This mongrel regime created by the INA, AEDPA, and IIRIRA's
transitional rules has been twice construed by the Second
Circuit. In Jean-Baptiste, 144 F.3d 212, three permanent
residents convicted of drug crimes challenged final deportation
orders on due process grounds, contending that the Government
should be obligated to inform permanent residents that certain
criminal convictions could lead to their deportation. See id.
at 214. The three sought to enjoin the Attorney General from
enforcing the deportation orders. See id.
The Second Circuit, in an opinion written by Judge Cardamone,
concluded that IIRIRA § 242(g) deprived the court of jurisdiction
over the case and that it consequently had to be dismissed. See
id. at 218. The court found no "constitutional infirmity" in the
jurisdiction-stripping provisions of AEDPA or applicable portions
of IIRIRA, however, because it concluded that review by way of
habeas corpus remained available. See id. Noting the Supreme
Court's rule that a statute may not generally repeal habeas
corpus jurisdiction by implication, the court found no express
repeal of general habeas corpus jurisdiction in AEDPA or IIRIRA
and concluded that it therefore survived. See id. at 219
(citing 28 U.S.C. § 2241 & Felker v. Turpin, 518 U.S. 651, 116
S.Ct. 2333, 135 L.Ed.2d 827 (1996)). At the least, habeas review
remained available to review constitutional claims, but the court
"express[ed] no opinion on the permissible scope of that review."
Id. at 220.
Since the plaintiffs in Jean-Baptiste had sought the district
court's jurisdiction under 28 U.S.C. § 1331, the general federal
question jurisdiction statute, not 28 U.S.C. § 2241, the
provision governing habeas corpus jurisdiction, the Circuit
concluded that the federal courts were without jurisdiction to
entertain their claim. See id.
Four months later, the Circuit began to answer the question
left open in Jean-Baptiste about the scope of review available
under 28 U.S.C. § 2241. The case, Henderson, 157 F.3d 106,
involved four legal permanent residents, all of whom faced
deportation orders for having been convicted of criminal
offenses. Each was seeking a discretionary waiver of deportation
when Congress passed AEDPA, which deprived the Attorney General
of this discretionary power. The Attorney General took the
position that this change applied retrospectively even to
deportation proceedings pending upon the date of the statute's
enactment; the INS therefore denied the four relief. See id. at
109-112. Each of them filed habeas petitions in the district
court; three of them also filed petitions for direct review in
the Court of Appeals. See id.
Rejecting the government's contention that the scope of habeas
review was limited to "substantial" constitutional claims and did
not extend to questions of statutory construction, the court, in
an opinion written by Judge Calabresi, held that "whatever the
outer perimeters of such review may be, the courts have the power
to address the pure questions of law presented in the instant
cases." Id. at 112, 119; see also id. at 119 (agreeing with
the government, however, that the scope of habeas review is
"considerably narrower" than that available before the 1996
legislation). At the same time, however, the court indicated that
it was "strongly inclined" to support the government's other
principal argument — that review (to the extent it was available)
should occur by means of a petition for review in the court of
appeals instead of a habeas petition in the district court. See
id. at 119 n. 9. Such a result would be faithful to Congress's
intent to streamline the removal process, while allowing habeas
review actually added a layer of review not available prior to
1996. Moreover, the courts of appeals are accustomed to reviewing
agency actions; such review can be implied under certain
circumstances to avoid constitutional problems; and allowing for
such review (so long as it was co-extensive with that available
under the habeas statute) would obviate
the need for habeas petitions. See id. (citing Webster v.
Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988);
Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d
411 (1977)). Nonetheless, the Henderson panel was not writing
on a "clean slate"; it was bound by Jean-Baptiste to reject the
government's argument and uphold habeas jurisdiction over such
cases in the district courts. See id. at 109 n. 2, 119.
On the merits, the Court read AEDPA as reflecting Congressional
intent not to apply to pending cases the provision stripping the
Attorney General of jurisdiction to grant discretionary waivers
to criminal aliens. See id. at 130. Since the court decided the
case on this basis, it found it unnecessary to reach the broader
question of whether the changes should apply to permanent
residents whose criminal conduct or convictions providing the
basis for an order of removal took place before enactment of
AEDPA. See id. at 128 n. 28.
Five months after issuance of Henderson, the Jean-Baptiste
panel denied the government's motion for rehearing, which had
urged the court to revise the portion of Jean-Baptiste that
found habeas review available in the district court. See
Jean-Baptiste v. Reno, 175 F.3d 226, 227 (2d Cir. 1999) (per
curiam). The panel noted Henderson's criticism, but cited
opinions from other circuits that followed the habeas approach
and adhered to its prior decision. See id.
Nine circuit courts have taken the same route as
Jean-Baptiste and concluded that district court jurisdiction
under 28 U.S.C. § 2241 survived AEDPA and the IIRIRA transitional
rules. See Goncalves v. Reno, 144 F.3d 110, 113 (1st Cir.
1998), cert. denied, 526 U.S. 1004, 119 S.Ct. 1140, 143 L.Ed.2d
208 (1999); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir. 1999);
Bowrin v. INS, 194 F.3d 483, 485 (4th Cir. 1999) (per
curiam); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305
(5th Cir. 1999); Pak v. Reno, 196 F.3d 666, 673 (6th Cir.
1999); Shah v. Reno, 184 F.3d 719, 724 (8th Cir. 1999);
Magana-Pizano v. INS, 200 F.3d 603, 608-09 (9th Cir. 1999);
Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1140 (10th Cir.
1999); Mayers v. INS, 175 F.3d 1289, 1301 (11th Cir. 1999).
But see LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998)
(holding that § 2241 jurisdiction did not survive AEDPA but that
some direct review of constitutional claims remains available in
the court of appeals), petition for cert. filed, 68 U.S.L.W.
3154 (U.S. Sept. 7, 1999) (No. 99-418).
(ii) The Permanent Rules
IIRIRA's permanent provisions delete entirely the INA's
judicial review provision (as amended by AEDPA) and insert a new
judicial review scheme in its place. See IIRIRA § 306(b)
(deleting old INA § 106, 8 U.S.C. § 1105a (1994)); id. § 306(b)
(inserting new INA § 242, 8 U.S.C. § 1252 (Supp. III 1997)).
At its core, the new judicial review provision is equivalent to
the one it superseded in the INA: it directs that judicial review
of orders of removal be conducted in the courts of appeals in the
manner those courts typically review agency actions. See INA §
242(a)(1), 8 U.S.C. § 1252(a)(1) (cross-referencing 28 U.S.C. § 2341-2351
). Consistent with AEDPA and the IIRIRA interim rules,
the permanent rules also include a provision excepting appeals by
certain criminal aliens from this judicial review scheme:
"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 [an
enumerated] criminal offense." Id. § 242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C); see Henderson, 157 F.3d at 117 n. 7 (calling
this provision the "successor" to AEDPA § 440(a) and IIRIRA
transitional rule § 309(c)(4)(G)) (dictum).
The permanent rules also feature new INA § 242(g),
8 U.S.C. § 1252(g), the subject of the Supreme Court's opinion in
Comm., 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940, discussed
Finally, among the "requirements" for petitions for review
filed in the courts of appeals pursuant to § 242 is the
Judicial review of all questions of law and fact,
including interpretation and application of
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 a final
order under this section.
INA § 242(b)(9) (as amended), 8 U.S.C. § 1252(b)(9) (Supp. III
1997). In dicta, the Supreme Court has referred to this provision
as an "unmistakable `zipper clause,'" one that "covers the
universe of deportation claims." American-Arab, 119 S.Ct. at
943 (contrasting the provision with § 242(g), which it found to
have a much more narrow scope).