ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Use ILW.COM's Case Tracking System

< Back to current issue of Immigration Daily                        < Back to current issue of Immigrant's Weekly

 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 
                                   
                                 21 
   
 220502 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 


• ILW.COM Home    • Attorney Membership    • Case Tracking   
• Immigration Daily    • Citizenship Materials   

Share this page with a friend Share this page


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: