Mustata v. U.S. Dept. of Justice

• Decision Date: 17 June 1999
• Docket Number: No. 97-1977,97-1977
• Citation: 179 F.3d 1017
• Parties: Marian MUSTATA; Lenuta Mustata, Petitioners-Appellants, v. U.S. DEPARTMENT OF JUSTICE; Carol Jenifer, District Director, Immigration and Naturalization Service, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

179 F.3d 1017

Marian MUSTATA; Lenuta Mustata, Petitioners-Appellants, v. U.S. DEPARTMENT OF JUSTICE; Carol Jenifer, District Director, Immigration and Naturalization Service Respondents-Appellees.

No. 97-1977.

United States Court of Appeals Sixth Circuit.

Argued Sept. 21, 1998.

Decided and Filed June 17, 1999.

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 96-00903--Gordon J. Quist, District Judge.

ARGUED: Robert F. Mirque, Sr., Grand Rapids, Michigan, for Appellants. John J. Andre, U.S. DEPARTMENT OF JUSTICE, IMMIGRATION LITIGATION, CIVIL DIVISION, Washington, D.C., for Appellees. ON BRIEF: Robert F. Mirque, Sr., Grand Rapids, Michigan, for Appellants. John J. Andre, David M. McConnell, U.S. DEPARTMENT OF JUSTICE, IMMIGRATION LITIGATION, CIVIL DIVISION, Washington, D.C., for Appellees.

Before: KENNEDY and COLE, Circuit Judges; RUSSELL, District Judge. ^*

KENNEDY, Circuit Judge.

Aliens Marian Mustata and Lenuta Mustata filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 against respondents Department of Justice and Carol Jenifer, the District Director of the Immigration and Naturalization Service. Their petition asserts that ineffective assistance of counsel violated their Fifth Amendment due process and Sixth Amendment rights during their administrative immigration proceedings. The district court held that 8 U.S.C. § 1252(g), which the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), added to the Immigration and Nationality Act, stripped the court of jurisdiction to hear the habeas petition. Relying on the recent Supreme Court decision in Reno v. American-Arab Anti-Discrimination Comm., --- U.S. ----, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AADC "), we hold that § 1252(g) does not eliminate the district court's jurisdiction over the Mustatas' petition.

I. Facts and Procedural History

Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States. They legally entered the United States in late 1991 and, shortly thereafter, applied to the Immigration and Naturalization Service ("INS") for asylum. A deportation hearing on their asylum claim before an Immigration Judge was eventually scheduled for February 14, 1996. In anticipation of the hearing, the Department of State prepared an advisory opinion concerning the conditions in Romania and the Mustatas' claim of persecution in Romania. The advisory opinion concluded that their claim of human rights abuse was without merit.

At the hearing, the Mustatas were represented by counsel. The Mustatas withdrew their asylum application and agreed to depart voluntarily the United States before November 14, 1996. ¹ The Mustatas assert that their counsel at the hearing failed to investigate their grounds for asylum and failed to present evidence supporting their asylum claim. The Immigration Judge ordered that if the Mustatas did not depart voluntarily by November 14, 1996, they would be deported.

Due to financial difficulty that prevented them from securing counsel, the Mustatas assert that they were unable to move to reopen the Immigration Judge's order until shortly before their window of voluntary departure closed. On November 4, 1996, the Mustatas filed an emergency motion to reopen their asylum claim with the Board of Immigration Appeals ("BIA"). On November 15, 1996, the BIA denied the Mustatas' motion to reopen because it was not timely filed in accordance with 8 C.F.R. § 3.2(c)(2).

On November 14, 1996, the day before the BIA denied their motion to reopen and the deadline for voluntary departure before the deportation order took effect, the Mustatas filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the district court. They claimed that ineffective assistance of counsel during their administrative immigration proceedings violated their Fifth Amendment due process and Sixth Amendment rights. The district court held that 8 U.S.C. § 1252(g), enacted by IIRIRA, stripped it of jurisdiction to hear most habeas corpus petitions, including this one, brought pursuant to 28 U.S.C. § 2241 and, for this reason, dismissed the Mustatas' petition. The Mustatas appealed.

II. Discussion

We review dismissals for lack of subject matter jurisdiction de novo. See Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). We also review questions of statutory interpretation de novo. See United States v. Stephens, 118 F.3d 479, 481 (6th Cir.1997).

We conclude that 8 U.S.C. § 1252(g) does not eliminate jurisdiction over the Mustatas' 28 U.S.C. § 2241 habeas petition. After first tracing the statutory provisions that control the effective date and retroactive application of § 1252(g), we interpret the effect of § 1252(g) on the Mustatas' petition in light of Reno v. American-Arab Anti-Discrimination Comm., --- U.S. ----, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AADC ").

Congress enacted IIRIRA in 1996. ² The effective date of most of IIRIRA's changes to the immigration laws is April 1, 1997, see IIRIRA, Pub.L. No. 104-208, § 309(a), 110 Stat. 3009-546, 3009-625 (1996), Richardson v. Reno, 162 F.3d 1338, 1360 n. 108 (11th Cir.1998), cert. granted, judgment vacated by --- S.Ct. ----, No. 98-1361, 1999 WL 105597 (U.S. June 1, 1999), and IIRIRA provides that the revised rules generally do not apply to aliens who were already in exclusion or deportation proceedings on IIRIRA's effective date, see IIRIRA § 309(c)(1). However, § 306(c)(1) of IIRIRA directs that § 1252(g) "shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." § 306(c)(1), 110 Stat. at 3009-612; see also AADC, --- U.S. at ---- - ----, 119 S.Ct. at 940-41. Although the Mustatas' immigration proceedings commenced and their habeas petition was filed before the effective date of IIRIRA, § 306(c)(1) of IIRIRA mandates retroactive application of § 1252(g) to their petition, at least in the sense that we must examine whether its substance bars their petition. We turn to that question now.

Respondents argue that § 1252(g) strips the district court and this court of jurisdiction over the Mustatas' 28 U.S.C. § 2241 habeas petition. Section 1252(g) provides as follows:

(g) Exclusive jurisdiction

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. § 1252(g).

In AADC, the Supreme Court interpreted narrowly the three actions listed in § 1252(g) in light of § 1252(g)'s purpose of protecting the Attorney General's discretionary decision to not abandon the alien removal endeavor. See 119 S.Ct. at 943-45. The Supreme Court rejected the interpretation that " § 1252(g) covers the universe of deportation claims--that it is a sort of 'zipper' clause that says 'no judicial review in deportation cases unless this section provides judicial review.' " Id. at 943. Instead, the Supreme Court explained, "what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders.' " Id. ³

To make it clear that § 1252(g) is to apply narrowly, the AADC Court listed examples of other decision or actions that occur during the deportation process to which § 1252(g) does not apply. These examples are "the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order." Id. Because some of the examples could be squeezed into one of the three listed actions if the actions were to be read expansively, the examples reinforce the Court's express statement that § 1252(g) "applies only to three discrete actions" and its description of its reading of § 1252(g) as a "narrow" one. Id. at 943, 945.

The Court's description of § 1252(g)'s purpose and why Congress would focus on these three actions also guides us in determining the reach and meaning of the three actions listed in § 1252(g)'s text. The Supreme Court explained that "[t]here was good reason for Congress to focus special attention upon" these three acts because "[a]t each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as 'deferred action') of exercising that discretion for humanitarian reasons or simply for its own convenience." Id. at 943. Because "no generous act goes unpunished," aliens had started to bring cases challenging the INS's decision not to exercise its discretion to allow aliens to stay in this country. See id. at 944. According to the Court, "[s]ection 1252(g) seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed." Id. "Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion." Id. at 944 n. 9.

With this understanding of § 1252(g), we turn to the Mustatas' claim. The Mustatas' petition for habeas corpus states that they are in "custody" ⁴ in violation of the Fifth and Sixth Amendments because "they...