Max-George v. Reno, MAX-GEORG

Decision Date24 February 2000
Docket NumberMAX-GEORG,P,No. 98-21090,98-21090
Citation2000 WL 220502,205 F.3d 194
Parties(5th Cir. 2000) PRINCE DWIGHTetitioner/Appellant, v. JANET RENO, U.S. Attorney General, AND RICHARD CRAVENER, District Director, Immigration and Naturalization Service, Respondents/Appellees
CourtU.S. Court of Appeals — Fifth Circuit

Appeal from the United States District Court for the Southern District of Texas

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:

Prince Dwight Max-George ("Max-George") appeals the district court's dismissal of his habeas corpus petition for lack of jurisdiction. The respondents, Attorney General Janet Reno and INS Deputy Director Richard Cravener (collectively "the government") raise several procedural objections to Max-George's appeal. We agree with one of the government's arguments and dismiss this appeal for lack of jurisdiction.

I.

Prince Dwight Max-George is a thirty-year-old native and citizen of Sierra Leone. He entered the United States in 1972 when he was four years old. On May 23, 1988, Max-George committed a crime, theft by receiving. In 1990, he became a temporary resident alien under 8 U.S.C. 1255(a). On June 27, 1991, Max-George was convicted of the 1988 offense and sentenced to four years' imprisonment.

On September 18, 1998, the INS began removal proceedings against Max-George by serving him with a Notice of Intent to Issue a Final Administrative Removal Order. The notice charged Max-George with deportability under 8 U.S.C. 1227 (a)(2)(A)(iii). 1 On October 6, the district director issued a final administrative removal order, and Max-George responded with a petition for habeas corpus relief on November 20, 1998. Max-George claimed that the "retroactive" application of the "aggravated felon" classification deprived him of due process.

On December 1, 1998, the district court dismissed Max-George's petition for a writ of habeas corpus. The district court held that 8 U.S.C. 1252 restricted review to the court of appeals. Alternatively, the court held that even if it had jurisdiction, Max-George's appeal should still be dismissed for lack of subject matter jurisdiction because the petition was untimely under the statute. Finally, the district court held that Max-George's argument for habeas relief was without merit.

II.

The government presents two procedural objections to Max-George's appeal. First, it argues that since Max-George has already been deported, his challenges to his deportation are moot. Second, the government argues that even if a live controversy exists, our jurisdiction is foreclosed by 8 U.S.C. 1252. We address each of these claims in turn.

A.

The government first asserts that Max-George's appeal is moot because he has been deported and is no longer in INS custody. We hold, however, that this claim is not moot for Article III purposes.

Max-George's ongoing Article III injury is that he cannot be admitted into the United States within ten years of the date of his removal under 8 U.S.C. 1182(a)(9)(A)(ii) 2 as a "collateral consequence" of his deportation. In Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986), we held that both future inadmissibility and risk of prosecution for future reentry constituted such "collateral consequences," which preserved Article III standing in a case much like the one before us today. That decision was based on the Supreme Court's decision in Sibron v. New York, 392 U.S. 40, 55, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), where the Court held that the "mere possibility of adverse collateral consequences [was] sufficient to preclude a finding of mootness."

In Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed.2d 43 (1998), however, the Supreme Court retreated from Sibron and withdrew the presumption that collateral consequences exist. Id. at 986. The Court distinguished between two types of collateral consequences. First, "concrete" collateral consequences are those that have "occurred, that [are] imminently threatened, or that [are] imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses)." Id. at 983. The second are presumed, or hypothetical, consequences, such as the chance that a parole violation might affect a future parole hearing if the petitioner later returned to prison on a different offense. Id. at 986. The Court found the latter too speculative to qualify as a legitimate collateral consequence. Id.

Spencer, however, countenances only a minor modification to Umanzor. Inadmissibility into the United States is a penalty imposed as a matter of law. The law has changed Max-George's status with respect to his admissibility whether he tries to return to the United States or not. While this is a close case, the penalty does, therefore, constitute a concrete collateral consequence, rather than a presumed one. On the other hand, the risk of prosecution for future reentry into the United States under 8 U.S.C. 1326 is a presumed, or hypothetical, collateral consequence. Max-George is "able--and indeed required by law--to prevent such a possibility [of future prosecution] from occurring" by simply not reentering the United States. Spencer, 118 S. Ct. at 987. In other words, because he can avoid prosecution, this does not constitute a legitimate collateral consequence. But because he does have a legitimate, ongoing injury, he does have Article III standing.

B.

The government next argues that jurisdiction over Max-George's habeas petition is precluded by 8 U.S.C. 1252(a)(2)(C), which provides that:

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 a criminal offense covered in section . . . 1227(a)(2) . . .(C).

8 U.S.C. 1252(a)(2)(C). Max-George's prior offense, theft by receiving, for which he was sentenced to four years in prison, is an "aggravated felony" covered by 1227(a)(2)(C). The government therefore posits that, under 1252, no judicial review, direct or collateral, is available. Max-George argues that this statute does not preclude jurisdiction over his petition for habeas corpus, and that if our jurisdiction is precluded, the elimination of habeas jurisdiction here is unconstitutional.

This is the first case in which we examine the "permanent" jurisdiction-stripping provisions enacted by Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). 3 Our previous cases considered IIRIRA's so-called "transitional" rules, which applied to cases for which deportation proceedings had begun before April 1, 1997, and those which concluded more than thirty days after September 30, 1996. 4 The "transitional rules" contained somewhat explicit jurisdiction-stripping provisions, which declared that "there shall be no appeal of decisions about discretionary relief or in criminal aliens' cases," see IIRIRA 309(c)(4)(E), (G), Pub. L. No. 104-208, 110 Stat. 3009-546, 597 (1996), and that final deportation orders of such aliens "shall not be subject to review by any court," see AEDPA 440(a), Pub. L. No. 104-132, 110 Stat. 1214, 1277 (1996). See generally Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999) (discussing several provisions of the transitional rules). We held in Requena-Rodriguez that because these transitional provisions did not explicitly eliminate habeas review of such decisions, the transitional rules repealed "normal judicial review [i.e. direct appeal], rather than collateral review." Requena-Rodriguez, 190 F.3d at 305.

However, in Requena-Rodriguez, we noted that the jurisdiction-stripping provisions within IIRIRA's "permanent" rules were far more explicit, as they "all begin with . . . more preclusive language: [n]otwithstanding any other provisions of law, no court shall have jurisdiction." Id. at 305-06 (citing 8 U.S.C. 1252(a)(2)(B), 1252(a)(2)(C), and 1252(g)). Accordingly, in Requena-Rodriguez we suggested that while 2241 habeas review was available under the "transitional" rules, it might not be available under the "permanent" rules. See id. As the permanent rules were not at issue in Requena-Rodriguez, we did not there delineate the scope and effect of their jurisdiction-stripping provisions. We are faced with that question today.

It is well-settled that Congress must be explicit if it wishes to repeal habeas jurisdiction. See Felker v. Turpin, 518 U.S. 651, 660-61, 116 S. Ct. 2333, 2338-39, 135 L. Ed. 2d 827, (1996) ("[W]e decline to find a . . . repeal of 2241 of Title 28 . . . by implication."). Further, as we noted in Requena-Rodriguez, Felker was decided only three months before IIRIRA became law, and therefore Felker's "reminder that habeas repeal requires explicit language was fresh when Congress was considering the transitional and permanent provisions of IIRIRA." Requena-Rodriguez, 190 F.3d at 305 n.21. Applying this principle here, 2241 habeas jurisdiction is only eliminated by IIRIRA's permanent rules if its provisions explicitly eliminate 2241 habeas jurisdiction.

We hold that IIRIRA eliminates 2241 jurisdiction for aliens like Max-George. The clear language of IIRIRA's permanent rules force an alien to raise all potential issues regarding his deportation at one place and time: a petition for review filed in the court of appeals. Specifically, IIRIRA provides that:

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 subsection.

8 U.S.C. 1252(b)(9). This section, which the Supreme Court has called an "unmistakable zipper clause," see Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 417, 119 S. Ct. 936, 943, 142 L. Ed. 2d...

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