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.
SUBJECT MATTER JURISDICTION
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
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  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
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.