Requena-Rodriguez v. Pasquarell

• Citation: 190 F.3d 299
• Decision Date: 15 September 1999
• Docket Number: No. 98-40958,REQUENA-RODRIGUE,P,98-40958
• Parties: (5th Cir. 1999) REYNALDOetitioner-Appellant, v. KENNETH PASQUARELL, Immigration & Naturalization Service, District Director, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 299

190 F.3d 299 (5th Cir. 1999)

REYNALDO REQUENA-RODRIGUEZ, Petitioner-Appellant, v. KENNETH PASQUARELL, Immigration & Naturalization Service, District Director, Respondent-Appellee.

No. 98-40958

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 15, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas

Before JONES, DUHE, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Requena appeals the district court's denial of his petition for a writ of habeas corpus. He contests the INS's conclusion that he is statutorily ineligible for discretionary relief from deportation. His case implicates two recent sets of changes to the immigration laws, both of which have precipitated a flurry of federal court decisions on retroactivity and Congress's power to limit habeas jurisdiction.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") eliminated discretionary relief from deportation for aliens -- like Requena -- who had been convicted of aggravated felonies.¹ The merits of Requena's appeal turn on the following two issues: (1) whether the relevant section of AEDPA, 440(d), is triggered by convictions that predated AEDPA, and (2) whether AEDPA 440(d) violates Requena's equal protection rights because it treats "deportable" aliens differently from "excludable" ones. Before addressing these arguments on the merits, however, this court must consider whether jurisdiction to entertain such claims in habeas cases has been limited by AEDPA itself, or by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").

Although this court determines that 2241 habeas jurisdiction exists to review claims such as Requena's under IIRIRA's transitional rules, it rejects Requena's claims on the merits. AEDPA 440(d)'s bar on discretionary relief applies to convictions that predated AEDPA, and its distinction between excludable and deportable aliens passes constitutional muster.

I. Background

In February 1994, Requena pled nolo contendere to two counts of "indecency with a child," a second-degree felony in Texas. See Tex. Penal Code Ann 21.11(a)(1), (c) (West 1994). The charges arose from Requena's "sexual contact" with both of his seven-year-old twin sons. Requena was sentenced to a six-year prison term and released early in February 1996.

Because Requena -- who came to the United States from Mexico in October 1983 -- is an alien, his felony convictions made him susceptible to deportation. See INA 241(a)(2)(A)(iii), 8 U.S.C. 1251(a)(2)(A)(iii) (1994) ("Any alien who is convicted of an aggravated felony at any time after entry is deportable.").² When Requena was released from prison in February 1996, the INS initiated deportation proceedings against him.

In those proceedings, Requena did not contest his deportability but applied for relief from deportation under former 212(c) of the Immigration and Nationality Act (INA), which, before being repealed in 1996, gave the Attorney General discretion to waive deportation for some long-time legal permanent residents. See INA 212(c), 8 U.S.C. 1182(c) (1994). In August 1996, an immigration judge found Requena statutorily ineligible for a 212(c) waiver because recently-enacted AEDPA 440(d) had eliminated 212(c) relief for aliens convicted of aggravated felonies.³ In August 1997, the Board of Immigration Appeals also found that AEDPA 440(d) barred Requena from 212(c) relief. Requena's petition for review in this court was denied in September 1997.

A few days later, Requena filed a habeas petition in district court, arguing that AEDPA 440(d) violated his equal protection rights because it withdrew 212(c) relief for deportable but not excludable aliens without a rational basis for this distinction. The magistrate judge concluded that the district court had habeas jurisdiction under 28 U.S.C. 2241 to consider claims of grave constitutional error or a fundamental miscarriage of justice, but that Requena's equal protection claim was without merit. Both sides objected to the magistrate judge's recommendation: the government on jurisdiction, and Requena on the merits and on jurisdiction. In his objection, Requena also contested the application of AEDPA 440(d) to him as "unlawful[ly] retroactive,"⁴ an argument he had not made in the habeas petition itself. The district court, after "carefully review[ing] those objections and the entire file," found the magistrate judge's recommendation to be "essentially correct" and denied Requena's habeas petition.

This court reviews de novo the district court's legal conclusions on jurisdiction and on the merits. See United States v. Nutall, 180 F.3d 182, 188 (5th Cir. 1999) (constitutional challenges); United States ex rel. Foulds v. Texas Tech Univ.,171 F.3d 279, 288 (5th Cir. 1999) (subject-matter jurisdiction); Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999) (retroactivity).

II. Which Rules Apply?

After IIRIRA, two sets of rules -- transitional and permanent -- are available to govern immigration proceedings, depending on their timing. The transitional rules apply to deportation or exclusion proceedings that "commence before ... April 1, 1997, and conclude more than thirty days after [IIRIRA's] passage on September 30 1996." Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1998); see also IIRIRA 309(c)(1), (4), 110 Stat. 3009-625, -626. Requena's case falls squarely under the regime of IIRIRA's transitional rules. His deportation proceeding commenced in February 1996 and did not conclude until August 1997. See 8 U.S.C.A. 1101(a)(47)(B) (West 1999) (added by AEDPA) (defining final order of deportation).

Generally, federal court jurisdiction over transitional cases is governed by the uncodified judicial review provisions in IIRIRA 309(c)(4), and by INA 106 as amended by AEDPA (but not as amended by IIRIRA).⁵ The incorporation of AEDPA's changes to INA 106 makes relevant⁶ AEDPA 440(a), which declares that final orders of deportation against criminal aliens "shall not be subject to review by any court."⁷

In addition to IIRIRA 309(c)(4) and AEDPA 440(a), one provision of IIRIRA's permanent rules applies even to transitional cases: the new INA 242(g) (codified at 8 U.S.C.A. 1252(g) (West 1999)).⁸

Until the Supreme Court spoke on the matter this year, most courts and parties assumed that 1252(g)⁹ covered the spectrum of deportation cases and drastically limited judicial review in all of them. In American-Arab,¹⁰ however, the Supreme Court explained that 1252(g)'s scope is much narrower than was generally assumed. Its reach extends only to the "three discrete actions" listed in the statute itself: decisions or actions to "commence proceedings, adjudicate cases, or execute removal orders." See American-Arab, 119 S. Ct. at 943 (emphasis in original). Although the briefing in Requena's appeal was completed before American-Arab was decided, the parties agreed at oral argument that according to American-Arab, 1252(g) does not govern Requena's case, which challenges a final deportation order. There appears still to be some uncertainty about how far 1252(g) extends,¹¹ but the parties are correct in this case. This is consistent with two recent Fifth Circuit decisions about 1252(g),¹² and comports with the direct holdings of at least three other circuits.¹³

III. Habeas Jurisdiction under IIRIRA's Transitional Rules

The relevant jurisdictional question in this case can now be summarized as follows: Does any habeas jurisdiction to review final deportation orders survive under IIRIRA's transitional rules where 1252(g) does not apply and where old INA 106(a)(10) has been replaced by AEDPA 440(a)?

Apart from dicta in cases involving direct review of the BIA,¹⁴ the Fifth Circuit has not answered this question. Other circuits, however, are not strangers to it. There is some consensus about the answer -- so long as the question is phrased with all of the qualifications included above. But it is conceded by all that the complex and oft-revised statutory scheme at issue does not yield pat answers.

Since American-Arab was decided, the Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits have found that 2241 habeas jurisdiction continues to exist under IIRIRA's transitional rules outside of 1252(g).¹⁵ The Third Circuit has reiterated its view that 2241 jurisdiction persists even under IIRIRA's permanent provisions.¹⁶ Presumably, the First and Second Circuits likewise will feel no compulsion from American-Arab to abandon their prior determinations that 2241 survives.¹⁷ Given that the Ninth Circuit has beat a noncommittal retreat from its earlier holding that IIRIRA repeals 2241,¹⁸ the Seventh Circuit is the only circuit arguably maintaining that there is no habeas jurisdiction in cases under the transitional rules.¹⁹

Because so many other circuits have written impressively and extensively about the impact of AEDPA and IIRIRA on habeas jurisdiction, and because we now have the benefit of American-Arab's discussion of 1252(g), it is not necessary to belabor an answer to the jurisdictional question in this case. We conclude that 2241 habeas jurisdiction continues to exist under IIRIRA's transitional rules in cases involving final orders of deportation against criminal aliens, and that habeas jurisdiction is capacious enough to include constitutional and statutory challenges if those challenges cannot be considered on direct review by the court of appeals. A few observations will suffice to explain why we reach this conclusion and to highlight its limits.

Because this decision is limited to the transitional rules, giving wide berth to potential Suspension Clause pitfalls does not play the immediate role here that it did in some earlier cases.²⁰

Instead, this court finds particularly compelling the language of the statutory provisions at issue. As both hoary and recent Supreme Court cases explain, Congress must be explicit if it wishes...