Alanis-Bustamante v. Reno, ALANIS-BUSTAMANT

• Decision Date: 25 January 2000
• Docket Number: No. 98-3689,P,ALANIS-BUSTAMANT,98-3689
• Citation: 201 F.3d 1303
• Parties: (11th Cir. 2000) Eduardoetitioner-Appellant, v. Janet RENO, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1303

201 F.3d 1303 (11th Cir. 2000)

Eduardo ALANIS-BUSTAMANTE, Petitioner-Appellant, v. Janet RENO, et al., Respondent-Appellee.

No. 98-3689.

United States Court of Appeals Eleventh Circuit.

Jan. 25, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 98-01827-CIV-T-17C), Elizabeth A. Kovachevich, Judge.

Before TJOFLAT and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.

CARNES, Circuit Judge:

Eduardo Alanis-Bustamante contends that the Board of Immigration Appeals ("BIA") erroneously applied the 1996 amendments to the Immigration and Nationalization Act ("INA") to his removal proceeding, which rendered him ineligible for an INA 212(c) waiver of deportation. After the BIA ordered Bustamante removed from the United States, he sought judicial review of his removal by filing a habeas corpus petition in the district court pursuant to 28 U.S.C. 2241. The district court held that the Illegal Immigrant Removal and Immigrant Responsibility Act ("IIRIRA"), one of the 1996 legislative enactments that amended the INA, had removed habeas corpus jurisdiction over removal proceedings, and thus, it dismissed Bustamante's habeas petition for lack of subject matter jurisdiction. Bustamante has filed this appeal.

Bustamante's appeal turns on which set of legislative rules governs his case, and that boils down to the question of when the removal proceedings against him began-on the date the INS served him with an order to show cause after filing a warrant of detainer against him, or on the date the INS filed a notice to appear in the immigration court. For the reasons that follow, we hold that for purposes of determining the applicability of the 1996 amendments to the INA, removal proceedings against an alien have begun when the INS has served him with an order to show cause and has lodged a warrant of detainer against him. Application of that holding to the facts of this case requires us to reverse the district court's dismissal of Bustamante's 2241 habeas corpus petition.

I. BACKGROUND

In 1969, Eduardo Alanis-Bustamante, a citizen of Mexico, lawfully entered the United States with his parents. Since that time, he has resided in this country as a permanent resident. In 1994, Bustamante was convicted in the U.S. District Court for the Southern District of Texas of possession with intent to distribute marijuana in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. He was sentenced to thirty-three (33) months imprisonment and four years probation.

On June 28, 1995, while Bustamante was still incarcerated for his drug conviction, the INS served him with an order to show cause. Shortly before then, the INS also issued a warrant of detainer notifying prison authorities that Bustamante was to be turned over to the INS after the period of his incarceration ended. The show cause order itself informed Bustamante that the INS intended to initiate removal¹ proceedings against him and indicated that he was removable pursuant to INA 241(a)(2)(A)(iii),² which authorizes removal of an alien convicted of an aggravated felony, and 241(a)(2)(B)(i),³ which authorizes removal of an alien convicted of a controlled substance crime. The INS, however, did not file the show cause order with the immigration court, which is a prerequisite to the formal commencement of removal proceedings. See 8 C.F.R. 3.14 (1999).

During the next two years Bustamante remained incarcerated serving his sentence. Meanwhile, Congress passed two pieces of legislation that significantly amended the INA: the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), enacted on April 24, 1996; and the Illegal Immigrant Removal and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, Div. C., 110 Stat. 3009-546, enacted on September 30, 1996. After both of those pieces of legislation were enacted, and shortly before Bustamante finished serving his sentence,⁴ the INS issued a notice to appear and filed that notice with the immigration court. That issuance and filing occurred on June 20, 1997.⁵ Bustamante was eventually released on bond pending the removal hearing, which occurred on September 5, 1997.

At the removal hearing, Bustamante appeared with counsel before an immigration judge. He admitted the allegations set out in the notice to appear-and originally in the order to show cause-and conceded that he was removable. But, he also requested a waiver of deportation pursuant to 212(c) of the pre-amendment INA. The immigration judge concluded, however, that under the new IIRIRA provisions, Bustamante's status as an aggravated felon rendered him ineligible for a "cancellation of removal," which is the IIRIRA equivalent of the pre-amendment INA 212(c) waiver of deportation.⁶ Bustamante appealed the immigration judge's decision, but on August 3, 1998, the BIA denied his appeal. The BIA concluded, as the immigration judge had, that the new provisions of IIRIRA applied to Bustamante's proceeding, making him ineligible for a cancellation of removal (or a waiver of deportation, as it used to be called). Accordingly, the BIA upheld the order removing Bustamante from the United States without further ado.

Bustamante then filed in the district court a habeas corpus petition seeking relief pursuant to 28 U.S.C. 2241 and contending primarily that the BIA had erred in concluding that he was ineligible for an INA 212(c) waiver of deportation. The district court did not reach this claim, however, because it held that IIRIRA had stripped district courts of habeas jurisdiction on all matters related to removal proceedings. The district court reasoned that new INA 242(g) channels all judicial review of a removal through direct review in the court of appeals. Accordingly, the district court dismissed Bustamante's habeas petition for lack of subject matter jurisdiction. Bustamante now appeals the district court's dismissal of his 28 U.S.C. 2241 habeas corpus petition.

We review de novo the district court's dismissal of Bustamante's 2241 habeas petition for lack of subject matter jurisdiction. See Babicz v. School Bd. of Broward County, 135 F.3d 1420, 1421 (11th Cir.1998).

II. DISCUSSION

The 1996 enactments of AEDPA and IIRIRA substantially amended-and complicated-the INA, particularly the provisions relating to the availability of judicial review. Fortunately, recent ventures by this Court into the labyrinthian INA, as amended by AEDPA and IIRIRA, shorten our present journey and illuminate the dispositive issue in this case: whether Bustamante's removal proceedings commenced on June 28, 1995, when the INS served him with the order to show cause after having filed a warrant of detainer against him; or on June 20, 1997, when the INS filed the notice for him to appear in the immigration court. This issue is dispositive because the date on which the INS commenced the removal proceedings against Bustamante determines which provisions of the INA apply to his case, and thus, whether habeas review of his removal order is available.

In prescribing which provisions of the INA, as amended, apply in a removal case, Congress divided removal cases into these three categories:

(1) Proceedings that culminated in a final order before October 31, 1996 are governed by AEDPA 440(a);⁷

(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.

See Mayers, 175 F.3d at 1293 n. 4; Lettman v. Reno, 168 F.3d 463, 464, vacated in part, 185 F.3d 1216 (11th Cir.1999).

If the present case commenced with the filing of the notice to appear on June 20, 1997-about two months after the April 1 effective date of IIRIRA-it is governed by the permanent provisions of INA as amended by IIRIRA. In Richardson v. Reno, 180 F.3d 1311 (11th Cir.1999), we held that, under the permanent provisions of IIRIRA, 2241 habeas jurisdiction over removal cases no longer exists.⁸ In reaching that holding, we noted that INA 242(b)(9)⁹ specifically operates as a "zipper" clause, ensuring that review of any aspect of a removal proceeding occurs only after a final removal order has been entered and only in the appropriate court of appeals. See id. at 1315. Accordingly, under the permanent provisions of IIRIRA, the only proper venue for Bustamante's challenge to his removal would be a direct appeal in this Court from a final removal order, pursuant to INA 242(b). Therefore, if the proceedings to remove Bustamante did not commence until the June 20, 1997 notice to appear, the district court correctly concluded that it lacked jurisdiction over Bustamante's habeas petition.

If, however, the proceedings to remove Bustamante commenced on June 28, 1995, at which time the order to show cause was served on him and a warrant of detainer had been filed against him, then a different set of rules apply and a different result is reached. A case with a June 1995 commencement date is governed by the special transitional rules of IIRIRA. In Mayers v. United States Dept. of INS, we held that 2241 habeas review remains available for aliens whose proceedings are governed by the transitional rules of IIRIRA.¹⁰ See Mayers, 175 F.3d at 1301. Addressing the substance of the aliens' habeas petitions in Mayers, we also held that AEDPA's 440(d) ban on discretionary relief for aggravated felon aliens does not apply retroactively. Id. at 1304.¹¹

Therefore, if the proceedings to remove Bustamante commenced on June 28, 1995, he would be eligible for consideration of a pre-amendment INA 212(c) waiver of deportation, and 28 U.S.C. 2241 would be available for him to secure judicial review of his denial of that consideration. We now turn to the pivotal issue of when removal...