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 v. CIVIL NO. CCB-00-2630



 Now pending before this Court is a Petition by Sung Ku Woo requesting that this court issue a writ of habeas corpus pursuant to 22 U.S.C. 2241 and a stay of deportation. Mr. Woo is currently subject to a final order of removal from the United States and is being held in federal detention pending the availability of travel documents and the resolution of motions before this court, the Court of Appeals for the Fourth Circuit, and the Board of Immigration Appeals ("BIA"). He claims that his removal is contrary to statutory mandate because he has been denied the opportunity to apply for discretionary relief from deportation under INA 212(c), 8 U.S.C. 1182(c) (repealed 1996). Further, he argues that his continued detention violates his constitutional right to Due Process of law. 

In response, the government asserts that this court lacks jurisdiction to consider Mr. Woo's petition and contends, in the alternative, that, if the court does assert jurisdiction, it must deny the petition on its merits. For the reasons explained below, this court finds that it has jurisdiction over Mr. Woo's Petition and can properly rule on the merits of his claims. Accordingly, the court finds that Mr. Woo is entitled to apply for discretionary relief from deportation under INA 212(c) and grants him a stay of removal until such time as that application is decided.




The facts and procedural history of this case are not in dispute. Sung Ku Woo is a native and citizen of South Korea who was admitted to the United States on July 19, 1980 as a lawful permanent resident. (Pet. for Hab. Corp. 7-8.) He is married to another lawful permanent resident, has two children who are U.S. citizens, and manages a construction company. (Id. at 9.) On December 7, 1987, Mr. Woo pled guilty to "the crime of sale or transportation of a controlled substance, to wit, cocaine" in California. (Mot. to Dis. at 4.)(1)


On February 19, 1997, the Immigration and Naturalization Service ("INS") issued, and served upon Mr. Woo, an Order to Show Cause ("OSC") stating that he was subject to deportation for the 1987 conviction. The OSC required Mr. Woo to appear before an immigration judge on May 7, 1997. INS, however, never filed the OSC with the immigration court. Because INS regulations state that jurisdiction over a removal proceeding does not vest until the charging document is filed with the immigration court, the judge was unable to commence proceedings on May 7. See 8 C.F.R. 3.14 (1999).


INS renewed proceedings against Mr. Woo on July 16, 1997 by issuing to him a Notice to Appear ("NTA").(2) At the November 5, 1997 hearing, the immigration judge found that, based on his 1987 conviction, Mr. Woo was "subject to removability ... and the nature of the charge would bar respondent from any relief from removability, any cancellation of relief, and all the Court can do, is order the respondent removed." (Mot. to Dis., Ex. 7 at 4.)


Mr. Woo appealed this decision to the BIA. On July 12, 2000, the BIA refused his appeal and "issued a final order of removal." (Mot. to Dis. at 6, Ex. 9.) The BIA found that Mr. Woo was subject to removal and ineligible for any form of relief, including discretionary relief under INA 212(c). (Id., Ex. 9 at 2.)


Mr. Woo was taken into custody on August 1, 2000 and has since filed a battery of appeals and motions. (Mot. to Dis. at 6.) His application to the BIA for a stay of removal was denied on August 29; his motion to INS for a stay of removal was refused on September 1, 2000; and his request to INS for release was denied on September 6, 2000. (Id. at 6-7). Mr. Woo then filed the current Petition for a Writ of Habeas Corpus and Request for a Stay of Deportation with this court and a petition for review with the Fourth Circuit Court of Appeals. Those two motions, as well as his motion to the BIA for reconsideration, are pending at this time.


In his petition before this court, Mr. Woo asserts that he is eligible to be considered for relief under INA 212(c), that his detention is "unlawful and unconscionable, and is likely to go on indefinitely," and that the Attorney General abused her discretion and, thereby, violated his due process rights by subjecting him to detention and removal. (Pet. for Hab. Corp. 18-19.) He asks the court to grant a writ restraining INS from "detaining and deporting [him] before his application for INA 212(c) relief can be heard." (Id. at 5.)(3)




In support of its motion to dismiss, the government asserts several jurisdictional and merits-based arguments. To prove that this court lacks subject matter jurisdiction, the government first argues that both sections 242(b)(9) and 242(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-3546 (1996), preclude review of Mr. Woo's claims. See 8 U.S.C. 1252(b)(9) (1999), 8 U.S.C. 1252(g) (1999). In the alternative, it claims that the petition should be dismissed because Mr. Woo's petition for review before the Fourth Circuit must be resolved first. Should this court determine that it has jurisdiction, the government argues that it should deny Mr. Woo's petition on the merits because IIRIRA 304, 8 U.S.C. 1229(b) (1999), is not impermissibly retroactive and that Mr. Woo was placed in removal and detained properly.


In response, Mr. Woo argues that his case is controlled by the Fourth Circuit's decisions in Bowrin v. INS, 194 F.3d 483 (4th Cir. 1999), and Tasios v. Reno, 294 F.3d 544 (4th Cir. 2000). The essential point of disagreement between the government and Mr. Woo concerns the applicable statutory rules under IIRIRA. Because this court agrees with Mr. Woo that his case is governed by IIRIRA's transitional rules, it finds Bowrin and Tasios controlling and concludes that jurisdiction is proper and relief is warranted.


I. Statutory Background


Immigration cases such as this one are governed by the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101, et seq. (2000). Under that Act as it existed prior to April 24, 1996, the Attorney General had discretion to release an alien who was being deported on the basis of a felony conviction for which he had served less than five years in prison. See former 212(c), 8 U.S.C. 1182(c). In 1996, Congress altered that provision of the INA by passing the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-32, 110 Stat. 1214 (1996). Section 440(d) of AEDPA eliminated this discretionary relief for aliens who had committed a certain class of crimes, including the one to which Mr. Woo pled guilty, known as "aggravated felonies," See AEDPA 440(e).


Several months after AEDPA, Congress passed IIRIRA. Pub. L. No. 104-208, 110 Stat. 3009-3546 (1996). Section 304(b) of IIRIRA repeals 212(c) entirely and replaces it with a section entitled "Cancellation of Removal." 8 U.S.C. 1229(b) (1999). IIRIRA was passed on September 26, 1996, but did not take effect until April 1, 1997. See IIRIRA 309(c). The Act did, however, provide transitional rules for the interim period between its enactment and effective date. Importantly for this case, the wording of the jurisdictional restrictions is different under the transitional and permanent rules. The Fourth Circuit ruled in Bowrin, 194 F.3d 483, that IIRIRA's interim rules do not preclude district courts from hearing habeas petitions concerning statutory and constitutional questions. The court of appeals has not, however, ruled on the jurisdictional limits imposed by the permanent rules.


The evaluation of the merits of Mr. Woo's petition also depends on the court's decision about which rules apply. If the transitional rules govern, then this case is identical to that resolved by the Fourth Circuit in Tasios, 204 F.3d 544. In that case, the court found that an alien, whose deportation proceedings were begun while the transitional rules were effective, was entitled to apply for INA 212(c) relief. Again, the Fourth Circuit has not confronted this issue under the permanent rules.(4)


By their terms, the transitional rules apply to all deportation proceedings commenced after the enactment of AEDPA and prior to the effective date of IIRIRA. See Hall v. INS, 167 F.3d 852, 854 (4th Cir. 1999) ("Those rules apply to aliens who were already in deportation before April 1, 1997, and whose final deportation order was entered more than thirty days after September 30, 1996)(citing IIRIRA 309(c)(1), (4)(as amended)). Thus, to decide which set of rules govern, the court must determine when proceedings against Mr. Woo commenced. Before deciding that issue, however, the court must answer two preliminary questions regarding its jurisdiction.


II. Other Jurisdictional Challenges


Initially, the government asserts that this court lacks jurisdiction even to decide whether the transitional or permanent rules of IIRIRA apply. In making that argument, the government relies on IIRIRA 242(g), which provides:


[e]xcept as otherwise 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 chapter.


8 U.S.C. 1252(g) (1999). Apparently, the government contends that deciding which rules apply is prohibited because it involves a "decision or action by the Attorney General to commence proceedings." The Supreme Court, however, has made it clear that 1252(g) does not preclude review of "all claims arising from deportation proceedings." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 483, 119 S. Ct. 936, 943 (1999). Further, the Fourth Circuit answered precisely this question in Bowrin:

1252(g) does not apply to agency interpretations of statutes as these decisions do not fall into any of the three categories enumerated in 1252(g). District court jurisdiction over habeas petitions ... therefore, is not prohibited by 1252(g) because it is inapplicable to final deportation orders.


194 F.3d at 488 (internal citation omitted). See also Shah v. Reno, 184 F.3d 719, 722 (8th Cir. 1999)("The Section has nothing to do with review of final orders of deportation, or indeed with any sort of review of such orders."). At oral argument, the government was unable to distinguish Bowrin from the present case. Additionally, the government offered no reason that this court should deviate from the general rule that it has jurisdiction to review facts upon which its jurisdiction depends. See Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999)(finding that it had jurisdiction to determine whether the petitioner was an alien and whether he had committed an enumerated crime); Hall, 167 F.3d at 855 (finding that the court had jurisdiction "to determine whether we have jurisdiction over this case."). The court, therefore, finds that it does have jurisdiction to decide which set of rules apply.(5)


Secondly, the government argues that this court lacks jurisdiction to hear Mr. Woo's petition because his claims are properly before the Fourth Circuit. (Reply at 9.) This argument is twofold. First, the government contends that, because a writ of habeas corpus "is viewed as an avenue of last resort," this court should refrain from ruling on Mr. Woo's petition for habeas corpus until the Fourth Circuit has decided his petition for review of removal. (Mot. to Dis. at 15) (citing Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991)). In support of this argument, the government provides authority for the proposition that the judicial system is overcrowded and that Congress intended to preclude separate challenges to the categories of decisions covered by 1252(g). (Id. at 15-16). It does not, however, cite to one case in which a district court refused to hear a petition for a writ of habeas corpus because a separate petition for review of removal was pending in the court of appeals.


This situation is akin to the one faced by the Fourth Circuit in Bowrin. In that case, the court dismissed the petitioner's direct appeal from a BIA decision for lack of jurisdiction and, at the same time, remanded to the district court for consideration of the petition for habeas corpus. Bowrin, 194 F.3d at 490. There was no indication that the challenge to BIA's decision to remove could not have proceeded in the Fourth Circuit concurrently with the district court's consideration of the habeas petition.


As a corollary, the government argues that the Fourth Circuit, in ruling on Mr. Woo's petition for review, will be required to decide whether or not he is entitled to apply for relief under INA 212(c). This court should not, the government contends, usurp the Fourth Circuit's decision. (See Reply at 10 ("No other court should address the challenges made to a final order of removal before the Fourth Circuit has a chance to rule.")) At oral argument, however, the government conceded that it will argue before the Fourth Circuit that that court has jurisdiction solely to decide "substantial constitutional claims." Because it does not involve such a claim, the government will argue that the Fourth Circuit also lacks jurisdiction to entertain Mr. Woo's statutory request for relief.


If the government is correct, then both the Court of Appeals and District Court lack jurisdiction to hear Mr. Woo's petition. That result would be in direct conflict with the Fourth Circuit's pronouncement in Bowrin "that statutory claims affecting the substantial rights of aliens that have traditionally been judicially enforced are cognizable on 2241 habeas." Bowrin, 194 F.3d at 490. Indeed, the court in Bowrin made it very clear that district courts have jurisdiction to review both "statutory and constitutional questions when presented." Id. The government's argument would render this language meaningless because it would preclude any court from entertaining a statutory challenge contained in a habeas petition. This court, therefore, will not refuse to hear Mr. Woo's petition on these grounds.


III. Transitional vs. Permanent Rules


Having concluded that it retains jurisdiction to decide which set of rules apply, this court must now make that determination. Not surprisingly, the government asserts that the petition should be analyzed under the permanent rules, while Mr. Woo argues that the transitional rules apply. The controversy arises because Mr. Woo was issued an OSC on February 19, 1997, but that document was never filed with the immigration court. Instead, Mr. Woo's removal hearing was pursuant to the NTA issued on July 16, and received by Mr. Woo on November 5.(6) Between those dates, IIRIRA took effect. Thus, if the February 19th OSC began the proceedings against Mr. Woo, he was "in deportation" as of April 1st, and the transitional rules should apply. If, however, proceedings were not commenced until the July 16th NTA, Mr. Woo was not "in deportation" on April 1st, and the permanent rules apply to his case.


To support its contention that the February OSC was not an effective commencement of proceedings against Mr. Woo, the government relies on two regulatory provisions. Those regulations state that removal procedures do not commence until an OSC (or NTA) is actually filed with the immigration judge. See Mot. to Dis. at 21; 8 C.F.R. 3.14 (1999) ("Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service."); 8 C.F.R. 239.1 (1997) ("Every removal proceeding conducted under section 240 of the Act ... is commenced by filing a notice to appear with the Immigration Court.").(7) These regulations clearly indicate, the government argues, that removal proceedings against Mr. Woo did not begin until the NTA was filed with the court - after April 1, 1997.


Despite the deference owed INS's interpretation of these regulations, (See Mot. to Dis. at 22-23), they do not end the court's inquiry. The regulations at issue have been interpreted by three Courts of Appeal. In Wallace v. Reno, the First Circuit stated that it was


not concerned with INS's internal time tables, starting points, due dates, and the like, but with the judicial question of retroactivity. This question turns on considerations unrelated to the purpose of INS regulations ... From this standpoint, we think that when an order to show cause is served on the alien, the deportation process has effectively begun and expectations properly form, even if there is no actual reliance.


194 F.3d 279, 287 (1st Cir. 1999). This general conclusion was echoed by the Eleventh Circuit in Alanis-Bustamente v. Reno, 201 F.3d 1303, 1307-08 (11th Cir. 2000) (finding that "proceedings to remove Bustamente were commenced [when] the order to show cause was served on him and a warrant of detainer had been filed against him"). Importantly, the Eleventh Circuit did not decide whether the outcome would have been different if the warrant of detainer had not been issued along with the OSC. Id. at 1309 ("We need not decide whether service of the order to show cause alone is enough...[t]he combination of the [OSC and warrant of detainer] is enough to commence proceedings for the purposes of determining the applicable law.").(8)


The government counters these cases by citing the Seventh Circuit opinion in Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000). In that case, Mr. Morales-Ramirez, a legal permanent resident, pled guilty to a drug trafficking offense and served a term in prison. Prior to his guilty plea, INS served him with a "Notice of Exclusion Proceedings," but it never filed that notice with an immigration court. Id. at 978. IIRIRA took effect while Mr. Morales-Ramirez was in prison and, once he was released, the government commenced removal proceedings against him. Id. at 978-79. The Seventh Circuit found the INS regulations controlling and concluded that Mr. Morales-Ramirez was subject to the provisions of IIRIRA because removal proceedings had not begun until the notice was filed in court. Id. at 983.(9)


While Alanis-Bustamente may be distinguishable from the other two cases, the opinions from the First and Seventh Circuits are in direct conflict. The government attempts to distinguish Wallace on the grounds that the court was determining solely whether AEDPA 440(d) should apply retroactively and "did not directly confront the question of when to consider proceedings to have commenced." (Reply at 8-9.) The government argues that the court decided when legitimate reliance on the part of the alien, not the actual proceedings, could have commenced. (Id. at 9.) That differentiation, however, is not persuasive. The First Circuit stated explicitly that "when an order to show cause is served on the alien, the deportation process has effectively begun and expectations properly form, even if there is no actual reliance." Wallace, 194 F.3d at 287.


This court finds the First and Seventh Circuits irreconcilably opposed. Further, it finds the reasoning explained by the First Circuit in Wallace persuasive. Like the court in Wallace, this court is not interpreting the effect of internal INS procedures but, rather, the retroactive impact of the laws as applied to a specific alien. For purposes of determining the applicable rules, service of the OSC on Mr. Woo was sufficient to begin deportation proceedings. Therefore, Mr. Woo's deportation commenced prior to April 1, 1997, and his petition should be analyzed under the transitional, not permanent, rules of IIRIRA.


That determination controls the court's analysis not only of its jurisdiction over Mr. Woo's petition, but also of the merits of his claim. First, pursuant to the Fourth Circuit's holding in Bowrin this court may properly assert jurisdiction over Mr. Woo's petition. 194 F.3d at 488-89 (holding that under the transitional rules, district courts retain jurisdiction to hear habeas petitions).


Secondly, because this case is governed by the transitional rules of IIRIRA, it is identical to the situation confronted by the Fourth Circuit in Tasios, 203 F.3d 544. Because deportation proceedings were commenced against Mr. Woo prior to April 1, 1997, he was subject to AEDPA 440(d) rather than IIRIRA. Thus, INA 212(c) relief would be unavailable to him, if at all, as a result of his drug possession conviction, not as a result of IIRIRA's repeal of that section. In Tasios, the Fourth Circuit relied on Bowrin to affirm the district court's jurisdiction over a habeas petition, as well as its determination that AEDPA 440(d) did not preclude the alien from applying for INA 212(c) relief. Tasios, 203 F.3d at 548. In ruling on the merits of the petition, the court found that


Congress has not clearly indicated the temporal reach of AEDPA 440(d) and that application of the section to pleas of guilt or concessions of deportability predating AEDPA's enactment would have a retroactive effect.


Id. The court, therefore, concluded that " 440(d)'s bar of relief under 212(c) should not apply to aliens who pled guilty to aggravated felonies" before AEDPA became effective. Id. at 552-53.


Because the transitional rules apply to Mr. Woo, the rulings of the Fourth Circuit in Bowrin and Tasios are controlling. Thus, this court concludes that it has jurisdiction to hear Mr. Woo's petition for habeas corpus and that he is entitled to apply for relief under INA 212(c).


IV. Permanent Rules


This court recognizes that the Fourth Circuit has not directly confronted the regulatory issue presented by this case. It is possible, therefore, that the court of appeals would conclude that removal proceedings were not commenced against Mr. Woo until after April 1, 1997. If that were the case, Mr. Woo's petition would be governed by the permanent, rather than transitional, rules under IIRIRA. As a result, both Bowrin and Tasios would be inapplicable, and the court would have to make a new determination about its jurisdiction and rule on the retroactivity of IIRIRA 304, rather than AEDPA 440(d). Although those questions have not been answered by the Fourth Circuit, they have been the subject of significant litigation in several other courts of appeal.


Briefly, the major jurisdictional difference between the permanent and temporary rules is the inclusion of IIRIRA 242(b)(9) in the permanent rules. That section, which is entitled "Consolidation of Questions for Judicial Review," provides that


[j]udicial 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 title shall be available only in judicial review of a final order under this section.


8 U.S.C. 1252(b)(9). The Fifth and Eleventh Circuits have found that this language requires all claims, including petitions for habeas corpus, to be raised in the court of appeals, rather than district court. See Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000); Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999), cert. denied, 120 S. Ct. 1529 (2000).(10) The First, Second, Third, and Ninth Circuits, however, have specifically disagreed with the holdings of those courts. See Madaheo v. Reno, 2000 WL 1257273 (1st Cir. Sept. 11, 2000); Cyr v. INS, 2000 WL 1234850 (2nd Cir. Sept. 1, 2000); Liang v. INS, 206 F.3d 308 (3rd Cir. 2000); Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000). Those courts have construed 1252(b)(9) as limiting judicial review of removal orders, but not jurisdiction over habeas petitions. In so doing, the courts have relied on the Supreme Court's opinion in Felker v. Turpin, 518 U.S. 651 (1996), for the proposition that jurisdiction over habeas corpus petitions can be altered only by express and specific language. See Liang, 206 F.3d at 317 ("The holding of the Supreme Court is clear. A repeal of habeas jurisdiction can only be effected by express congressional command."); Flores-Miramontes, 212 F.3d at 1139 (finding that 1252(b)(9) "does not mention the federal habeas statute, and therefore cannot constitute a repeal of it, in whole or in part.").


The Fourth Circuit has not yet ruled on this issue. This court, however, finds persuasive the reasoning of those courts that have found jurisdiction over habeas petitions under the permanent rules. Additionally, the court finds relevant the analysis undertaken by the Fourth Circuit in Bowrin in determining that the transitional rules did not preclude habeas jurisdiction. See Bowrin 194 F.3d at 488. In that case, the court used a framework very similar to the one employed by the Second, Third, and Ninth Circuits in determining that habeas jurisdiction was not precluded by the transitional rules. It followed the Supreme Court's holding in Felker and stated that "had Congress intended to eliminate all habeas jurisdiction under 2241, it would have done so" explicitly. Id. at 489. This analysis suggests that the Fourth Circuit might favor a finding that jurisdiction was proper. See Liang, 206 F.3d at 317 ("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."). Thus, should the permanent rules apply, this court would retain jurisdiction to decide Mr. Woo's petition.


Secondly, if the permanent rules apply, this court would be required to make a separate ruling on the merits. It, therefore, would have to decide whether IIRIRA 304, rather than AEDPA 440(d) applied to Mr. Woo's petition. The Fourth Circuit has not ruled on the retroactivity of IIRIRA 304. In fact, the Second Circuit is the only appellate court to have confronted the issue, see Cyr, 2000 WL at *11 ("We are the first U.S. Court of Appeals to consider whether applying IIRIRA 304 to pre-enactment convictions is impermissibly retroactive."), and only one district court has made an explicit ruling, see Santos-Gonzalez v. Reno, 93 F. Supp.2d 286, 295 (E.D. N.Y. 2000) (finding that IIRIRA provision 304 should not apply retroactively). Both of those courts rejected the government's contention that IIRIRA was intended to apply to aliens who had pled guilty to removable offenses prior to April 1, 1997.


The analysis conducted by the Second Circuit in Cyr mirrors that undertaken by the Fourth Circuit in Tasios. Both courts followed the framework established by the Supreme Court in Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).(11) The Second Circuit determined that there was no clear congressional intent that IIRIRA apply retroactively and that IIRIRA, like AEDPA, did have an impermissible retroactive effect. Id. at *10-12. In doing so, it stated explicitly that it was following the Fourth Circuit's reasoning in Tasios. Id. Thus, the retroactive impact on petitioner under IIRIRA 304 was determined to be the same as that suffered under AEDPA 440(d). That reasoning is sound because the statutes have the same effect on the petitioner. The guilty plea made prior to the law's enactment may have been entered in reliance on the availability of discretionary relief; by making that relief unavailable, the law impermissibly alters that reliance. Thus, if the permanent rules were applied to this case, this court is persuaded by the Second Circuit's reasoning in Cyr that Mr. Woo should be permitted to apply for INA 212(c) relief.




This court concludes that jurisdiction and relief are proper under IIRIRA'a transitional rules. In the alternative, the court finds that jurisdiction and relief would also be appropriate were the permanent rules applicable in this case. Therefore, Mr. Woo's petition for a writ of habeas corpus is properly before this court, and the court holds that he is entitled to apply for discretionary relief under INA 212(c).


Further, the court will stay his deportation until such time as his prompt application for such relief is decided.(12) The government has argued that, pursuant to Mapoy v. Carroll, 185 F.3d 224 (4th Cir. 1999), this court lacks jurisdiction to stay Mr. Woo's removal. However, Mapoy is inconsistent with the Fourth Circuit's holding in Bowrin. This court relies on the more recent decision in Bowrin and concludes that a necessary corollary of having jurisdiction to hear a habeas petition is the authority to grant such relief as to make it effective.


A separate Order follows.

_______________ ____________________________


Date Catherine C. Blake

United States District Judge






v. CIVIL NO. CCB-00-2630




For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:


1. Mr. Woo's petition for writ of habeas corpus is granted;


2. His removal is stayed until such time as his prompt application for discretionary relief under INA 212(c) is decided; and


3. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.


_______________ ____________________________


Date Catherine C. Blake

United States District Judge



1. Mr. Woo was sentenced to three years probation with the first 180 days served in prison. (Mot. to Dis., Ex. 2 at 3.)


2. INS claims to have served Mr. Woo by certified mail. (Mot. To Dis. at 5.) He claims, and INS does not dispute, that he did not receive a copy of the NTA until the day of his hearing. (Id., Ex.7 at 2, Pet. for Hab. Corp. 12.) He did appear at the hearing because he received the mailed notice that it was to occur. Because the NTA was identical in all aspects other than its name to the OSC that Mr. Woo did receive, the delivery failure is not an issue in this case.


3. There is no showing in the record that Mr. Woo has officially applied for INA 212(c) relief. (Mot. to Dis. at 5.) At oral argument, counsel for Mr. Woo stated that his client raised the issue at his initial removal hearing. That assertion is supported by the immigration judge's explicit ruling that Mr. Woo "is not eligible for 212(c) relief, as he is statutorily ineligible...." (Id., Ex. 8 at 3.) On appeal, the BIA held that "because respondent is in removal, not deportation, proceedings, a waiver of inadmissability under section 212(c) of the Act is not available to him." (Id., Ex. 10 at 2.) Thus, any official application by Mr. Woo for INA 212(c) relief would have been futile.


4. At oral argument, the government conceded that, if the transitional rules apply to Mr. Woo's case, Tasios and Bowrin control this court's decision.


5. In the brief supporting its motion to dismiss, the government also states, correctly, that "the Court lacks jurisdiction to hear any claim by Mr. Woo that the Attorney General should have commenced deportation, and not removal, proceedings against him." (Mot. to Dis. at 13.) However, Mr. Woo has not made any such claims. Rather, he has filed a petition for a writ of habeas corpus. Thus, the government's reliance on Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999), is misplaced. That case concerned a claim filed in district court seeking to require the Attorney General to commence deportation proceedings against a group of residents prior to the effective date of IIRIRA. Id. at 202-03. It did not concern a habeas petition. See also Hall, 167 F.3d at 855 ("courts retain jurisdiction in such cases to determine whether these jurisdictional facts are present.").


6. The terminology involved in these discussions is unnecessarily confusing. Prior to IIRIRA, an alien was issued an "Order to Show Cause" that required him to appear at a hearing to determine whether or not he would be deported. IIRIRA changed the name of this document to a "Notice to Appear." It appears, however, that the OSC and NTA are identical in form and content, and differ only in name.


Secondly, prior to IIRIRA, aliens could be placed in "deportation" or "exclusion." IIRIRA eliminated this distinction and groups both procedures under the heading "removal." Again, however, there is no indication that the actual processes are different except where altered specifically by the law. Thus, when the government argues that Mr. Woo is ineligible for 212(c) relief because he was placed in "removal" rather than "deportation" proceedings, it is simply asserting that procedures to remove him from the country were not commenced until after April 1, 1997.


7. 8 C.F.R. 239.1 did not become effective until April 1, 1997. See 62 Fed. Reg. 10312. Therefore, it was not in effect when INS issued the original OSC.


8. Mr. Woo was not issued a "Warrant of Detainer." Neither was he given an "Immigration Detainer -- Notice of Action," which the government asserts is used to allow INS to take an alien inmate into custody upon his release from prison. (Resp. Mot. to File Supp. Ex., Decl. of Harriet J. Hickman at 1.) He was, however, served with an "Order of Release on Recognizance" which obligated him to appear when required, maintain his residence in Maryland, and report on the first business day of every month to the INS office in Baltimore. (Petitioner's Additional Exhibits Filed Pursuant to Court Order at 1.) While the court concludes that the OSC alone was sufficient to commence deportation proceedings against Mr. Woo, the fact that he was subjected to release conditions strengthens the conclusion that deportation proceedings had commenced.


9. Interestingly, neither side cites Henderson v. INS, 157 F.3d 106 (2nd Cir. 1998) in which the Second Circuit found that an alien was in exclusion proceedings at the time of AEDPA's enactment when INS had begun proceedings prior to the enactment, voluntarily withdrawn them, and then commenced a removal action after the effective date. Id. at 130 n.30.


10. The Seventh Circuit also precludes district court jurisdiction over habeas petitions. The analysis actually undertaken by the Seventh Circuit, however, is significantly different from that followed by its sister Circuits. See Morales-Ramirez, 209 F.3d 977; LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998), cert denied, 120 S. Ct. 1157 (2000). At oral argument, the government claimed reliance only on the Fifth and Eleventh Circuits' analysis.


11. Under that framework, the court looks first to see if Congress has "expressly prescribed the statute's proper reach." Cyr, 2000 WL at *6 (quoting Landgraf, 511 U.S. at 280). If Congress has not done so,


the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.




12. Mr. Woo also has requested that he be released from detention. The government contends that he is being detained legally pursuant to the rules explained in INA 241(a), 8 U.S.C. 1231(a) (1999). According to those rules, INS is permitted to detain an alien who is subject to a final order of removal for 90 days without review. Id. at 241(a)(1)(A), 8 U.S.C. 1231(a)(1)(A). If, however, the alien cannot be deported within the 90 days because, for example, a court issues a stay, "[a]t the conclusion of the removal period, the INS must consider his release pursuant to 241(a)(3) and (a)(6) of the" INA. (Mot. to Dis., Ex. 18.) (explaining, via another internal memorandum, a previous INS memorandum entitled "Detention and Release of Aliens with Final Orders of Removal") For Mr. Woo, the 90 day removal period ends October 11, 2000. (Mot. to Dis. at 25.) It is likely, however, that the evaluation of Mr. Woo's application for INA 212(c) relief will not be resolved by that time. He will, therefore, be in the United States past the expiration of his 90 day removal period pursuant to the stay issued by this order. In addition, counsel for Mr. Woo stated at oral argument that INS would not consider Mr. Woo's release until a stay was issued. Thus, although this court declines to order Mr. Woo freed from detention at the present time, it encourages INS to consider releasing him.

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