Liang v. INS , 206 F.3d 308 ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
3-9-2000
Liang v. INS
Precedential or Non-Precedential:
Docket 99-5053
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Filed March 9, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-5053
XU CHENG LIANG,
Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent
Petition for Review of a Decision
of the Immigration & Naturalization Service
(A40 278 218)
No. 99-5327
GIOACCHINO CINQUEMANI,
Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent
Petition for Review of a Decision
of the Immigration & Naturalization Service
(A35 098 342)
No. 99-6039
CARMELO JOSE RODRIGUEZ,
Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent
Petition for Review of a Decision
of the Immigration & Naturalization Service
(A38 502 331)
Argued December 20, 1999
Before: SLOVITER, ROTH and COWEN, Circuit Judg es
(Filed March 9, 2000)
Theodore N. Cox
New York, NY 10013
Counsel for Petitioner
Xu Cheng Liang, No. 99-5053
Martin A. Kascavage
Schoener & Kascavage
Philadelphia, PA 19106
Counsel for Petitioner
Gioacchino Cinquemani,
No. 99-5327
2
Kerry William Bretz
Alan Michael Straus (Argued)
Matthew L. Guadagno
Bretz & Coven
New York, NY 10007
Counsel for Petitioner
Carmelo Jose Rodriguez,
No 99-6039
Christopher C. Fuller
Alison M. Igoe (Argued)
Michael P. Lindemann
John M. McAdams, Jr.
David W. Ogden
Terri J. Scadron
John D. Williams
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044
Counsel for Respondent INS
Lee Gelernt (Argued)
Lucas Guttentag
American Civil Liberties Union
Foundation
New York, NY 10004-2400
Counsel for Amicus
American Civil Liberties Union
Foundation
Jeffrey Heller
Brooklyn Law School
Counsel for Amici
Law Professors
Michael J. Wishnie
Washington Square Legal
Services, Inc.
New York, NY 10012
Counsel for Amicus
Citizens and Immigrants for
Equal Justice
3
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
INTRODUCTION
In several opinions handed down in the last two years,
this court has had occasion to consider the effect of various
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214(1996), and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009-546 (1996), on the jurisdiction of the federal
courts over issues raised by aliens with respect to
deportation proceedings commenced by the Immigration
and Naturalization Service ("INS"). Judicial review of cases
in which the INS commenced deportation proceedings
against the alien prior to April 1, 1997 is governed by the
transitional rules of IIRIRA, whereas judicial review of those
commenced thereafter are governed by the permanent
judicial review amendments of IIRIRA ("permanent rules").
The three cases before us today arise under the
permanent rules, which we have not previously interpreted.
In particular, they require us to decide whether this court
has jurisdiction over a petition for review filed by an alien
who has been ordered deported because s/he has been
convicted of one or more crimes specified in the
Immigration and Nationality Act ("INA") (hereafter referred
to as an alien with a criminal conviction).1 As a necessary
component of that decision we must also decide whether
_________________________________________________________________
1. We use the term "alien with a criminal conviction" to refer to an alien
who has been convicted of one or more crimes listed in INA
S 242(a)(2)(C), AEDPA S 440(a), or transitional rule IIRIRA S
309(c)(4)(G).
The covered crimes include aggravated felonies, controlled substance
convictions, certain firearm offenses, miscellaneous national security or
defense crimes, or two convictions for crimes involving moral turpitude.
4
the permanent judicial review amendments of IIRIRA divest
the federal courts of their habeas corpus jurisdiction under
28 U.S.C. S 2241.
In our earlier decisions, we held that AEDPA and the
transitional rules of IIRIRA deprived us of jurisdiction over
a petition for review from a final order of removal entered
against an alien convicted of certain crimes listed in the
statutes, see Catney v. INS, 178 F.3d 190 (3d Cir. 1999);
Morel v. INS, 144 F.3d 248 (3d Cir. 1998), but that the
district courts retain jurisdiction under the general
statutory grant of habeas corpus jurisdiction, 28 U.S.C.
S 2241, to review statutory and constitutional challenges to
the deportation order, see Sandoval v. Reno, 166 F.3d 225(3d Cir. 1999); DeSousa v. Reno, 190 F.3d 175 (3d Cir.
1999).
In the cases currently before us, three permanent legal
residents, Gioacchino Cinquemani, Carmelo Jose
Rodriguez, and Xu Cheng Liang (collectively "petitioners"),
have filed petitions for review challenging thefinal orders of
removal entered against them by the Board of Immigration
Appeals ("BIA"). Rodriguez has also filed a petition for a writ
of habeas corpus in the district court of New Jersey,
Rodriguez v. Reno, Civ. No. 99-4300, which is pending. The
INS filed a motion to dismiss for lack of jurisdiction in each
case before us. We directed that petitioners' cases be
expedited and consolidated.2 The American Civil Liberties
Union ("ACLU") filed an amicus brief on the jurisdictional
issues, as did a group of twenty-six law professors. The
Citizens and Immigrants for Equal Justice filed an amicus
brief on the merits of petitioners' claims. We focus on the
jurisdictional issue, as we cannot consider the merits of the
petitioners' claims until that is resolved.
_________________________________________________________________
2. A fourth case also consolidated with them arose under the transitional
rules and was dismissed for lack of jurisdiction. Vergara-Hernandez v.
INS, No. 98-3175 (3d Cir. Dec. 27, 1999) (unpublished memorandum
opinion).
5
II.
BACKGROUND
Gioacchino Cinquemani, a native and citizen of Italy,
entered the United States as a lawful permanent resident in
1975. He is married and has two United States citizen
children. He pled guilty on December 4, 1997 in the United
States District Court for the Eastern District of New York to
conspiracy to engage in the business of dealing infirearms
in violation of 18 U.S.C. S 371 and conspiracy to distribute
and possess with intent to distribute heroin and morphine
in violation of 21 U.S.C. SS 846 and 841(b)(1)(B), conduct
which took place in 1994 and for which he was arrested in
1994. In March 1998, the INS issued an order to show
cause why Cinquemani should not be deported based on
the convictions.
Carmelo Jose Rodriguez, a native and citizen of the
Dominican Republic, entered the United States as a lawful
permanent resident in 1983. He also is married and has
two United States citizen children. He pled guilty in 1993 in
New Jersey state court to two counts of receiving stolen
property and to one count of possession of cocaine, pled
guilty in 1994 in Ohio state court to receiving stolen
property, and pled guilty in 1995 in New Jersey state court
to one count of receiving stolen property. He was released
from prison for the latter crime on March 5, 1997. On July
1, 1997, the INS initiated removal proceedings against
Rodriguez on the basis of his criminal convictions.
Xu Cheng Liang, a native and citizen of China, entered
the United States as a lawful permanent resident in 1987.
He also has two United States citizen children. He was
allegedly convicted in 1989 in New York state court of
attempted robbery in the second degree and in May 1997 in
federal court of conspiracy to distribute heroin and of
possession with intent to distribute heroin in violation of 21
U.S.C. S 846. On February 3, 1998, the INS instituted
removal proceedings against Liang on the basis of his
convictions.
At their immigration hearings, both Cinquemani and
Rodriguez conceded that they were removable aliens based
6
on their criminal convictions, but argued that they should
be permitted to seek waiver of deportability under former
INA S 212(c). Rodriguez also requested the discretionary
relief of cancellation of removal under new INAS 240A, 8
U.S.C. S 1229b, and adjustment of status in conjunction
with waiver of inadmissibility under INA S 212(h), 8 U.S.C.
S 1182(h). At his immigration hearing, Liang denied the
alleged convictions. The Immigration Judge found the
government had not met its burden of showing that Liang
had been convicted in 1989, but found that it had met its
burden as to the 1997 conviction, which still qualified
Liang as an aggravated felon subject to removal. Liang then
sought discretionary relief under former INA S 212(c).
Under former S 212(c), codified at 8 U.S.C.S 1182(c), the
Attorney General or her delegates, such as the BIA, had
discretionary authority to waive the deportation of a
deportable alien because of extraordinary hardship to the
deportee or his family, or other exceptional circumstances.3
Although the statutory provision itself referred only to
aliens in exclusion proceedings, it had been interpreted also
to apply to aliens in deportation proceedings. See Katsis v.
INS, 997 F.2d 1067, 1070 (3d Cir. 1993); Francis v. INS,
532 F.2d 268, 273 (2d Cir. 1976).4 In 1996, S 212(c) was
amended by S 440(d) of AEDPA to preclude deportable
aliens who had been convicted of an aggravated felony or
_________________________________________________________________
3. Section 212(c) provided, in pertinent part:
Aliens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation,
and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the
Attorney
General [despite being otherwise excludable] .. . . The first
sentence
of this subsection shall not apply to an alien who has been
convicted of one or more aggravated felonies and has served for
such felony or felonies a term of imprisonment of at least 5 years.
8 U.S.C. S 1182(c) (1994) (repealed 1996).
4. IIRIRA eliminated any statutory distinctions between deportable and
excludable aliens. Prior to IIRIRA, deportable aliens were defined in 8
U.S.C. S 1251(a) as those aliens who resided within the United States
but who could be deported for certain reasons. In contrast, excludable
aliens were defined in 8 U.S.C. S 1182(a) as those aliens who could be
denied entry into the United States.
7
two crimes of moral turpitude from receiving waivers,
regardless of the prison term served for such crimes. See
DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999) (rejecting
equal protection challenge to AEDPA S 440(d) because of
the distinction made between deportable and excludable
aliens).
When, effective April 1, 1997, INA S 212(c) was repealed
in its entirety by S 304(b) of IIRIRA, it was replaced with
another discretionary relief provision, INA S 240A. See
IIRIRA S 304(a) (adding new INA S 240A, codified at 8 U.S.C.
S 1229b). That section permits the Attorney General or her
delegates in her discretion to cancel removal in certain
circumstances, but not when the alien has been convicted
of an aggravated felony as defined by the INA, making each
of the petitioners ineligible for relief under that section. As
a result of these statutory changes the BIA affirmed the
decisions of the Immigration Judges that the petitioners
were ineligible for relief under former S 212(c).
Petitioners, relying on the principles set forth in Landgraf
v. USI Film Products, 511 U.S. 244 (1994), and elaborated
in Lindh v. Murphy, 521 U.S. 320 (1997), and Martin v.
Hadix, 527 U.S. 343 (1999), argue that the BIA erred by
interpreting IIRIRA S 304(b) to apply retroactively to
criminal conduct and convictions that occurred before the
effective date of the section. Thus, petitioners are
challenging the BIA's legal interpretation of the statute as
depriving it of discretion rather than the exercise of any
discretion by the BIA. Rodriguez also argues that if IIRIRA
S 304(b) does apply to him, then the section is
unconstitutional because it violates his constitutional rights
to due process and equal protection.5
_________________________________________________________________
5. Rodriguez also argues, for the first time in his reply brief, that
IIRIRA
S 304(b) does not apply to him because the INS issued a detainer notice
prior to April 1, 1997, and therefore that his case was pending when
S 304(b) became effective. See Sandoval v. Reno, 166 F.3d 225, 239-42
(3d Cir. 1999) (holding that AEDPA S 440(d) does not apply retroactively
to cases pending on the date of AEDPA's enactment); cf. Wallace v. Reno,
194 F.3d 279 (1st Cir. 1999) (holding that case was commenced for
retroactivity purposes when the INS issued an order to show cause even
though the INS did not file that order to show cause with the
8
With these statutory and constitutional claims in mind,
we turn to the jurisdictional issue presented in these cases.
III.
DISCUSSION
A.
Scope of Jurisdictional Inquiry
Although the government's motions to dismiss are
directed to the pending petitions for review, determination
of our jurisdiction over the petitions for review is
inextricably intertwined with the question whether the
district courts have continued habeas jurisdiction. The
imperative to avoid a constitutional crisis that might arise
were the writ of habeas corpus effectively suspended or
were there no viable means for judicial review of
constitutional claims necessarily affects, even if indirectly,
the construction of the relevant statutory provisions. The
viability of habeas jurisdiction is not a mere hypothetical
issue, as petitioner Rodriguez has filed, in addition to the
petition for review before us, a petition for habeas corpus in
the district court presenting the same or similar issues,
which that court has not yet decided.
Indeed, recently, in Max-George v. Reno, No. 98-21090,
2000 WL 220502 (5th Cir. Feb. 24, 2000), the Court of
Appeals for the Fifth Circuit declined to consider the
tension its reading of the permanent rules as stripping the
district courts of habeas corpus jurisdiction created with
the Suspension Clause because the issue was raised on an
appeal from the denial of habeas corpus rather than on a
_________________________________________________________________
immigration court until after AEDPA's enactment). Because of our
ultimate disposition of this matter, we do not consider whether
Rodriguez has waived this claim. See Republic of Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 71 n.5 (3d Cir. 1995) (noting
requirement that appellants raise issues in opening brief).
9
petition for review, as here. The court stated,"had Max-
George filed a petition for review, we would have to decide
whether the preclusion of habeas review to him can be
reconciled both with the constitutional limitation on the
`suspension' of habeas corpus and the constitutional
guarantee of due process." Id. at *6.
Rodriguez has attempted to invoke the courts'
jurisdiction both through filing a petition for review in this
court and filing a petition for a writ of habeas corpus in the
district court. He did move in this court to stay briefing on
the petition for review until the habeas matter was decided,
but we proceeded to hear the pending consolidated
petitions for review. Counsel advised us at the oral
argument that there has been no action taken in the
district court, presumably because that court is awaiting a
decision on the jurisdictional issue in this case. The
interrelationship between the issues is therefore evident.
The ultimate question in these cases is one of forum: a
determination of which federal court, if any, has
jurisdiction to hear petitioners' claims.
B.
AEDPA and the Transitional Rules of IIRIRA
The jurisdictional issue arose with Congress's enactment
of AEDPA on April 24, 1996. That statute included two
judicial review provisions relevant to immigration cases.
Section 401(e) of AEDPA repealed S 106(a)(10) of the INA,
which had expressly provided for habeas review of
immigration cases in the federal courts; S 440(a) of AEDPA
substituted the following language in its place:"Any final
order of deportation against an alien who is deportable by
reason of having committed a criminal offense [covered in
the deportation provisions of the INA] shall not be subject
to review by any court." 8 U.S.C. S 1105a(a)(10) (repealed by
IIRIRA S 306(b) with respect to deportation proceedings
commenced after April 1, 1997). On September 30, 1996,
Congress enacted IIRIRA, which, as noted above, changed
many of the amendments that AEDPA had made.
10
In Morel v. INS, 144 F.3d 248 (3d Cir. 1998), we held that
AEDPA S 440(a) removed our jurisdiction to review a claim
of legal error on petition for review brought by an alien with
a criminal conviction. Id. at 250-51. In that case, we did
not reach the issue of whether the district courts continued
to have habeas jurisdiction over those claims under AEDPA
or the transitional rules of IIRIRA.
In Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), we
were faced with that issue. Sandoval had filed a petition for
review of the BIA's entry of a final order of deportation
against him. In addition, he had filed a petition for a writ
of habeas corpus in the district court. He argued that
AEDPA's amendment of S 212(c) to permit discretionary
waiver of removal for aliens in exclusion proceedings but
not for aliens in deportation proceedings did not apply to
cases pending on the date of enactment of AEDPA, and that
if it did apply to him S 212(c) as amended by AEDPA
violated equal protection. The district court agreed with
Sandoval's statutory construction and granted the writ on
the ground that AEDPA S 440(d) did not apply to cases that
were pending when the statute was enacted. The
government appealed, and that appeal was consolidated
with Sandoval's petition for review.
The government argued that AEDPA and the transitional
rules of IIRIRA divested the district courts of habeas
jurisdiction. In forwarding that position, it relied on the
following statutory provisions: AEDPA SS 401(e) and 440(a),
referred to above; IIRIRA S 309(c)(4)(G), a transitional rule
which provides that "there 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
the deportation provisions of the INA]," and IIRIRA S 306(a),
which amended INA S 242(g) to provide:
Exclusive Jurisdiction. Except as provided in this
section and notwithstanding any other provision of law,
no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the
decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute
removal orders against any alien under this Act.
11
8 U.S.C. S 1252(g). The government contended that AEDPA
and the transitional rules of IIRIRA stripped the district
courts of their habeas jurisdiction over all immigration
cases and placed exclusive jurisdiction in the courts of
appeals. Further, to avoid a jurisdictional scheme that
provided no judicial review of constitutional claims brought
by aliens with criminal convictions, the government
encouraged us to read an exception for those claims into
transitional rule S 309(c)(4)(G).
We relied on the "longstanding doctrine disfavoring repeal
of jurisdictional statutes by implication" as recently
articulated by the Supreme Court in Felker v. Turpin, 518
U.S. 651 (1996), to hold, contrary to the government's
position, that neither AEDPA nor the transitional rules of
IIRIRA divested the district courts of habeas jurisdiction
because none of the applicable provisions expressly stated
that Congress sought to preclude habeas jurisdiction as it
exists under 28 U.S.C. S 2241. Sandoval , 166 F.3d at 231.
We examined the Supreme Court's age-old decisions in Ex
parte McCardle, 74 U.S. (7 Wall.) 506 (1868), and Ex parte
Yerger, 75 U.S. (8 Wall.) 85 (1868), together with Felker,
and concluded:
Read together, McCardle, Yerger, and Felker establish
the propositions that courts should not lightly presume
that a congressional enactment containing general
language effects a repeal of a jurisdictional statute,
and, consequently, that only a plain statement of
congressional intent to remove a particular statutory
grant of jurisdiction will suffice.
Sandoval, 166 F.3d at 232.
Applying these propositions to the provisions of AEDPA
and the transitional rules of IIRIRA, we determined that
"since AEDPA S 401(e) does not manifest an intent to repeal
the original grant of habeas corpus jurisdiction, currently
embodied in 28 U.S.C. S 2241, the elimination of INA's
reference to habeas jurisdiction does not overcome the
presumption against finding a repeal of habeas corpus by
implication." Id. at 234-35. Similarly, in analyzing the effect
of IIRIRA transitional rule S 309(c)(4)(G) and AEDPA S 440(a)
on the district courts' habeas jurisdiction, we stated that
12
"[n]either of these provisions specifically mentions
jurisdiction under S 2241. Hence, under Felker and Yerger,
we do not find a sufficiently clear statement of
congressional intent to repeal the general grant of habeas
jurisdiction." Id. at 235. And finally, in analyzing the effect
of IIRIRA S 306(a), amending INA S 242(g), we determined
that "[a]s there is no express reference to jurisdiction under
28 U.S.C. S 2241 in this provision, the rule disfavoring
implied repeals requires us to conclude that jurisdiction
under S 2241 is preserved . . . ." Id. at 236.
We held that no repeal would be implied in light of the
absence of an express revocation of the district courts'
habeas jurisdiction. Further, we concluded that Sandoval's
statutory claim, as well as any constitutional claim, was
cognizable in a habeas corpus proceeding, "[i]nasmuch as
the language of the habeas corpus statute encompasses
claims that one `is in custody in violation of the
Constitution or laws or treaties of the United States,' 28
U.S.C. S 2241(c)(3)." Id. at 238. In doing so, we left open the
question whether substantial constitutional questions
might still be brought by an alien with a criminal conviction
on petition for review. See id. at 238 n.6 ("Because of our
conclusion that [habeas jurisdiction] covers statutory, as
well as constitutional claims, we need not decide whether
the claimed existence of jurisdiction in the courts of
appeals to review substantial constitutional claims, but not
statutory claims, would be an adequate alternative.").
Shortly after our decision in Sandoval, the Supreme
Court decided Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999), in which it rejected the
government's position that the limitation of court
jurisdiction in the new INA S 242(g) covered all or nearly all
deportation claims. Instead, the Court held thatS 242(g),
which applies to cases under both the permanent and
transitional rules, covers only three discrete actions of the
Attorney General: "her `decision or action' to`commence
proceedings, adjudicate cases, or execute removal orders.' "
Id. at 482.
After American-Arab, we held in Catney v. INS, 178 F.3d
190 (3d Cir. 1999), that under AEDPA and the transitional
rules of IIRIRA any challenge by a criminal alien to the
13
BIA's interpretation of the immigration laws or to the
constitutionality of those laws, even a claim involving
substantial constitutional issues, must be made through a
habeas petition rather than through a petition for review.
By answering the question left open in Sandoval , we
foreclosed any exception to the bar on petition for review
jurisdiction over criminal aliens under the transitional
rules.
Finally, in DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999),
the most recent decision of our series on this issue, we
upheld the jurisdictional analysis of Sandoval as consistent
with the Supreme Court's decision in American-Arab. We
rejected the government's assertion that constitutional and
statutory challenges fall within the scope of INAS 242(g),
and concluded that "American-Arab did not affect the
remainder of Sandoval's rulings." Id. at 183.
The vast majority of the other courts of appeals have
adopted principles similar to those enunciated in Sandoval
and have also found that district courts retain habeas
jurisdiction after the enactment of AEDPA and IIRIRA's
transitional rules. See Magana-Pizano v. INS, 200 F.3d 603,
609 (9th Cir. 1999) (holding that 28 U.S.C. S 2241 "remains
an available remedy to those challenging executive
detention" under AEDPA and the transitional rules of
IIRIRA); Pak v. Reno, 196 F.3d 666, 673 (6th Cir. 1999)
(following reasoning of Sandoval and Goncalves v. Reno,
144 F.3d 110 (1st Cir. 1998), and concluding that neither
AEDPA amendments nor transitional rules of IIRIRA divest
district courts of habeas jurisdiction because the applicable
sections "[do] not refer to S 2241"); Bowrin v. INS, 194 F.3d
483, 489 (4th Cir. 1999) (per curiam) ("Finding no . . .
specific reference to S 2241, we apply the long-standing rule
disfavoring repeal of jurisdictional provisions by
implication."); Jurado-Gutierrez v. Greene , 190 F.3d 1135,
1145-46 (10th Cir. 1999) (holding that "the lack of any
mention of S 2241 habeas review in the plain language of
the statute, combined with the long historical precedent
surrounding habeas corpus review in immigration cases,
establishes that traditional habeas review underS 2241
survived the enactment of AEDPA S 440(d) and IIRIRA
S 309(c) [the transitional rules]") petition for cert. filed,
14
___ USLW ___ (U.S. Jan. 31, 2000) (No. 99-7964); Shah v.
Reno, 184 F.3d 719, 724 (8th Cir. 1999) ("In sum, we hold
that Congress in enacting AEDPA and IIRIRA in 1996, did
not clearly and expressly repeal 28 U.S.C. S 2241."); Mayers
v. INS, 175 F.3d 1289, 1301 (11th Cir. 1999) (holding that
AEDPA's repeal of INA S 106(a)(10) did not repeal district
courts' habeas jurisdiction for cases falling under the
transitional rules of IIRIRA); Henderson v. INS , 157 F.3d
106, 118-22 (2d Cir. 1998) (relying on earlier decision in
Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998), and
concluding that without express reference to S 2241 it
would not find bar on federal courts' habeas jurisdiction),
cert. denied, 119 S. Ct. 1141 (1999); Goncalves v. Reno, 144
F.3d 110, 119-23 (1st Cir. 1998) (concluding that repeal of
INA S 106(a)(10) did not repeal habeas jurisdiction because
there is no explicit reference in AEDPA to habeas
jurisdiction under S 2241), cert. denied , 119 S. Ct. 1140(1999); cf. Requena-Rodriguez v. Pasquarell, 190 F.3d 299(5th Cir. 1999) (holding that habeas jurisdiction exists
under transitional rules but implying that the court might
conclude in a case under the permanent rules that
language in S 242(g) and S 242(b)(9) is sufficiently express
to preclude habeas jurisdiction). Only the Court of Appeals
for the Seventh Circuit, interpreting AEDPA and the
transitional rules, has held to the contrary. See La Guerre
v. Reno, 164 F.3d 1035 (7th Cir. 1998) (holding that AEDPA
S 440(a), amending INA S 106(a), divested district courts of
habeas jurisdiction), cert. denied, 68 USLW 3154 (U.S. Feb.
22, 2000) (No. 99-418).
C.
The Permanent Rules of IIRIRA
Because deportation proceedings were not initiated
against any of the petitioners until after April 1, 1997, the
permanent rules apply to their cases. The government
invokes several jurisdictional provisions that are part of the
permanent rules in support of its motions to dismiss. It
argues that under these provisions, "the court of appeals is
now the exclusive forum for all immigration matters,"
including "the interpretation of statutory and constitutional
15
issues under 28 U.S.C. S 2241." Respondent's Brief at 12.
According to the government, therefore, the permanent
rules divest the district courts of their habeas jurisdiction
where the transitional rules, as we held in Sandoval, did
not. Further, the government asserts that "[o]nce the court
determines that a petitioner is an alien who has been
ordered removed for a qualifying criminal conviction," the
court of appeals lacks jurisdiction "to review any other
challenge the petitioner might raise to his removal
proceedings." Id. at 4. It argues that because the
permanent rules were not before us in Sandoval , that
decision is inapplicable.
The first of the provisions to which the government
refers, INA S 242(a)(2)(C), 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
1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this
title, or any offense covered by section 1227(a)(2)(A)(ii)
of this title for which both predicate offenses are,
without regard to their date of commission, otherwise
covered by section 1227(a)(2)(A)(i) of this title.
8 U.S.C. S 1252(a)(2)(C).
INA S 242(a)(1), also in the permanent rules, provides:
Judicial review of a final order of removal (other than
an order of removal without a hearing pursuant to
section 1225(b)(1) of this title) is governed only by
chapter 158 of Title 28, except as provided in
subsection (b) of this section and except that the court
may not order the taking of additional evidence under
section 2347(c) of Title 28.
8 U.S.C. S 1252(a)(1).
The government places its principal reliance for its
argument that the permanent rules divest the district
courts of habeas jurisdiction on INA S 242(b)(9), which
provides:
Judicial review of all questions of law and fact,
including interpretation and application of
16
constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove an
alien from the United States under this subchapter
shall be available only in judicial review of afinal order
under this section.
8 U.S.C. S 1252(b)(9). The government argues that because
INA S 242(b)(2) requires that all petitions for review "be filed
with the court of appeals for the judicial circuit in which
the immigration judge completed the proceedings," 8 U.S.C.
S 1252(b)(2), S 242(b)(9) necessarily divests the district
courts of their habeas jurisdiction.
There is no reason why the jurisdictional ruling in this
case under the permanent rules should be any different
than that we reached under the transitional rules. Although
the text of these provisions differs somewhat from the
sections of the transitional rules that were considered in
Sandoval, those sections, AEDPA SS 440(a), 401(e), IIRIRA
S 309(c)(4)(G), and INA S 242(g), used language comparably
comprehensive. Indeed, the phrase "notwithstanding any
other provision of law" in INA S 242(a)(2)(C) also appears in
INA S 242(g), which we did consider in Sandoval. See
Sandoval, 166 F.3d at 236-38. That phrase did not
persuade us then to hold that Congress had implicitly
repealed S 2241 habeas jurisdiction; there is no reason why
it would have a different effect now.
The difficulty with the government's effort to convince us
that the language of S 242(b)(9), or of any of the permanent
rules, requires a different result than that reached in
Sandoval is that no language in the permanent rules fills
the gap we found in Sandoval. None of the provisions,
including INA S 242(b)(9), expressly refers to habeas
jurisdiction or to 28 U.S.C. S 2241. None expressly revokes
habeas jurisdiction.
As we explained in Sandoval, a repeal of habeas
jurisdiction will not be found by implication. This is the
holding of the Supreme Court's 1996 decision in Felker,
518 U.S. 651. In that case, the Supreme Court considered
whether Title I of AEDPA, which imposed significant
restrictions on the availability of the writ of habeas corpus,
deprived the Court itself of jurisdiction to entertain original
17
habeas petitions. The Court noted that no provision of Title
I mentioned its authority to hear habeas petitionsfiled as
original matters. Guided by its earlier decision in Ex Parte
Yerger, 75 U.S. (8 Wall.) 85 (1868), the Court therefore held
that:
Although [AEDPA] precludes us from reviewing, by
appeal or petition for certiorari, a judgment on an
application for leave to file a second habeas petition in
district court, it makes no mention of our authority to
hear habeas petitions filed as original matters in this
Court. As we declined to find a repeal [of our power to
entertain habeas petitions in Yerger] we decline to find
a similar repeal of S 2241 of Title 28 . . . by implication
now.
Id. at 661.
The holding of the Supreme Court is clear. A repeal of
habeas jurisdiction can only be effected by express
congressional command. That was the basis for our
decision in Sandoval. See Sandoval, 166 F.3d at 232(examining the propositions established by the Supreme
Court in Felker, Yerger, and McCardle). That holding is as
applicable to the permanent rules as it was to the
transitional rules in Sandoval.
The government is correct that Sandoval involved only
the transitional rules, not the permanent rules, but the
legal principle relied on by this court transcends the narrow
context of the transitional rules. See, e.g., John Hancock
Mut. Life Ins. Co. v. Olick, 151 F.3d 132, 139 (3d Cir. 1998)
("To be sure, there may be a number of factual grounds to
distinguish our holding in [an earlier case], but the legal
principle announced in that case directly controls the issue
presented . . . ."). We unquestionably interpreted Felker in
Sandoval as requiring an explicit reference to habeas
jurisdiction or its statutory provision in order tofind an
express congressional intent to repeal. As this court has
frequently noted, "[A] panel of this court cannot overrule a
prior panel precedent." O. Hommel Co. v. Ferro Corp., 659
F.2d 340, 354 (3d Cir. 1981); see Internal Operating
Procedures, United States Court of Appeals for the Third
Circuit, Rule 9.1 ("[T]he holding of a panel in a reported
18
opinion is binding on subsequent panels. . . . Court in banc
consideration is required [to overrule such a holding].").
This is not a case in which there have been "intervening
developments" that counsel reevaluation of the underlying
premise of Sandoval. Cf. Reich v. D.M. Sabia Co., 90 F.3d
854, 858-59 (3d Cir. 1996) (finding that subsequent
statutory amendment and Supreme Court precedent
permitted reevaluation of earlier panel decision).
Notwithstanding the government's suggestion to the
contrary, nothing in the Supreme Court's 1999 decision in
American-Arab, 525 U.S. 471, bears on our reasoning in
Sandoval.
American-Arab arose after the INS instituted deportation
proceedings against several aliens who belonged to the
Popular Front for the Liberation of Palestine, a group that
the government characterized as a terrorist group. The
aliens filed suit in district court seeking injunctive and
declaratory relief on the ground that the INS was selectively
enforcing immigration laws against them in violation of
their First and Fifth Amendment rights. After Congress
passed IIRIRA, the government sought to dismiss the case
for lack of jurisdiction, arguing that INA S 242(g), made
applicable by S 306(c)(1) of IIRIRA to the aliens' cases,
deprived the courts of jurisdiction over the selective
enforcement claim. In reconciling an apparent conflict
between IIRIRA S 306(c)(1), which made INAS 242(g)
applicable to all cases, including those pending on the date
of IIRIRA's enactment, and transitional rule S 309(c)(1)(B),
which stated the general rule that the amendments of
IIRIRA would not apply to pending cases, the Supreme
Court rejected a broad reading of INA S 242(g). The Court
held that S 242(g) applied only to "three discrete events
along the road to deportation": the Attorney General's
uniquely discretionary decisions to commence proceedings,
adjudicate cases, or execute removal orders. Id. at 482. It
compared the limited scope of that section with the more
expansive reach of S 242(b)(9) (a "zipper" clause). Id. at 483.
Because S 242(g) did apply to the Attorney General's
decision to prosecute the plaintiff aliens, the Court held
that the district court lacked jurisdiction over the plaintiffs'
suit.
19
The government argues that it is clear from the Court's
characterization in American Arab of S 242(b)(9) as an
"unmistakable `zipper' clause," id., that the courts of
appeals are the exclusive forum for all immigration claims.
That reading attributes to the discussion in American Arab
a meaning that extends beyond the matter at issue, which
was the interplay between IIRIRA SS 306(c)(1), 309(c)(1)(B),
and INA S 242(g).
The language of INA S 242(b)(9), even without the Court's
comparing it with that of S 242(g), makes it evident that
S 242(b)(9) was intended to apply to a broader range of
decisions than the three categories to which the Court
referred in American-Arab. However, that does not mean
that the Court intended to hold, without explicit discussion,
that S 242(b)(9) has the radical effect of eliminating habeas
jurisdiction. In fact, the underlying suit in American-Arab
was not a habeas petition under 28 U.S.C. S 2241 but a
civil suit for injunctive and declaratory relief that relied for
its jurisdiction on 28 U.S.C. S 1331. The Supreme Court
never considered whether IIRIRA divests the district courts
of habeas jurisdiction. Rather, the Court noted that there
was disagreement in the courts of appeals on the issue and
expressed no view on the issue's resolution. See id. at 480
& n.7. Although we agree that S 242(b)(9) clearly expresses
congressional intent that judicial review of questions arising
from a proceeding brought to remove an alien be conducted
under the INA in the courts of appeals, we do not agree
that it clearly expresses congressional intent that the
district courts be divested of their habeas jurisdiction
under S 2241, the issue considered here.
The government notes that the Court of Appeals for the
Eleventh Circuit relied on S 242(b)(9) in holding that the
district courts no longer have habeas jurisdiction under 28
U.S.C. S 2241 to review any challenge to an alien's removal
proceedings. See Richardson v. Reno (Richardson II), 180
F.3d 1311, 1315 (11th Cir. 1999), petition for cert. filed, 68
USLW 3367 (U.S. Nov. 23, 1999) (No. 99-887). Richardson,
a thirty-year permanent legal resident in this country with
convictions for firearms and drugs offenses, was detained
by the INS as he attempted to re-enter the United States
after a two-day trip to Haiti. He filed a petition for a writ of
20
habeas corpus, asserting that the INS's illegal detention,
denial of admission, and denial of a bond hearing violated
his constitutional and statutory rights as a lawful
permanent resident alien. Because Richardson's removal
proceedings began in October 1997, the permanent rules
applied to his case.
When the case first came to the Eleventh Circuit, the
court held that INA S 242(g) repealed district court habeas
jurisdiction. See Richardson v. Reno (Richardson I), 162
F.3d 1338 (11th Cir. 1998). Richardson I was vacated by
the Supreme Court, and remanded for reconsideration in
light of its decision in American-Arab. See Richardson v.
Reno, 119 S.Ct. 2016 (1999). On remand, the court of
appeals recognized that, in light of the Supreme Court's
narrow reading of S 242(g), that section did not divest the
district court of habeas jurisdiction over Richardson's case.
Nevertheless, the court reaffirmed its earlier decision on the
ground that Richardson I rested not just on its
interpretation of INA S 242(g) but also of INAS 242(b)(9) as
well as the "overall judicial review scheme enacted in INA
S 242(b)." Richardson II, 180 F.3d at 1314. The court
concluded that "[a]ny constitutional infirmities Richardson
perceives in th[e] INA-proscribed judicial review must be
raised in an attack on the constitutionality of INA
S 242(a)(2)(C) only in the court of appeals and only after a
final removal order." Id. at 1316 (quoting Richardson I, 162
F.3d at 1376).
More recently, the Court of Appeals for the Fifth Circuit
has followed the Eleventh Circuit in holding that under the
permanent rules district courts are divested of their habeas
jurisdiction. See Max-George v. Reno, No. 98-21090, 2000
WL 220502 (5th Cir. Feb. 24, 2000). Although the Fifth
Circuit had interpreted the transitional rules as preserving
the district courts' habeas jurisdiction, it had foreseen the
possibility of a different result under the permanent rules.
See Requena-Rodriquez, 190 F.3d at 305-06. Thus, its
decision in Max-George was not unexpected. It reasoned
that the phrase "notwithstanding any other provision of
law" in INA S 242(a)(2)(C), which had not appeared before it
under the transitional rules, "clearly precludes habeas
jurisdiction under 28 U.S.C. S 2241." Max-George, 2000 WL
21220502 at *4.6 In contrast, as we noted above, we did
consider that phrase, which appears in S 242(g), in
Sandoval. See Sandoval, 166 F.3d at 236-38.
Moreover, the "[n]otwithstanding any other provision of
law" phrase that the court in Max-George found dispositive
does not stand alone. The language that begins
S 242(a)(2)(C) reads: "Notwithstanding any other provision of
law, no court shall have jurisdiction to review . . . ." 8
U.S.C. S 1252(a)(2)(C) (emphasis added). In Sandoval, we
reviewed the history of the Supreme Court's consistent
affirmation since at least as far back as 1888 of the right
of aliens to availability of the writ of habeas corpus in the
district courts despite statutory language that restricted or
eliminated judicial review of executive action in immigration
matters. Sandoval, 166 F.3d at 233-34. We stated that
when viewed in light of the history of the Court's treatment
of habeas jurisdiction in deportation cases, the references
to "review" in AEDPA and to "appeal" in IIRIRA are properly
understood as relating to judicial review under the APA. Id.
at 235. We continued, "This is so because in the
immigration context, the Court has historically drawn a
sharp distinction between `judicial review' -- meaning APA
review -- and the courts' power to entertain petitions for
writs of habeas corpus." Id. The court's conclusion in Max-
George that the writ of habeas corpus "is merely an `other
provision of law,' " Max-George, 2000 WL 220502 at *4, that
can be swept away by the phrase "[n]otwithstanding any
other provision of law" fails to recognize or give effect to this
historical distinction maintained by successive Supreme
Court opinions.
The holdings of both Richardson cases and Max-George
that Congress need not mention habeas or S 2241 to repeal
the district courts' habeas jurisdiction are at odds not only
with our reasoning in Sandoval but with the reasoning of
the other courts of appeals that have read the Supreme
_________________________________________________________________
6. We note in passing that Max-George had already been deported and
the government argued that the case was moot. The court overcame the
mootness argument by holding that a collateral consequence of his
deportation was his future inadmissibility as a matter of law, whether he
chose to return or not.
22
Court's precedent in Yerger and Felker to require explicit
statutory reference to habeas or S 2241 to effect
congressional repeal of habeas jurisdiction. See Magana-
Pizano, 200 F.3d at 608-09 (interpreting Felker to require
explicit reference to S 2241 to effect repeal of habeas corpus
jurisdiction, noting that "[p]resumably, the holding in
Felker placed Congress on notice that it could repeal
habeas jurisdiction under S 2241 only by express
command, and not by implication"); Pak, 196 F.3d at 673("Although AEDPA S 401(e) pointedly refers to INA
S 106(a)(10), it does not refer to S 2241. Thus, despite the
fact that AEDPA S 401(e) expressly repealed habeas
jurisdiction under INA S 106(a)(10), absent a clear
statement from Congress, we decline to interpret that
provision as also repealing general habeas jurisdiction
under S 2241."); Bowrin, 194 F.3d at 489 ("We believe that
had Congress intended to eliminate all habeas jurisdiction
under S 2241, it would have done so by using the same
explicit references it used to repeal INA S 106(a)(10).");
Jurado-Gutierrez, 190 F.3d at 1145-46 ("Wefind the lack of
any mention of S 2241 habeas review in the plain language
of the statute, combined with the long historical precedent
surrounding habeas corpus review in immigration cases,
establishes that traditional habeas review underS 2241
survived the enactment of AEDPA S 440(d) and IIRIRA
S 309(c)."); Shah, 184 F.3d at 724 ("AEDPA rather pointedly
refers only to Section 106(a)(10) of the old Act. No reference
is made to the general federal habeas corpus statute,
though that statute was for decades routinely used to
review executive decisions in immigration matters . . . .");
Goncalves, 144 F.3d at 119 ("Felker makes clear that if
Congress intends to repeal or restrict habeas jurisdiction
under S 2241, it must say so explicitly."). But see LaGuerre,
164 F.3d at 1038-39 (holding that AEDPA SS 440(a) and
401(e) divested the district courts of habeas jurisdiction,
even without explicit reference to S 2241). 7
_________________________________________________________________
7. It is of some interest that while Richardson I was awaiting
reconsideration in light of American-Arab, the Eleventh Circuit decided
Mayers v. INS, 175 F.3d 1289, 1299-1300 (11th Cir. 1999), a
transitional rule case, in which the court applied the presumption
against implied repeal of habeas jurisdiction articulated by the Supreme
Court in Felker and held that neither AEDPA nor the transitional rules
23
The government argues that we should adopt the holding
of Richardson II (and presumably now would include Max-
George) rather than adhere to the reasoning we articulated
in Sandoval. As we have explained, we see no reason to
abandon the path taken in Sandoval. We continue to
believe that had Congress intended to eliminate all habeas
jurisdiction under S 2241, it would have done so by making
its intent explicit in the language of the statute.
Furthermore, as we recognized in Sandoval, this approach
obviates the serious constitutional problems that would
arise were we to adhere to our previous opinions holding we
have no jurisdiction over petitions for review filed by an
alien with a criminal conviction and read the permanent
rules to strip the district courts of habeas jurisdiction.
The Suspension Clause provides that "[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety
may require it." U.S. Const. art. I, S 9, cl. 2. The Max-
George court recognized that "[t]o some degree, IIRIRA's
stripping of S 2241 jurisdiction implicates the guarantee
that the `Privilege of the Writ' preserved by the Constitution
cannot be suspended," but it then stated that the
distinction between the scope of the writ of habeas corpus
preserved in the Constitution and the scope of the writ
granted by S 2241 "is immaterial when considered in the
immigration context" where Congress may make rules "that
would be unacceptable if applied to citizens." Max-George,
2000 WL 220502 at *6 (internal quotations and citations
omitted). We agree, of course, with the proposition that
habeas corpus need not preserve review of discretionary
decisions, but to the extent the court's discussion suggests
that aliens are not entitled to the constitutional protection
of habeas corpus, the Supreme Court cases cited and
discussed in detail in Sandoval, see 166 F.3d at 233-34,
pronounce precisely the opposite. See, e.g., United States v.
_________________________________________________________________
of IIRIRA divested the district courts of habeas jurisdiction because none
of the provisions expressly referred to 28 U.S.C.S 2241 or habeas
jurisdiction. When the court re-affirmed its Richardson I analysis of
Felker in Richardson II, it sought to distinguish Mayers on factual and
statutory grounds. See 180 F.3d at 1316 n.6.
24
Jung Ah Lung, 124 U.S. 621(1888) (alien entitled to writ of
habeas corpus to reenter United States); Nishimura Ekiu v.
United States, 142 U.S. 651, 660 (1892) ("An alien
immigrant, prevented from landing . . . is doubtless entitled
to a writ of habeas corpus to ascertain whether the
restraint is lawful."); Heikkila v. Barber , 345 U.S. 229, 234-
35 (1953) (statute conferring finality on deportation
decisions of Attorney General precluded "judicial
intervention in deportation cases except insofar as it was
required by the Constitution").
The government asserts that our concerns about avoiding
constitutional problems are unfounded because the judicial
review provisions applicable to the cases before us can be
read to satisfy the Suspension Clause. Congress may divest
the district courts of habeas jurisdiction without violating
the Suspension Clause so long as it substitutes"a collateral
remedy which is neither inadequate nor ineffective to test
the legality of a person's detention." Swain v. Pressley, 430
U.S. 372, 381 (1977).
Although the courts of appeals generally retain
jurisdiction under new INA S 242(a)(1) to review an alien's
challenge to his or her final order of removal via the alien's
petition for review, a petition for review brought by an alien
with a criminal conviction is excepted. New INA
S 242(a)(2)(C) provides that "[n]otwithstanding 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 [various sections of the INA]." 8 U.S.C.
S 1252(a)(2)(C).
The government argues that, irrespective of this
limitation on our petition for review jurisdiction, the courts
of appeals retain jurisdiction under S 242 over petitions for
review "to test the legality of a criminal alien's removal
order." Respondent's Brief at 20. Apparently in response to
the strong argument made by the amici ACLU and law
professors that if the INA provides no review for petitioners'
statutory as well as constitutional claims the Suspension
Clause would not be satisfied, the government argues that
we do have jurisdiction to review the merits of petitioners'
statutory as well as constitutional claims in such cases. It
25
asserts that under S 242(a)(2)(C) we have jurisdiction to
determine whether each petitioner "(1) [is] an alien, (2) is
removable, and (3) is removable by reason of having
committed a qualifying crime. . . ." Respondent's Brief at
19. According to the government, the determination of
removability is "very broad," permitting us to judge the
merits of petitioners' statutory and constitutional
challenges on a petition for review. Transcript of argument,
Dec. 20, 1999 at 61.
If we were to accept this suggestion, it would create the
awkward situation of requiring analysis of the merits of a
petitioner's challenge in making a preliminary jurisdictional
determination. Moreover, the government's position at this
juncture is difficult to reconcile with its earlier position
taken in Sandoval that at most the courts of appeals could
review "substantial constitutional" issues on petition for
review.8 Our response in Sandoval, noting that neither the
_________________________________________________________________
8. The government's different positions here and in Sandoval on the
issue of the courts' jurisdiction to hear a statutory claim raised by an
alien with a criminal conviction is illustrative of its vacillation on
this
issue. In its brief on appeal from the district court's ruling on
Sandoval's
habeas petition, the government argued that there was no jurisdiction
either in the court of appeals or in the district court to hear aliens'
statutory claims, maintaining that the Suspension Clause was not
implicated because "judicial review required under the Suspension
Clause extends only to claims of substantial constitutional error
amounting to a fundamental miscarriage of justice." Government Brief at
30, Sandoval v. Reno, No. 98-1099. It took the same position in its brief
on Sandoval's petition for review, where it stated,"Sandoval's contention
that the Board erred as a matter of statutory construction in concluding
that AEDPA S 440(d) applies to cases pending upon enactment is a non-
reviewable claim of legal error." Government Brief at 5, Sandoval v. INS,
No. 98-3214. At argument in the cases before us, the government took
a considerably more expansive view of the scope of our jurisdiction to
hear the petitioners' statutory claims, stating"[I]n determining whether
a criminal alien is removable, you need to look at whether his removal
order is constitutionally and statutorily legal , whether it's valid or
not,
before you can decide whether the bar applies to him." Transcript of
argument, Dec. 20, 1999 at 66 (emphasis added). On several occasions
during the argument, the government set forth its position that "there is
review that is commensurate with 2241 review in this court under 242.
This court can look at and answer any question that this alien could
26
statute nor the legislative history support such a statutory
construction, is even more applicable here.
This argument must fail because of the absence of any
support, either in the statute or in the legislative
history. The government's briefs cite no provision of
AEDPA or IIRIRA that supports its reading and it
conceded at oral argument that there is no specific
provision granting us jurisdiction over substantial
constitutional claims. Although the government's
argument would have more force if there were a
constitutional imperative to read the 1996 statutes in
that manner, our conclusion that the statutes have left
habeas jurisdiction intact in the district courts removes
any such imperative.
Sandoval, 166 F.3d at 237-38. For the same reason, we do
not see how INA S 242 can support the broader position the
government now takes.
On the contrary, the language of S 242(a)(2)(C) makes
clear that we lack jurisdiction over the petitions for review
filed by Cinquemani, Rodriguez, and Liang in the cases
before us. The effect of S 242(a)(2)(C) is similar to that of
IIRIRA S 309(c)(4)(G), which we interpreted in Catney, 178
F.3d 190, and to that of AEDPA S 440(a), which we
interpreted in Morel, 144 F.3d 248.
Like Catney and Morel, petitioners in the cases before us
do not dispute that they are aliens with criminal
convictions that render them removable under the INA. In
other words, they do not dispute that they are aliens who
are "removable by reason of having committed a[specified]
criminal offense." 8 U.S.C. S 1252(a)(2)(C). Rather, they
raise statutory challenges to the BIA's interpretation of
recent amendments and constitutional challenges to the
statute itself, seeking the availability of a discretionary
_________________________________________________________________
raise under 2241." Id. at 65. The government's fluctuation strengthens
our decision to base our holding on our interpretation of the statutory
language as preserving habeas jurisdiction under Felker rather than on
the government's concessions at oral argument -- concessions from
which it might retreat in the next case.
27
waiver under former INA S 212(c). We see no material
distinction between the transitional rules and the
permanent rules governing petitions for review of an alien
with a criminal conviction. Accordingly, we hold that we
lack jurisdiction under S 242(a)(2)(C) over the petitions for
review.
IV.
CONCLUSION
We recognize that our decision perpetuates the division
in the courts of appeals interpreting the amendments to the
immigration laws. Indeed, were the judges' preferences
determinative, it is likely that many would opt for a system
under which aliens' challenges to nondiscretionary
immigration decisions, both statutory as well as
constitutional, would be reviewed directly in the courts of
appeals. But that is not the way in which we read the
legislation that Congress has enacted, and it is our
obligation to interpret the statutes we are given, while at
the same time interpreting the Constitution in accord with
the Supreme Court's precedent.
Because we lack jurisdiction under INA S 242(a)(2)(C) over
the petitions for review brought by Cinquemani, Rodriguez,
and Liang challenging their final orders of removal, the
petitions will be dismissed without prejudice to Rodriguez's
pending petition under 28 U.S.C. S 2241 for a writ of
habeas corpus.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
28