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In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1287 

Manuel Parra,



Brian Perryman, District Director,
Immigration and Naturalization Service,


Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 446--Ruben Castillo, Judge.

Submitted March 8, 1999--Decided March 24, 1999

  Before Easterbrook, Manion, and Rovner, Circuit Judges.

  Easterbrook, Circuit Judge.  Manuel Parra, a
citizen of Mexico, is confined by the federal
government pending the conclusion of removal
proceedings. Parra was convicted in 1996 of
aggravated criminal sexual assault, a felony that
by virtue of 8 U.S.C. sec.1227(a)(2)(A)(iii)
requires his removal from the United States. On
December 7, 1998, Parra was taken into federal
custody and ordered to show cause why he should
not be removed. Because this proceeding began
after April 1, 1997, it is governed by the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (iirira), Division C of
Pub. L. 104-208, 110 Stat. 3009-546 (Sept. 30,
1996). We therefore use the new statutory
terminology of "removal" rather than
"deportation" and cite to the current provisions
of Title 8, avoiding the complex transition
issues that affect some older cases. See Reno v.
American-Arab Anti-Discrimination Committee, 119
S. Ct. 936 (1999).

  Section 236(c)(1) of the Immigration and
Nationality Act, 8 U.S.C. sec.1226(c)(1), as
amended by the iirira, says that the Attorney
General "shall take into custody any alien who"
is removable as an aggravated felon under
sec.1227(a)(2)(A)(iii) (or a number of other
sections). A person taken into custody under
sec.236(c)(1) may be released under
sec.236(c)(2), but

only if the Attorney General decides pursuant to
section 3521 of Title 18 that release of the
alien from custody is necessary to provide
protection to a witness, a potential witness, a
person cooperating with an investigation into
major criminal activity, or an immediate family
member or close associate of a witness, potential
witness, or person cooperating with such an
investigation, and the alien satisfies the
Attorney General that the alien will not pose a
danger to the safety of other persons or of
property and is likely to appear for any
scheduled proceeding.

(Emphasis added.) Section 3521 is the witness
protection program, and Parra is not eligible for
its benefits. Nor is he eligible for another
safety valve, a transition rule that permitted
release on bail until October 9, 1998. See iirira
sec.303(b)(3). An immigration judge ordered Parra
released on bond, despite the expiration of
sec.303(b)(3), but an administrative appeal
automatically stayed the release order. 8 C.F.R.
sec.3.19(i)(2). In consequence, Parra is being
held without possibility of bail. He sought a
writ of habeas corpus under 28 U.S.C. sec.2241,
contending that the amended sec.236(c) violates
the due process clause of the fifth amendment,
but the district court dismissed his petition for
want of jurisdiction. Parra asks us for release
pending appeal of that decision; the ins, by
contrast, seeks summary affirmance.

  LaGuerre v. Reno, 164 F.3d 1035 (7th Cir.
1998), holds that the iirira channels most claims
concerning removal to the court of appeals, and
forecloses the use of sec.2241 to obtain review
either of contentions that will be heard by the
court of appeals, or that Congress has determined
may not be heard by any court. Accord, Richardson
v. Reno, 162 F.3d 1338 (11th Cir. 1998). One line
of argument that cannot be made at any time, in
any court, is that a person with a conviction for
an aggravated felony is entitled to discretionary
relief permitting him to remain in the United
States. Yang v. INS, 109 F.3d 1185, 1190-92 (7th
Cir. 1997). For someone in Parra's position,
then, removal is overwhelmingly likely. He
concedes that he is an alien and that he has been
convicted (on his plea of guilty) of a crime
meeting the statutory definition of an aggravated
felony. On March 3, 1999, an immigration judge
concluded that Parra is deportable and ineligible
for any relief from removal; his motions papers
in this court do not even hint at a substantive
argument that he is entitled to remain in the
United States. The question at hand therefore is
where he passes the time while waiting for the
order to become final. He says that he wants to
spend it at home, with his family (he has three
children who are U.S. citizens); the Department
of Justice fears that if released on bail Parra
will go into hiding in order to stay in the
United States indefinitely. According to the
Department, approximately 90% of persons in
Parra's situation absconded when released on bail
before the iirira. 62 Fed. Reg. 10,312, 10,323
(1997). But we oughtn't get ahead of things;
jurisdiction is the first issue.

  Section 306(c)(1) of the iirira, codified at 8
U.S.C. sec.1252(g), says that, except to the
extent specifically provided elsewhere in
sec.1252, "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, we held in LaGuerre, supersedes
sec.2241 in cases to which it applies. But as
American-Arab Anti-Discrimination Committee makes
clear, the proviso "to which it applies" is
vital. The Supreme Court held that sec.1252(g) is
not a general review-preclusion law, but covers
only the three listed situations: decisions to
"commence proceedings, adjudicate cases, or
execute removal orders". 119 S. Ct. at 943-45.
Petitioners in LaGuerre tried to use sec.2241 to
obtain anticipatory review of both the
administrative adjudication and the removal
order; that gambit was the sort of thing
sec.1252(g) prevents. Parra, by contrast, did not
ask the district court to block a decision "to
commence proceedings, adjudicate cases, or
execute removal orders against any alien under
this chapter." His claim concerns detention while
the administrative process lasts, and it may be
resolved without affecting pending proceedings.
Section 1252(g) therefore does not foreclose
review, and the ins does not rely on it in this

  What the ins does invoke is sec.1226(e):

The Attorney General's discretionary judgment
regarding the application of this section shall
not be subject to review. No court may set aside
any action or decision by the Attorney General
under this section regarding the detention or
release of any alien or the grant, revocation, or
denial of bond or parole.

The first sentence of sec.1226(e) precludes
judicial review of the Attorney General's
decision to apply sec.1226(c)(1) to Parra; the
second sentence precludes review of the Attorney
General's decision to deem Parra ineligible for
release under sec.1226(c)(2) (or any other source
of authority to grant bail). According to the ins,
this means that there is no jurisdiction in the
district court. Not so fast. Two particular
avenues of attack have been cut off by
sec.1226(e). A person who has different legal
arguments may present them. This is how the
Supreme Court treated sec.1252(g) in American-
Arab Anti-Discrimination Committee, and the same
kind of reading is appropriate for sec.1226(e).
That statute does not purport to foreclose
challenges to sec.1226(c) itself, as opposed to
decisions implementing that subsection. In this
respect sec.1226(e) is like former 38 U.S.C.
sec.211(a), which limited review of veterans'
benefits awards. Although the statute barred
review of decisions about claims to benefits,
Johnson v. Robison, 415 U.S. 361, 366-74 (1974),
held that it did not bar review of challenges to
the statute under which those claims were made.
See also, e.g., Traynor v. Turnage, 485 U.S. 535,
541-45 (1988); Czerkies v. Department of Labor,
73 F.3d 1435 (7th Cir. 1996) (en banc); Marozsan
v. United States, 852 F.2d 1469 (7th Cir. 1988)
(en banc).

  Section 1226(e) likewise deals with challenges
to operational decisions, rather than to the
legislation establishing the framework for those
decisions. The district court therefore had
jurisdiction under sec.2241, and it is
unnecessary for us to decide whether sec.1226(e)
should be understood as an effort to "suspend"
the writ of habeas corpus-- the original writ
under Art. I, sec.9, cl. 2, the Great Writ, which
is a device to prevent detention by the Executive
Branch without trial. Ex parte Bollman &
Swartwout, 8 U.S. (4 Cranch) 75 (1807); Ex parte
McCardle, 73 U.S. (6 Wall.) 318 (1868); Ex parte
Royall, 117 U.S. 241 (1886). Section 1226(c)
authorizes detention by the Executive Branch
without trial, and it is easy to imagine cases--
for example, claims by persons detained under
sec.1226(c) who say that they are citizens rather
than aliens, who contend that they have not been
convicted of one of the felonies that authorizes
removal, or who are detained indefinitely because
the nations of which they are citizens will not
take them back--in which resort to the Great Writ
may be appropriate. Today's case presents none of
these possibilities, however, for Parra concedes
that he is an alien removable because of his
criminal conviction, and Mexico accepts returns
of its citizens.

  Although the district court should have
addressed Parra's claim on the merits, a remand
is unnecessary. Section 1226(c) plainly is within
the power of Congress. Martinez v. Greene, 28 F.
Supp. 2d 1275 (D. Colo. 1998), which held the
statute unconstitutional, is unpersuasive.
Persons subject to sec.1226(c) have forfeited any
legal entitlement to remain in the United States
and have little hope of clemency. (One is tempted
to say "no" hope, but life is full of surprises,
and a last-minute amendment of the immigration
laws or change in policy has kept many an
immigrant in this country. For current purposes
"little" hope will do.) Before the iirira bail was
available to persons in Parra's position as a
corollary to the possibility of discretionary
relief from deportation; now that this
possibility is so remote, so too is any reason
for release pending removal. Parra's legal right
to remain in the United States has come to an
end. An alien in Parra's position can withdraw
his defense of the removal proceeding and return
to his native land, thus ending his detention
immediately. He has the keys in his pocket. A
criminal alien who insists on postponing the
inevitable has no constitutional right to remain
at large during the ensuing delay, and the United
States has a powerful interest in maintaining the
detention in order to ensure that removal
actually occurs.

  The due process calculus under Mathews v.
Eldridge, 424 U.S. 319, 335 (1976), requires the
court to evaluate the private interest, the
probability of error (and the effect of
additional safeguards on the rate of error), and
the government's interest in dispensing with
those safeguards, with a thumb on the scale in
favor of the statute's constitutionality. The
private interest here is not liberty in the
abstract, but liberty in the United States by
someone no longer entitled to remain in this
country but eligible to live at liberty in his
native land; the probability of error is zero
when the alien concedes all elements that require
removal (as Parra has done); and the public
interest is substantial given the high flight
rate of those released on bail. The Supreme Court
held in United States v. Salerno, 481 U.S. 739
(1987), that pretrial detention in criminal
prosecutions (a parallel to pre-removal
detention) comports with the Constitution even
though the private interest is greater, the
likelihood of error must be deemed significant
given the prosecutor's high burden at a criminal
trial, and the public interest is less (for the
skip rate on bond in criminal prosecutions is
well under 90%). Given the sweeping powers
Congress possesses to prescribe the treatment of
aliens, see Fiallo v. Bell, 430 U.S. 787, 792
(1977), the constitutionality of sec.1226(c) is

  Well before the iirira we stated that once
deportation proceedings have begun an alien's
detention is constitutional. Arias v. Rogers, 676
F.2d 1139, 1143-44 (7th Cir. 1982). Both Reno v.
Flores, 507 U.S. 292 (1993), and Carlson v.
Landon, 342 U.S. 524 (1952), hold that under pre-
iirira law an alien had no entitlement to release
pending the conclusion of deportation
proceedings. If this was so even when the
Attorney General had open-ended authority to
grant discretionary relief from deportation--and
thus to render the imprisonment gratuitous--then
there can be no doubt about the constitutionality
of sec.1226(c) now that these powers to forego
removal have been curtailed.

  The judgment of the district court is vacated,
and the case is remanded with instructions to
deny the petition on the merits.