Bakhtriger v. Elwood

Citation360 F.3d 414
Decision Date10 March 2004
Docket NumberNo. 02-4134.,02-4134.
PartiesMichael BAKHTRIGER, Appellant v. Kenneth John ELWOOD, Acting District Director of the Philadelphia Office of the Immigration and Naturalization Service; Theodore Nordmark, Assistant District Director for Deportation and Detention; and the Immigration and Naturalization Service.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Steven A. Morley, (Argued), Morley, Surin & Griffin, Philadelphia, for Appellant.

Sonya F. Lawrence, (Argued), Office of United States Attorney, Philadelphia, for Appellees.

Before SLOVITER, ROTH and CHERTOFF, Circuit Judges.

OPINION

CHERTOFF, Circuit Judge.

Appellant Michael Bakhtriger, a lawful permanent resident in the United States, was convicted of a felony and subjected to immigration removal proceedings. Bakhtriger challenged the removal proceedings by petition for habeas corpus. The District Court determined that Bakhtriger was essentially seeking review of a discretionary determination of the Immigration and Naturalization Service (INS). The District Court held, however, that there is no jurisdiction under the habeas statute, 28 U.S.C. § 2241, to review discretionary determinations or factual findings of the INS.

This question of the scope of habeas jurisdiction is one of first impression in this Circuit. We agree with the District Court's reading of the law and we will affirm.

I.

Bakhtriger entered the United States in February 1993, from the former Soviet Republic of Moldova, his native country. He was granted the protection of the United States as a refugee and became a lawful permanent resident in April 1994. In April 1998, Bakhtriger was convicted of possession of both cocaine base and heroin in the Court of Common Pleas in Montgomery County, Pennsylvania. Less than a year later, in January and February of 1999, Bakhtriger was arrested for violating his probation, and sentenced to 2-12 months imprisonment.

Bakhtriger's controlled substance conviction rendered him removable1 under 8 U.S.C. § 1227(a)(2)(B)(i), which provides:

(B) Controlled substances

(i) Conviction

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is [removable].

8 U.S.C. § 1227(a)(2)(B). The INS initiated removal proceedings against Bakhtriger on April 17, 2000. Before the Immigration Judge (IJ), Bakhtriger did not contest that he was an alien or that he had committed a removable offense. Rather, Bakhtriger applied for asylum and withholding of removal under 8 U.S.C. § 1158, and relief from removal under the Convention Against Torture, 8 U.S.C. § 1231.

Bakhtriger, through his own testimony and that of his mother, attempted to show that he had a reasonable fear of persecution should he return to Moldova. The evidence presented by Bakhtriger focused on his history of past religious persecution as a member of the Jewish faith in Moldova, and his fears of what might befall him if he should return.

Bakhtriger's mother recounted that her husband had been an officer in the Soviet army, but had been hampered in his advancement as a result of his religion. She also explained that Jews in Moldova were prevented from publicly practicing their religion. Both witnesses emphasized that anti-semitism was pervasive under the old Soviet regime, and that the post-Soviet Moldovan government took no action to curb the open hostility emanating from large segments of the public.

Other testimony indicated that, while living in Moldova, Bakhtriger was routinely harassed, called derogatory names, and physically beaten as a result of his religion. According to his mother, Bakhtriger was prevented from attending any prestigious colleges or universities. Instead, he was directed to a trade school to learn television repair. At this school, too, Bakhtriger was beaten by fellow students. Later, mirroring the experience of his father, Bakhtriger lost two successive jobs in factories as a result of his religion.

Both Bakhtriger and his mother recounted that anti-semitic signs and graffiti regularly marred fences and buildings. In the spring of 1992, the door of the apartment in which the Bakhtrigers lived was etched with a Star of David, something the Bakhtrigers took as a threat—that antisemitic elements were "marking" the apartment as one in which Jews lived. Bakhtriger recounted that during a recent trip back to Moldova he was attacked in public and a necklace bearing the Star of David was ripped from his neck.

The IJ credited the testimony of both witnesses and found that Bakhtriger had suffered past persecution. But the IJ found that the INS had presented sufficient proof of "changed country conditions" in Moldova to rebut the presumption that Bakhtriger had a well-founded fear of persecution. Even so, the IJ exercised his discretion to grant asylum where the applicant has "demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution." 8 CFR § 208.13(b)(1)(iii)(A).

The INS appealed the IJ's decision to the Board of Immigration Appeals (BIA). The BIA deferred to the IJ's determination that Bakhtriger and his mother were credible witnesses, and accepted the IJ's summary of the evidence. However, the BIA overturned the IJ's grant of asylum and ordered that Bakhtriger be removed to Moldova. The BIA decided that even if the IJ accurately described the level of persecution, Bakhtriger's experience did not rise to the level found in previous cases where the Board determined to exercise its authority to grant asylum for compelling reasons.

Bakhtriger filed a petition for a writ of habeas corpus in the Eastern District of Pennsylvania. Before the District Court, Bakhtriger did not claim a denial of a constitutional right or an error in application of the statutory standards. Rather, he argued that the factual record did not support the finding by both the IJ and the BIA that there was no well-founded fear of future persecution because conditions in Moldova have changed. As he put it, "the IJ and BIA ignored evidence in the record of centuries of anti-semitism and persecution of Jews." J.A. 7.

Bakhtriger also urged that even if there was no well-founded fear of persecution, the BIA wrongly reversed what was concededly the IJ's "broadly define[d]" discretion to grant asylum based on past persecution. J.A. 20. Again, in the habeas petition's own words, Bakhtriger contended that the BIA wrongly determined that he "was not entitled to asylum on a discretionary basis." J.A. 7.

Based on the petition, the District Court reasoned that Bakhtriger sought review of a discretionary determination, and therefore dismissed the petition for want of subject matter jurisdiction. The District Court noted that habeas review of criminal alien removal proceedings falls under the general habeas statute, 28 U.S.C. § 2241. The District Court held, however, that the scope of review of immigration proceedings under section 2241 is limited to constitutional claims or errors of law. The District Court reasoned that factual and discretionary determinations are not cognizable under section 2241, and the federal courts therefore lack jurisdiction to entertain such claims in habeas challenges to removal proceedings.

This timely appeal followed.

A district court's determination that it lacks subject matter jurisdiction is a determination of law over which we exercise plenary review. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). Moreover, we exercise plenary review where a district court dismisses a habeas corpus petition based on a legal conclusion without holding an evidentiary hearing. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir.1991).

II.

In 1996, Congress overhauled the Immigration and Nationality Act (INA), see 8 U.S.C. § 1101 et seq., by enacting two statutes in rapid succession, the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub L. No. 104-132, 110 Stat. 1214, and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546. Under the amended INA, asylum remains a discretionary determination on the part of the INS. But AEDPA and IIRIRA enacted two changes curtailing court review of removal proceedings.2 To understand these changes, we must briefly review the development of judicial review of immigration determinations.

Until 1952, judicial jurisdiction to review executive decisions relating to immigration was founded exclusively on the writ of habeas corpus. See United States v. Jung Ah Lung, 124 U.S. 621, 8 S.Ct. 663, 31 L.Ed. 591 (1888). During that period, "habeas corpus was the only remedy by which deportation orders could be challenged in the courts." Heikkila v. Barber, 345 U.S. 229, 230, 73 S.Ct. 603, 97 L.Ed. 972 (1953). A challenge to the exclusivity of the habeas remedy was briefly mounted after the 1946 passage of the Administrative Procedure Act (APA), which overhauled administrative law. Some aliens sought to appeal executive immigration decisions under the APA's general mandate that courts set aside any administrative agency action that was an abuse of discretion or unsupported by substantial evidence. The Supreme Court held the APA inapplicable, however, reasoning that the then-existing specific immigration statute was meant to preclude judicial review of immigration decisions "except insofar as it was required by the Constitution." Heikkila, 345 U.S. at 235, 73 S.Ct. 603.

In 1952, while the Heikkila case was pending, Congress reconfigured the immigration laws. Heikkila itself declined to rule on the amended act, 345 U.S. at 232 n. 4, 73 S.Ct. 603, but the...

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