Magana-Pizano v. I.N.S.

• Decision Date: 01 September 1998
• Docket Number: 97-70384,MAGANA-PIZAN,P,Nos. 97-15678,s. 97-15678
• Citation: 152 F.3d 1213
• Parties: 98 Cal. Daily Op. Serv. 6857, 98 Cal. Daily Op. Serv. 8405, 98 Daily Journal D.A.R. 9481 Danieletitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1213

152 F.3d 1213

98 Cal. Daily Op. Serv. 6857, 98 Cal. Daily

Op. Serv. 8405,

98 Daily Journal D.A.R. 9481

Daniel MAGANA-PIZANO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

Nos. 97-15678, 97-70384.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 12, 1997.

Decided Sept. 1, 1998.

Michael Franquinha, Stender & Larkin, Phoenix, Arizona, for petitioner-appellant.

Hugh G. Mullane, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent-appellee.

Lucas Guttentag (argued), Lee Gelernt, Laura L. Ho, Michael J. Wishnie (of counsel), San Francisco, California, for Amicus Curiae American Civil Liberties Union Foundation.

Lenni B. Benson, New York City, for Amici Curiae Law Professors.

Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, Nadine Wettstein, Washington, DC, for Amicus Curiae The American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV 97-00619 SMM.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A35-822-607.

Before: GOODWIN and THOMAS, Circuit Judges, PREGERSON, ^* District Judge.

PER CURIAM.

With enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Congress dramatically altered our immigration laws and judicial remedies for immigrants facing deportation or exclusion. To consider the proper jurisdiction for habeas corpus petitions and petitions for review of Board of Immigration Appeals decisions under the new statutes, we consolidated these actions. We dismiss the petition for review for lack of jurisdiction, but hold that the petitioner may pursue habeas corpus relief under 28 U.S.C. § 2241 in the United States District Court.

I

Daniel Magana-Pizano is a 25-year old native and citizen of Mexico who entered the United States on December 28, 1977, as the five-year old child of a lawful permanent resident. Magana-Pizano's parents and three of his siblings are lawful permanent residents of the United States; his fourth sibling is a United States citizen. Since his admission into the United States, Magana-Pizano has resided in Southern California and Arizona. He attended high school in the United States, and most recently worked as a fork lift operator.

His past includes a criminal history, albeit for mostly minor offenses. Relevant to this appeal, he was convicted in February 1995 in a California state court of being under the influence of cocaine and methamphetamine in violation of section 11550(a) of the California Health and Safety Code, a misdemeanor offense.

On May 17, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause ¹ to Magana-Pizano alleging that he was deportable as a result of this misdemeanor criminal conviction. At his deportation hearing, Magana-Pizano conceded his deportability as a result of the drug conviction, but indicated that he would apply for a discretionary waiver of deportation under Section 212(c) of the Immigration and Nationality Act ("INA").

Unbeknownst to Magana-Pizano, Congress had already passed AEDPA, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 15, 18, 22, 28, 40, 42, 50 U.S.C.). Section 440(d) of AEDPA amended INA § 212(c) to eliminate discretionary relief for aliens convicted of most drug-related crimes, including Magana-Pizano's. ² As a result of this statutory change, the INS filed a motion to pretermit Magana-Pizano's application for relief under INA § 212(c), arguing that section 440(d) of AEDPA and its amendment to section 212(c) were effective as of the date of passage on April 24, 1996. These changes provided that any alien who, like Magana-Pizano, was deportable due to a criminal conviction under 8 U.S.C. § 1251(a)(2)(B), was statutorily ineligible for discretionary relief.

The Immigration Judge granted the INS motion to pretermit Magana-Pizano's application and ordered Magana-Pizano deported to Mexico. Magana-Pizano appealed this decision to the Board of Immigration Appeals ("BIA"), which sustained the deportation order based on AEDPA changes to INA § 212(c), and the Attorney General's opinion in Matter of Soriano, Int. Dec. 3289 (A.G. Feb. 21, 1997). Magana-Pizano filed a timely petition for review of the BIA's decision with this Court.

Magana-Pizano also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Arizona. In his habeas petition, he argued that the BIA's decision and interpretation of AEDPA section 440(d) violated the Equal Protection Clause of the Constitution. The district court dismissed the complaint without prejudice for lack of jurisdiction, explaining that the statutory basis for habeas review for aliens in custody pursuant to an order of deportation was repealed by a different section of AEDPA. See AEDPA § 401(e), repealing 8 U.S.C. § 1105a(a)(10). Magana-Pizano filed a timely appeal of that decision to this Court. We sua sponte consolidated both matters.

II

We first address Magana-Pizano's petition for review of the BIA decision holding that he was ineligible for discretionary relief under INA § 212(c). Magana-Pizano challenges the BIA's interpretation of AEDPA section 440(d) and its applicability to his case. We cannot reach the merits, however, because of new limitations that Congress has placed on our ability to hear such claims.

Prior to passage of IIRIRA, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656, the United States Court of Appeals was the proper tribunal for parties who wished judicial review of a BIA decision. See INA § 106(a), 8 U.S.C. § 1105a (1994) (repealed 1996). That now-repealed INA section provided that an alien could obtain judicial review by the appropriate court of appeals after entry of a final order of deportation.

Petitions for review filed between the passage of IIRIRA on September 30, 1996, and IIRIRA's general effective date of April 1, 1997, are governed by interim transitional rules. See IIRIRA § 309(c); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). ³ Because the BIA's decision holding Magana-Pizano statutorily ineligible for relief was issued March 17, 1997, IIRIRA's transitional provisions apply to his case. See IIRIRA § 309(c)(4); Kalaw, 133 F.3d at 1150. ⁴

Section 309(c)(4)(G) provides:

there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act (as so in effect).

The INS concedes that this Court nonetheless retains a limited scope of judicial review for aliens who are deportable for criminal offenses enumerated in section 309(c)(4)(G) of IIRIRA--"[to] determine for itself whether the petitioner is (i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the statute." Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997). Magana-Pizano does not dispute that he is an alien deportable by reason of having committed one of the enumerated crimes. Rather, he argues that the Immigration Judge's and BIA's reading of AEDPA § 440(d) constitute an impermissible retroactive application of the amended statute.

Congress evidenced a specific intent for IIRIRA to apply retroactively to pending cases simply by virtue of its creation of transitional rules. See IIRIRA § 309(c). To this end, we note that this Court had jurisdiction to review certain final orders of deportation "only because Congress had conferred it." Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir.1996); see also Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 96 L.Ed. 547 (1952) ("The power to expel aliens, being essentially a power of the political branches of government, the legislative and the executive, may be exercised entirely through executive officers, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.") (internal quotation marks and footnote omitted). Because Magana-Pizano's arguments are not within the narrow scope of this Court's review on direct appeal under IIRIRA's transitional rules, we dismiss his petition for review for lack of jurisdiction.

III

A

The district court denied Magana-Pizano's habeas corpus petition after concluding that the statutory basis for habeas review for aliens in custody pursuant to an order of deportation had been repealed by AEDPA. We agree that one avenue has been eliminated, but hold that the district court retains jurisdiction under 28 U.S.C. § 2241 when the petitioner has no other judicial remedy. Thus, we reverse the judgment of the district court.

Prior to the passage of AEDPA and IIRIRA, aliens wishing to challenge the constitutionality of a final order of deportation via habeas corpus did so using one of two general methods: (1) proceeding pursuant to INA § 106(a)(10); or (2) proceeding pursuant to the general statutory habeas provision of 28 U.S.C. § 2241. ⁵ Prior to its repeal by AEDPA INA § 106(a) provided the primary means of habeas review because its scope was broader than 28 U.S.C. § 2241. ⁶ Magana-Pizano filed his habeas petition pursuant...