In Re: F.R. Bowrin v. U.S. Immigration & Naturalization Serv.

• Decision Date: 01 March 1999
• Docket Number: No. 97-2276,No. 98-592,CA-98-2027-S,97-2276,98-592
• Citation: 1999 WL 957725,194 F.3d 483
• Parties: (4th Cir. 1999) In Re: FRANKLYN ROOSEVELT BOWRIN, Petitioner. FRANKLYN ROOSEVELT BOWRIN, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent. (A21-114-011)(). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 483

194 F.3d 483 (4th Cir. 1999)

In Re: FRANKLYN ROOSEVELT BOWRIN, Petitioner.

FRANKLYN ROOSEVELT BOWRIN, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 97-2276 (A21-114-011) No. 98-592 (CA-98-2027-S).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: March 1, 1999.

Decided: October 20, 1999.

On Petition for Writ of Habeas Corpus.

On Petition for Review of an Order of the Board of Immigration Appeals.

COUNSEL COUNSEL: Lee P. Gelernt, AMERICAN CIVIL LIBERTIES UNION, New York, New York; David Goren, LAW OFFICE OF DAVID GOREN, Silver Spring, Maryland, for Petitioner. Jeffrey Jay Bernstein, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Richard M. Evans, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before ERVIN,^* MICHAEL, and MOTZ, Circuit Judges.

OPINION

PER CURIAM:

In 1996, Congress passed two statutes that narrowed the rights of certain classes of immigrants and restricted federal court jurisdiction to review these immigrants' claims. They are the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104208, 110 Stat. 3009-546 (1996). This case requires us to determine the effect of these statutes on federal court jurisdiction to grant a writ of habeas corpus sought by an immigrant in the custody of the Immigration and Naturalization Service ("INS") awaiting deportation. We hold that these two statutes do not preclude federal court review of habeas corpus petitions raising questions of pure law filed by immigrants imprisoned under a final order of deportation.

I.

Bowrin is a British citizen born on the island of Nevis. He entered the United States on April 2, 1977 as the dependent of a temporary worker. On June 6, 1978, Bowrin adjusted his immigration status to that of a lawful permanent resident. Since that time, Bowrin married a U.S. citizen and has three children who are also U.S. citizens.

On May 10, 1994, Bowrin was convicted by the Circuit Court for the County of Prince Georges, Maryland for conspiracy to possess marijuana with intent to distribute. He was sentenced to five years in prison -with all but 45 days suspended -and two years probation. Due to his conviction, the INS issued Bowrin a show cause order on May 10, 1994, alleging deportability pursuant to INA §§ 241(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 1999) (conviction of a violation of the Controlled Substances Act) and 241(a)(2)(A)(iii), 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999) (conviction of an aggravated felony).

In May, 1995, Bowrin conceded deportability and filed an application for relief from deportation under the Immigration and Nationality Act ("INA") § 212(c). See 8 U.S.C.A. § 1182(c) (West 1994), repealed by IIRIRA § 304(b). The Immigration Judge originally calendared a hearing on Bowrin's application for January 19, 1996, but rescheduled it three times before finally hearing the case.

Meanwhile, on April 24, 1996, Congress enacted the AEDPA. Among the AEDPA's numerous amendments to the INA was the addition of § 440(d) which precluded aliens

deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)

from relief under INA § 212(c). AEDPA § 440(d).

In light of the AEDPA amendments to INA § 212(c), the INS moved to dismiss Bowrin's petition for relief in August 1996. The Immigration Judge denied the motion, citing the Board of Immigration ("BIA") decision in In re Soriano, Int. Dec. 3289, 1996 WL 426888 (BIA June 27, 1996). In Soriano, the BIA held that AEDPA § 440(d) did not apply retroactively to cases, like Bowrin's, where the § 212(c) application had been filed before the AEDPA took effect. Since Bowrin's application was filed before the AEDPA was passed, the Immigration Judge held that the AEDPA did not bar Bowrin's application for § 212(c) relief. Relying on the BIA's Soriano opinion, the Immigration Judge granted Bowrin's application for relief pursuant to § 212(c) on November 7, 1996. The INS appealed the decision to the BIA in November 1996, contesting only Bowrin's eligibility for relief, not the merits of his § 212(c) application.

While the INS's appeal was pending before the BIA, the Attorney General vacated the BIA's holding in Soriano. See In re Soriano, Int. Dec. 3289, 1996 WL 426888, at *38 (Op. Att'y Gen. Feb. 21, 1997). The Attorney General held that the AEDPA's amendments to § 212(c) applied to all applications regardless of when they were filed. Based on the Attorney General's reversal, the INS moved for summary judgment on its appeal pending before the BIA. The BIA sustained the INS's appeal and ordered Bowrin deported on grounds that the Attorney General's ruling in Soriano rendered Bowrin ineligible for § 212(c) relief. Bowrin appealed the BIA's ruling to this Court in September 1997.

While awaiting action on his direct BIA appeal, Bowrin filed a habeas corpus petition in the United States District Court for the District of Maryland. The district court dismissed the petition for lack of jurisdiction recommending that in the interest of justice the case be transferred to this Court. On November 13, 1998, we consolidated Bowrin's two appeals and calendared the case for oral argument.

II.

First we must determine whether we have jurisdiction to hear Bowrin's direct appeal from the BIA's decision denying his eligibility for § 212(c) relief. At oral argument, Bowrin's counsel acknowledged and we agree that our recent decision in Hall v. INS, 167 F.3d 852 (4th Cir. 1999), is dispositive on this issue. In Hall, we held that the "IIRIRA removes our jurisdiction over the appeals of those aliens who are deportable by reason of their conviction of certain offenses." 167 F.3d at 854.

We limited our Hall ruling, however, concluding that this jurisdiction-limiting procedure was triggered only when the requisite jurisdictional facts are present; the petitioner must be (1) an alien, (2) who has been convicted of one of the statutorily enumerated offenses requiring deportability. See id. at 855. Our jurisdiction turns on proof of these facts and, if Bowrin's appeal presents these jurisdictional facts, we must dismiss his appeal.

Bowrin conceded deportability due to his criminal convictions prior to his hearing before the Immigration Judge. This concession means that Bowrin has acquiesced that his case presents the necessary jurisdictional facts and his counsel as much as conceded this at oral argument. On that ground, we must dismiss his direct appeal.

III.

Having dismissed Bowrin's direct appeal, we now address his habeas corpus petition. Because jurisdiction is the first hurdle to be cleared in every case, the primary question we must address is whether the district court properly held that the AEDPA and the IIRIRA divested it of jurisdiction over Bowrin's habeas corpus petition. The jurisdictional issues presented here have been chronicled extensively in several federal appellate opinions and we do not endeavor to repeat that which has already been detailed effectively and at length. Our statutory analysis is only complete, however, if it is given in context.

Before 1952 brought changes in the area of immigration law, habeas corpus was the traditional method by which aliens obtained review of deportation decisions pursuant to the general habeas corpus statute, 28 U.S.C.A. § 2241 (West 1994). Since its inclusion in the Judiciary Act of 1789, § 2241 has given district courts jurisdiction to grant writs of habeas corpus to petitioners who are held in custody by the federal government in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C.A.§ 2241. Under this statute, federal courts considered not only constitutional claims but claims of statutory interpretation as well. See Goncalves v. Reno, 144 F.3d 110, 123-24 (1st Cir. 1998).

In 1952, Congress enacted new statutes that channeled review of most deportation matters to the courts of appeals. See Shah v. Reno, 184 F.3d 719, 721 (8th Cir. 1999). Changes made in 1961 further tightened the system by requiring nearly all deportation decisions to be heard exclusively by the courts of appeals. See id. Residual immigration-specific habeas jurisdiction remained pursuant to INA § 106(a)(10). See 8 U.S.C.A. § 1105a(a)(10) (West 1994), repealed by AEDPA § 440(a). Section 106(a)(10) provided that any alien held in custody under an order of deportation could obtain judicial review by habeas corpus. This subsection was designed to ensure that aliens with access to ordinary judicial review could also file habeas petitions if they were in custody. See Goncalves, 144 F.3d at 121. The provision promised that such aliens would have "a supplemental collateral remedy," id., and applied only to aliens that could obtain review under the traditional judicial review process. Those ineligible for habeas corpus relief under INA § 106(a)(10) were still able to obtain habeas review under § 2241 even in the face of statutory language prohibiting all other review. See Heikkila v. Barber, 345 U.S. 229, 235-37 (1953).

Under this scheme, aliens like Bowrin who conceded deportation, but still desired § 212(c) relief, could file a petition for direct review in the court of appeals following a final deportation order by the BIA. The court of appeals could then review questions of constitutional and statutory law, as well as issues of discretion and fact -although under a narrowed standard of review. See Shah , 184 F.3d at 721.

The passage of...