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Filed September 11, 2001


No. 00-2235




D.C. Civil No. 00-cv-02128
District Judge: The Honorable Ronald L. Buckwalter

Argued: July 27, 2001

Before: ROTH, BARRY, and FUENTES, Circuit Judges 

(Filed: September 11, 2001)

       Tatiana S. Aristova, Esq. (Argued)
       John J. Gallagher, Esq.
       Law Offices of John J. Gallagher
       1760 Market Street, Suite 1100
       Philadelphia, PA 19103

        Attorneys for Appellants


       Stephen J. Britt, Esq. (Argued)
       Assistant U.S. Attorney
       Office of the United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

       Thankful T. Vanderstar, Esq.
       Terri J. Scadron, Esq.
       Office of Immigration Litigation
       Civil Division, Department of Justice
       P.O. Box 878
       Ben Franklin Station
       Washington, D.C. 20044

        Attorneys for Appellee


BARRY, Circuit Judge:

In this appeal, we are called upon to answer a single legal
question: did the District Court have jurisdiction to
entertain a habeas corpus petition alleging a Fifth
Amendment due process violation filed by aliens subject to
a final order of removal for reasons other than a conviction
for a deportable crime?1 Because the Supreme Court has
concluded that Congress has not explicitly stated its
intention to strip the federal courts of their habeas
jurisdiction over petitions filed by aliens, whether those
aliens be criminal or non-criminal aliens, we answer that
question in the affirmative. Accordingly, we will reverse.


The appellants are husband and wife, Aleksandr
Chmakov and Nadejda Chmakova, and their son, Denis
(collectively, the Chmakovs). The Chmakovs are Russian,

1. We will refer to such aliens as "non-criminal aliens." Our intention in
so doing is merely to distinguish them from aliens who are being
deported because they have been convicted of certain criminal offenses.


but are citizens of Uzbekistan, which they describe as a
"Middle Asian republic." They entered the United States on
October 3, 1994 as non-immigrant tourists. In May of
1998, the Immigration and Naturalization Service (INS)
commenced removal proceedings against them pursuant to
8 U.S.C. S 1229. The Chmakovs promptly filed for political
asylum pursuant to 8 U.S.C. S 1158. After a hearing, an
Immigration Judge (IJ) denied their application. The
Chmakovs filed a notice of appeal with the Board of
Immigration Appeals (BIA). Unfortunately, their then-
attorney failed to file a timely brief and the BIA denied
counsel's motion to file a late brief. On January 14, 2000,
the BIA dismissed the appeal. The Chmakovs, still
represented by the same attorney, failed to file an appeal
with this Court.2

When it dismissed the Chmakovs' appeal, the BIA
remanded the case to the IJ because he had failed to set a
voluntary departure bond pursuant to 8 U.S.C.
S 1229c(b)(3). The IJ reopened the case on February 24,
2000, set the voluntary departure bond, and ordered
voluntary departure by April 24, 2000. Again, no appeal
was filed from this order.

It was apparently not until the February 24 hearing on
setting the voluntary departure bond that the Chmakovs
realized that their attorney had not adequately prosecuted
their claim for asylum. The Chmakovs then retained their
present counsel, and counsel took several steps on their
behalf. On or about March 28, 2000, a motion for
reopening and reconsideration was filed with the BIA,
alleging, as relevant here, the ineffective assistance of
predecessor counsel with regard to the BIA's decision of
January 14, 2000 dismissing the asylum claim. The BIA
denied this motion on February 12, 2001 because one of
the criteria set forth in Matter of Lozada, 19 I.&N. Dec. 637

2. The Chmakovs claim that the IJ made numerous errors in denying
their application but because they were ineffectively represented before
the BIA, those errors were never sufficiently addressed, much less
rectified. The issue before us is solely the issue of jurisdiction and not
the merits of the ineffective assistance claim. We note, however, that the
District Court, with reason, stated that it would have been persuaded to
grant relief but for its belief that it lacked jurisdiction to do so.


(BIA 1988), for establishing ineffective assistance claims
was not evident in the record, i.e. whether a complaint was
filed with the appropriate disciplinary authorities and if not,
why not.3 On August 22, 2000, an appeal was filed with
this Court seeking review of the January 14, 2000
dismissal. We dismissed that appeal as untimely.

Most relevant to this appeal, on April 24, 2000, the
Chmakovs filed a petition for a writ of habeas corpus in the
District Court. The petition alleged that the Chmakovs'
Fifth Amendment right to due process had been violated
because they received ineffective assistance of counsel
before the BIA. The INS successfully moved to dismiss the
petition for lack of subject matter jurisdiction, and a timely
notice of appeal was filed. This is the appeal we now consider.4
The District Court had jurisdiction to determine its
jurisdiction and we have jurisdiction under 28 U.S.C.
S 1291.


The INS argues that the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.
1214, and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546,
stripped the District Court of jurisdiction to entertain the
Chmakovs' habeas petition. Both the Supreme Court and

3. The Chmakovs filed an appeal of the denial of reopening and
reconsideration with this Court. That appeal, No. 01-1574, is still
pending. We note in passing that in our recent decision in Lu v. Reno,
No. 00-3393, 2001 WL 829950 (3d Cir. July 24, 2001), we considered,
for the first time, the Lozada three-prong test and found it to be a
reasonable exercise of the Board's discretion. We recognized, however,
the "inherent dangers . . . in applying a strict, formulaic interpretation
of Lozada." Lu, 2001 WL 829950 *28.

4. Deportation has been stayed since April 28, 2000, by order first of the
District Court and then of this Court. Somewhat surprisingly, given the
stay, and for reasons we are unable to discern, on December 24, 2000,
the INS took the Chmakovs into custody. On July 30, 2001, we ordered
the INS to show cause why the Chmakovs, who by then had been in
custody more than seven months, should not be released on their own
recognizance pending the outcome of this appeal. The Chmakovs were
released on August 8, 2001.


this Court have determined that notwithstanding the
provisions of AEDPA or IIRIRA, district courts retain
jurisdiction to hear habeas petitions filed by aliens subject
to deportation for having committed certain criminal
offenses. Zadvydas v. Davis, 121 S.Ct. 2491, 2497 (2001);
INS v. St. Cyr, 121 S.Ct. 2271, 2287 (2001); Liang v. INS,
206 F.3d 308, 317 (3d Cir. 2000), cert. denied , 121 S.Ct.
2590 (2001); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir.
1999). The INS asserts that the rule of these cases is only
applicable where the alien had no other avenue to seek
review of the removal order. Unlike the aliens in Zadvydas,
St. Cyr, Liang, and Sandoval, the Chmakovs had the right
to seek direct review in this Court of the removal order and
the denial of their asylum claim. On that basis, the INS
contends that the Chmakovs should not also be given an
opportunity to seek review of their claim by means of a
habeas petition.

There is no dispute that prior to AEDPA and IIRIRA,
district courts had jurisdiction to hear habeas petitions
challenging deportation orders. That jurisdiction was
squarely based on the general habeas corpus statute, 28
U.S.C. S 2241. Prior to 1996, an alien challenging a
deportation order on the basis of an alleged due process
violation would unequivocally have had the right to seek
habeas relief in district court. Following St. Cyr, it is
incontrovertible that aliens being deported on the basis of
certain criminal convictions would still have that right. We
see no reason to conclude that non-criminal aliens should
be treated differently.

The Supreme Court has made it quite clear that there are
two rationales in support of the conclusion that habeas is
preserved for aliens subject to a final order of deportation.
The first is "the strong presumption in favor of judicial
review of administrative action . . ." St. Cyr, 121 S.Ct. at
2278. The second is "the longstanding rule requiring a clear
statement of congressional intent to repeal habeas
jurisdiction." Id. Thus, before we could find that the District
Court lacked jurisdiction to entertain the Chmakovs'
habeas petition, we would have to be satisfied both that
there was another avenue for review of the BIA's decision
and that Congress had clearly stated its intention to strip
district courts of power to hear petitions such as this.


The first rationale is admittedly not at issue here because
it is acknowledged by all parties that the Chmakovs had the
right to seek review in this Court of the BIA's decision to
dismiss their claim for asylum and order them deported.
Similarly, judicial review of the BIA's denial of the
Chmakovs' motion for reopening and reconsideration,
clothed as it was in ineffective assistance garb, appears to
be available and, indeed, an appeal is pending in this
Court. Congress, of course, has the power to preclude non-
criminal aliens from filing habeas petitions where those
aliens have available to them another avenue of review. See
Liang, 206 F.3d at 321 ("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' ") (quoting Swain v.
Pressley, 430 U.S. 372, 381 (1977)).

While there is no Suspension Clause problem, however,
the second rationale for finding the continuing existence of
habeas jurisdiction must still be satisfied. The inquiry thus
becomes whether Congress explicitly stated its intention to
remove such jurisdiction? The answer, of course, is no. It is
by now axiomatic that "[i]mplications from statutory text or
legislative history are not sufficient to repeal habeas
jurisdiction; instead, Congress must articulate specific and
unambiguous statutory directives to effect a repeal." St.
Cyr, 121 S.Ct. at 2278-79. See also Liang , 206 F.3d at 318
("We unquestionably . . . requir[e] an explicit reference to
habeas jurisdiction or its statutory provision in order to
find an express congressional intent to repeal"); Sandoval,
166 F.3d at 232 ("only a plain statement of congressional
intent to remove a particular statutory grant of jurisdiction
will suffice"). In St. Cyr, Liang, and Sandoval, the Supreme
Court and this Court carefully examined all of the relevant
provisions of AEDPA and IIRIRA, and we will not again do
so here. Suffice it to say, it is now beyond dispute that
Congress did not explicitly state its intention to repeal the
district courts' 28 U.S.C. S 2241 jurisdiction over habeas
petitions filed by aliens subject to a final order of removal.
St. Cyr, 121 S.Ct. at 2287 ("we conclude that habeas
jurisdiction under S 2241 was not repealed by AEDPA and
IIRIRA"); Liang, 206 F.3d at 317 (reviewing the provisions of


AEDPA and IIRIRA and holding that "[n]one expressly
revoked habeas jurisdiction"); Sandoval, 166 F.3d at 238
("neither AEDPA nor IIRIRA contains a clear statement that
Congress sought to eliminate habeas jurisdiction under 28
U.S.C. S 2241").

In asking us to find that in the non-criminal alien setting
Congress has stripped the district courts of jurisdiction
over habeas petitions, the INS makes two points, both of
which we reject. The first is that an explicit statement of
intent to repeal habeas jurisdiction should only be required
where such a repeal might cause a violation of the
Suspension Clause. But this proposition has not been
accepted by either the Supreme Court or this Court.
Rather, as the St. Cyr Court put it most recently, if
Congress wishes to repeal habeas jurisdiction, it must
satisfy two separate and independent requirements. First,
that repeal must not violate the Suspension Clause.
Second, that repeal must be made in clear and
unambiguous language. There is simply no reason to
conclude that the absence of one factor would negate the
necessity for the other.

The INS argues, second, that although the relevant
provisions of AEDPA and IIRIRA do not evince a
congressional intent to repeal habeas jurisdiction for
criminal deportees, they do evince such an intent for non-
criminal aliens. That argument borders on the nonsensical.
The Supreme Court has held that those provisions have a
particular meaning, and that meaning does not indicate a
congressional intent to repeal habeas jurisdiction. It simply
cannot be that the meaning will change depending on the
background or pedigree of the petitioner. Were we to so
hold, we would render the meaning of any statute as
changeable as the currents of the sea, and potentially as
cruel and capricious. We, therefore, conclude that Congress
has preserved the right to habeas review for both criminal
and non-criminal aliens.

The District Court believed, however, that it lacked
jurisdiction for two reasons. First, the Court stated that
because the Chmakovs were non-criminal aliens, they
could (or could have) filed a petition for review in this
Court. But, as we have discussed, the fact that there is no


Suspension Clause problem does not end the inquiry.
Second, the Court stated that the relief the Chmakovs were
seeking "arises from" the Attorney General's proposed
action to execute a removal order and, thus, was barred by
8 U.S.C. S 1252(g). Habeas aside, if, indeed, the Chmakovs
were seeking judicial review of the Attorney General's
discretionary decision to execute a removal order, that
review would clearly have been precluded by S 1252(g),
which provides that

       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 chapter.

This provision limits the power of federal courts to review
the discretionary decisions of the Attorney General to
commence proceedings, adjudicate cases, or execute
removal orders. Reno v. American-Arab Anti-Discrimination
Committee, 119 S.Ct. 936, 943 (1999).

But the Chmakovs are not seeking review of any
discretionary decision made by the Attorney General.
Rather, in the face of counsel's alleged ineffectiveness in
representing them, they are challenging the legality of the
BIA's decision dismissing their claim for asylum and
entering a removal order against them. See Mustata v. U.S.
Dept. of Justice, 179 F.3d 1017, 1022 (6th Cir. 1999) ("[w]e
hold that the Mustatas' habeas petition does not fall within
any of the three Attorney General decisions or actions
covered by S 1252(g). In essence, the Mustatas' petition
makes a claim that their counsel's ineffective performance
at their hearing resulted in a deportation order entered
against them without due process").

The INS asks that we follow the First Circuit's pre-St. Cyr
decision in Foroglou v. Reno, 241 F.3d 111 (1st Cir. 2001),
in which the dismissal of a non-criminal alien's habeas
petition on jurisdictional grounds was affirmed. Even if we
believed that the Supreme Court's decision in St. Cyr left us
any choice in the matter, and we do not, we are not


convinced that Foroglou would support a dismissal on
jurisdictional grounds here. The Foroglou Court specifically
dealt with the alien's various challenges to the legality of
his deportation, finding them to be either without merit or
unpreserved. Once it held that the order of deportation was
legal, the Court determined that the habeas petition could
only be viewed as an attempt to seek judicial review of the
Attorney General's decision to execute that order in
violation of 8 U.S.C. S 1252(g). As discussed above, this is
not what the Chmakovs are challenging.

Moreover, and importantly, the Foroglou Court also stated
that "habeas might be available under restrictive conditions
if a due process violation frustrated a deportee's right of
direct appeal." Id. at 113 (citing Hernandez v. Reno, 238
F.3d 50, 54 (1st Cir. 2001)). That is precisely the claim that
confronts us here. The Chmakovs contend that there was a
denial of due process because predecessor counsel did not
file a brief with the BIA and did not file an appeal with this
Court, thus rendering the proceedings so fundamentally
unfair that they were prevented from reasonably presenting
their case. See Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir.
1988). It will be for the District Court to determine whether
they are right, or whether they are wrong.


The Chmakovs sought habeas relief in the District Court
because, they alleged, the immigration proceedings against
them were so tainted by the ineffective if not wholly
inadequate performance of their counsel as to violate their
Fifth Amendment right to due process. Because Congress
did not explicitly state its intention to preclude habeas
review, the District Court wrongly determined that it lacked
jurisdiction. We will reverse that determination and remand
the case to the District Court for consideration of the
Chmakovs' constitutional claim.


ROTH, Circuit Judge, dissenting:

I cannot agree with the majority that the Supreme
Court's decision in St. Cyr or, indeed, that the United
States Constitution compels the District Court to entertain
the Chmakovs' habeas corpus petition, given that the legal
questions raised by the denial of the Chmakovs' petition for
asylum could have been answered in the course of a direct
appeal.1 The failure on the part of the Chmakovs to seek
judicial review, whatever the cause, be it ineffective counsel
or another reason, is not comparable to the nonexistence of
an avenue to seek review. Therefore, I respectfully dissent.

The majority correctly points out that the Supreme Court
cited two principal considerations underlying its decision to
preserve the writ of habeas for the petitioner in St. Cyr: (i)
"the strong presumption in favor of judicial review of
administrative action" and (ii) "the longstanding rule
requiring a clear statement of congressional intent to repeal
habeas jurisdiction." St. Cyr, 121 S.Ct. at 2278. The former
requirement amounts to an admonition not to violate the
Suspension Clause; Congress can, of course, divest the
district courts of habeas jurisdiction without violating the
Suspension Clause so long as it provides petitioners with
another avenue of review (" `a collateral remedy which is
neither inadequate nor ineffective to test the legality of a
person's detention,' " Liang, 206 F.3d at 321 (quoting Swain
v. Pressley, 430 U.S. 372, 381 (1977)). However, my reading
of St. Cyr leads me to conclude that the former requirement
-- the presumption in favor of judicial review-- far
outstrips the latter in importance. Consequently, I conclude
that the majority relies too heavily on the clear statement
requirement and that it errs in treating that requirement as
an independent factor on an equal footing with the
existence of an avenue to seek judicial review.

The language of St. Cyr repeatedly suggests, in keeping
with the Suspension Clause, that where the petitioner has
available to him an alternate avenue of review, the writ of
habeas corpus simply need not be available. In its

1. Whether the Chmakov's pending appeal of the denial of asylum can
afford them relief or whether that appeal is a timely one, are issues that
are not before us.


discussion of the Suspension Clause, the St. Cyr  Court
articulated the touchstone of that Constitutional provision:
"Because of that Clause, some `judicial intervention in
deportation cases' is unquestionably `required by the
Constitution.' " St. Cyr, 121 S.Ct. at 2279 (quoting Heikkila
v. Barber, 345 U.S. 229, 235, 73 S.Ct. 603 (1953)). The
Court stressed the importance of the availability of
alternative methods of review later in its discussion of the
Suspension Clause, presenting that factor as the sine qua
non of its analysis: "a serious Suspension Clause issue
would be presented if we were to accept the INS's
submission that the 1996 statutes have withdrawn that
power from federal judges and provided no adequate
substitute for its exercise." St. Cyr, 121 S.Ct. at 2282 (citing
Hart, The Power of Congress to Limit the Jurisdiction of
Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev.
1362, 1395-1397 (1953)).

Later in the opinion, the St. Cyr Court again
characterized the availability of an alternative judicial
forum as the principal, if not single, factor in its decision:
"If it were clear that the question of law could be answered
in another judicial forum, it might be permissible to accept
the INS' reading of S 1252." St Cyr, 121 S.Ct. at 2287. The
Court then cited that factor, "coupled with" the lack of a
clear Congressional statement stripping the courts of
jurisdiction, in declining to rule that habeas jurisdiction
had been repealed. Id. Consequently, it seems that the clear
statement requirement is a consideration at most secondary
to the forum availability requirement.

Quite apart from its justification in the language of the
St. Cyr decision, this interpretation is firmly rooted in logic.
Whereas the alternative forum rule is based upon the
Suspension Clause and is therefore of constitutional
magnitude, the clear statement requirement is simply an
expression of two familiar canons of construction and is
therefore of lesser import. As the St. Cyr Court said of the
clear statement rule,

       First, . . . when a particular interpretation of a statute
       invokes the outer limits of Congress' power, we expect
       a clear indication that Congress intended that result.
       See Edward J. DeBartolo Corp. v. Florida Gulf Coast


       Building & Constr. Trades Council, 485 U.S. 568, 575,
       108 S.Ct. 1932, 99 L.Ed.2d 645 (1988). Second, if an
       otherwise acceptable construction of a statute would
       raise serious constitutional problems, and where an
       alternative interpretation of the statute is "fairly
       possible," see Crowell v. Benson, 285 U.S. 22, 62, 52
       S.Ct. 285, 76 L.Ed. 598 (1932), we are obligated to
       construe the statute to avoid such problems. See
       Ashwander v. TVA, 297 U.S. 288, 341, 345-48, 56
       S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J.,
       concurring); United States ex rel. Attorney General v.
       Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct.
       527, 53 L.Ed. 836 (1909).

St. Cyr, 121 S.Ct. 2279 (emendation added).

These observations, together with the passages of the St.
Cyr opinion cited supra, suggest that the "fact that there is
no Suspension Clause problem" does in fact "end the
inquiry." Majority Opinion at 7-8. Thus, contrary to the
majority's view, the principal argument offered by the INS
in this case -- that an explicit statement of intent to repeal
habeas jurisdiction should only be required where the
repeal might lead to a violation of the Suspension Clause --
is consonant with the Supreme Court's decision in St. Cyr.

For the foregoing reasons, I would affirm the decision of
the District Court finding that it lacked jurisdiction to grant
the Chmakovs habeas relief.

A True Copy:

       Clerk of the United States Court of Appeals
       for the Third Circuit