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November 12, 1999


The opinion of the court was delivered by: Larimer, Chief Judge.


Petitioner, Nour-Eddine Jaafar, appearing pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 1141. Jaafar, a citizen of Morocco who is confined in Buffalo Federal Detention Facility in Batavia, New York, seeks relief from a final order of removal issued by an Immigration Judge ("IJ") on December 7, 1998.


Respondent Immigration and Naturalization Service ("INS") contends that this court lacks jurisdiction to hear Jaafar's claims, based on certain recently amended sections of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. Jaafar's removal proceedings commenced in February 1998. See Administrative Record ("A.R.") at 199-202, 266-68. This case is therefore governed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which amended INA in a number of respects. As amended, INA now provides that "[j]udicial review of a final order of removal . . . is governed only by chapter 158 of title 28 of the United States Code [28 U.S.C. § 2341 et seq.], except as provided in subsection (b). . . ." 8 U.S.C. § 1252 (a)(1). Subsection (b)(2) of § 1252 provides that "[t]he petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." In addition, chapter 158 of Title 28 confers upon the courts of appeals exclusive jurisdiction to review certain final administrative orders.

Although INS's position is not an unreasonable one given the language of the relevant statutes, I am not convinced that the Court of Appeals for the Second Circuit would agree that this court lacks jurisdiction to hear petitioner's claims under § 2241. In Jean-Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir. 1998), the Second Circuit held that "§ 2241 habeas review survives the [1996] amendments to the INA . . .," though the court "express[ed] no opinion on the permissible scope of that review." Although another panel of the Court of Appeals later criticized that holding, see Henderson v. I.N.S., 157 F.3d 106, 119 n. 9 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999), that panel nevertheless recognized Jean-Baptiste as binding precedent. The court in Henderson concluded that "the federal courts have jurisdiction under § 2241 to grant writs of habeas corpus to aliens when those aliens are `in custody in violation of the Constitution or laws or treaties of the United States.'" Id. at 122 (quoting 28 U.S.C. § 2241).

The court in Henderson did state that its "decision [wa]s premised on the notion that § 2241 habeas is constitutionally required only where the immigration laws have been interpreted to bar other forms of judicial review." Id. at 122 n. 15. Arguably, then, one could read Henderson as not requiring § 2241 jurisdiction in cases where review in the court of appeals is available under § 1252(b)(2).

Absent a clear statement to that effect by the Second Circuit, however, I am not prepared to conclude that the availability of relief in the Court of Appeals means that this court lacks habeas jurisdiction under § 2241. The Second Circuit has cautioned against construing statutes as repealing by implication the right to petition for habeas corpus relief, stating that "in the absence of language affirmatively and eliminating habeas review," courts should presume that Congress did not intend to strip federal courts of their habeas jurisdiction under § 2241. Jean-Baptiste, 144 F.3d at 219 (citing Felker v. Turpin, 518 U.S. 651, 659-61, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)).

I also note that at least one district judge from within this circuit has rejected INS's contention that footnote 15 in Henderson implies that habeas jurisdiction under § 2241 is available only where there is no other form of judicial relief available, and that the right to appeal to the Court of Appeals under § 1252(b)(2) therefore bars relief under § 2241. See Webb v. Weiss, 69 F. Supp.2d 335, 336 (D.Conn. 1999). The court in Webb stated that it "d[id] not read Henderson as precluding all § 2241 habeas relief simply because a right of appeal exists. . . ." Id. In addition, although not squarely addressing the issue, other district judges from within this circuit have found § 2241 jurisdiction to exist under the permanent rules. See Dunbar v. INS, 64 F. Supp.2d 47, 49-51 (D.Conn. 1999) (removal proceedings commenced on April 10, 1997); Ncube v. INS Dist. Directors and Agents, No. 98 Civ. 0282, 1998 WL 842349 at *5 (S.D.N.Y. Dec. 2, 1998) (stating that "the result here would be the same under the transitional as well as the permanent rules").

I am also not persuaded by respondent's reliance on Reno v. American-Arab Anti-Discrimination Committee ("AADC"), 525 U.S. 471, 119 S.Ct. 936, 943, 142 L.Ed.2d 940 (1999). INS cites the Supreme Court's characterization of § 1252(b)(9) as a "`zipper' clause" that "channels judicial review of all" INS decisions and actions to the courts of appeals. The Court in AADC, however, did not address whether § 1252(b)(9) was intended to abolish habeas jurisdiction under § 2241. In fact, though recognizing "disagreement on this point in the Courts of Appeals," id. 119 S.Ct. at 942 n. 7, the Court made no attempt to resolve the issue. See Kiareldeen v. Reno, 71 F. Supp.2d 402, 405 (D.N.J. 1999); Dunbar, 64 F. Supp.2d at 49; Mendoza-Guerra v. Reno, No. C 99-0879, 1999 WL 360748 *4 n. 5 (N.D.Cal. June 1, 1999). I do not believe that AADC is controlling in this case, therefore, and I conclude that this court does have subject matter jurisdiction under § 2241.


The Administrative Record in this case, however-the accuracy of which petitioner does not challenge-sheds additional light on the underlying facts. Jaafar was originally scheduled to take the oath of citizenship on April 12, 1994, but he failed to appear, and requested a new date. His oath was then rescheduled for June 14, 1994. As stated, Jaafar left for Morocco prior to that date, and remained there until October 1994. In November 1994, Jaafar again traveled to Morocco. A.R. at 222. Upon his return the following month, Jaafar was arrested for possession of marijuana. A.R. at 241. INS then paroled Jaafar into the United States for criminal prosecution. A.R. at 256. He was eventually convicted in New York State Supreme Court of Criminal Possession of Marijuana in the Second Degree in violation of N.Y. Penal L. § 221.25, a class D felony. A.R. at 102. He was sentenced to six months imprisonment. A.R. at 259.

In February 1995, Jaafar was again arrested and later convicted of Criminal Possession of Stolen Property in the Fifth Degree, N Y Penal L. § 165.40, a class A misdemeanor, and sentenced to five years probation. A.R. at 260. He was again arrested afterwards on a number of charges, including possession of burglar tools and grand larceny, which were combined in a plea agreement to a single charge of petit larceny, N.Y. Penal L. § ...

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