Akinwale v. Reno, No. 99-10823

• Decision Date: 30 June 2000
• Docket Number: No. 99-10823
• Citation: 216 F.3d 1273
• Parties: (11th Cir. 2000) Dominick AKINWALE, Plaintiff-Appellant, v. Janet RENO, Honorable, U.S. Attorney General; Paul W. Schmidt, Chairman (BIA), et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1273

216 F.3d 1273 (11th Cir. 2000)

Dominick AKINWALE, Plaintiff-Appellant, v. Janet RENO, Honorable, U.S. Attorney General; Paul W. Schmidt, Chairman (BIA), et al., Defendants-Appellees.

No. 99-10823

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 30, 2000.

Appeal from the United States District Court for the Northern District of Georgia.(No. 99-00324-CV-A-JEC-1), Julie E. Carnes, Judge.

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

HULL, Circuit Judge:

Dominick Akinwale appeals from the district court's order dismissing for lack of subject matter jurisdiction his § 2241 habeas petition challenging a final deportation order. 28 U.S.C. § 2241. After review, we conclude that the district court had subject matter jurisdiction and thus reverse.

I. BACKGROUND

A. Immigration Proceedings

Akinwale is a native and citizen of Nigeria. In September 1984, Akinwale lawfully entered the United States on an F-1, nonimmigrant visa. In May 1987, Akinwale was granted permanent resident status. In March 1993, Akinwale was convicted in state court of trafficking heroin and sentenced to twenty-five years' imprisonment. In January 1995, the Immigration and Naturalization Service ("INS") ordered Akinwale to show cause why he should not be deported based on his drug-trafficking conviction, which the INS characterized as an "aggravated felony" under § 101(a)(43) of the Immigration and Nationality Act (the "INA").

At his deportation hearing on June 25, 1996, Akinwale, with counsel, conceded his deportability due to his conviction, but requested a waiver of deportation under INA § 212(c) (1994). The problem for Akinwale was that § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"), had amended INA § 212(c) to expand the types of felonies that rendered an alien ineligible for a waiver of deportation.¹ At the June 25, 1996 hearing, the Immigration Judge ("IJ") found Akinwale deportable as charged. Due to his drug-trafficking conviction, the IJ also concluded that Akinwale was statutorily ineligible for a waiver of deportation under INA § 212(c), as amended by AEDPA § 440(d). Thus, the IJ denied Akinwale's § 212(c) request. Akinwale appealed.

On March 10, 1997, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision that Akinwale was statutorily ineligible for waiver of deportation under INA § 212(c), as amended by AEDPA § 440(d). The BIA also noted that Akinwale could move to have his proceedings reopened for the limited purpose of challenging the IJ's deportability determination under Matter of Soriano, Int. Dec. 3289 (A.G., Feb. 21, 1997). In Soriano, the Attorney General ruled that AEDPA § 440(d) should be applied to INA § 212(c) cases pending on AEDPA's effective date. Int. Dec. 3289 (A.G., Feb. 21, 1997). However, the Attorney General recognized "the remote possibility that an alien who had a colorable defense to deportability may have conceded deportability in reliance on the availability of section 212(c) relief." Id. To eliminate that possibility, the Attorney General directed that, upon petition by an alien who had conceded deportability before AEDPA's April 24, 1996 effective date, that alien's case should be reopened for the limited purpose of permitting that alien to contest deportability. Id.

Accordingly, on March 26, 1997, Akinwale requested the BIA to reopen his deportation proceedings. On April 11, 1997, the BIA granted Akinwale's request and remanded the proceedings to the IJ. On October 3, 1997, the IJ again found Akinwale deportable and ordered Akinwale deported to Nigeria. Akinwale did not appeal the IJ's second deportability determination to the BIA, and the time for such an appeal has expired. Thus, Akinwale's administrative proceedings are concluded, and Akinwale remains subject to a final deportation order.²

B. Section 2241 Habeas Petition

On February 1, 1999, Akinwale filed his § 2241 habeas petition asserting that the BIA erred in applying AEDPA § 440(d) retroactively to his § 212(c) request. Akinwale asked the district court to issue a writ requiring the BIA to reopen his deportation proceedings and reconsider his § 212(c) request. In April 1999, the district court dismissed his § 2241 petition for lack of subject matter jurisdiction, but later granted a certificate of appealability on the jurisdictional issue. Thus, we now review whether the district court had jurisdiction over Akinwale's § 2241 petition.³

II. DISCUSSION

To answer this jurisdictional issue, we first outline the provisions of the AEDPA and the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"), relevant to review of final deportation or removal orders.⁴ We then examine this circuit's decisions addressing § 2241 habeas jurisdiction in the post-AEDPA and IIRIRA era. Finally, we outline why the district court had subject matter jurisdiction over Akinwale's § 2241 petition under the particular circumstances of this case.

A. AEDPA and IIRIRA

Prior to the enactment of AEDPA and IIRIRA, INA § 106(a)(10) provided that aliens held "in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(a)(10) (repealed 1996). In addition, this Court had recognized that aliens could challenge deportation proceedings through a petition for habeas relief under 28 U.S.C. § 2241. See Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990). In 1996, however, both AEDPA and IIRIRA restricted certain judicial review in immigration cases.

Specifically, AEDPA § 401(e) repealed former INA § 106(a)(10), which had permitted in-custody aliens to obtain judicial review of a deportation order through habeas corpus proceedings. In lieu thereof, Congress enacted AEDPA § 440(a), which restricted judicial review as follows: "Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes that carry a deportation consequence under the INA] shall not be subject to review by any court." 8 U.S.C. § 1105a(a)(10) (repealed by IIRIRA). AEDPA § 440(a) became effective on April 24, 1996.

Subsequently, IIRIRA replaced AEDPA § 440(a) with a new structure for judicial review. See IIRIRA § 306. IIRIRA, which became effective on April 1, 1997, contains two sets of provisions relating to review of final deportation orders: the transitional rules and the permanent rules. See IIRIRA § 309(c)(4); Alanis- Bustamante v. Reno, 201 F.3d 1303, 1306 (11th Cir.2000); Richardson v. Reno, 180 F.3d 1311, 1313 n. 2 (11th Cir.1999), cert. denied, --- U.S. ---, 120 S.Ct. 1529, 146 L.Ed.2d 345 (2000). As summarized in Alanis-Bustamante, Congress has now divided deportation or removal cases into these three categories:

(1) Proceedings that culminated in a final order before October 31, 1996 are governed by AEDPA § 440(a);

(2) Proceedings that culminated in a final order after October 31, 1996, but that commenced before April 1, 1997 (the effective date of IIRIRA) are governed by the INA as amended by the special transitional rules of IIRIRA;

(3) Proceedings that commenced after April 1, 1997 are governed by the provisions of the INA as permanently amended by IIRIRA.

Alanis-Bustamante, 201 F.3d at 1306-07. Furthermore, four recent cases in this circuit address the availability of § 2241 jurisdiction post-AEDPA and IIRIRA: Innab v. Reno, 204 F.3d 1318 (11th Cir.2000); Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th Cir.2000); Mayers v. INS, 175 F.3d 1289 (11th Cir.1999); Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998) ("Richardson I "), vacated, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (June 1, 1999) (mem.), on remand, 180 F.3d 1311 (11th Cir.1999) ("Richardson II "), cert. denied, --- U.S. ----, 120 S.Ct. 1529, 146 L.Ed.2d 345 (2000).⁵

Mayers, Innab, and Alanis-Bustamante are transitional rule cases, and Richardson is a permanent rule case. As outlined later, we conclude Akinwale's § 2241 petition is governed by the transitional rules. Thus, we discuss Richardson only briefly and then focus more on Mayers, Innab, and Alanis-Bustamante.

B. Richardson

The removal proceedings in Richardson did not commence until October 1997-after IIRIRA's effective date of April 1, 1997. Section 306(a)(2) of IIRIRA contains IIRIRA's permanent rules and enacts INA § 242. 8 U.S.C. § 1252. In Richardson I, this Court held that INA § 242 allows for judicial review in only the federal court of appeals and only after entry of a final order of deportation. Richardson I, 162 F.3d at 1378-79. In Richardson I, this Court further held that IIRIRA thus eliminated the district courts' § 2241 habeas jurisdiction to review immigration decisions in permanent rule cases. Id. In reaching this decision, Richardson I relies on several IIRIRA provisions, such as INA §§ 242(g), 242(b)(2), and 242(b)(9). Id. at 1356-79. After Richardson I, the Supreme Court decided Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("American-Arab "), and held that INA § 242(g) applies to only three discrete immigration decisions of the Attorney General-decisions to "commence proceedings, adjudicate cases, or execute removal orders." American- Arab, 119 S.Ct. at 943. On June 1, 1999, the Supreme Court issued a one-paragraph order remanding Richardson I for reconsideration in light of American-Arab. Richardson v. Reno, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (1999).

On remand, this Court in Richardson II reaffirmed its prior conclusion that in permanent rule cases, IIRIRA allows judicial review in only the court of appeals after a final deportation order and eliminates district courts' § 2241 habeas jurisdiction "over challenges to removal orders, removal proceedings, and detention pending removal." Richardson II, 180 F.3d at 1315. This time we relied on ...