
    
    § 242(a)(2)(C).176
    
    
    
       176
             INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (Supp.1998) (emphasis supplied), provides:
    
                              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).
    
               Id. INA § 237 is codified in 8 U.S.C. § 1227 (Supp.1998). INA § 212 is codified in 8
               U.S.C. § 1182 (Supp.1998).
    
                                                       71
               While INA § 242(a)(2)(C) significantly restricts Richardson's judicial review, we disagree
    
    with Richardson's contention that this INA provision leaves him without any judicial review in
    
    violation of the Suspension Clause. Courts of appeal retain jurisdiction under INA § 242(a)(2)(C)
    
    to determine whether the jurisdictional bar in that section applies. See Yang, 109 F.3d at 1192;
    
    Okoro v. INS, 125 F.3d at 925; Anwar, 116 F.3d at 144; Coronado-Durazo, 123 F.3d at 1323. But
    
    cf., Berehe v. INS, 114 F.3d at 161. INA § 242(a)(2)(C) does not state that judicial review is
    
    prohibited if the Attorney General finds that the person being removed is an alien and removable
    
    for a reason covered in INA § 242(a)(2)(C). To the contrary, jurisdiction is prohibited if such
    
    conditions actually exist. Under the language of INA § 242(a)(2)(C), in order to decide whether the
    
    jurisdictional bar applies, courts must determine that the removal order: (1) "is against an alien" (2)
    
    "who is removable" (3) "by reason of having committed a criminal offense covered" in certain
    
    enumerated sections.177
    
                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 constitutional attack on a jurisdiction-stripping statute
    
    
       177
             See full text of INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), at footnote 176 supra.
       178
         See Morel v. INS, 
    144 F.3d 248
     (3d Cir.1998); Mansour v. INS, 
    123 F.3d 423
    , 426 (6th
    Cir.1997); Boston-Bollers v. INS, 
    106 F.3d 352
     (11th Cir.1997); Okoro 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, --- U.S. ----, 
    118 S. Ct. 624
    , 
    139 L. Ed. 2d 605
     (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 INA § 106(a)(10) enacted by
    
                                                       72
    in this court of appeals was not foreclosed by INA § 106(a)(10), Boston-Bollers, 106 F.3d at 352,
    
    it is not foreclosed by INA § 242(a)(2)(C). This approach is consistent with the admonition in
    
    Heikkila v. Barber, 
    345 U.S. 229
    , 234, 
    73 S. Ct. 603
    , 
    97 L. Ed. 972
     (1953), that "Congress ... intended
    
    to make these administrative decisions non-reviewable to the fullest extent possible under the
    
    Constitution."
    
             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 INA § 242(a)(2)(C). While that review
    
    is definitely restricted, INA § 242(a)(2)(C) does not remove all judicial review. Any constitutional
    
    infirmities Richardson perceives in that INA-proscribed judicial review must be raised in an attack
    
    on the constitutionality of INA § 242(a)(2)(C) only in the court of appeals and only after a final
    
    removal order.179 If review of such questions under INA § 242(a)(2)(C) does not satisfy the
    
    
    
    AEDPA § 440(a), did not violate Article III or Due Process Clause but declining to find
    sufficient jurisdiction under that jurisdictional bar to consider the alien's other constitutional
    claims that procedures in the BIA proceedings violated his constitutional rights because Chow
    still had other potential avenues for relief remaining open for those constitutional claims such as
    a writ pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 1651 or Art. I, § 9 cl.2); Turkhan v. INS, 
    123 F.3d 487
    , 489 (7th Cir.1997) (following Chow, and noting other avenues of habeas review were
    still available and therefore INA § 106(a)(10) is unlike other "true door-closing
    statutes—[where] the constitutional claims ... would be reviewed either pursuant to the statutes at
    issue or not at all"). Lerma de Garcia v. INS, 
    141 F.3d 215
    , 217 (5th Cir.1998) (holding INA §
    106(a)(10) forecloses all judicial review including constitutional claims in the context raised as
    "criminal deportees retain some opportunity to apply for writs of habeas corpus"). Williams v.
    INS, 
    114 F.3d 82
    , 83-84 (5th Cir.1997); Nguyen v. INS, 
    117 F.3d 206
    , 207 (5th Cir.1997). The
    courts strictly foreclosing all review under INA § 106(a)(10) did so in large part because § 2241
    habeas jurisdiction remained available. That is no longer the case.
       179
          In addition to his claim that INA § 242(a)(2)(C) conflicts with the Suspension Clause, we
    recognize that Richardson also alleges that he has been denied equal protection guaranteed under
    the Due Process Clause of the Fifth Amendment. An alien facing removal from the United
    States as inadmissible can request review of bond/release decisions only from the INS district
    director, but an alien being removed based on deportability can seek review from an immigration
    judge. Richardson contends that this disparate treatment constitutes a violation of equal
    
                                                     73
    Suspension Clause and INA § 242(a)(2)(C) is held to be unconstitutional, then at worst Richardson
    
    will be left with the INA's underlying general judicial review of "all questions of law and fact"
    
    available under INA §§ 242(b)(2) and 242(b)(9) in the court of appeals. Such judicial review clearly
    
    satisfies the Suspension Clause.
    
    
    
    
    protection.
    
                   As a permanent resident alien, Richardson enjoys equal-protection rights. Yick
           Wo v. Hopkins, 
    118 U.S. 356
    , 369, 
    6 S. Ct. 1064
    , 
    30 L. Ed. 220
     (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 INA § 212(h)).
           An arguable fatal defect in Richardson's equal-protection argument is that most resident
           aliens returning to the United States can re-enter summarily. Thus, it is returning aliens
           with serious criminal convictions, not all returning aliens, that are deemed "seeking
           admission," detained, and restricted to seeking bond from the INS district director. The
           INS has a valid interest in using ports of entry as a screening mechanism for removing
           criminal aliens expeditiously and restricting bond decisions to review by the district
           director, as opposed to admitting them and then instituting deportation proceedings. The
           Supreme Court has recognized that although a permanent resident alien who is returning
           from a brief trip abroad enjoys rights to procedural due process, such aliens do not have a
           right to "identical treatment" to a permanent resident alien who has not left the country.
           Landon v. Plasencia, 
    459 U.S. 21
    , 31, 
    103 S. Ct. 321
    , 
    74 L. Ed. 2d 21
     (1982).
    
                   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 INA § 242(a)(2)(C), or, if not, whether INA § 242(a)(2)(C) violates the Suspension
           Clause.
    
                                                    74
               IIRIRA expressly provides for the severability of its numerous provisions.180 Therefore, even
    
    if a court of appeals were to find INA § 242(a)(2)(C) does not satisfy the Suspension Clause, this
    
    does not mean that INA § 242(g)'s repeal of § 2241 habeas is unconstitutional. What it means is that
    
    without INA § 242(a)(2)(C)'s specific additional limitations on judicial review under the INA,
    
    Richardson then could avail himself of the general judicial review provided under INA §§ 242(b)(2)
    
    and 242(b)(9). Thus, Richardson's concerns at most boil down to whether INA § 242(a)(2)(C) is
    
    unconstitutional, and not whether INA § 242(g)'s repeal of § 2241 is constitutional. IIRIRA
    
    mandates that constitutional claims about the INA's provisions be made in only one place and one
    
    time: in the court of appeals and after a final removal order.181
    
               We pause to observe that Richardson's removal order is based on his having a
    
    cocaine-trafficking conviction, which is deemed an aggravated felony conviction under the INA and
    
    is a basis for both inadmissibility and deportation under the INA. We also note that Richardson does
    
    not dispute that he is an alien. Making sure that the BIA record establishes the jurisdictional facts
    
    
    
    
       180
             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.
       181
          This applies not only to Richardson's claims about INA § 242(a)(2)(C) but also to
    Richardson's constitutional claims regarding the effect of INA § 236(e) (restricted judicial
    review of bond and parole decisions) and INA § 242(a)(2)(B)(ii) (restricted judicial review of
    discretionary decisions). Similar to footnotes 179 and 182, we do not address whether INA §
    242(a)(2)(C) permits, or whether the Suspension Clause requires, the judicial review of all
    constitutional claims or only "substantial constitutional claims" as the INS contends. We do
    know, however, from Boston-Bollers and Yang that, at a minimum, judicial review exists under
    INA § 242(a)(2)(C) to determine whether that jurisdictional bar applies and whether that
    jurisdictional bar violates the Suspension Clause.
    
                                                        75
    under INA § 242(a)(2)(C)—that the criminal alien: (1) is "an alien," not a citizen; (2) "who is
    
    removable"; (3) "by reason of having committed a criminal offense covered" in certain enumerated
    
    sections—goes a long way, and very well may be sufficient in this particular type case, to provide
    
    an adequate and effective collateral judicial review of the validity of Richardson's executive
    
    detention and removal order. This is so at least where the sole basis of an alien's being detained and
    
    removed is one fact: his having committed an aggravated felony conviction as defined by the
    
    
    
    
                                                     76
    INA.182 This is especially true since discretionary relief from, and cancellation of, that type of
    
    
       182
          Judicial review of statutory and legal errors is expressly provided for under INA §§
    242(b)(2) and 242(b)(9). In this case, we do not address whether INA § 242(a)(2)(C) permits, or
    whether the Suspension Clause requires, the judicial review of statutory or legal errors other than
    to the extent necessary to determine whether a jurisdictional bar to judicial review exists.
    Several courts have addressed this issue and reached different conclusions.
    
                     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 § 2241 and its precursor
             statutes. See, e.g., Felker, 518 U.S. at 661, 
    116 S. Ct. 2333
    ; Delgadillo v. Carmichael,
             
    332 U.S. 388
    , 390-91, 
    68 S. Ct. 10
    , 
    92 L. Ed. 17
     (1947); Bridges v. Wilson, 
    326 U.S. 135
    ,
             149, 
    65 S. Ct. 1443
    , 
    89 L. Ed. 2103
     (1945); Kessler v. Strecker, 
    307 U.S. 22
    , 35, 
    59 S. Ct. 694
    , 
    83 L. Ed. 1082
     (1939); Mahler v. Eby, 
    264 U.S. 32
    , 46, 
    44 S. Ct. 283
    , 
    68 L. Ed. 549
             (1924); Gegiow v. Uhl, 
    239 U.S. 3
    , 
    36 S. Ct. 2
    , 
    60 L. Ed. 114
     (1915); Gonzales v.
             Williams, 
    192 U.S. 1
    , 
    24 S. Ct. 177
    , 
    48 L. Ed. 317
     (1904); The Japanese Immigrant Case,
             
    189 U.S. 86
    , 
    23 S. Ct. 611
    , 
    47 L. Ed. 721
     (1903); Ekiu v. United States, 
    142 U.S. 651
    , 
    12 S. Ct. 336
    , 
    35 L. Ed. 1146
     (1892). The precursor statute to § 2241 did not specifically
             mention that constitutional claims could support the issuance of a writ of habeas corpus
             until 1867. See Felker, 518 U.S. at 659-60, 
    116 S. Ct. 2333
    .
    
                     Conversely, other courts have concluded that the judicial review under § 2241 is
             significantly broader than the judicial review available in the writ protected by the
             Suspension Clause. The Seventh Circuit noted that "28 U.S.C. § 2241 offers an
             opportunity for collateral attack more expansive than the Great Writ preserved in the
             Constitution." Yang v. INS, 109 F.3d at 1195. In this same vein, the Seventh Circuit also
             noted that "[t]here is a vast gulf between the non-suspendable constitutional writ and the
             Administrative Procedures Act." Id.; see also Felker, 518 U.S. at 663, 
    116 S. Ct. 2333
             ("The class of judicial actions reviewable by the writ [as known to the Framers] was
             more restricted as well.").
    
                     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
             INA § 242(a)(2)(C) to address those errors until after a final removal order. This is what
    
                                                      77
    removal is no longer allowed under the INA.183
    
               In summary, Congress through IIRIRA indisputably intended to remove all jurisdiction in
    
    the district courts and to abbreviate the judicial review of removal orders against criminal aliens to
    
    the fullest extent allowed by the Constitution. Preserving judicial review in the court of appeals
    
    under the INA, to the extent necessary to pass constitutional muster, more closely approximates
    
    congressional intent than the anomalous situation of disregarding the plain language of INA § 242(g)
    
    and preserving a layer of additional judicial review in the district courts for criminal aliens for whom
    
    Congress intended to expedite removal by restricting judicial review to the extent it could.184
    
                                              V. CONCLUSION
    
               After careful consideration, we conclude that INA § 242(g) repeals § 2241 habeas
    
    jurisdiction over immigration decisions. Even if this repeal leaves Richardson with no judicial
    
    review of his detention or removal, the repeal of § 2241 does not violate the Due Process Clause or
    
    Article III. The Due Process Clause is not violated because Richardson's constitutional rights as a
    
    permanent resident alien are fully met by the INA's extensive procedures for bond decisions, parole
    
    
               IIRIRA mandates. We need not enter this debate about what the Suspension Clause
               requires and whether INA § 242(a)(2)(C)'s limitations on judicial review violate the
               Suspension Clause; even if that section were held unconstitutional, Richardson still has
               adequate and effective review under INA §§ 242(b)(2) and 242(b)(9).
       183
             See footnotes 11 and 27 supra.
       184
          Whether Richardson may seek a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, or an
    Art. I § 9, cl.2 writ in the Supreme Court is an issue we need not address as Richardson sought
    only § 2241 habeas jurisdiction. Because we find, to the extent required by the Constitution,
    Richardson's claims can be sufficiently reviewed under INA §§ 242(b)(2), 242(b)(9), and
    242(a)(2)(C), we also do not address the INS' alternative contention that INA § 242(g)'s repeal of
    § 2241 habeas does not violate the Suspension Clause because some form of "residual" habeas
    exists under a constitutional writ, unaided by statute, to address "fundamental miscarriage of
    justice" and that Richardson's constitutional and legal claims do not rise to a "fundamental
    miscarriage of justice."
    
                                                       78
    decisions, and removal proceedings. Article III is not violated because Article III does not mandate
    
    the judicial review of immigration matters but instead leaves establishing the jurisdiction of the
    
    inferior federal courts to Congress.
    
             This repeal also does not violate the Suspension Clause. INA § 242(a)(2)(C) does not
    
    remove all judicial review. At a minimum, judicial review remains available to Richardson under
    
    INA § 242(a)(2)(C) to determine if the specific conditions exist that would bar jurisdiction. If the
    
    bar applies, jurisdiction remains to consider whether the level of judicial review remaining in INA
    
    § 242(a)(2)(C) in a particular case satisfies the Suspension Clause. If not, Richardson can pursue
    
    adequate and effective judicial review of statutory and constitutional issues under INA §§ 242(b)(2)
    
    and 242(b)(9). However, IIRIRA mandates the mode and timing of any constitutional attack on INA
    
    § 242(a)(2)(C) or any other INA provisions: only in the court of appeals, only after a final removal
    
    order has been issued, and only after Richardson has exhausted all administrative remedies.
    
             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 out many harsh consequences created by these new
    
    immigration laws, but those consequences are not the result of constitutional violations but are the
    
    result of political decisions made by Congress exercising its plenary power to regulate
    
    immigration.185 As outlined in this decision, the Supreme Court has recognized repeatedly that
    
    
       185
          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.").
    
                                                    79
    immigration decisions present peculiarly political issues to be decided by the executive and
    
    legislative branches. Our judicial task is not to rewrite these new immigration laws, but to apply
    
    these laws as written by Congress to the full extent permitted by the Constitution. We have done
    
    so.
    
           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.
    
    
    
    
                                                      80