212 F.3d 1133 (9th Cir. 2000), 98-70924, Flores Miramontes v. INS

Docket Nº:98-70924
Citation:212 F.3d 1133
Case Date:May 09, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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212 F.3d 1133 (9th Cir. 2000)




No. 98-70924

United States Court of Appeals, Ninth Circuit

May 9, 2000

Argued and Submitted February 15, 2000

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COUNSEL: Peter Camp, Esq., Everett, Washington, for the petitioner.

Mary Jane Candaux, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Petition for Review from the Board of Immigration Appeals

Before: Stephen Reinhardt, David R. Thompson, Thomas G. Nelson, Circuit Judges.

Opinion by Judge Reinhardt

REINHARDT, Circuit Judge:

To decide this petition we must first determine the extent to which recent immigration statutes limit the jurisdiction of federal courts to consider challenges to removal orders brought by aliens who are removable because they committed certain criminal offenses. We hold that jurisdiction by way of petition for review of removal orders no longer exists, but that habeas jurisdiction remains. In doing so, we follow the Third Circuit's decision in Liang v. INS, 206 F.3d 308 (3d Cir. 2000) and the principles we laid down in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). Accordingly, we dismiss the petition before us for lack of jurisdiction without prejudice to the filing of a habeas petition raising the same claims.


Petitioner Andres Flores-Miramontes, a Mexican native and citizen, emigrated to the U.S. in 1978 at the age of ten, at which time he was granted legal permanent resident status. In June 1996 he pled guilty, in California, to sale or transportation of cocaine. Upon returning from a visit to Mexico in November 1997, Flores-Miramontes was taken into custody by the INS at San Ysidro because of this conviction. On November 13, 1997, the INS charged him with inadmissibility to the United States on the ground that he was an immigrant who had been involved in illicit drug trafficking, pursuant to 8 U.S.C. S 1182(a)(2)(c) (INA S 212(a)(2)(C)). FloresMiramontes filed a pro se application for withholding of removal and/or asylum and also requested a change of venue and continuance. At a hearing on December 22, 1997, an Immigration Judge denied all relief requested and ordered Flores-Miramontes removed to Mexico.

On January 13, 1998, while in custody, Flores-Miramontes gave his Notice of Appeal to INS officials for mailing to the Board of Immigration Appeals ("BIA").

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However, the Notice was not mailed until January 21, 1998, which was the deadline date for its receipt. Consequently, the BIA received the Notice on January 23, 1998, two days late. Flores-Miramontes filed a pro se brief in support of his appeal with the BIA, but the agency summarily dismissed the appeal because the notice was untimely filed. He then filed a pro se petition for review of the BIA's decision and motion for a stay of removal with this court, arguing that the application of the BIA's filing deadline where INS authorities had themselves caused him to miss that deadline violated his due process rights and right of access to the courts. We granted the stay pending review.1 Flores-Miramontes was not represented by counsel at his hearings, in his subsequent appeal to the BIA, or in filing his initial petition for review to this Court.2


The INS argues that this court lacks jurisdiction to hear the petition for review by virtue of 8 U.S.C. S 1252(a)(2)(C) (INA S 242(a)(2)(C)). The INS is correct, but not for the reasons it urges. The text of the provision states 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[8 U.S.C. S] 1182(a)(2) . . .

8 U.S.C. S 1252(a)(2)(C). The section referred to in the provision, section 1182(a)(2)(C), covers trafficking in controlled substances. Flores-Miramontes had been convicted of sale or transportation of cocaine, and was subsequently ordered removed for that reason. Thus, on its face the statute appears to eliminate our jurisdiction to hear Flores-Miramontes' petition for review of the BIA's decision ordering his deportation.

We have found a narrow exception to this jurisdictional bar in two recent cases. Even when the jurisdictional bar relating to criminal removal orders appears to apply, we have jurisdiction to determine whether a petitioner "is an alien [removable] by reason of having been convicted of one of the enumerated offenses." Magana-Pizano v. INS , 200 F.3d 603, 607 (9th Cir. 1999). Put another way we "have jurisdiction to determine whether jurisdiction exists." Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000). Here, however, FloresMiramontes concedes that he is an alien, that he committed a trafficking crime that makes him removable under the relevant provision, and that he has been ordered removed. He argues before us only that the BIA's inflexible deadline, as applied to him, violates due process and his right of access to the courts. Under such circumstances, the bar created by S 1252(a)(2)(C) applies.

Although the INS recognizes the broad preclusive language of S 1252(a)(2)(C), it argues that we nonetheless retain jurisdiction to consider "substantial constitutional" claims regarding removal orders covered by that sub-section, and therefore that we must examine the merits of FloresMiramontes' petition in order to determine that no "substantial constitutional" violations have taken place. In support of its argument that an exception for review of potential "substantial constitutional" violations should be read into the statute, the INS cites Webster v. Doe, 486 U.S. 592, 603 (1988).3 Webster holds that,

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absent clear congressional intent, statutes should be read to allow for judicial review of constitutional claims when all avenues to the courthouse would otherwise be foreclosed. Id. As such, the INS's argument has merit only if there is no other judicial forum in which Flores-Miramontes can raise his claims. If he cannot raise them in any other federal court, then we must address them here in order to preserve a forum for them. If he can raise his claims elsewhere, however, we need not read an exception into the jurisdictionstripping provision at issue. For the reasons stated below, we hold that Flores-Miramontes does have another means by which he may raise his claims in federal court: he can petition for a writ of habeas corpus in federal district court under 28 U.S.C. S 2241. Therefore, we need not read any limitations into the provision that bars our jurisdiction over petitions to review removal orders against aliens convicted of certain crimes.


We examined a similar question in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). In that case, we considered a petition for review brought to challenge a deportation order under Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) S 309(c)(4)(G), the provision of IIRIRA's transitional rules that is analogous to 8 U.S.C.S 1252(a)(2)(C).4 Magana-Pizano, 200 F.3d at 607. We held that the new immigration law's transitional rules regarding jurisdiction repealed our jurisdiction to consider petitions for review of such orders, but did not repeal, pro tanto, the general grant of habeas jurisdiction to the federal district courts found at 28 U.S.C. S 2241. Id. at 607, 609. We held that any limitation of the habeas corpus statute must be "by express command," and found no such command in the provisions at issue. Id. at 609.

In so holding, we relied on the Supreme Court's decision in Felker v. Turpin, 518 U.S. 651 (1996). Felker concerned a statute limiting the right to file successive habeas petitions and providing specifically that the decision of a court of appeals denying leave to file such a petition could not be appealed or be the subject of a petition for certiorari or a petition for rehearing. See 28 U.S.C. S 2244(b)(3)(E). In spite of this apparently clear requirement that the decision of a court of appeals was not reviewable, the Supreme Court found no partial repeal of its own habeas jurisdiction underS 2241, because "[n]o provision . . . mentions our authority to entertain original habeas petitions [under S 2241]." Felker, 518 U.S. at 660 (emphasis added).5Felker's requirement that there be an explicit reference to the habeas statute is particularly relevant here because, as the Fifth Circuit noted,"Felker was decided on June 28, 1996, three months before IIRIRA became law; its reminder that habeas repeal requires explicit language was fresh when Congress was considering the transitional and permanent provisions of IIRIRA." RequenaRodriguez v. Pasquarell, 190 F.3d 299, 305 n.21 (5th Cir. 1999) (holding that IIRIRA's transition rules do not repeal in any respect general habeas jurisdiction).

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It is true that the preclusive language we interpreted in Magana-Pizano was different from, and weaker than, the language at issue here. The permanent version of the criminal removal jurisdictional bar states "notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal [for a criminal alien ] . . . ." whereas the transitional version at issue in Magana-Pizano stated "there shall be no appeal permitted in the case of an alien who is [a criminal alien] . . . ." Compare 8 U.S.C. S 1252(a)(2)(C) with IIRIRA S 309(c)(4)(G). However, this difference does not cause us to reach a result different from the one we reached in Magana-Pizano. First and foremost, neither statute refers to 28 U.S.C. S 2241. Both Felker and Magana-Pizano require such explicit reference before we can find a modification to, or amendment of, the general habeas...

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