200 F.3d 603 (9th Cir. 1999), 97-15678, Magana-Pizano v. INS.

Docket Nº:97-15678, 97-70384
Citation:200 F.3d 603
Party Name:DANIEL MAGANA-PIZANO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
Case Date:December 27, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 603

200 F.3d 603 (9th Cir. 1999)

DANIEL MAGANA-PIZANO, Petitioner-Appellant,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

Nos. 97-15678, 97-70384

United States Court of Appeals, Ninth Circuit

December 27, 1999

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[Copyrighted Material Omitted]

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Michael Franquinha, Stender & Larkin, Phoenix, Arizona, for the appellant-petitioner.

Hugh G. Mullane, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the appellee-respondent.

Lucas Guttentag, San Francisco, California, for Amicus Curiae, American Civil Liberties Union Foundation.

Lenni B. Benson, New York, New York, for Amici Curiae, Law Professors.

Marc Van Der Hout, Van Der Hout & Brigagliano, San Francisco, California, for Amicus Curiae, The American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild.

On remand from the United States Supreme Court. INS No. A35-822-607; D.C. No. CV 97-00619 SMM

Before: Alfred T. Goodwin and Sidney R. Thomas, Circuit Judges, Dean D. Pregerson,[*] District Judge.

THOMAS, Circuit Judge:

This appeal returns to us on remand from the Supreme Court for further consideration in light of Reno v. AmericanArab Anti-Discrimination Committee, 525 U.S. 471 (1999) ("American-Arab"), decided after the issuance of our prior opinion in this case. See INS v. Magana-Pizano , 119 S.Ct. 1137 (1999). With the guidance of American-Arab , we conclude that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656, did not repeal 28 U.S.C. S 2241. This conclusion makes our consideration of the constitutionality of such repeal, as we did in our prior opinion,

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unnecessary. We therefore reverse the district court's dismissal of the habeas corpus petition, and remand the case to the district court for further proceedings.

I

The facts and procedural history are detailed in our prior opinion. See Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.), as amended, 159 F.3d 1217 (9th Cir. 1998) (" Magana I"). Daniel Magana-Pizano is a native and citizen of Mexico who entered the United States in 1977, as the five-year old child of a lawful permanent resident. He has remained here since his admission, residing in Southern California and Arizona. In February 1995, he pleaded nolo contendere to the charge of being under the influence of cocaine and methaphetamine in violation of section 11550(a) of the California Health and Safety Code, a misdemeanor offense.

On May 17, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause 1 to MaganaPizano alleging that he was deportable as a result of this misdemeanor criminal conviction. At his deportation hearing, Magana-Pizano conceded his deportability as a result of the drug conviction, but indicated that he would apply for a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA").

By the time of the deportation hearing, Congress had passed the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 15, 18, 22, 28, 40, 42, 50 U.S.C.) ("AEDPA"). Section 440(d) of AEDPA amended INA S 212(c) to eliminate discretionary relief for aliens convicted of most drug-related crimes, including MaganaPizano's.2 As a result of this statutory change, the INS filed a motion to pretermit Magana-Pizano's application for relief under INA S 212(c), arguing that section 440(d) of AEDPA and its amendment to section 212(c) were effective as of the date of passage on April 24, 1996. These changes provided that any alien who, like Magana-Pizano, was deportable due to a criminal conviction under 8 U.S.C. S 1251(a)(2)(B), was statutorily ineligible for discretionary relief.

The immigration judge granted the INS motion to pretermit Magana-Pizano's application and ordered Magana-Pizano deported to Mexico. Magana-Pizano appealed this decision to the Board of Immigration Appeals ("BIA"), which sustained the deportation order based on AEDPA changes to INA S 212(c) and the Attorney

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General's opinion in In re Soriano, Int. Dec. 3289, 1996 WL 426888 (A.G. Feb. 21, 1997). Magana-Pizano filed with this Court a timely petition for review of the BIA's decision.

Magana-Pizano also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. S 2241 in the United States District Court for the District of Arizona. In his habeas petition, he argued that the BIA's decision and interpretation of AEDPA section 440(d) violated the Equal Protection Clause of the Constitution. The district court dismissed the complaint without prejudice for lack of jurisdiction, explaining that the statutory basis for habeas review for aliens in custody pursuant to an order of deportation was repealed by a different section of AEDPA. See AEDPA S 401(e), repealing 8 U.S.C. S 1105a(a)(10). Magana-Pizano filed a timely appeal, and we suasponte consolidated both matters.

II

The Supreme Court's decision in American-Arab does not alter our analysis of Magana-Pizano's petition for review of the BIA decision holding that he was ineligible for discretionary relief under INA S 212(c). Magana-Pizano challenged the BIA's interpretation of AEDPA section 440(d) and its applicability to his case. In Magana I, we held that we could not reach the merits of the petition because Congress had repealed our jurisdiction to entertain the petition. We have confirmed this holding in Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir. 1999).

Immigration proceedings initiated by the INS before IIRIRA's general effective date of April 1, 1997, in which a final deportation or exclusion order was filed after October 30, 1996, are governed by interim transitional rules. See IIRIRA S309(c); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997).3 Because the BIA's decision holding Magana-Pizano statutorily ineligible for relief was issued March 17, 1997, IIRIRA's transitional provisions apply to his case. See IIRIRA S 309(c)(4); Kalaw, 133 F.3d at 1150.

The IIRIRA provision relevant to this appeal, section 309(c)(4)(G), codified as 8 U.S.C. S 1252(g), provides:

there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in sec tion 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act (as so in effect).

IIRIRA S 309(c)(4)(G). Under this provision, we do not have appellate jurisdiction over petitions filed by aliens who are deportable because they committed one of the criminal offenses enumerated in IIRIRA section 309(c)(4)(G). See Briseno, 192 F.3d at 1322; Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.), cert. denied sub nom., Katsoulis v. INS, 118 S.Ct. 624 (1997). Magana-Pizano does not dispute that he is an alien deportable by reason of having been convicted of one of the enumerated offenses. Rather, he argues that the Immigration Judge's and BIA's reading of AEDPA S 440(d) constitute an impermissible retroactive application of the amended statute. Because Magana-Pizano's arguments are not within the narrow scope of our review on direct appeal under IIRIRA's transitional rules, we dismiss his petition for review for lack of jurisdiction.

III

American-Arab does alter our jurisdictional analysis of Magana-Pizano's habeas

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petition; however, it does not change the result. The district court denied Magana-Pizano's habeas corpus petition after concluding that the statutory basis for habeas review for aliens in custody pursuant to an order of deportation had been repealed by AEDPA. In Magana I, we held that the district court retains jurisdiction under 28 U.S.C. S 2241 when the petitioner has no other judicial remedy. We adhere to that holding, although for different reasons.

Prior to the passage of AEDPA and IIRIRA, aliens wishing to challenge the constitutionality of a final order of deportation via habeas corpus did so using one of two general methods: (1) proceeding pursuant to INA S 106(a)(10); or (2) proceeding pursuant to the general statutory habeas provision of 28 U.S.C. S 2241.4 Prior to its repeal by AEDPA, INA S 106(a) provided the primary means of habeas review.5 Given the repeal of INA S 106, Magana-Pizano filed his habeas petition pursuant to 28 U.S.C. S 2241.

While Magana-Pizano's appeal was pending, a panel of this Court held that IIRIRA had repealed the remedy of habeas corpus in immigration cases, including a remedy under 28 U.S.C. S 2241. See Hose v. INS, 141 F.3d 932, 935 (9th Cir. 1998). Against the backdrop of that decision, we were faced in Magana I with the question of whether that repeal violated the Suspension Clause, and concluded that elimination of all judicial review of executive deportation violated the Constitution. See Magana I, 153 F.3d at 1220. Because the Suspension Clause prevented Congress from eliminating access to general statutory habeas relief, we held that Magana-Pizano could pursue his remedies under 28 U.S.C. S 2241. See id. at 1222.

However, other circuits construed IIRIRA differently from the Hose...

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