Calcano-Martinez v. Imm'n & Nat'n Serv.
| Decision Date | 01 August 1999 |
| Docket Number | 98-4246,Docket Nos. 98-4033,98-4214 |
| Citation | 232 F.3d 328 |
| Parties | (2nd Cir. 2000) Deboris Calcano-Martinez, Petitioner, v. Immigration and Naturalization Service, Respondent. Sergio Madrid, Petitioner, v. Immigration and Naturalization Service, Respondent. Fazila Khan, Petitioner, v. Immigration and Naturalization Service, Respondent |
| Court | U.S. Court of Appeals — Second Circuit |
Lawful permanent resident aliens filed separate petitions for review of final orders of removal, seeking review of decisions of Board of Immigration Appeals that they were removable by reason of having been convicted of a certain crime and ineligible to apply for discretionary relief from deportation. Cases were consolidated. We hold that under the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act, a court of appeals lacks jurisdiction over petitions for review filed by the aliens. We further hold that the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act do not deprive federal district courts of habeas jurisdiction over purely legal claims of aliens ordered removed from the United states for having committed specific crimes.
Lucas Guttentag and Christopher J. Meade, American Civil Liberties Union Foundation, New York, NY (Lee Gelernt; Kerry William Bretz, Jules Coven, Alan Michael Strauss, Matthew L. Guadagno and Bretz & Coven, of counsel), for Petitioners.
Diogenes P. Kekatos, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney, James A. O'Brien III, Special Assistant United States Attorney, and Gideon A. Schor, Assistant United States Attorney, of counsel), for Respondent.
Before OAKES, WALKER, and KEITH,* Circuit Judges.
The consolidated cases before the Court require us to interpret the effect of the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), on the jurisdiction of federal courts to hear challenges raised by criminal aliens with respect to removal proceedings commenced by the Immigration and Naturalization Service ("INS"). In three opinions handed down in the last three years, we considered the effect of various provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996) and the transitional rules of IRRIRA on a federal court's jurisdiction to review removal proceedings. This is our first occasion to examine the effect of IIRIRA's permanent rules in the same context.
In enacting the AEDPA and IIRIRA in 1996, Congress reworked the role of the courts in immigration decisions by severely limiting judicial review of final orders of deportation for certain classes of aliens. By enacting these laws, Congress clearly meant to speed the removal of legal permanent residents convicted of certain crimes from the United States by curtailing the availability of judicial review of their removal orders. See H.R. Rep. No. 104-879 at 251-61 (1997), 1997 WL 9288; H.R. Conf. Rep. No. 104-828, at 495-507 (1997), 1997 WL 563320. In our first decision interpreting Congress's 1996 amendments, we held that the AEDPA "repealed the jurisdiction a court of appeals formerly had over petitions for review filed by aliens convicted of [certain criminal offenses]." Hincapie-Nieto v. INS, 92 F.3d 27, 28 (2d Cir. 1996). Two years later, we held that under the transitional rules of IIRIRA, federal courts retained habeas jurisdiction under 28 U.S.C. § 2241. See Jean-Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir.), reh'g denied, 175 F.3d 226 (2d Cir. 1998). Four months after our decision in Jean-Baptiste, we examined the scope of the remaining habeas review and held that federal courts retained jurisdiction to review statutory and constitutional challenges to deportation orders. See Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998), cert. denied, Reno v. Navas, 526 U.S. 1004 (1999).
The three petitioners before us, Deboris Calcano-Martinez, Sergio Madrid, and Fazila Khan, are legal permanent residents of the United States who have been ordered deported because of prior criminal convictions. Each has filed a petition for review in this Court pursuant to INA § 242(a)(2), codified at 8 U.S.C. § 1252(a)(2), challenging the final orders of removal entered against them by the Board of Immigration Appeals ("BIA"). Each petitioner has also filed a petition for habeas corpus in a United States district court. The petitions of Calcano-Martinez and Madrid were dismissed without prejudice to refiling after this Court's mandate in the present case, and Khan's petition is pending in the Eastern District of New York. On appeal, the petitioners do not dispute that they are aliens with criminal convictions that render them deportable under the Immigration and Naturalization Act ("INA"). Rather, they raise statutory challenges to the Attorney General's interpretation of the immigration laws under which they face deportation and constitutional challenges to the statute itself.
The INS argues that this Court does not have jurisdiction to hear these petitions. We hold, for the reasons set forth herein, that INA § 242(a)(2)(C) bars this Court from reviewing claims against final orders of removal filed by certain classes of criminal aliens, including the petitioners. We also hold that IIRIRA's permanent rules do not repeal a federal court's jurisdiction to review criminal aliens' removal orders by writ of habeas corpus under 28 U.S.C. § 2241. In doing so, we follow decisions by the Third and Ninth Circuit Courts of Appeals and the principles set forth in our prior cases interpreting the immigration laws. Accordingly, we dismiss the petitions without prejudice to the same claims being brought pursuant to habeas petitions.
Deboris Calcano-Martinez is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident in 1971, when she was three years old. She has four children who are United States citizens. On October 9, 1996, Calcano was sentenced to one to three years' imprisonment based on her April 24, 1996, guilty plea to attempted criminal sale of heroin in the third degree, in violation of §§ 110 and 220.39 of the New York Penal Law.
On June 16, 1997, the INS commenced removal proceedings against Calcano-Martinez by filing a Notice to Appear. See 8 C.F.R. § 239.1(a) (1999). The notice charged that Calcano-Martinez's narcotic conviction rendered her deportable from the United States pursuant to INA §§ 237(a)(2)(A)(iii) and (a)(2)(B)(i), codified at 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i) (1999), as an alien convicted of an aggravated felony and as an alien convicted of a violation of a controlled substance law.1
A removal hearing, at which Calcano-Martinez was represented by counsel, was held before an Immigration Judge ("IJ"). At the end of the hearing, the IJ ordered Calcano-Martinez deportable as charged by the INS and ruled that, based on her criminal convictions, she was statutorily ineligible for any relief from removal. Calcano-Martinez timely appealed the IJ's decision to the BIA. The BIA dismissed her appeal. On January 29, 1998, Calcano filed a petition for review in this Court. On October 13, 1999, Calcano filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. See Calcano-Martinez v. Reno, No. 99 Civ. 10481 (S.D.N.Y. filed Oct. 13, 1999). By stipulation and order dated December 20, 1999, Calcano's habeas petition was dismissed without prejudice to refiling after this Court's mandate in the instant case.
Sergio Madrid is a native and citizen of Mexico who remained in the United States unlawfully until his status was adjusted to lawful permanent resident of the United States at the age of seventeen. On September 6, 1994, Madrid was sentenced to a prison term of four years to life based on his conviction for the criminal sale of a controlled substance in the second degree, in violation of § 220.41 of the New York Penal Law.
On June 24, 1997, the INS commenced removal proceedings against Madrid by filing a Notice to Appear. The notice charged that Madrid's narcotic conviction rendered him deportable from the United States as an alien convicted of an aggravated felony and as an alien convicted of a violation of a controlled substance law. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C. § 1101(a)(43).2 A removal hearing was held before an IJ and at the close of the hearing, the IJ rendered Madrid deportable. Madrid appealed the BIA's decision and on May 4, 1998, the BIA dismissed his appeal. On June 4, 1998, Madrid filed a petition for review in this Court. On October 13, 1999, Madrid filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. Madrid v. Reno, No. 99 Civ. 10482 (S.D.N.Y. filed Oct. 13, 1999). By stipulation and order dated December 20, 1999, Madrid's habeas petition was dismissed without prejudice to refiling after this Court's mandate in the instant case.
Fazila Khan is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident on September 2, 1987. Khan's family, including her mother and sister as well as five of her aunts and uncles, are also United States citizens. She also has a four-year-old daughter who is a United States citizen. On February 13, 1997, Khan was sentenced to a prison term of four months, to be followed by a period of supervised release for one year, in connection with her November 6, 1996, guilty plea to the use of a telephone to facilitate the distribution of heroin in violation of 21 U.S.C. §§ 843(b), (d).
In May 1997, the INS commenced...
To continue reading
Request your trial
-
El Badrawi v. Department of Homeland Sec.
...held not to apply to claims that could never be brought during removal proceedings. See id. at 313-14, 121 S.Ct. 2271; Calcano Martinez, 232 F.3d 328, 339-40 (2d Cir.2000), aff'd 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001); Aguilar v. United States Immigration and Customs Enforceme......
-
Shah v. Wilco Systems, Inc., 99 Civ. 12054(AGS).
...the federal courts have habeas corpus jurisdiction under 28 U.S.C. § 2241 to review challenges to exclusion. See Calcano-Martinez v. INS, 232 F.3d 328, 333-34 (2d Cir.2000). 17. As further justification for waiver of the exhaustion requirement, plaintiffs point to the Attorney General's ref......
-
Arar v. Ashcroft
...L.Ed.2d 940 (1999). Thus, the "zipper clause" defendants invoke to bar this litigation rings hollow. Defendants cite Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir.2000), in which the Second Circuit noted that because § 1252(b)(9) establishes "`exclusive appellate court' jurisdiction over cl......
-
Jankowski v. I.N.S.
...matter, this court has jurisdiction over habeas petitions brought by aliens pursuant to 28 U.S.C. § 2241. See Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir.2000); St. Cyr v. INS, 229 F.3d 406, 409-10 (2d Cir.2000); Henderson v. INS, 157 F.3d 106, 122 (2d Cir.1998). The government argue......