Berlanga v. Reno

• Decision Date: 25 May 1999
• Docket Number: No. Civ.A. H-98-2557.,Civ.A. H-98-2557.
• Parties: Jesus BERLANGA, Petitioner, v. Janet RENO, Attorney General of the United States, Doris Meissener, Commissioner, Immigration and Naturalization Service, Richard Cravener, Houston District Director, Immigration and Naturalization Service, Respondents.
• Court: U.S. District Court — Southern District of Texas

56 F.Supp.2d 751

Jesus BERLANGA, Petitioner, v. Janet RENO, Attorney General of the United States Doris Meissener, Commissioner, Immigration and Naturalization Service Richard Cravener, Houston District Director, Immigration and Naturalization Service, Respondents.

No. Civ.A. H-98-2557.

United States District Court, S.D. Texas, Houston Division.

May 25, 1999.

Jesus A. Macias, Attorney at Law, Houston, TX, for Jesus Berlanga, petitioner.

Howard E. Rose, Office of U.S. Attorney, Houston, TX, for respondents.

Howard E. Rose, Office of the U.S. Attorney, Houston, TX, for Doris Meissner, Comm. of Ins, defendant.

Howard E. Rose, Office of U.S. Attorney, TX, for Richard Cravener, Dist. Dir, U.S. Ins, defendant.

AMENDED MEMORANDUM AND ORDER¹

ATLAS, District Judge.

Petitioner Jesus Berlanga is a legal resident of the United States and a citizen of Mexico. Petitioner Berlanga is the subject of a final administration order of deportation. Petitioner challenges this order as unconstitutional through a Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2241. Respondents Janet Reno, United States Attorney General, Doris Meissener, Commissioner of Immigration and Naturalization Service, and Richard Cravener, Houston District Director, Immigration and Naturalization Service (collectively, "Respondents") oppose the relief sought by Petitioner and have filed a Motion to Dismiss ("Respondents' Motion") [Doc. # 7]. Petitioner Berlanga has filed an Opposition to Motion to Dismiss [Doc. # 8], to which Respondents now have filed an "Answer, Return and Supplement to Their Motion to Dismiss" [Doc. # 6] ("Motion Supplement").

This case involves application of the 1996 Congressional amendments to the INA, 8 U.S.C. § 1101 et seq.,² enacted in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 et seq. (Apr. 24, 1996) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Based on a careful review of the pleadings and the applicable but conflicting legal authorities, the Court concludes that there is no subject matter jurisdiction in the district court to address the constitutional claims raised by Petitioner. Even if this Court had jurisdiction, the Court would conclude that Petitioner has failed to state a claim upon which relief may be granted and thus the Motion to Dismiss should be GRANTED.

I. FACTUAL BACKGROUND

Petitioner is a twenty-eight year old native and citizen of Mexico. Petitioner legally entered the United States in 1970. Since then, he has maintained legal resident status in the United States, but never has sought to obtain United States citizenship despite eligibility to do so in 1975. On May 3, 1994, Petitioner was found guilty in the 209th District Court of Harris County, Texas of unlawfully, intentionally, and knowingly distributing at least 400 grams of cocaine, and received a sentence of 16 years in the Texas Department of Corrections (now known as the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID")).

While serving his sentence at the TDCJ-ID, an INS agent interviewed Petitioner to determine if he was subject to deportation. The INS concluded that Petitioner was a deportable alien due to his felony conviction. In particular, the INS agent concluded that Petitioner was in violation of Immigration and Nationality Act ("INA") § 241(a)(2)(B) because of his conviction of a controlled substance violation, and INA § 241(a)(2)(A)(iii) due to the fact that he was convicted of an aggravated felony. See Petition for Writ of Habeas Corpus, Complaint for Declaratory Injunctive Relief, and Request for Stay of Deportation ("Petition") [Doc. # 1], at 10.

Deportation proceedings were initiated on June 19, 1996, with service by the Immigration and Naturalization Service ("INS") Order to Show Cause ("OSC") upon Petitioner. Id. The OSC was filed in Immigration Court on September 10, 1996. Shortly thereafter, Petitioner requested relief from deportation pursuant to INA § 212(c), 8 U.S.C. § 1182(c), repealed in 1996 by the AEDPA, Pub.L. 104-208, § 304(b), 110 Stat. 3009-597 (1996). Id.

Petitioner's deportation hearing took place on April 8, 1997. Petitioner admitted the factual allegations in the OSC and conceded deportability as charged. Id. At that time, Petitioner's request for relief from deportation under INA § 212(c) was denied. Id. The Immigration Judge ("IJ") found that Petitioner's controlled substance felony conviction made him statutorily ineligible for all requested relief from deportation, and ordered him deported to Mexico. See 8 U.S.C. § 1182(c), as amended by the AEDPA § 440(d). Petitioner timely appealed the decision to the Board of Immigration Appeals ("BIA"). He argued that application of the AEDPA to aliens who had filed for a waiver of deportation under INA § 212(c) of the Act prior to the enactment date of the AEDPA is contrary to the intent of Congress and is, therefore, an impermissible retroactive application of the law contrary to the intent of Congress. Petitioner argues alternatively that application of the AEDPA is a violation of the Due Process Clause of the Fifth Amendment because the AEDPA causes the INS to discriminate between similarly situated members of a class (all aliens) on the basis of a distinction which has no rational relation to the purpose of INA § 212(c). Id. The BIA dismissed the appeal and affirmed the deportation order in a decision dated May 6, 1998. Id. Petitioner then filed a petition for review with the Fifth Circuit, which was dismissed on July 16, 1998, for lack of jurisdiction.

Petitioner now seeks review of the administrative deportation decision through a Petition for Writ of Habeas Corpus [Doc. # 1] filed in this Court on August 6, 1998.³

II. SUMMARY OF PARTIES' CONTENTIONS

Petitioner contends that lawful permanent residents may obtain review of deportation orders under the Suspension Clause of the United States Constitution, U.S. Const. art. I, § 9, cl. 2,⁴ under 28 U.S.C. § 2241(c) (the codification of the "Great Writ"), under 28 U.S.C. § 1651 ("All Writs Act"), and under 28 U.S.C. § 1331 (federal question jurisdiction).

Respondents first argue that this District Court lacks subject matter jurisdiction to review Petitioner's habeas corpus claims challenging the INS's deportation order. Respondents contend that the 1996 changes to the INA through the AEDPA § 440(a) and the IIRIRA § 309(c)(4)(G) (with specific reference to the transitional rules) preclude all judicial review — including habeas — of orders of deportation (now called "removal")⁵ issued to those immigrants, such as Petitioner, who are deportable because of having committed certain crimes. Respondents also argue that the district court lacks subject matter jurisdiction under 28 U.S.C. § 2241⁶ because INA § 242(g), 8 U.S.C. § 1252(g), precludes all review of exclusion, deportation or removal orders in district courts. If anything, Respondents contend, the sole judicial authority to exercise habeas corpus review of the agency's action rests with the court of appeals.

In Respondents' Motion Supplement, they argue additionally that this district court lacks subject matter jurisdiction after the 1996 amendments to the INA, because Petitioner has not asserted a violation of a constitutional right amounting to a fundamental miscarriage of justice. This, Respondents argue, is a prerequisite to federal court jurisdiction in habeas corpus matters arising from immigration administrative orders. Respondents point out that the scope of constitutional review available to convicted aliens is very limited and does not encompass review of the denial of discretionary relief; that the BIA properly relied on AEDPA § 440(d) to preclude Petitioner from receiving relief from deportation under 8 U.S.C. § 1182(c); and that Petitioner has raised no viable equal protection claim.

Petitioner counters that subject matter jurisdiction to review deportation orders still exists under the general habeas corpus powers invested in the United States district courts, since neither the constitutional habeas power nor the statutory grant of habeas jurisdiction found in 28 U.S.C. § 2241 has been explicitly and expressly repealed by either the AEDPA or the IIRIRA. Petitioner also argues that retroactive application of AEDPA § 440(d) is unlawful, if not unconstitutional.

On the merits, Petitioner argues that the INS's application of AEDPA § 440(d) is unconstitutional as applied to him. Petitioner points out that the provision prevents waivers of deportation only as to aliens subject to deportation, not to aliens excluded from this country. He argues that § 440(d) violates equal protection principles. Petitioner concludes that he should be entitled to discretionary relief provided by INA § 212(c) (1961), which was available prior to the AEDPA and IIRIRA.

III. 1996 CHANGES IN THE IMMIGRATION LAWS

Prior to 1996, an alien had two avenues for judicial review of deportation orders. Aliens were allowed to seek direct review of a decision of the BIA⁷ in specified courts of appeals. See INA § 106(a), 8 U.S.C. § 1105a(a) (1994) (repealed 1996); see also United States ex rel. Marcello v. District Director, INS, 634 F.2d 964, 968 (5th Cir.1981); Olvera v. Reno, 20 F.Supp.2d 1062, 1063 (S.D.Tex.1998). The appellate courts were given exclusive jurisdiction to hear these challenges. See id. The 1961 Act also provided that "any alien 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) (1994) (repealed 1996); see also Olvera, 20 F.Supp.2d at 1063.

These avenues were restricted by Congress in 1996 with the passage of two important pieces of legislation. First, Congress enacted § 401(e) of the AEDPA, entitled "Elimination of Custody Review by Habeas Corpus," which repealed the existing...