226 F.3d 3 (1st Cir. 2000), 99-1687, Mahadeo v. Reno

Docket Nº:99-1687
Citation:226 F.3d 3
Case Date:September 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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226 F.3d 3 (1st Cir. 2000)




No. 99-1687

United States Court of Appeals, First Circuit

September 11, 2000

Heard June 9, 2000

As amended September 28, 2000.


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[Copyrighted Material Omitted]

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Lee Gelernt, with whom Allan M. Tow was on brief, for appellant.

Christine A. Bither, Attorney, Office of Immigration Litigation, Civil Division, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Mark A. Walters, Assistant Director, Office of Immigration Litigation, were on brief, for appellees.

Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.

Lipez, Circuit Judge

This case requires us to decide whether the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), repeal the jurisdiction of the federal district courts pursuant to 28 U.S.C. § 2241 to review statutory interpretation and constitutional claims asserted by aliens convicted of one or more crimes specified in the Immigration and Nationality Act ("INA") on a petition for a writ of habeas corpus. We have previously held that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and IIRIRA's transition rules eliminated our jurisdiction to review on direct appeal a deportation order entered against an alien convicted of certain crimes, see Goncalves v. Reno, 144 F.3d 110, 117 (1st Cir. 1998) (construing IIRIRA transition rules); Kolster v. INS, 101 F.3d 785, 786 (1st Cir. 1996) (construing AEDPA), but that neither AEDPA nor IIRIRA's transition rules revoked the district courts' historical power pursuant to the general federal habeas corpus statute to review statutory or constitutional challenges to immigration decisions, see Mattis v. Reno, 212 F.3d 31, 35 n.6 (1st Cir. 2000); Wallace v. Reno, 194 F.3d 279, 285 (1st Cir. 1999); Goncalves, 144 F.3d at 113. We hold today that IIRIRA's permanent rules likewise do not divest the federal courts of their traditional jurisdiction to grant writs of habeas corpus pursuant to § 2241.


A native of Trinidad and Tobago, Soondar Mahadeo immigrated to the United States with his family twenty-six years

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ago. In 1984, and again in 1991, Mahadeo was convicted of possession of marijuana with intent to distribute; each conviction constitutes an "aggravated felony" as defined by the INA. See INA § 101(a)(43)(B); 8 U.S.C. § 1101 (a)(43)(B).1 On May 30, 1997, the INS commenced removal proceedings against Mahadeo. The immigration judge found him removable and ordered him deported.

Mahadeo appealed to the Board of Immigration Appeals ("BIA"), arguing that he was entitled to apply for a discretionary waiver of the removal order pursuant to former INA § 212(c), as it stood before it was amended by AEDPA and repealed by IIRIRA.2 In particular, he argued that denying him access to former INA § 212(c) would violate the presumption against retroactivity in statutory interpretation because his convictions pre-dated the enactment of AEDPA and IIRIRA. In the alternative, Mahadeo asserted that retroactive application of IIRIRA's repeal of § 212(c) relief would be unconstitutional. The BIA rejected Mahadeo's arguments.

Mahadeo then petitioned the district court for habeas corpus relief pursuant to 28 U.S.C. § 2241, contending that the BIA erred in concluding that it lacked the authority to consider his request for discretionary relief pursuant to former INA § 212(c). He reiterated both his constitutional arguments and his statutory interpretation challenge premised on the presumption against retroactivity. The district court did not address the merits of Mahadeo's petition because it concluded that IIRIRA's permanent rules revoked the subject matter jurisdiction of federal district courts to entertain § 2241 petitions brought by aliens seeking review of immigration proceedings. Mahadeo now appeals.


Although the parties agree that IIRIRA's permanent rules govern Mahadeo's removal proceedings, we think it is useful for the analysis that follows to explain why that is so. Congress enacted AEPDA in April 1996. Among other things, AEDPA expanded the category of criminal convictions that would render an alien ineligible to apply for § 212(c) discretionary relief.3 Significantly, for criminal

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aliens like Mahadeo, AEDPA § 440(d) made all "aggravated felons" ineligible for relief, even if the alien had not been required to serve a "term of imprisonment of at least 5 years." Compare INA § 212(c) (1995) (pre-AEDPA) with INA § 212(c), 8 U.S.C. § 1182(c) (1997) (post-AEDPA). Just a few months after Congress enacted AEDPA, it enacted IIRIRA, altering the immigration laws yet again. IIRIRA's permanent rules repealed former INA § 212(c) and created a new form of discretionary relief, "cancellation of removal." See IIRIRA § 304 (adding new INA § 240A, codified at 8 U.S.C.A. § 1229b (West Supp. 1998)). "Cancellation," like § 212(c) relief both before and after AEDPA's amendments, is not available to aliens whose criminal convictions qualify as "aggravated felonies." See IIRIRA § 304(a). Like the AEDPA amendments, the "cancellation" provision continues to make all aggravated felons ineligible for discretionary relief, irrespective of whether the alien was required to serve five years in prison.4 Having been convicted of an aggravated felony, Mahadeo is ineligible for cancellation of removal.

IIRIRA provided for a phase-in period during which deportation proceedings would be governed by transition rules. See IIRIRA § 309(c)(4). The transition rules treat aliens as subject to the judicial review provisions contained in former INA § 106, 8 U.S.C. § 1105a (1994), as modified by AEDPA, but not as further modified by IIRIRA except for certain transitional changes, see IIRIRA §§ 309(a), 309(c)(1), 309(c)(4); see also Wallace, 194 F.3d at 283; Prado v. Reno, 198 F.3d 286, 288 n.2 (1st Cir. 1999). One IIRIRA rule included in the transition regime was new INA § 242(g), see IIRIRA § 306(c), which strips courts of jurisdiction to review certain immigration actions except as provided in INA § 242, 8 U.S.C. § 1252. See Reno v. American Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). Significantly for the jurisdictional issue in this case, IIRIRA's permanent rules add to INA § 242(g) several new jurisdiction-stripping provisions. See INA § 242(a)(1) (providing that "review of a final order of removal . . . is governed only by [the Administrative Procedures Act ("APA")]"); INA § 242(b)(9) (consolidating judicial review of immigration decisions in INA § 242); INA § 242(a)(2)(C) (limiting the availability of judicial review for aliens ordered removed for specified categories of criminal convictions).

IIRIRA's transition rules apply to deportation proceedings commenced before April 1, 1997; proceedings commenced on or after that date are governed by IIRIRA's permanent rules. See Prado, 198 F.3d at 288 n.2; IIRIRA § 309(a). Although Mahadeo's convictions occurred in 1984 and 1991, prior to the enactment of AEDPA and IIRIRA, the INS did not commence removal proceedings against him until May 30, 1997. Consequently, IIRIRA's permanent rules govern his removal proceeding.


In Goncalves v. Reno, we held that, although AEDPA and IIRIRA's transition rules "divested the United States Courts of Appeals of their former statutory jurisdiction" to hear claims brought by aliens seeking discretionary relief from deportation, "Congress neither explicitly nor by implication repealed the grant of jurisdiction in 28 U.S.C. § 2241 to issue writs of habeas corpus to persons in federal custody which the federal district courts have had since 1789 and which has always

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been available in immigration cases." 144 F.3d at 113 (emphasis added).5 After carefully analyzing the provisions of the permanent rules relied upon by the Attorney General, we conclude that our holding in Goncalves controls here. As a criminal alien, Mahadeo was precluded by IIRIRA from obtaining judicial review in the court of appeals of the BIA's determination that he was ineligible for a discretionary waiver pursuant to former INA § 212(c). See INA § 242(a)(2)(C). Mahadeo's only avenue for relief, therefore, was to petition for a writ of habeas corpus. Although the jurisdiction-stripping provisions in the permanent rules are more numerous than those contained in the transition rules, IIRIRA's permanent rules--like the transition rules--lack the kind of explicit language Congress must use if it wants to repeal the availability of § 2241.6

A. Availability of Review Under INA § 242

The Attorney General argues that Mahadeo's sole avenue for review of his statutory and constitutional challenges to the BIA decision is new INA § 242, the judicial review provisions enacted as part of IIRIRA's permanent rules. For criminal aliens like Mahadeo, however, judicial review by the courts of appeal pursuant to INA § 242 is unavailable. INA § 242(a)(2)(C), enacted as part of IIRIRA's permanent rules, provides:

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)(A)(iii) [aggravated felony] of this title . . . .

We found similar provisions included in AEDPA7 and IIRIRA's transition rules8 to preclude access to appellate review for criminal aliens...

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