LaGuerre v. Reno

• Decision Date: 09 April 1999
• Docket Number: Nos. 98-1954,98-2613,s. 98-1954
• Citation: 1998 WL 912107,164 F.3d 1035
• Parties: Gary LaGUERRE, Petitioner-Appellant, v. Janet RENO, et al., Respondents-Appellees. Jose, Martin Avelar-Cruz, Petitioner-Appellee, v. Janet Reno, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1035

164 F.3d 1035

Gary LaGUERRE, Petitioner-Appellant, v. Janet RENO, et al., Respondents-Appellees.

Jose, Martin Avelar-Cruz, Petitioner-Appellee, v. Janet Reno, et al., Respondents-Appellants.

Nos. 98-1954, 98-2613.

United States Court of Appeals Seventh Circuit.

Argued Oct. 29, 1998.

Decided Dec. 22, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied April

9, 1999. ^*

Lucas Guttentag (argued), American Civil Liberties Union Foundation, New York, NY, Lisa J. Palumbo, Legal Assistance Foundation of Chicago, Chicago, IL, Lee Gelernt, American Civil Liberties Union, New York, NY, for Gary LaGuerre Petitioner-Appellant.

Janet Reno, Office of the U.S. Atty. Gen., Washington, DC, pro se.

Thomas P. Walsh, Office of the U.S. Atty., Civil Div., Chicago, IL, Papu Sandhu (argued), Dept. of Justice, Civil Div., Immigration Litigation, Washington, DC, for Janet Reno Respondent-Appellee.

Samuel Der-Yeghiayan, I.N.S, Chicago, IL, Thomas P. Walsh, Office of the U.S. Atty., Civil Div., Papu Sandhu, Dept. of Justice, Civil Div., (David M. McConnell, on the briefs) Immigration Litigation, Washington, DC, for Doris Meissner, Brian R. Perryman Respondents-Appellees in No. 98-1954.

Diana C. White (argued), Maria A. Alvarado, Legal Assistance Foundation of Chicago, Chicago, IL, for Jose M. Avelar-Cruz Petitioner-Appellee.

John F. Hurlbut, Office of the U.S. Atty., Chicago, IL, Richard M. Evans and Jeffrey J. Bernstein, Dept. of Justice, Civil Div., Immigration Litigation, Washington, DC, for Janet Reno, Brian R. Perryman, Doris Meissner Respondents-Appellants in No. 98-2613.

John F. Hurlbut, Office of the U.S. Atty., Chicago, IL, Papu Sandhu, Dept. of Justice, Civil Div., Immigration Litigation, (David M. McConnell, on the briefs) Washington, DC, for Immigration and Naturalization Service Respondent-Appellant.

Before POSNER, Chief Judge, and WOOD, JR., and MANION, Circuit Judges.

POSNER, Chief Judge.

We have consolidated for argument and decision two immigration cases that present overlapping issues. In one, Gary LaGuerre sought habeas corpus in federal district court under 28 U.S.C. § 2241, challenging the refusal of the Board of Immigration Appeals to consider his application for a waiver of deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994 ed.). Section 212(c) (since repealed and replaced by a new, but basically similar, section, § 240A(b), 8 U.S.C. § 1229b(b)) grants the Attorney General (or the Attorney General's delegates, such as the Board of Immigration Appeals) discretion to waive deportation because of extraordinary hardship to the deportee or his family, or other exceptional circumstances. Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995). LaGuerre had been ordered deported because he had been convicted of certain drug-related offenses, and section 440(d) of the Antiterrorism and Effective Death Penalty Act, enacted in 1996, amended section 212(c) of the Immigration and Nationality Act to bar waivers of deportation for aliens ordered deported on the basis of such convictions. The Act was passed while the deportation proceedings against LaGuerre were pending; nevertheless the Board of Immigration Appeals held that section 440(d) applied to him. The district court agreed, and LaGuerre appeals.

The other case differs primarily in that the alien, Jose, Martin Avelar-Cruz, prevailed in the district court by convincing the judge that section 440(d) denies equal protection of the laws because it bars waiver only for aliens deportable on the basis of particular offenses and not for aliens excludable from the United States on the basis of the same offenses. If, before deportation proceedings had been instituted against Avelar-Cruz, he had left the United States and then tried to reenter, and exclusion proceedings had been instituted against him, he could, if ordered excluded, have applied for a waiver of exclusion. The Department of Justice has appealed from the judgment in Avelar-Cruz's case.

The issues common to both cases are whether the district court had jurisdiction and if so whether section 440(d) applies to proceedings that were pending when it was enacted. A third issue, presented only in Avelar-Cruz's case, is whether if there is jurisdiction and section 440(d) is applicable to this case, the section is unconstitutional.

Until 1961, the mode of judicial review of deportation orders was by habeas corpus, or, after 1952, by declaratory judgment actions, in federal district courts. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955); Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953). In 1961 Congress made review of such orders by the courts of appeals, without preliminary recourse to the district courts, the exclusive method of judicial review. Immigration and Nationality Act, § 106, 8 U.S.C. § 1105a (1994 ed.). The purpose of consolidating review in the courts of appeals and thus cutting out the district courts was to thwart the dilatory tactics frequently employed by the lawyers for deportable aliens. Foti v. INS, 375 U.S. 217, 225-26, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). The right of habeas corpus was preserved, however, in section 106(a)(9) of the Act, 8 U.S.C. § 1105a(a)(9) (1970 ed.) (later renumbered (10)); Foti v. INS, supra, 375 U.S. at 231 n. 19, 84 S.Ct. 306, and courts have struggled to reconcile this provision, which permits the alien to proceed in district court, see 28 U.S.C. § 2241(a), with the overall statutory purpose. E.g., Galaviz-Medina v. Wooten, 27 F.3d 487, 489-92 (10th Cir.1994); Williams v. INS, 795 F.2d 738, 743-45 (9th Cir. 1986). The best view is that the provision was intended to be limited to situations in which the alien was unable to obtain judicial review under the new statutory procedure, and should be interpreted accordingly. E.g., Bothyo v. Moyer, 772 F.2d 353, 355-56 and n. 1 (7th Cir.1985); see Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Singh v. Waters, 87 F.3d 346, 349 (9th Cir.1996).

Thirty-five years later, section 440(a) of the Antiterrorism and Effective Death Penalty Act amended section 106 to provide that a "final order of deportation against an alien who is deportable by reason of having committed a [drug] offense ... shall not be subject to review by any court." And section 401(e) of the new Act repeals section 106(a)(10) of the 1961 Act, the provision preserving a limited right to apply for habeas corpus. Nevertheless, several decisions in other circuits, as well as dicta in our decisions in Chow v. INS, 113 F.3d 659, 668-69(7th Cir.1997), and Turkhan v. INS, 123 F.3d 487, 490 (7th Cir.1997), hold that the closing of the door to judicial review in section 440(a) does not apply to habeas corpus. Henderson v. INS, 157 F.3d 106, 122 (2d Cir.1998); Goncalves v. Reno, 144 F.3d 110, 118-23 (1st Cir.1998); Magana-Pizano v. INS, 152 F.3d 1213, amended, 159 F.3d 1217 (9th Cir.1998) (per curiam). These courts point out that Congress did not amend the basic federal habeas corpus statute, 28 U.S.C. § 2241, which is broadly enough worded to encompass persons detained under an order of deportation while awaiting the execution of the order; and they worry that if section 440(a) did close the door to habeas corpus it might violate the provision of the Constitution that forbids suspending habeas corpus other than in times of war or rebellion. U.S. Const. art. I, § 9, cl. 2. The Eleventh Circuit, however, has taken the opposite position, holding that section 440(a) does abrogate habeas corpus for aliens subject to it. Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998).

We doubt that the suspension clause requires preserving habeas corpus as a vehicle for challenging final orders of deportation in cases in which the jurisdiction of the immigration authorities over the alien is not in question. At the time the Constitution was enacted, habeas corpus was an extremely limited remedy. It lay only to test the jurisdiction of whatever governmental body or officer was detaining the applicant. E.g., Felker v. Turpin, 518 U.S. 651, 663, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Paul M. Bator, "Finality in Criminal Law and Federal Habeas Corpus for State Prisoners," 76 Harv. L.Rev. 441, 465-74 (1963). Over the years, Congress has authorized a much broader use of habeas corpus; but it cannot be that curtailing an optional statutory enlargement violates the suspension clause. That would create an irrational ratchet. Habeas corpus could always be enlarged, but once enlarged could not be returned to its previous, less generous scope without a constitutional amendment. Once this was understood, there would be few if any further enlargements. There can be no doubt that the applicants for habeas corpus in the present cases are detained pursuant to valid orders issued by the responsible authorities. The issue they wish to press--the issue of whether they are entitled to ask for discretionary relief from these orders--does not raise doubts about the jurisdiction of the Immigration and Naturalization Service over them.

We are suggesting not that the meaning of habeas corpus in the suspension clause was set in stone in 1787, an issue left open in Felker v. Turpin, supra, 518 U.S. at 664, 116 S.Ct. 2333, but only that the meaning of the constitutional term does not move in lockstep with changes in the meaning of the statutory term. Lindh v. Murphy, 96 F.3d 856, 867-68 (7th Cir.1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.1997). The Sixth Amendment guarantees the right to counsel; but if Congress passed a statute entitling every federal criminal defendant to have three lawyers, it would not mean that the Sixth Amendment entitled every federal criminal defendant to three lawyers.

These considerations...