Kuhali v. Reno

Decision Date01 August 2000
Docket NumberRESPONDENTS-APPELLEES,PETITIONER-APPELLANT,Docket No. 00-2531,DEFENDANT-APPELLEE
Citation266 F.3d 93
Parties(2nd Cir. 2001) ALAWI KUHALI,, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES,, JOHN J. INGHAM, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE,
CourtU.S. Court of Appeals — Second Circuit

Robert D. Kolken, Buffalo, New York (Eric W. Schultz, Sacks & Kolken, Buffalo, New York), of counsel and on the brief for Petitioner-Appellant.

Hugh G. Mullane, Senior Litigation Counsel, Washington, D.C. (David W. Ogden, Assistant Attorney General, David J. Kline, Deputy Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.), of counsel for Respondents-Appellees.

Before: Cardamone, Leval, Circuit Judges, and AMON*, District Judge.

Cardamone, Circuit Judge

Petitioner Alawi Kuhali appeals from a judgment entered on July 17, 2000 in the United States District Court for the Western District of New York (Arcara, J.), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1994) against defendant Janet Reno (now John Ashcroft), Attorney General of the United States; and respondents John J. Ingham (now Frances Holmes), District Director, Immigration and Naturalization Service (INS); and Doris Meissner (now James W. Ziglar), Commissioner, INS (collectively, the government). In resolving the issues raised on this appeal we are thrust into an infinitely complex area of immigration law, requiring us to approach the subject carefully, one step at a time.

Kuhali, a permanent resident alien, is currently being detained by the government pending removal from the United States on the basis of a 1980 federal criminal conviction for conspiracy to export firearms and ammunition without a license. In his petition, Kuhali challenges the decision of the Board of Immigration Appeals (Board) that his crime constitutes both a "firearms offense" and an "aggravated felony," thereby warranting his removal under recent amendments to federal immigration statutes. He further contends that retroactive application of the newly revised statutes violates due process. The government responds that removal is appropriate and that Kuhali's petition should be dismissed for lack of subject matter jurisdiction. For reasons set forth below, we conclude that jurisdiction over Kuhali's habeas petition is proper, and the district court's denial of the petition on the merits should be affirmed.

BACKGROUND

Petitioner Kuhali was born in Radda, Yemen on March 18, 1940, and was admitted to the United States as a legal permanent resident on December 4, 1976. On August 8, 1980 he was convicted following a plea of guilty in the United States District Court for the Eastern District of Michigan to conspiracy to export firearms and ammunition without a license, in violation of 18 U.S.C. § 371 (1994) and 22 U.S.C. § 2778 (1994 & Supp. V 1999). His sentence included a prison term of one year, of which all but 180 days was suspended, followed by two years of probation.

Nearly 19 years later, on January 13, 1999, the INS served Kuhali with notice of charges that he was subject to removal on the two grounds that his crime of conviction constituted an "aggravated felony" and a "firearms offense" pursuant to § 237(a)(2)(A)(iii) and (a)(2)(C) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii) & (a)(2)(C) (1994 & Supp. V 1999), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 305(a)(2), 110 Stat. 3009-546, at 3009-597 to 3009- 598. The INS took Kuhali into custody pending a determination of his removal status.

Following an administrative hearing, an immigration judge on March 31, 1999 concluded that Kuhali's crime of conviction qualified as a "firearms offense," but not as an "aggravated felony." The immigration judge accordingly granted petitioner's request for a voluntary departure and entered an alternative removal order, since only conviction for an "aggravated felony" would have precluded discretionary relief. See INA § 240B(a)(1) & (b)(1)(C), 8 U.S.C. § 1229c(a)(1) & (b)(1)(C) (1994 & Supp. V 1999) (voluntary departure provisions); United States v. Pacheco, 225 F.3d 148, 161 (2d Cir. 2000), cert. denied, 121 S. Ct. 2246 150 L.Ed.2d 234 (2001). Petitioner appealed the immigration judge's "firearms offense" ruling to the Board, and the INS cross-appealed the "aggravated felony" determination. During the course of the administrative appeal, Kuhali was released on bond. On July 29, 1999 the Board found him removable on both grounds, vacated the grant of a voluntary departure, and ordered that petitioner be deported.

On September 24, 1999 Kuhali filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Western District of New York. The petition challenged the Board's ruling that his conviction qualified as a "firearms offense" and as an "aggravated felony," and also raised the argument -- one he had presented to the Board -- that the retroactive application of IIRIRA to his 1980 conviction violated his right to due process. Respondents opposed the petition on the merits, and also filed a motion to dismiss for lack of subject matter jurisdiction. On July 17, 2000 Judge Arcara entered an order accompanied by a written opinion denying respondents' motion and denying Kuhali's petition on the merits. Kuhali filed this appeal, and we granted his motion for a stay of removal pending its disposition.

DISCUSSION
I. Standard of Review

On appeal from the denial of a habeas petition brought pursuant to 28 U.S.C. § 2241, we review the merits of the petition and any other legal questions pertaining to subject matter jurisdiction de novo. St. Cyr v. INS, 229 F.3d 406, 409 (2d Cir. 2000) (jurisdiction), aff'd, 121 S. Ct. 2271 (2001); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (merits).

II. Subject Matter Jurisdiction

Because removal proceedings against petitioner began after April 1, 1997, the permanent provisions of IIRIRA govern this case. See IIRIRA § 309(a), 110 Stat. at 3009-625; Henderson v. INS, 157 F.3d 106, 117 (2d Cir. 1998). As amended by those permanent provisions, INA § 242(a)(1) and (b)(2) generally require that challenges to final removal orders be asserted on petition for review to the courts of appeals. See 8 U.S.C. § 1252(a)(1) & (b)(2) (1994 & Supp. V 1999) (as amended by IIRIRA § 306(a), 110 Stat. at 3009-607 to 3009-612). At the same time, INA § 242(a)(2)(C) creates an exception to this general rule by eliminating our jurisdiction to hear petitions for review when brought by certain criminal aliens: "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 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title...." 8 U.S.C. § 1252(a)(2)(C).

This jurisdictional bar, as the Supreme Court has recently stated, does not explicitly mention a repeal of habeas jurisdiction and therefore does not deprive a federal court of its habeas jurisdiction under 28 U.S.C. § 2241 with respect to criminal aliens challenging final orders of removal. St. Cyr, 121 S. Ct. at 2287; see also id. (remaining habeas jurisdiction extends at least to "important question[s] of law"); Calcano-Martinez v. INS, 232 F.3d 328, 343 (2d Cir. 2000) (remaining habeas jurisdiction extends to all "purely legal claims"), aff'd, 121 S. Ct. 2268 (2001). Thus, it would appear at first blush that habeas jurisdiction under 28 U.S.C. § 2241 is proper with respect to Kuhali following the Board's decision.

The government notes, however, that the jurisdictional bar of INA § 242(a)(2)(C) is predicated on the facts of (1) alienage and (2) removability under an enumerated offense, and that we can determine whether these threshold "jurisdictional facts" have been properly established on a petition for direct review. Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2001); Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000), cert. denied, 121 S. Ct. 784 (2001). Hence, the government declares -- to the extent Kuhali contests whether his offense renders him removable -- he was required to challenge that jurisdictional fact on petition for direct review in this Court, since no habeas jurisdiction exists to do so. The government emphasizes the general rule in INA § 242(a)(1) favoring petitions for direct review, and highlights that no unconstitutional suspension of the writ of habeas corpus occurs when Congress divests the district courts of habeas jurisdiction and substitutes "a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention." Swain v. Pressley, 430 U.S. 372, 381 (1977).

The government's argument is not without some force. See Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000); Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir. 1999) (per curiam); see also Akinwale v. Reno, 216 F.3d 1273, 1279 n.10 (11th Cir. 2000) (noting but declining to address similar argument in transitional rules case). We do not doubt Congress' power to mandate adequate and effective substitutes for habeas review. See St. Cyr, 121 S. Ct. at 2287 n.38; Calcan...

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