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


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  •                                                                       [PUBLISH]
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                           FOR THE ELEVENTH CIRCUIT         FILED
                            ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 12/09/98
                                   No. 98-4230
                                                              THOMAS K. KAHN
                            ________________________              CLERK
    
                       D. C. Docket No. 97-3799-CIV-DAVIS
    
    RALPH RICHARDSON,
                                                                    Plaintiff-Appellee,
    
                                       versus
    
    JANET RENO, Attorney General of the United States;
    DORIS MEISSNER, Commission, Immigration and Naturalization Service;
    ROBERT WALLIS, Acting District Director, Immigration and Naturalization
    Service; UNITED STATES IMMIGRATION AND NATURALIZATION
    SERVICE; UNITED STATES DEPARTMENT OF JUSTICE; and
    EXECUTIVE OFFICE OF IMMIGRATION REVIEW,
                                                          Defendants-Appellants.
                          ________________________
    
                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                 (December 9, 1998)
    
    
    Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior
    Circuit Judge.
    
    HULL, Circuit Judge:
                                             TABLE OF CONTENTS
    
    I. FACTS AND PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    II. RICHARDSON’S HABEAS CORPUS PETITION . . . . . . . . . . . . . . . . . . . . . 8
    III. NEW IMMIGRATION LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
          A.   “Removal” Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
          B.   Permanent Resident Criminal Aliens Returning From Abroad
                . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
          C.   Supreme Court’s Fleuti Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
          D.   Detention of Criminal Aliens “Seeking Admission” . . . . . . . . . . . . 19
          E.   Detention Under TPCRs in IIRIRA § 303(b)(3) . . . . . . . . . . . . . . . 22
          F.   Detention Under INA § 236(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
          G.   INA § 236(e) Restricts Review of Bond and Parole Decisions . . . . 29
          H.   Procedures for Removal Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 31
          I.   IIRIRA Consolidates Judicial Review in the Court of Appeals
                . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
          J.   INA § 242(a)(2)(C) Restricts Review of Removal Orders Against
               Criminal Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
          K.   INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions
                . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
    IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
          A.   INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration
               Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
          B.   No Constitutional Infirmities to Avoid . . . . . . . . . . . . . . . . . . . . . . . 47
          C.   Eleventh Circuit’s Boston-Bollers Decision . . . . . . . . . . . . . . . . . . . 51
          D.   Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
          E.   Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
          F.   Suspension Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
          G.   Second Circuit’s Henderson Decision . . . . . . . . . . . . . . . . . . . . . . . 66
          H.   Ninth Circuit’s Magana-Pizano Decision . . . . . . . . . . . . . . . . . . . . . 69
          I.   Seventh Circuit’s Yang Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
          J.   INA §§ 242(b)(9) and (d) Require Final Removal Order . . . . . . . . . 83
          K.   Alternative Review Under INA Satisfies Suspension Clause . . . . . 87
    V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
    
    
    
    
                                                                2
          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 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
    
    
                                              3
    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 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 cocaine-
    
    
    
    
           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).
    
                                                    4
    trafficking conviction, an aggravated felony under INA § 103(a)(43).3 Richardson
    
    was taken to the Krome Detention Center, Miami, Florida, and immediately was
    
    placed in “removal” proceedings under INA § 240.4
    
           On November 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 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
    
    
           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).
           6
            Id.
    
                                                   5
    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
    
    
    
           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.
    
                                                     6
    Richardson be given “an individualized 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
    
    
    
    
           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.)
    
                                                      7
    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 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
    
    
    
           12
            Richardson’s brief was filed with the BIA on October 15, 1998, and the INS brief was
    due on November 28, 1998.
    
                                                  8
    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;”
    
           (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
    
    
           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).
    
                                                     9
    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.
    
    
    
    
          15
               8 U.S.C. § 1252(g) (Supp. 1998).
    
                                                  10
            Since Richardson attempted to enter the United States on October 26, 1997,
    
    IIRIRA’s extensive revisions to the INA undisputedly govern this case.16
    
                                 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;
    
    
    
    
            16
                 IIRIRA was signed into law on September 30, 1996 and became effective on April 1,
    1997.
            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).
    
                                                     11
           (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 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”
    
    
           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).
    
                                                 12
    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 States or the alien is being deported from the United
    
    States.23 In contrast, the substantive grounds for determining “inadmissibility” and
    
    
           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).
           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
    
                                                       13
    “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”:
    
    
    
    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.
    
                                                   14
                   (i) has abandoned or relinquished that status
                   (ii) has been absent from the United States for a continuous period in
                   excess of 180 days
                   (iii) has engaged in illegal activity after having departed the United
                   States
                   (iv) has departed 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
    
           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.
    
                                                      15
    permanent resident with a cocaine-trafficking conviction covered by Section
    
    1182(a)(2), the INS treated him as an arriving alien “seeking admission” to the
    
    United States under INA § 101(a)(13)(C) and subjected him to inspection as any
    
    other alien arriving to the United States.28
    
    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.
    
           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
    
                                                     16
    Fleuti, 
    374 U.S. 449
     (1964), the Supreme Court interpreted “intended” in former
    
    INA § 101(a)(13) as an intent to depart the country in a manner “meaningfully
    
    interruptive of the alien’s permanent residence.” The Court held that a lawful
    
    permanent resident’s “innocent, casual and brief” excursion was not sufficiently
    
    interruptive of the alien resident’s status to be “intended” and would not be deemed
    
    an “entry.” Id.
    
           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.
    
    
    
                     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.
           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).
    
                                                      17
    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 “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
    
    
    
           32
                See footnote 28 supra.
           33
                See Matter of Collado-Munoz, Int. Dec. No. 3333 (BIA Dec. 18, 1997).
           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).
    
                                                     18
    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:
    
                  . . . 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
    
    
           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
     (1984). Perlea-Escobar v. Executive Office for Immigration, 
    894 F.2d 1292
    , 1296 (11th Cir. 1990) (quoting Chevron).
    
                                                  19
                      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
    
    
    
           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.
    
                                                       20
    district director sent Richardson’s counsel a letter 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.
    
    
                                                        21
    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
    
    
    
    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).
    
                                                     22
                            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.
    
    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).
    
    
    
    
           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).
    
                                                     23
           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
    
           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
    
           44
                The TPCR in IIRIRA § 303(b)(3)(B) states:
    
                             (B) Release. – The Attorney General may release the alien
                     only if the alien is an alien described in subparagraph (A)(ii) or
                     (A)(iii) and –
                                     (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
    
                                                      24
           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, 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)
    
    
    
    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.
           48
                Id.
    
                                                  25
          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 on whether the alien is to be
    
    removed from the United States.”51 Under INA § 236(a) and (b), the Attorney
    
    
    
    
          49
               INA § 236(c), 8 U.S.C. § 1226(c) (Supp. 1998).
          50
               Id.
          51
               8 U.S.C. § 1226(a) (Supp. 1998) (emphasis supplied).
    
                                                    26
    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
    
    
           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.
    
                                                     27
                                   (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
    
    
           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.
    
                                                       28
    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
    
           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(c)(2), 8 U.S.C. § 1226(c)(2) (Supp. 1998).
           59
                8 U.S.C. § 1226(c) (Supp. 1998).
    
                                                   29
    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 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.
    
    
    
    
           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.
    
                                                  30
    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).
    
                                                     31
           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
    
    
    
    
           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).
    
                                                      32
           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 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
    
    
    
    
           72
                Pub. L. No. 104-132, 110 Stat. 1214 (1996).
           73
                Id.
           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).
    
                                                       33
    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
    
           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
    
    
           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.
           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
    
                                                      34
           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
    
           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
    
    “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).
    
                                                     35
    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.
    
           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).
    
                                                      36
           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 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–
    
           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
    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 . . . .” 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).
    
                                                    37
                     ...
                             (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
    
                                            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
    
    
           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. 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
    
                                                      38
    A.     INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration
           Decisions
    
           We begin by recognizing and applying established cannons of statutory
    
    construction applicable to immigration statutes. First, ambiguities in the law are to
    
    be interpreted in favor of the alien.86 Second, restrictions on jurisdiction are to be
    
    read narrowly, courts should not assume that jurisdiction is repealed unless the
    
    statute says so explicitly, and repeals by implication of jurisdictional statutes are
    
    disfavored.87
    
           Although guided by these same principles, courts are divided on whether the
    
    new 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.
    
                    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 (1987); Fong Haw Tan v. Phelan, 
    333 U.S. 6
    , 9-10 (1948).
           87
           See McNary v. Haitian Refugee Ctr., 
    498 U.S. 479
    , 496 (1991); Bowen v. Michigan
    Academy of Family Physicians, 
    476 U.S. 667
    , 670-72 (1986).
           88
             Although Hose v. INS held that INA § 242(g) repealed § 2241 habeas over a non-
    criminal 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).
    
                                                    39
    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. Sonchick, 
    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, 
    118 S. Ct. 624
     (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)
    
    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.
           89
              A subsequent Second Circuit decision in Henderson v. Reno, 
    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.”
    
                                                   40
    (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, 
    989 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
    
    
    
    
          90
               See Auguste v. Reno, 
    152 F.3d 1325
    , 1328 (11th Cir. 1998), and footnote 78 supra.
    
                                                    41
    other provisions of law, such as § 2241.91 When Congress says “any,” it means
    
    “any” law, which necessarily includes § 2241.92
    
           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
    
           91
             8 U.S.C. § 1252(g) (emphasis supplied). See, e.g., United States v. Gonzales, 
    117 S. Ct. 1032
    , 1035 (1997) (“Read naturally the word ‘any’ has an 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.
    C.E. 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
    
                                                   42
    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,
    
    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
    
    
    
    
    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.
           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.”).
    
                                                      43
    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
    
    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
    
    
    
    
           97
                Pub. L. No. 104-132, 110 Stat. 1214 (1996).
           98
                8 U.S.C. § 1252(g) (Supp. 1998).
           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.
    
                                                     44
    mention § 2241 expressly.100 Richardson emphasizes the presumption against
    
    implied repeal of habeas corpus jurisdiction addressed in Felker v. Turpin, 
    518 U.S. 651
     (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 § 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
    
    
    
    
           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.
    Chada, 
    462 U.S. 919
    , 938 (1983); Massieu v. Reno, 
    91 F.3d 416
     (3d Cir. 1996).
           101
              Felker, 518 U.S. at 661. 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).
           102
                 Felker, 518 U.S. at 660.
    
                                                      45
           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,
    
    
           103
                 8 U.S.C. § 1252(g) (Supp. 1998).
    
                                                    46
    Richardson stresses that other limitations within the INA’s judicial-review scheme
    
    result in his having no judicial review whatsoever. Richardson contends, 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.
    
    
                                              47
           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 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-
    
    
    
           104
                 144 F.3d at 219.
           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.
    
                                                   48
    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 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 (1985)
    
    (“[c]ourts cannot press statutory construction ‘to the point of disingenuous
    
    
    
           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 218-220. 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 circumstances to raise constitutional questions, we express no
    opinion on the permissible scope of that review.” Id.
    
                                                    49
    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, 
    118 S. Ct. 2059
     (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.
    
    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
    
    
          107
                See footnote 169 infra.
    
                                             50
    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 (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
    
    
    
    
           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 Prod., 
    511 U.S. 244
    , 265 (1994).
    Boston-Bollers, 106 F.3d at 354 (listing six other circuits reaching same result). See footnote
    105 supra.
    
                                                   51
    power of Congress more complete.” Boston-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
    
           111
               See also Shaughnessy v. United States ex rel. Mezei, 
    345 U.S. 206
    , 210 (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 (1977); Kleindienst v.
    Mandel, 
    408 U.S. 753
    , 765-67 (1972); Harisiades v. Shaughnessy, 
    342 U.S. 580
    , 588-90 (1952).
           112
               In Carlson v. Landon, 
    342 U.S. 524
    , 528-29 (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. 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. However, in between these quotations about the executive
    
                                                   52
           In addition, this Court concluded that former INA § 106(a)(10) did not
    
    offend Article III because Congress and the executive branch exercise plenary
    
    authority over immigration regulation. Id. at 355. We also recognized that “the
    
    federal appellate courts have ‘jurisdiction to review certain final orders of
    
    deportation and exclusion against aliens only because Congress has conferred it.’”
    
    106 F.3d at 354 (quoting Duldulao v. INS, 
    90 F.3d 396
    , 399-400 (9th Cir. 1996).
    
    Accordingly, this Court concluded that INA § 106(a)(10)’s restricting judicial
    
    review of deportation orders against criminal aliens “not only does not violate
    
    Article III, it is illustrative of the concept of separation of powers envisioned by the
    
    Constitution.” Id.
    
           Boston-Bollers would resolve Richardson’s constitutional concerns were it
    
    not for two facts: (1) when this Court interpreted former INA § 106(a)(10) in
    
    Boston-Bollers, IIRIRA’s repeal of § 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
    
    
    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 (citing a long line of Supreme Court precedent).
           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
    
                                                    53
           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 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
    
    
    
    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, 
    118 S. Ct. 624
     (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); Hincepie-Nicto 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).
    
                                                    54
    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
     (1983), this plenary authority is
    
    subject to the limits of the Constitution. See, e.g., Galvan v. Press, 
    347 U.S. 522
    ,
    
    531 (1954); Carlson v. Landon, 
    342 U.S. 524
    , 533 (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 (1950), “once an alien gains admission
    
    to our country and begins to develop the ties that go with permanent residence his
    
    constitutional status changes.” Landon v. Plasencia, 
    459 U.S. 21
    , 32 (1982). The
    
    Supreme Court has held that a permanent resident alien “continuously present” in
    
    the United States has a right to procedural due process in any proceedings to
    
    
    
    
                                              55
    remove that alien from the country.114 See, e.g., Reno v. Flores, 
    507 U.S. 292
    
    (1993); Landon v. Plasencia, 459 U.S. at 21.115 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 (1953).
    
           Removal proceedings under the INA are not criminal proceedings and are
    
    not summary ejection proceedings. See Boston-Bollers, 
    106 F.3d 352
    , 355 (11th
    
    Cir. 1997). Instead, removal proceedings are imbued with procedural safeguards
    
    that satisfy the Due Process Clause. The alien has the right to notice, the
    
           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 (1953). The alien in Chew was a lawful permanent resident who
    worked on an American ship. Id. at 592. He was on a voyage to the Far East for about four
    months. Id. at 594. 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 (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. Comm’r of Immigration, 
    273 U.S. 103
    , 106 (1927);
    Japanese Immigrant Case, 
    189 U.S. 86
    , 100-101 (1903); United States ex rel. Tisi v. Tod, 
    264 U.S. 131
    , 133 (1924); Low Wah Suey v. Backus, 
    225 U.S. 460
     (1912).
    
                                                    56
    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 (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, 
    118 S. Ct. 624
     (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 Matthews v. Eldridge, 
    424 U.S. 319
    , 334-35 (1976): (1) a
    
    
           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 (1982) (emphasis supplied).
    
                                                  57
    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 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
    
    
    
           118
             See, e.g., Matthews v. Diaz, 
    426 U.S. 67
    , 80 (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. The Supreme Court has determined that bail need not be provided in all
    immigration cases. Id. at 546. 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.
    
                                                  58
    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 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
    
           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, 
    118 S. Ct. 624
     (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
     (1932) (drawing a distinction
    between public and private rights and listing immigration as an exemplar of a public right).”
    
                                                    59
           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 (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
    
    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
    
    
    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
    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 (1993); Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 
    458 U.S. 50
    , 57-60 (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.
    
                                                    60
    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, and (b) is
    
    limited to only “substantial constitutional claims” or “substantial claims of
    
    constitutional error.”123
    
    
    
           122
              Swain v. Pressley, 430 U.S. at 386 (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 (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 (1953) (Jackson, J., concurring) (“[T]he historic purpose of
    the writ has been to relieve detention by executive authorities without judicial trial.”).
           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
     (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 (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.
    
                                                    61
           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
     (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. The Supreme Court upheld the preclusion of judicial
    
    review in the 1917 Act, but in the context of statutory habeas remaining available,
    
    stating:
    
    
    
           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 (1938); see also McClesky v. Zant 
    499 U.S. 467
    , 477 (1991) (noting inter alia that the 1867 amendments expanded availability of the
    writ in federal court to people held in state custody). Accordingly, the Court has concluded that
    this revision to habeas jurisdiction conferred on federal courts the ability to determine the
    legality and constitutionality of a person’s detention even if “the proceedings resulting in
    incarceration may be unassailable on the face of the record.” United States v. Hayman, 
    342 U.S. 205
    , 212 (1952).
            Over the years, Congress amended habeas jurisdiction several times. For the most part,
    these amendments have related to the form and procedure for seeking the writ and to the
    codification of federal statutes in 1874 and 1948. Rev. Stat. §§ 751-766 (1874); 62 Stat. 869
    (1948). However, the Supreme Court has recently recognized that the Judiciary Act of 1789 is
    the “direct ancestor” of 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; see also Hayman,
    342 U.S. at 211 n. 11 (noting that the 1867 Act is [n]ow incorporated in 28 U.S.C. (Supp. IV) §
    2241 et seq.”
    
                                                   62
                   The rule which we reaffirm recognizes the legislative
                   power to prescribe applicable procedures for those who
                   would contest deportation orders. Congress may well
                   have thought that habeas corpus, despite its apparent
                   inconvenience to the alien, should be the exclusive
                   remedy in these cases in order to minimize opportunities
                   for repetitious litigation and consequent delays as well as
                   to avoid possible venue difficulties connected with any
                   other type of action.
    
    Id. at 237. Thus, Heikkila does not resolve the issue here of whether IIRIRA’s
    
    repeal of § 2241 habeas would violate the Suspension Clause if Richardson has no
    
    judicial review under the INA.125
    
           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
    
           125
               Both Richardson and the INS cite Webster v. Doe, 
    486 U.S. 592
    , 603 (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 (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 Agency. In his
    dissent, Justice Scalia pointed out that “the denial of all judicial review is not at issue,” but
    “merely the denial of review in United States district courts.” Id. at 611. Since 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.
    
                                                    63
    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. Magano-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 Magano-
    
    Pizano, the Ninth Circuit concluded that INA § 242(g)’s repeal of § 2241 habeas
    
    violated the Suspension Clause. In Jean-Baptiste, 
    141 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, 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
    
    
                                              64
    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.
    
    
                                             65
    1998). Subsequently, in Henderson the Second Circuit revisited whether
    
    constitutional issues under the Suspension Clause are actually implicated by
    
    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
    
          126
                Henderson, 157 F.3d at 119.
          127
                Id. at 119 n.9.
          128
                Id. (emphasis supplied).
          129
                Henderson, 157 F.3d at 119.
    
                                               66
    constitutional issues.”130 Instead, the Second Circuit indicated that 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
    
    
           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.
           131
                 Id. at 119.
           132
                 Id.
    
                                                   67
    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 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 non-
    
    
    
           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.
           136
                 Id.
    
                                                      68
    criminal 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 Subsequently,
    
    in Magana-Pizano v. INS, 
    152 F.3d 1213
    , 1220 (9th Cir.), modified, ___ F.3d ___
    
    (9th Cir. Nov. 13, 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.
    
    
    
           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
     (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, 114 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). 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 how such review was either inadequate or ineffective to contest her
    detention.
    
                                                     69
          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 concluded that INA
    
    
    
          138
                Magana-Pizano, 152 F.3d at 1220.
          139
                Id.
          140
                Hose, 141 F.3d at 936.
    
                                                   70
    § 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, 
    118 S. Ct. 624
     (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
    
    
    
           141
                 Magano-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.
    
                                                    71
    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 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
    
    
    
    
           144
                 Id. at 1191.
           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.
    
                                                     72
    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. 29
     (1984). [Citations omitted.] Likewise
                     with errors of federal law. See United States v. Caceres,
                     
    440 U.S. 741
    , 752, 
    99 S. Ct. 1465
    , 1472, 
    59 L. Ed. 2d 733
                     (1979) (error “by an executive agency in interpreting its
                     own regulations surely does not raise any constitutional
                     concerns”); Czerkies, 73 F.3d at 1443 (“The government
                     does not violate the Constitution every time it mistakenly
                     denies a claim for benefits.”). As a practical matter, the
                     right to obtain review, in any court, on the theories our
                     petitioners advance is gone. That is the point of the
                     legislation. Congress wanted to expedite the removal of
                     criminal aliens from the United States by eliminating
                     judicial review, not to delay removal by requiring aliens
                     to start the review process in the district court rather than
                     the court of appeals.
    
    Yang, 109 F.3d at 1195 (emphasis supplied). The Seventh Circuit in Yang
    
    recognized, as did the Second Circuit in Henderson, that Congress wanted to
    
    
          147
                Id. at 1197.
    
                                                  73
    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
    
    
    
    
          148
                Id. at 1192.
          149
                Id.
          150
                Id.
          151
                Id.
    
                                             74
    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 these three threshold issues in order to decide
    
    whether the jurisdictional bar in INA § 106(a)(10) applies: (1) whether the person
    
    is an alien, (2) whether the alien is deportable, and (3) whether deportation is based
    
    on an enumerated criminal offense.153
    
           Without as extensive a discussion as in Yang, the Fifth Circuit in Anwar v.
    
    INS, 
    116 F.3d 140
    , 144 (5th Cir. 1997), likewise concluded that even under INA §
    
    106(a)(10)’s restrictions on judicial review, it could still exercise some jurisdiction
    
    over the alien’s petition for review.154 The Fifth Circuit noted that under INA §
    
    
           152
              Id. at 1192 (citing Land v. Dollar, 
    330 U.S. 731
     (1947), for the proposition that the
    court retains jurisdiction to determine its own jurisdiction).
           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
    
                                                    75
    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,
    
    
    
    Circuit decision, Pichardo v. INS, 
    104 F.3d 756
     (5th Cir. 1997), and a portion of the Anwar
    decision that is not at issue in this case. Okoro v. INS, 
    125 F.3d 920
    , 924-25 (5th Cir.
    1997)(noting the inconsistency between these two decisions); Anwar, 116 F.3d at 143 n.2. In
    Pichardo, the Fifth Circuit applied the version of INA § 106(a)(10) that included IIRIRA’s first
    amendment to this section - the amendment adding the phrase “without regard to the date of their
    commission” to INA § 106(a)(10). However, the court in Anwar applied INA § 106(a)(10)
    “unamended by IIRIRA.” 
    116 F.3d 143
    . The court in Okoro decided to follow the earlier
    decision of Pichardo. Okoro, 125 F.3d at 925. Nevertheless, neither Pichardo nor Okoro
    diminish the aspect of the Anwar decision that illustrates the jurisdictional analysis discussed in
    Yang. Indeed, as was the case in Anwar and Yang, the court in Pichardo also exercised its
    jurisdiction to the extent necessary to determine whether it could exercise further jurisdiction.
    104 F.3d 758-59. In addition, as discussed below, Okoro expressly adopts a holding that is very
    similar to the holding in Yang. Okoro, 
    125 F.3d 925
    .
           155
                 Id. at 143-44.
           156
                 Id.
           157
                 Id. at 144.
    
                                                    76
    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
    
           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
    
    
    
           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 solicitation to possess cocaine was a
    deportable offense under INA § 241(a)(2)(B)(i) as an offense “relating to a controlled
    substance.” 123 F.3d at 1324. In both of its opinions in Coronado-Durazo, the Ninth Circuit
    began with the premise that if the alien’s conviction constituted a deportable offense, the court
    “lack[s] jurisdiction to review the final order of deportation issued by the INS” because of INA §
    106(a)(10) as amended by the AEDPA. 108 F.3d at 211; 122 F.3d at 1323. Without discussing
    the issue, in both opinions, the Ninth Circuit proceeded on the premise that, under the terms of
    INA § 106 (10), it could review whether the offense upon which deportation was based was a
    deportable offense. 108 F.3d at 211; 123 F.3d at 1323. See also Mendez-Morales v. INS, 
    119 F.3d 738
    , 739 (8th Cir. 1997) (finding that the petitioner was deportable for conviction of an
    aggravated felony and therefore jurisdiction was barred); Perez v. INS, 
    116 F.3d 405
    , 408 (9th
    Cir. 1997) (reversing agency’s findings that the petitioner’s crime made him deportable and
    rendered judicial review unavailable).
    
                                                    77
    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 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
    
    
           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).
           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.
    
                                                      78
                     sentenced to one year or more of imprisonment,
                     regardless of actual confinement.
    
    Id. at 925 (citing Yang, 109 F.3d at 1192). After determining that all three of these
    
    elements applied to the alien, the court concluded that it lacked jurisdiction over
    
    the alien’s petition for review.164
    
          In this same vein, this Court’s decision in Boston-Bollers also exercised
    
    jurisdiction both over the legal issue of whether AEDPA § 440(a)(10)’s enactment
    
    of INA § 106(a)(10) applied retroactively and over whether that retroactive
    
    application violated Mr. Boston-Bollers’ constitutional rights. This Court in
    
    Boston-Bollers was not required to determine the three threshold issues that the
    
    courts did in Yang or Anwar, because the permanent resident alien facing
    
    deportation in Boston-Bollers conceded his alien status, criminal conviction, and
    
    deportability.165 The parties did not dispute that the alien’s petition for direct
    
    review fell within the expressed jurisdiction-limiting language of INA §
    
    106(a)(10). Nevertheless, in Boston-Bollers this Court exercised jurisdiction over
    
    the alien’s petition for direct review in the court of appeals attacking the
    
    constitutionality of the judicial review restrictions in INA § 106(a)(10).
    
    
    
          164
                125 F.3d at 927.
          165
                Boston-Bollers, 106 F.3d at 353.
    
                                                   79
           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
    
    
           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).
    
                                                    80
    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:
    
                  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
    
                                              81
    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 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
    
    
    
    
           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 (1983).
    
                                                 82
    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 (1992) (stating
    
    “where Congress specifically mandates, exhaustion is required”); Alexander v.
    
    Hawk, ___ F.3d ___ (11th Cir. Nov. 5, 1998). This exhaustion requirement is
    
    statutorily mandated by the INA and not judicially created. Although judicially
    
    developed exhaustion requirements might be waived for discretionary reasons by
    
    courts, statutorily created exhaustion requirements bind the parties and the courts.
    
    When a statute requires exhaustion, a petitioner’s failure to do so deprives this
    
    court of jurisdiction. Importantly, mandatory statutory exhaustion is not satisfied
    
    by a judicial conclusion that the requirement need not apply due to futility.
    
    
           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 Reno v. American-Arab 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. Reno v. American-Arab Anti-Discrimination Comm., 
    132 F.3d 531
     (9th Cir. 1998)
    (allowing aliens post-IIRIRA to seek an injunction in district court before a final removal order),
    cert. granted, 
    118 S. Ct. 2059
     (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”).
    
                                                    83
    Weinberger v. Salfi, 
    422 U.S. 749
    , 766 (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
    
    
    
    
           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.
           171
              See, e.g., FTC v. Standard Oil Co. of Cal., 
    449 U.S. 232
    , 239-45 (1980) (holding
    agency’s issuance of an administrative complaint was not subject to review until final agency
    action despite its evident assumption that the propriety of the initial charging decision would not
    be subject to administrative review); United States v. Hollywood Motor Car Co., 
    458 U.S. 263
    ,
    268-70 (1982) (holding that criminal defendants could not immediately appeal the denial of
    motion to dismiss indictment based on prosecutorial vindictiveness); Massieu v. Reno, 
    91 F.3d 416
    , 424-26 (3d Cir. 1996) (holding “[a]lthough the immigration judge is not authorized to
    consider the constitutionality of the statute, this court can hear that challenge upon completion of
    the administrative proceedings” and dismissing alien’s complaint alleging irreparable selective
    enforcement in retaliation for an exercise of First Amendment rights).
    
                                                    84
    a litigant may be required to obtain a final agency decision on all claims before
    
    being able to seek judicial review.172
    
           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
    
           172
                 See Weinberger v. Salfi, 
    422 U.S. 749
    , 757 (1975).
           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 (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
    
                                                     85
    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 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 (1977); see also Lonchar v. Thomas, 
    116 S. Ct. 1293
    , 1298 (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
    
    
    judicial review required by the Suspension Clause, that are not fact intensive or necessarily in
    need of record development.
           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).
    
                                                       86
          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 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
    
    
                                             87
    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
    
           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
    
    
    
           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).
    
                                                      88
    jurisdictional bar in that section applies. See Yang, 109 F.3d at 1192; Okorov 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
    
    
           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, 
    106 F.3d 352
     (11th Cir. 1997); Okorov v. INS, 
    125 F.3d 920
    ,
    923 (5th Cir. 1997); Fernandez v. INS, 
    113 F.3d 1151
    , 1154 (10th Cir. 1997) (noting the
    government conceded judicial review was available for “substantial” constitutional errors); Yang
    v. INS, 
    109 F.3d 1185
     (7th Cir.), cert. denied sub nom, Katsoulis v. INS, 
    118 S. Ct. 624
     (1997);
    Yeung v. INS, 
    76 F.3d 337
     (11th Cir. 1995); Massieu v. Reno, 
    91 F.3d 416
    , 420-24 (3d Cir.
    1996) (district court lacked jurisdiction to entertain constitutional challenge to deportation order,
    which court of appeals had exclusive jurisdiction to entertain); Perez-Oropeza v. INS, 
    56 F.3d 43
    , 45-46 (9th Cir. 1995); Raya-Ledesma v. INS, 
    42 F.3d 1263
    , 1265 (9th Cir.), modified by 
    55 F.3d 418
     (9th Cir. 1994). But compare Chow v. INS, 
    113 F.3d 659
    , 667 (7th Cir. 1997)
    (deciding jurisdictional bar itself, in INA § 106(a)(10) enacted by AEDPA § 440(a), did not
    
                                                      89
    constitutional attack on a jurisdiction-stripping statute 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 (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
    
    
    
    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.
    
                                                    90
    final removal order.179 If review of such questions under INA § 242(a)(2)(C) does
    
    not satisfy the 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.
    
    
    
    
           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
    protection.
             As a permanent resident alien, Richardson enjoys equal-protection rights. Yick Wo v.
    Hopkins, 
    118 U.S. 356
    , 369 (1886). Classifications in the immigration context are subject to the
    rational-basis standard under which a classification is valid if rationally related to a legitimate
    government purpose. Yeung v. INS, 
    76 F.3d 337
    , 339 (11th Cir. 1995) (addressing waivers
    under former 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 (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.
    
                                                    91
           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
    
    
           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.
    
                                                       92
          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 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
    
    
    
    
                                              93
    INA.182 This is especially true since discretionary relief from, and cancellation of,
    
    that type of removal is no longer allowed under the INA.183
    
           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; Delgadillo v. Carmichael, 
    332 U.S. 388
    , 390-91 (1947); Bridges v. Wilson, 
    326 U.S. 135
    , 149 (1945); Kessler v. Streckler, 
    307 U.S. 22
    , 35 (1939); Mahler v. Eby, 
    264 U.S. 32
    , 46 (1924); Gegiow v. Uhl, 
    239 U.S. 3
     (1915);
    Gonzales v. Williams, 
    192 U.S. 1
     (1904); The Japanese Immigrant Case, 
    189 U.S. 86
     (1903);
    Ekiu v. United States, 
    142 U.S. 651
     (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.
            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 (“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 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.
    
                                                    94
           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
    
    
    
           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.”
    
                                                    95
    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 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
    
    
                                              96
    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 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.
    
    
    
    
           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.”).
    
                                                    97