Mapoy v. Carroll

• Decision Date: 01 December 1998
• Docket Number: CA-97-1827-A,No. 98-1131,98-1131
• Citation: 185 F.3d 224
• Parties: (4th Cir. 1999) ESTANISLAO S. MAPOY, Plaintiff-Appellee, v. WILLIAM CARROLL, District Director, United States Department of Justice, Immigration and Naturalization Service, Defendant-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 224

185 F.3d 224 (4th Cir. 1999)

ESTANISLAO S. MAPOY, Plaintiff-Appellee, v. WILLIAM CARROLL, District Director, United States Department of Justice, Immigration and Naturalization Service, Defendant-Appellant.

No. 98-1131 (CA-97-1827-A)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 1, 1998

Decided: July 13, 1999

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge.

COUNSEL ARGUED: James Arthur Hunolt, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Arnedo Silvano Valera, VALERA & ASSOCIATES, Falls Church, Virginia, for Appellee. ON BRIEF: Frank W. Hunger, Assistant Attorney General, David M. McConnell, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Mark S. Loria, VALERA & ASSOCIATES, Falls Church, Virginia, for Appellee.

Before WILLIAMS and MICHAEL, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Williams wrote the opinion, in which Judge Michael and Senior Judge Michael joined.

OPINION

WILLIAMS, Circuit Judge:

This case is on appeal from the district court's grant of a preliminary injunction staying Estanislao Mapoy's deportation and its accompanying order of Mapoy's release from INS custody. We do not reach the merits of the district court's decision because we conclude that § 242(g) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), divested the district court of subject matter jurisdiction to hear this case. Accordingly, we vacate the judgment of the district court and remand this case with the instruction to dismiss for want of subject matter jurisdiction.

I.

Estanislao Mapoy is a native and citizen of the Phillippines who entered the United States on September 3, 1985, on a B-2 tourist visa and has remained in this country illegally for over thirteen years. After attaining seven years of continuous physical presence in the United States, Mapoy became eligible to apply for suspension of deportation pursuant to § 244(a)(1) of the INA, codified at 8 U.S.C.A. § 1254(a)(1). On June 12, 1993, Mapoy requested the issuance of an Order to Show Cause (OSC) why he should not be deported from the United States, so that he might apply for suspension of deportation. On October 26, 1993, the INS served on Mapoy an OSC charging him as deportable under § 241(a)(1)(B) of the INA, codified at 8 U.S.C.A. § 1251(a)(1)(B) (redesignated by IIRIRA § 305(a)(2) as INA § 237(a)(1)(B), to be codified at 8 U.S.C.A.§ 1227(a)(1)(B)), for having remained illegally in the United States. Mapoy then applied for a suspension of deportation pursuant to INA § 244(a)(1) on the basis of extreme hardship. At a hearing before an immigration judge (IJ) on February 1, 1994, Mapoy conceded deportability and designated the Phillippines as the country of deportation. On March 6, 1995, the IJ denied Mapoy's application and gave Mapoy until June 6, 1995, to depart voluntarily or be subject to an order of deportation. Mapoy appealed this decision to the Board of Immigration Appeals (BIA), which denied the appeal on March 8, 1996, and extended Mapoy's voluntary departure date to thirty days after its decision (the Voluntary Departure Order).

On August 15, 1996, Mapoy filed a petition for review of the Voluntary Departure Order with the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit denied the petition on May 20, 1997. Mapoy then filed a petition for rehearing with the Ninth Circuit, which refused to rehear the case on July 25, 1997. The Ninth Circuit issued a final order memorializing its decision on August 5, 1997. The BIA then reset Mapoy's date for voluntary departure to thirty days after the issuance of the Ninth's Circuit's order. When Mapoy failed voluntarily to depart the United States within thirty days of the Ninth Circuit's decision, the alternate order of deportation issued in 1995 by the IJ became immediately effective. A warrant of deportation was issued and Mapoy was ordered to report for deportation on or around November 14, 1997.¹

After the initial proceedings were completed, Mapoy launched a second attack against his impending deportation. On October 16, 1997, Mapoy filed a Motion to Reopen his deportation proceedings and for a Stay of Deportation with the BIA. In his Motion, Mapoy sought cancellation of removal pursuant to INA § 240A, and adjustment of status.² Mapoy based his Motion to Reopen on new circumstances that were not present at his 1993 application for suspension of deportation, including his marriage to a legal permanent resident, who was expecting their first child and would be qualified to become a U.S. citizen in September 1998, and an approved I-130 relative visa petition his spouse had filed on his behalf.³ Mapoy's child was born on October 30, 1997, and is a U.S. citizen.

Pursuant to the warrant of deportation, Mapoy voluntarily surrendered to INS custody on November 10, 1997. On the same day, the BIA denied Mapoy's Motion for a Stay of Deportation, concluding that his Motion to Reopen was untimely and not likely to be granted. The INS District Director also denied Mapoy's request for a stay of deportation.

While his deportation was pending, Mapoy began the proceedings that are the subject of this appeal: he filed a Complaint for Declaratory and Injunctive Relief and Petition for a Writ of Habeas Corpus in the United States District Court for the Eastern District of Virginia on November 14, 1997, seeking a stay of deportation and release from detention. Also on November 14, 1997, Mapoy filed a Notice and Motion for Preliminary Injunctive Relief and a Restraining Order to Stay Deportation. At a brief hearing on November 14, 1997, the INS agreed that it would not deport Mapoy until the district court considered his complaint and habeas petition. On November 18, 1997, the INS filed an Opposition to the Motion for Injunctive Relief and Petition for Writ of Habeas Corpus, contending that§ 242(g) of the INA, as amended by IIRIRA, Pub. L. No. 104-208, Div. C, 110 Stat. 3009546, divested the district court of jurisdiction over the INS's decision to execute Mapoy's removal order. In the alternative, the INS argued that an injunction should not issue because Mapoy failed to show a substantial likelihood of success on the merits of his Motion to Reopen.

The parties presented oral argument to the district court on Mapoy's complaint and habeas petition on November 19, 1997. Mapoy argued that the district court possessed jurisdiction over this case under IIRIRA, that his Motion to Reopen was timely filed, that the equities favored a stay of deportation, and that he should be released from INS custody because he was not a flight risk. The INS argued that motions to reopen are highly disfavored, that the regulations do not provide an alien with the opportunity to reopen his case continuously whenever new facts arise, that Mapoy is barred from receiving the relief he seeks because he stayed past his voluntary departure date, and that Mapoy was a flight risk. In a Memorandum Opinion and Order dated November 26, 1997, the district court found that it had jurisdiction, found that the Motion to Reopen was timely filed, enjoined the Immigration and Naturalization Service (INS) from deporting Mapoy until the BIA had considered the merits of his Motion to Reopen, and directed the INS to release Mapoy on bond from custody pending resolution of his motion. On December 1, 1997, the district court remanded the case to the BIA for reconsideration of Mapoy's motion.⁴ The INS filed a notice of appeal on January 23, 1998.

II.

We first must consider whether the district court correctly asserted subject matter jurisdiction over Mapoy's complaint and habeas petition. The district court's assertion of jurisdiction is a legal determination that this Court reviews de novo. See Yarnevic v. Brink's, Inc., 102 F.3d 753, 754 (4th Cir. 1996); Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994). Although Congress possesses plenary power to restrict the jurisdiction of the federal courts over immigration decisions, see Carlson v. Landon, 342 U.S. 524, 537 (1952), aliens held in custody of federal immigration officials have traditionally been able to obtain review of all administrative decisions by petitioning for a writ of habeas corpus, see Heikkila v. Barber , 345 U.S. 229, 234-35 (1953) (upholding Congress's authority to preclude judicial intervention in deportation cases, but recognizing that aliens could attack deportation orders by habeas corpus).

Enacted on September 30, 1996, IIRIRA altered the way in which aliens could obtain judicial review of deportation orders. Section 306 of IIRIRA repealed the entire judicial review scheme in INA § 106, codified at 8 U.S.C. § 1105a, and replaced it with a new judicial review scheme in INA § 242, codified at 8 U.S.C. § 1252. See IIRIRA § 306. Significantly, this new judicial review scheme limits judicial review of particular claims to the provisions for review contained in § 242. New INA § 242(g) provides that:

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.

8 U.S.C.A. § 1252(g) (West 1999). Section 1252(g) went into effect on April 1, 1997, see INS v. Yang, 117 S. Ct. 350, 352 n.1 (1996), while Mapoy's petition for review of the Voluntary Departure Order was pending in the Ninth Circuit. Co...