Olatunji v. Ashcroft, 00-6650.

• Decision Date: 19 October 2004
• Docket Number: No. 00-6650.,00-6650.
• Citation: 387 F.3d 383
• Parties: Clifford K. OLATUNJI, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

387 F.3d 383

Clifford K. OLATUNJI, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States, Respondent-Appellee.

No. 00-6650.

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2004.

Decided: October 19, 2004.

Appeal from the United States District Court for the District of Maryland, Andre M. Davis, J.

COPYRIGHT MATERIAL OMITTED

ARGUED: Cary Berkeley Kaye, Appellate Litigation Program, Georgetown University Law Center, Washington, DC, for Appellant. Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Appellee. ON BRIEF: Steven H. Goldblatt, Director, Elizabeth B. Wydra, Supervising Attorney, Laura Phillips, Rachel Brauner Vogelstein, Student Counsel, Appellate Litigation Program, Georgetown University Law Center, Washington, DC, for Appellant.

Before LUTTIG and MICHAEL, Circuit Judges, and Bobby R. BALDOCK, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

Reversed by published opinion. Judge LUTTIG wrote the opinion, in which Judge MICHAEL joined. Senior Judge BALDOCK wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge.

Petitioner Olatunji appeals from the district court's denial of his 28 U.S.C. § 2241 habeas petition, which sought review of his continued detention by the INS pursuant to a final order of removal issued by the Board of Immigration Appeals. For the reasons that follow, the judgment of the district court is reversed and the habeas petition is granted.

I.

Clifford K. Olatunji, a citizen of Nigeria, has been in the United States on an ongoing basis since 1984. He became a lawful permanent resident in 1993. J.A. 116. In 1994, Olatunji was arrested for illegally selling insurance policies and stealing government property. He subsequently pled guilty to one count of theft of government property in violation of 18 U.S.C. § 641, J.A. 133-35, and was sentenced to two months of confinement in a community treatment center, fined $259, ordered to pay $2,296 in restitution, and placed on probation for two years. Id.

In 1998, Olatunji traveled to London for nine days. Upon his return, he sought to re-enter the United States as a lawful permanent resident. J.A. 198-99. He disclosed his 1994 conviction and, pursuant to provisions of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") enacted after 1996, was accordingly classified as a lawful permanent resident seeking "admission" into the United States, 8 U.S.C. § 1101(a)(13)(C)(v). He was subsequently deemed inadmissible because of that conviction. J.A. 153-53; 8 U.S.C. § 1182(a)(2)(A). After a hearing before an Immigration Judge, Olatunji was ordered to be removed from the United States to Nigeria. J.A. 183-84. His appeal to the Board of Immigration Appeals was unsuccessful. Id. at 187-89.

Instead of directly appealing the Board's decision to this court, Olatunji filed a pro se petition for a writ of habeas corpus in the district court. He argued, inter alia, that IIRIRA's criminal inadmissibility provisions were impermissibly retroactive to his decision to plead guilty and that his removal under IIRIRA would violate the Fifth Amendment's Due Process Clause. The district court exercised jurisdiction over Olatunji's claims and denied the petition on the merits. J.A. 196-205.

II.

As to the threshold question of the district court's jurisdiction, title 8, section 1252(a)(2)(C), of the United States Code, provides that, "[n]otwithstanding 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 [crime involving moral turpitude]." Despite this plain language, the government urges that direct review of Olatunji's "substantial constitutional claims" is permitted under IIRIRA and that Olatunji's instant habeas petition is precluded by his failure to seek relief on direct review.

As the government notes, at least two of our sister circuits have agreed with its interpretation of IIRIRA. Respondent's Br. at 14. Both of these authorities, Robledo-Gonzales v. Ashcroft, 342 F.3d 667 (7th Cir.2003)¹ and Patel v. INS, 334 F.3d 1259, 1262-63 (11th Cir.2003), rest on the following dicta, and in particular the government's concession that is referenced within this dicta, which appears in Justice Stevens' opinion for the Court in Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001):

The scope of [§ 1252(a)(2)(C)] is not entirely clear. Though the text of the provision is quite broad, it is not without its ambiguities.... [T]he government has ... conceded that the courts of appeals retain jurisdiction to review "substantial constitutional challenges" raised by aliens who come within the strictures of § 1252(a)(2)(C). As the petitions in this case do not raise any of these types of issues, we need not address this point further. Nonetheless, it remains instructive that the government acknowledges that background principles of statutory construction and constitutional concerns must be considered in determining the scope of IIRIRA's jurisdiction-stripping provisions.

Id. at 350 n. 2, 121 S.Ct. 2268 (emphasis added).

This dicta, and its referenced concession, must be understood in the context of the government's full proposal as to the proper interpretation of section 1252(a)(2)(C) in Calcano-Martinez. There, the government maintained that by enacting IIRIRA's jurisdiction-stripping provisions, "Congress ha[d] also precluded the district courts from reviewing challenges ... by habeas corpus or otherwise," and that "Congress's unmistakable intent in the judicial review provisions of [IIRIRA] [was] to channel all challenges ... into the courts of appeals." Brief for the Respondent at 14, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001) (emphasis added). It was as a consequence of this understanding that the government interpreted section 1252(a)(2)(C) to permit direct review in the Courts of Appeals, in order to avoid the "serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (emphasis added).

But as the Supreme Court made clear in St. Cyr, IIRIRA's jurisdiction-stripping provisions in fact do not eliminate the district courts' habeas jurisdiction under 28 U.S.C. § 2241. INS v. St. Cyr, 533 U.S. 289, 313-14, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Thus, the entire premise for the government's assertion in Calcano-Martinez, that direct review of substantial constitutional claims must exist because no other avenue of review—including habeas corpus—was available, was no longer of any moment after St. Cyr. And indeed, the authorities cited by the government in Calcano-Martinez in support of its proposed interpretation simply noted the serious constitutional question that would arise if Congress eliminated all judicial review of constitutional challenges to removal and deportation decisions, decisions that have no relevance where a forum to litigate substantial constitutional claims does exist. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1069 (9th Cir.2003) ("[T]he thrust of the opinion in Calcano-Martinez, together with the Court's opinion in St. Cyr ... is that jurisdiction over constitutional issues . . . is withdrawn from the courts of appeals and that the place to resolve such issues is the district courts through habeas corpus.").

Consistent with our interpretation of section 1252(a)(2)(C), as informed by St. Cyr, where Congress has provided a forum for litigating constitutional claims, the Supreme Court has declined to read exceptions into unambiguous statutes limiting federal jurisdiction. See Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (refusing to read a constitutional challenge exception into 42 U.S.C. § 405(h) of the Social Security Act, barring jurisdiction under § 1331 "to recover on any claim arising under [Title II of the Social Security Act]," because the Social Security Act "itself provides jurisdiction for constitutional challenges to its provisions"); see also Cedano-Viera, 324 F.3d at 1070 ("[T]he Webster rule turned on the absence of any other available forum, which is not the case with respect to... § 1252(a)(2)(C), because all routes to the courthouse are not closed when there is an opportunity for habeas relief."); Flores-Miramontes v. INS, 212 F.3d 1133, 1136 (9th Cir.2000).

In sum, the mandate of section 1252(a)(2)(C) that "no court shall have jurisdiction to review any final order of removal" plainly extends to all claims on direct review, including constitutional claims. That St. Cyr's holding rested on the purported legal and historical distinction between "jurisdiction to review" and "habeas corpus," see 533 U.S. at 311-312, 121 S.Ct. 2271, confirms that such is the correct interpretation of section 1252(a)(2)(C)'s unambiguous prohibition. Section 1252(a)(2)(C) should, accordingly, be enforced without exception. The contrary interpretation would allow petitioners multiple opportunities to pursue their constitutional claims in the face of a jurisdiction-stripping statute that is unquestionably enacted to curtail such access to judicial review. Olatunji being barred from pursuing direct review in the courts of appeals under IIRIRA, the district court properly exercised its jurisdiction pursuant to section 2241.

III.

Turning to the merits of the dispute before us, Olatunji contends that IIRIRA has attached new legal consequences to his 1994 decision to plead guilty and that this is impermissible under the well established presumption against retroactive application of statutes. The government and the dissent agree with the first half of this contention, namely that Olatunji would have been...