Olvera v. Reno

• Citation: 20 F.Supp.2d 1062
• Decision Date: 23 September 1998
• Docket Number: No. Civ.A. H-98-0001.,Civ.A. H-98-0001.
• Parties: Isidoro OLVERA, Petitioner, v. Janet RENO, et al., Respondents.
• Court: U.S. District Court — Southern District of Texas

20 F.Supp.2d 1062

Isidoro OLVERA, Petitioner, v. Janet RENO, et al., Respondents.

No. Civ.A. H-98-0001.

United States District Court, S.D. Texas, Houston Division.

September 23, 1998.

Salvador Colon, Humble, TX, for Petitioner.

Howard E. Rose, Office of U.S. Attorney, Houston, TX, for Respondents.

MEMORANDUM AND ORDER

LAKE, District Judge.

I. Introduction

Isidoro Olvera, a citizen of Mexico who has resided legally in the United States for twenty-seven years, was convicted in 1996 of possession of between fifty and two thousand pounds of marijuana. The Immigration and Naturalization Service (INS) instituted deportation proceedings, and a hearing before an immigration judge (IJ) was held on January 22, 1997. Olvera appeared without counsel, and the IJ ordered him deported. Olvera appealed to the Board of Immigration Appeals (BIA), which dismissed the case on August 21, 1997. The BIA held that because of his drug conviction, Olvera was not eligible for discretionary relief under 8 U.S.C. § 1182(c).

Olvera filed a petition for review in the Fifth Circuit Court of Appeals, which was dismissed for lack of jurisdiction on October 17, 1997. Olvera then filed a petition for writ of habeas corpus in this court on January 2, 1998. Olvera argues that the BIA's determination that he was not eligible for a § 1182(c) waiver violated his equal protection rights because other similarly situated aliens have been considered for a waiver. The INS filed a Motion to Dismiss (Docket Entry No. 6), arguing that the court has no subject matter jurisdiction. For the reasons set forth below, the INS's motion will be denied, but Olvera's petition for writ of habeas corpus will be dismissed with prejudice.

II. Subject Matter Jurisdiction

In 1996 Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 545, both of which sought to curtail federal court jurisdiction in immigration cases. Before 1996 an alien under a final deportation order could seek direct review of a decision of the BIA in the courts of appeals.¹ See 8 U.S.C. § 1105a(a) (1994); United States ex rel. Marcello v. District Director, INS, 634 F.2d 964, 968 (5th Cir.1981). If the alien was in custody he also had the option of seeking judicial review by writ of habeas corpus. See 8 U.S.C. § 1105a(a)(10) (1994); Marcello, 634 F.2d at 968-71.

Section 401(e) of the AEDPA, captioned "Elimination of Custody Review by Habeas Corpus," eliminated the old § 1105a(a)(10). 110 Stat. 1268. Section 440(a) of the AEDPA added a new § 1105a(a)(10):

Any final order of deportation against an alien who is deportable by reason of having committed [certain criminal offenses], shall not be subject to review by any court.

110 Stat. 1267-77. The criminal offenses enumerated in this provision include the drug offense for which Olvera was found deportable.

As federal courts began to assess the effect of section 440(a) on their jurisdiction, Congress enacted the IIRIRA on September 30, 1996. The IIRIRA made fundamental changes in immigration law and procedure and repealed 8 U.S.C. § 1105a (1994), replacing it with a new, more restrictive statute governing judicial review, 8 U.S.C. § 1252. See Sabino v. Reno, 8 F.Supp.2d 622, 625 (S.D.Tex.1998).² These changes do not apply, however, to aliens placed in deportation proceedings before April 1, 1997, and judicial review of such proceedings is conducted without regard to the new 8 U.S.C. § 1252. See Sabino, 8 F.Supp.2d at 631-34; IIRIRA § 309(c)(1), 110 Stat. 3009-625, amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656, 3657. The INS initiated proceedings in this case on December 2, 1996.³

The issue in this case is whether AEDPA section 440(a) prevents this court from exercising jurisdiction over Olvera's petition for writ of habeas corpus. The circuit courts have uniformly held that section 440(a) eliminated their authority to conduct direct review of deportation proceedings for the defined class of criminal aliens, which they previously exercised under 8 U.S.C. § 1105a(a). See, e.g., Williams v. INS, 114 F.3d 82, 83 (5th Cir.1997); Yang v. INS, 109 F.3d 1185, 1194-97, (7th Cir.1997); Boston-Bollers v. INS, 106 F.3d 352, 355 (11th Cir. 1997); Kolster v. INS, 101 F.3d 785, 790-91 (1st Cir.1996); Salazar-Haro v. INS, 95 F.3d 309, 311 (3d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997); Hincapie-Nieto v. INS, 92 F.3d 27, 30-31 (2d Cir.1996). The Fifth Circuit, however, in response to a constitutional challenge to section 440(a), followed the Seventh Circuit in observing that "`limited opportunity to apply for a writ of habeas corpus may remain'—at minimum `the writ that Art. 1, § 9, cl. 2 preserves against suspension.'" Williams, 114 F.3d at 84 (quoting Yang, 109 F.3d at 1195). Article 1, section 9, clause 2 of the Constitution states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Other circuits have held more generally that criminal deportees may still seek judicial review of constitutional claims. Salazar-Haro, 95 F.3d at 311 ("To the extent, therefore, that constitutional rights applicable to aliens may be at stake, judicial review may not be withdrawn by statute."); Hincapie-Nieto, 92 F.3d at 31 (concluding that section 440(a)'s repeal of direct review is constitutional on the basis of representations by the INS that some avenue of judicial relief remains available for core constitutional concerns); Kolster, 101 F.3d at 791 (same).

In the past two years numerous aliens who were barred from seeking direct review of deportation orders in the circuit courts by AEDPA section 440(a) have filed habeas corpus petitions in federal district courts. Almost without exception, the district courts have found jurisdiction to review these petitions under the traditional writ of habeas corpus statute, 28 U.S.C. § 2241.⁴ See, e.g., Gutierrez-Martinez v. Reno, 989 F.Supp. 1205 (N.D.Ga.1998); Morisath v. Smith, 988 F.Supp. 1333 (W.D.Wash.1997); Jurado-Gutierrez v. Greene, 977 F.Supp. 1089 (D.Colo. 1997); Ozoanya v. Reno, 968 F.Supp. 1 (D.D.C.1997); Vargas v. Reno, 966 F.Supp. 1537 (S.D.Cal.1997); Sanchez v. District Director, INS, 962 F.Supp. 1210 (D.Neb.1996); Yesil v. Reno, 958 F.Supp. 828 (S.D.N.Y. 1997). Section 2241(c)(1), which is descended directly from the Judiciary Act of 1789, authorizes federal courts to grant a writ of habeas corpus to a prisoner "in custody under or by color of the authority of the United States."⁵

Some courts have relied on Ex parte Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1868), and Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), as a basis for concluding that Congress did not speak clearly enough in AEDPA section 440(a) to repeal habeas jurisdiction under § 2241. See, e.g., Gutierrez-Martinez, 989 F.Supp. at 1209; Morisath, 988 F.Supp. at 1339; Yesil, 958 F.Supp. at 838. Both Yerger and Felker construed statutes that narrowed the Supreme Court's jurisdiction in habeas cases. The statute at issue in Yerger prohibited direct appeals to the Supreme Court of habeas decisions by lower courts. See 75 U.S. (8 Wall.) at 105. In Felker the statute at issue prohibited appeals and petitions for certiorari from decisions by the circuit courts to grant or deny motions for leave to make a successive habeas application. See 116 S.Ct. at 2337-39. In both cases the Supreme Court concluded that Congress had not repealed its jurisdiction to hear original habeas petitions under § 2241. In contrast to the narrow jurisdictional proscriptions at issue in Yerger and Felker, however, AEDPA section 440(a) contains a categorical prohibition on judicial review "by any court."⁶ This court concludes that section 440(a) expressly repeals all federal court jurisdiction over the deportation orders of the defined class of criminal aliens, including jurisdiction under § 2241. Nevertheless, because the Fifth Circuit said in Williams that the Constitution prevents Congress from suspending the writ of habeas corpus for the class of criminal deportees to which Olvera belongs, 114 F.3d at 84, the court must assume that habeas jurisdiction is constitutionally required in this case despite the language of section 440(a).⁷

III. Scope of Review

Among the district courts that have found jurisdiction to review deportation orders under § 2241, there has been considerable debate over the proper scope of review. See, e.g., Mbiya v. INS, 930 F.Supp. 609 (N.D.Ga.1996) (holding that courts may only review claims for "fundamental miscarriage of justice"); Mojica v. Reno, 970 F.Supp. 130 (E.D.N.Y.1997) (holding that courts may review nonconstitutional claims). The precise scope of review need not be determined in this case, however, because courts are generally agreed that jurisdiction under § 2241 must extend at least to claims of substantial constitutional error. See Sabino, 8 F.Supp.2d at 638 (citing cases). Olvera's claim that the BIA violated his equal protection rights raises the possibility of substantial constitutional error.⁸

IV. Equal Protection Challenge

The BIA held that Olvera was not eligible for a discretionary waiver of deportability under 8 U.S.C. § 1182(c) (1994) because of his drug conviction.⁹ In the AEDPA Congress amended § 1182(c) to make relief unavailable to aliens who are "deportable by reason of having committed [certain criminal offenses]." AEDPA § 440(d), 110 Stat. 1277.¹⁰ The enumerated offenses are the same as those listed in AEDPA section 440(a) and include Olvera's drug offense. In order to respond to Olvera's equal protection challenge to the BIA's ruling, the court must first recount the history behind 1182(c).

When § 1182(c) was adopted as part of the 1952 Immigration and Nationality Act (INA), ...