Chmakov v. Blackman, No. 00-2235

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBarry; ROTH
Citation2001 WL 1044599,266 F.3d 210
Parties(3rd Cir. 2001) ALEKSANDR CHMAKOV; NADEJDA CHMAKOVA; DENIS CHMAKOV, APPELLANTS v. J. SCOTT BLACKMAN, AS DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE Argued:
Decision Date27 July 2001
Docket NumberNo. 00-2235

Page 210

266 F.3d 210 (3rd Cir. 2001)
ALEKSANDR CHMAKOV; NADEJDA CHMAKOVA; DENIS CHMAKOV, APPELLANTS
v.
J. SCOTT BLACKMAN, AS DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE
No. 00-2235
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued: July 27, 2001
September 11, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Judge: The Honorable Ronald L. Buckwalter (D.C. Civil No. 00-CV-02128)

Page 211

Tatiana S. Aristova, Esq. (Argued) John J. Gallagher, Esq. Law Offices of John J. Gallagher 1760 Market Street, Suite 1100 Philadelphia, PA 19103, Attorneys for Appellants

Stephen J. Britt, Esq. (Argued) Assistant U.S. Attorney Office of the United States Attorney 615 Chestnut Street Philadelphia, PA 19106 And Thankful T. Vanderstar, Esq. Terri J. Scadron, Esq. Office of Immigration Litigation Civil Division, Department of Justice P.O. Box 878 Ben Franklin Station Washington, D.C. 20044, Attorneys for Appellee

Before: Roth, Barry, and Fuentes, Circuit Judges

OPINION OF THE COURT

Barry, Circuit Judge

In this appeal, we are called upon to answer a single legal question: did the District Court have jurisdiction to entertain a habeas corpus petition alleging a Fifth Amendment due process violation filed by aliens subject to a final order of removal for reasons other than a conviction

Page 212

for a deportable crime?1 Because the Supreme Court has concluded that Congress has not explicitly stated its intention to strip the federal courts of their habeas jurisdiction over petitions filed by aliens, whether those aliens be criminal or non-criminal aliens, we answer that question in the affirmative. Accordingly, we will reverse.

I.

The appellants are husband and wife, Aleksandr Chmakov and Nadejda Chmakova, and their son, Denis (collectively, the Chmakovs). The Chmakovs are Russian, but are citizens of Uzbekistan, which they describe as a "Middle Asian republic." They entered the United States on October 3, 1994 as non-immigrant tourists. In May of 1998, the Immigration and Naturalization Service (INS) commenced removal proceedings against them pursuant to 8 U.S.C. S 1229. The Chmakovs promptly filed for political asylum pursuant to 8 U.S.C. S 1158. After a hearing, an Immigration Judge (IJ) denied their application. The Chmakovs filed a notice of appeal with the Board of Immigration Appeals (BIA). Unfortunately, their then-attorney failed to file a timely brief and the BIA denied counsel's motion to file a late brief. On January 14, 2000, the BIA dismissed the appeal. The Chmakovs, still represented by the same attorney, failed to file an appeal with this Court.2

When it dismissed the Chmakovs' appeal, the BIA remanded the case to the IJ because he had failed to set a voluntary departure bond pursuant to 8 U.S.C. S 1229c(b)(3). The IJ reopened the case on February 24, 2000, set the voluntary departure bond, and ordered voluntary departure by April 24, 2000. Again, no appeal was filed from this order.

It was apparently not until the February 24 hearing on setting the voluntary departure bond that the Chmakovs realized that their attorney had not adequately prosecuted their claim for asylum. The Chmakovs then retained their present counsel, and counsel took several steps on their behalf. On or about March 28, 2000, a motion for reopening and reconsideration was filed with the BIA, alleging, as relevant here, the ineffective assistance of predecessor counsel with regard to the BIA's decision of January 14, 2000 dismissing the asylum claim. The BIA denied this motion on February 12, 2001 because one of the criteria set forth in Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988), for establishing ineffective assistance claims was not evident in the record, i.e. whether a complaint was filed with the appropriate disciplinary authorities and if not, why not.3 On August 22, 2000, an appeal was

Page 213

filed with this Court seeking review of the January 14, 2000 dismissal. We dismissed that appeal as untimely.

Most relevant to this appeal, on April 24, 2000, the Chmakovs filed a petition for a writ of habeas corpus in the District Court. The petition alleged that the Chmakovs' Fifth Amendment right to due process had been violated because they received ineffective assistance of counsel before the BIA. The INS successfully moved to dismiss the petition for lack of subject matter jurisdiction, and a timely notice of appeal was filed. This is the appeal we now consider.4 The District Court had jurisdiction to determine its jurisdiction and we have jurisdiction under 28 U.S.C. S 1291.

II.

The INS argues that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, stripped the District Court of jurisdiction to entertain the Chmakovs' habeas petition. Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district courts retain jurisdiction to hear habeas petitions filed by aliens subject to deportation for having committed certain criminal offenses. Zadvydas v. Davis, 121 S.Ct. 2491, 2497 (2001); INS v. St. Cyr, 121 S.Ct. 2271, 2287 (2001); Liang v. INS, 206 F.3d 308, 317 (3d Cir. 2000), cert. denied, 121 S.Ct. 2590 (2001); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir. 1999). The INS asserts that the rule of these cases is only applicable where the alien had no other avenue to seek review of the removal order. Unlike the aliens in Zadvydas, St. Cyr, Liang, and Sandoval, the Chmakovs had the right to seek direct review in this Court of the removal order and the denial of their asylum claim. On that basis, the INS contends that the Chmakovs should not also be given an opportunity to seek review of their claim by means of a habeas petition.

There is no dispute that prior to AEDPA and IIRIRA, district courts had jurisdiction to hear habeas petitions challenging deportation orders. That jurisdiction was squarely based on the general habeas corpus statute, 28 U.S.C. S 2241. Prior to 1996, an alien challenging a deportation order on the basis of an alleged due process violation would unequivocally have had the right to seek habeas relief in district court. Following St. Cyr, it is incontrovertible that aliens being deported on the basis of certain criminal convictions would still have that right. We see no reason to conclude that non-criminal aliens should be treated differently.

The Supreme Court has made it quite clear that there are two rationales in support of the conclusion that habeas is preserved for aliens subject to a final order of deportation. The first is "the strong presumption in favor of judicial review of administrative action..." St. Cyr, 121 S.Ct. at 2278. The second is "the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." Id. Thus, before we

Page 214

could find that the District Court lacked jurisdiction to entertain the Chmakovs' habeas petition, we would have to be satisfied both that there was another avenue for review of the BIA's decision and that Congress had clearly stated its intention to strip district courts of power to hear petitions such as this.

The first rationale is admittedly not at issue here because it is acknowledged by all parties that the Chmakovs had the right to seek review in this Court of the BIA's decision to dismiss their claim for asylum and order them deported. Similarly, judicial review of the BIA's denial of the Chmakovs' motion for reopening and reconsideration, clothed as it was in ineffective assistance garb, appears to be available and, indeed, an appeal is pending in this Court. Congress, of course, has the power to preclude non-criminal aliens from filing habeas petitions where those aliens have available to them another avenue of review. See Liang, 206 F.3d at 321 ("Congress may divest the district courts of habeas jurisdiction without violating the Suspension Clause so long as it substitutes `a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention' ") (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)).

While there is no Suspension Clause problem, however, the second rationale for finding the continuing existence of habeas jurisdiction must still be satisfied. The inquiry thus becomes whether Congress explicitly stated its intention to remove such jurisdiction? The answer, of course, is no. It is by now axiomatic that "[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal." St. Cyr, 121 S.Ct. at 2278-79. See also Liang, 206 F.3d at 318 ("We unquestionably... requir[e] an explicit reference to habeas jurisdiction or its statutory provision in order to find an express congressional intent to repeal"); Sandoval, 166 F.3d at 232 ("only a plain statement...

To continue reading

Request your trial
62 practice notes
  • Sierra v. Romaine, No. 02-2826.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 29, 2003
    ...Rosales-Garcia and Xi, both of which held that Zadvydas's holding applies to excludable/inadmissible aliens, and Chmakov v. Blackman, 266 F.3d 210, 214-15 (3d Cir.2001), in which we confronted the question of whether the Supreme Court's determination in St. Cyr that IIRIRA did not revoke fe......
  • Salazar-Regino v. Trominski, No. 03-41492.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 30, 2005
    ...reinforced but did not determine the conclusion that Congress had not plainly repealed habeas review); see also Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir.2001) (concluding that although the legal questions could have been considered on direct review, the aliens still could bring a habe......
  • Bamba v. Elwood, Civil Action No. 02-8430.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 27, 2003
    ...under 28 U.S.C. § 2241(c) to decide habeas petitions filed by criminal aliens subject to deportation or removal. See Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district ......
  • Silva v. Immigration & Naturalization Service, 02-CV-8903 (E.D. Pa. 5/__/2003), 02-CV-8903.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 1, 2003
    ...may not review purely factual or discretionary decisions of the Attorney General to execute removal orders. See Chmakov v. Blackmun, 266 F.3d 210, 215 (3d Cir. 2001) (citing 8 U.S.C. § 1252(g))6; Salaiman v. Attorney General, 212 F. Supp.2d 413, 416 (E.D.Pa. 2002) ("only questions of pure l......
  • Request a trial to view additional results
62 cases
  • Sierra v. Romaine, No. 02-2826.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 29, 2003
    ...Rosales-Garcia and Xi, both of which held that Zadvydas's holding applies to excludable/inadmissible aliens, and Chmakov v. Blackman, 266 F.3d 210, 214-15 (3d Cir.2001), in which we confronted the question of whether the Supreme Court's determination in St. Cyr that IIRIRA did not revoke fe......
  • Salazar-Regino v. Trominski, No. 03-41492.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 30, 2005
    ...reinforced but did not determine the conclusion that Congress had not plainly repealed habeas review); see also Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir.2001) (concluding that although the legal questions could have been considered on direct review, the aliens still could bring a habe......
  • Bamba v. Elwood, Civil Action No. 02-8430.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 27, 2003
    ...under 28 U.S.C. § 2241(c) to decide habeas petitions filed by criminal aliens subject to deportation or removal. See Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district ......
  • Silva v. Immigration & Naturalization Service, 02-CV-8903 (E.D. Pa. 5/__/2003), 02-CV-8903.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 1, 2003
    ...may not review purely factual or discretionary decisions of the Attorney General to execute removal orders. See Chmakov v. Blackmun, 266 F.3d 210, 215 (3d Cir. 2001) (citing 8 U.S.C. § 1252(g))6; Salaiman v. Attorney General, 212 F. Supp.2d 413, 416 (E.D.Pa. 2002) ("only questions of pure l......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT