Amerson v. I.N.S.

• Decision Date: 30 December 1998
• Docket Number: No. Civ.A. 98-1841.,Civ.A. 98-1841.
• Citation: 36 F.Supp.2d 339
• Parties: Edelynne AMERSON, Plaintiff, v. IMMIGRATION & NATURALIZATION SERVICE, Defendant.
• Court: U.S. District Court — Western District of Louisiana

36 F.Supp.2d 339

Edelynne AMERSON, Plaintiff, v. IMMIGRATION & NATURALIZATION SERVICE, Defendant.

No. Civ.A. 98-1841.

United States District Court, W.D. Louisiana, Alexandria Division.

December 30, 1998.

Edelynne Amerson, Moreauville, LA, pro se.

RULING

LITTLE, Chief Judge.

Before this court is the report of the magistrate recommending that we dismiss Edelynne Amerson's habeas corpus petition filed pursuant to 28 U.S.C. § 2241. Amerson, a permanent resident alien, alleges constitutional inadequacies in her removal proceedings. The magistrate concludes that under the Immigration and Nationality Act, we lack jurisdiction to review Amerson's petition because she has not alleged grave constitutional errors amounting to a miscarriage of justice. We find that this jurisdictional threshold sets the bar too high for habeas corpus review of a resident alien's constitutional claim. We therefore hold that we have jurisdiction to review Amerson's constitutional claims. Nevertheless, we find that she has not sufficiently alleged constitutional inadequacies in her deportation proceedings. Her habeas corpus petition is therefore DISMISSED.

I. BACKGROUND

Petitioner Edelynne Amerson, a native of the Phillippines, entered the United States on 26 April 1982 and achieved permanent resident alien status on 22 November 1982. On 17 October 1995, Amerson was convicted of aggravated battery and possession of cocaine with intent to distribute in Louisiana state court. The Immigration and Naturalization Service ("INS") received notice of these convictions and on 17 September 1996 began removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (removal due to conviction of aggravated battery) and (B)(I) (removal due to conviction of controlled substance offense). The INS found her removable under these statutes on 5 February 1998; the Board of Immigration Appeals dismissed her appeal on 24 July 1998. After the Fifth Circuit denied her final appeal on 16 September 1998, Amerson filed the instant petition for habeas corpus in this court on 24 September 1998, alleging violations of her due process rights in the removal proceedings. Amerson is currently incarcerated at the Bordelonville Correctional Center in Avoyelles, Louisiana, awaiting deportation. The magistrate has recommended in his report that we dismiss Amerson's habeas corpus petition because we lack jurisdiction to hear her claims under the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1646 (1994 & Supp. II 1997) ("INA").

II. ANALYSIS

We begin with a brief account of the relevant INA provisions. We will then review the relevant case law interpreting those provisions and assess the magistrate's report in light of those decisions.

A. Statutory Framework

Prior to 1996, the INA allowed resident aliens to challenge an INS order deporting them by direct appeal to the circuit courts. See INA § 106(a) (previously codified at 8 U.S.C. § 1105a(a)). The INA provided for habeas corpus review in district courts, but only over collateral matters; that is, matters that did not challenge the validity of the deportation order. See INA § 106(a)(10) (previously codified at 8 U.S.C. § 1105a(a)(10)); Garcia v. Boldin, 691 F.2d 1172, 1183 (5th Cir.1982). The general habeas corpus statute, 28 U.S.C. § 2241, however, provided a means of habeas corpus review in the district courts over the deportation order itself. See United States ex rel. Marcello v. District Director, 634 F.2d 964, 967 (5th Cir. 1981).

In 1996, Congress passed two major pieces of legislation overhauling the INA, including its judicial review provisions. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996) ("AEDPA") stripped the circuit courts of jurisdiction to hear appeals from removal¹ orders based on certain enumerated criminal offenses, including the controlled substance and aggravated battery crimes that form the basis of Amerson's removal order. See AEDPA § 440(a).² AEDPA also repealed the INA's habeas corpus provision. See id. § 401(e).³

Congress enacted a more sweeping reform later that year by passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"). IIRIRA set forth two groups of rules for judicial review INS decisions: the permanent rules that took effect on IIRIRA's effective date and "transitional" rules that apply to aliens subject to deportation hearings prior to 1 April 1997, but who had not received a final deportation order until after 30 October 1996. See IIRIRA § 309(a), (c)(4); Ibrik v. INS, 108 F.3d 596, 597 (5th Cir.1997). The INS began its investigation of Amerson prior to 1 April 1997 and issued its final decision after 30 October 1996; the transitional rules therefore govern her case.

The transitional rules restate AEDPA's jurisdiction stripping provision, see IIRIRA § 309(c)(4)(G),⁴ and contain no provisions for habeas corpus review in the district courts. Furthermore, IIRIRA § 306(a)(g) erects a sweeping limitation on any court's jurisdiction to hear claims not specifically provided for in the INA:

(g) Exclusive Jurisdiction.

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

IIRIRA § 306(a)(g), adding INA § 242(g) codified at 8 U.S.C. § 1252(g) (emphasis added). This limitation applies to all cases "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act." IIRIRA § 306(c)(1). This permanent rule therefore applies to Amerson's claim. See Goncalves v. Reno, 144 F.3d 110, 118 (1st Cir.1998) (applying IIRIRA § 306(a)(g) (new INA § 242(g) to a case governed by the transitional rules)).⁵

B. Judicial Review Under the New Rules

In decisions too numerous to recount here, courts have struggled to determine what remains of their jurisdiction to review INS removal orders after these amendments. The first question that arose was the constitutionality of Congress's attempt to strip the circuit court's of jurisdiction over criminal alien appeals. The circuit courts have agreed that Congress could remove their jurisdiction so long as the possibility for judicial review of the removal orders remained elsewhere.⁶ After AEDPA repealed the INA's habeas corpus provision, the only remaining "elsewhere" for review is the general habeas statute, 28 U.S.C. § 2241.⁷ IIRIRA § 306(a)(g), however, seems to preclude even § 2241 habeas jurisdiction: "no court shall have jurisdiction to hear any cause or claim." Because this result would run afoul of the Constitutional Suspension Clause,⁸ courts have construed IIRIRA narrowly and held that § 306(a)(g) does not preclude § 2241 habeas jurisdiction in the district courts.⁹ Thus, Congress's repeal of circuit court appellate jurisdiction over criminal alien removal orders "suffers from no constitutional infirmity because the courts retain habeas jurisdiction under 28 U.S.C. § 2241." Henderson v. INS, 157 F.3d 106, 118 (2d Cir.1998).

The Fifth Circuit seemed to agree in Williams v. INS, 114 F.3d 82 (5th Cir.1997) when it upheld AEDPA's jurisdiction stripping provision in part because a "limited opportunity to apply for a writ of habeas corpus may remain." Williams, 114 F.3d at 84. Williams left open the question of what those limits might be in light of Congress's clear intent to limit judicial review of criminal alien removal orders. District courts in the Fifth Circuit have differed widely in their answers to that question. Compare Thomas v. INS, 975 F.Supp. 840 (W.D.La.1997) (Trimble, J.) (§ 2241 habeas jurisdiction limited to grave constitutional errors resulting in miscarriage of justice); Cholak v. United States, No. 98-365, 1998 WL 249222 (E.D.La. May 15, 1998) (Clement, J.) (same), with Sabino v. Reno, 8 F.Supp.2d 622, 641 (S.D.Tex.1998) (applying administrative review principles to arrive at "arbitrary and capricious review"), and Perez v. Reno, 18 F.Supp.2d 674 (W.D.Tex. 1998) ("[T]he appropriate scope of review [under § 2241] encompasses at least review of the statutory merits of Perez's complaint."), and Udenze v. Strapp, 977 F.Supp. 418, 421 (N.D.Tex.1997) (finding review completely precluded); Safarian v. Reno, 968 F.Supp. 1101, 1106 (E.D.La.1997) (Duval, J.) (finding § 2241 review completely barred). That question now faces this court as well.

C. The Proper Scope of Jurisdiction Under § 2241

In recommending that we dismiss Amerson's case for lack of jurisdiction, the magistrate relied on Thomas v. INS, 975 F.Supp. 840 (W.D.La.1997); we therefore begin our inquiry with a review of that case. The INS sought to deport Thomas for a controlled substance conviction. Thomas filed a habeas petition in district court claiming that the INS deprived him of due process of law when the immigration judge found him ineligible to apply for discretionary relief from removal. Thomas also applied for a stay of deportation. See id. at 841. The court dismissed Thomas's due process claim and stay petition on different grounds.

First, the court noted that even before AEDPA and IIRIRA, it lacked § 2241 habeas jurisdiction to review any habeas petition challenging the validity of a removal order.¹⁰ See id. at 849 (relying on Garcia v. Boldin, 691 F.2d 1172 (5th Cir.1982)). Thomas' due process challenge did question the validity of the removal order, so the court determined that even prior to AEDPA and IIRIRA, it lacked jurisdiction to hear his constitutional challenge. See id. at 849-50.

Second, the court considered the effect of AEDPA and IIRIRA on its jurisdiction to review collateral matters such as Thomas' stay petition. The court concluded that while a plain...