Hose v. I.N.S., 97-15789
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 141 F.3d 932 |
| Docket Number | No. 97-15789,97-15789 |
| Parties | 98 Cal. Daily Op. Serv. 2640, 98 Cal. Daily Op. Serv. 5944, 98 Daily Journal D.A.R. 3657, 98 Daily Journal D.A.R. 4261, 98 Daily Journal D.A.R. 8315 Tarcila Tagalicud HOSE, In the Matter of the Application of petitioner, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; Donald A Radcliffe, District Director, Respondents-Appellees. |
| Decision Date | 24 July 1998 |
Page 932
Op. Serv. 5944,
98 Daily Journal D.A.R. 3657,
98 Daily Journal D.A.R. 4261,
98 Daily Journal D.A.R. 8315
petitioner, Petitioner-Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE; Donald A Radcliffe,
District Director, Respondents-Appellees.
Ninth Circuit.
Decided April 10, 1998.
As Amended April 24 and July 24, 1998.
Page 933
George K. Noguchi, Honolulu, Hawaii, for appellant.
John J. Andre, Office of Immigration Litigation, Washington, DC, for appellee.
Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CV-97-00376-BMK.
Before: SNEED, KOZINSKI and THOMPSON, Circuit Judges.
DAVID R. THOMPSON, Circuit Judge:
Tarcila Tagalicud Hose, a citizen of the Philippines, was ordered excluded from the United States because she did not have a valid visa. The order excluding Hose became final on April 25, 1997 when the Board of Immigration Appeals dismissed her appeal. On May 1, 1997, Hose petitioned the district court for a writ of habeas corpus, alleging procedural and constitutional claims. On May 2, 1997 the district court dismissed the petition for lack of subject matter jurisdiction, concluding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, as amended Pub.L. No. 104-302, 110 Stat. 3657 (1996), effective April 1, 1997, removed the district court's habeas corpus jurisdiction under 28 U.S.C. § 2241 to review exclusion orders. Hose now appeals, contending the district court did have jurisdiction pursuant to both the United States Constitution and 28 U.S.C. § 2241. We agree with the district court and dismiss this appeal for lack of jurisdiction.
On January 31, 1993, Hose attempted to enter the United States at Honolulu International Airport. An officer of the Immigration and Naturalization Service ("INS") approved Hose's visa on the basis of her apparent marriage to a United States citizen and allowed Hose to proceed to the United States Customs area.
While Hose was in the Customs area, the INS officer questioned Hose's brother. The officer began to suspect Hose's marriage was a sham when he discovered that Hose's brother was married to her mother-in-law. INS officials then found Hose in the Customs area and brought her back into the INS area. The officers accused her of attempting to enter the United States based on a fraudulent marriage, cancelled her visa and designated her for exclusion proceedings. She was paroled into the United States pending the exclusion process.
While awaiting an exclusion hearing, Hose was indicted on November 10, 1993 on criminal charges related to her attempt to enter the United States without a valid visa. She moved to continue her exclusion hearing until after the criminal trial. The Immigration Judge ("IJ") denied her motion. The exclusion hearing was held on December 14, 1994, as scheduled. At that hearing, Hose claimed the protection of the Fifth Amendment and refused to testify as to her admissibility into the United States.
The IJ found Hose lacked a valid immigrant visa and ordered her excluded. Hose appealed to the Board of Immigration Appeals ("BIA"). The BIA upheld the IJ's rulings and dismissed her appeal. The IJ's removal order became final April 25, 1997. Hose then filed a petition in the district court for a writ of habeas corpus. The district
Page 934
court dismissed the petition for lack of jurisdiction. Hose now appeals that dismissal. The issue we consider is whether the district court had subject matter jurisdiction to consider Hose's habeas petition. We conclude it did not and dismiss Hose's appeal.The district court dismissed Hose's habeas petition, holding that that court had been deprived of subject matter jurisdiction to entertain her habeas petition by 8 U.S.C. § 1252(g)(1997). This section provides:
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. 1
8 U.S.C. § 1252(g) (1997).
Section 1252(g) became effective April 1, 1997. See I.N.S. v. Yang, 519 U.S. 26, ---- n. 1, 117 S.Ct. 350, 352 n. 1, 136 L.Ed.2d 288 (1996). This section applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings...." 8 U.S.C. § 1252(g) (1997), IIRIRA § 306(c)(1). Section 1252(g) applies retroactively. American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367, 1372 (9th Cir.1997); Ramallo v. Reno, 114 F.3d 1210, 1213 (D.C.Cir.1997); Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir.1997).
The claims Hose included in her habeas petition which she filed in the district court clearly concern claims arising from her pending exclusion proceeding. Thus, section 1252(g) applies to her case.
The IJ's removal order became final on April 25, 1997. On that date the BIA dismissed Hose's appeal from the IJ's exclusion determination. Section 1252 gave Hose thirty days from April 25, 1997 to file a petition for review with this court. 8 U.S.C. § 1252(b)(1) & (2). She did not do so. Instead, on May 1, 1997, she filed a petition for habeas corpus with the district court. The district court dismissed that petition on May 2, 1997, by an order which informed Hose that the district court lacked jurisdiction under IIRIRA. Hose still had ample time to file her petition for review with this court, but again she did not do so. Instead, she chose to appeal from the district court's dismissal of her habeas petition.
Under IIRIRA, a...
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