Richardson v. Reno, 98-4230.

• Decision Date: 14 July 1999
• Docket Number: No. 98-4230.,98-4230.
• Parties: Ralph RICHARDSON, Plaintiff-Appellee, v. Janet RENO, Attorney General of the United States; Doris Meissner, Commission, Immigration and Naturalization Service; Robert Wallis, Acting District Director, Immigration and Naturalization Service; United States Immigration and Naturalization Service; United States Department of Justice; and Executive Office of Immigration Review, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

180 F.3d 1311

Ralph RICHARDSON, Plaintiff-Appellee, v. Janet RENO, Attorney General of the United States; Doris Meissner, Commission, Immigration and Naturalization Service; Robert Wallis, Acting District Director, Immigration and Naturalization Service; United States Immigration and Naturalization Service; United States Department of Justice; and Executive Office of Immigration Review, Defendants-Appellants.

No. 98-4230.

United States Court of Appeals, Eleventh Circuit.

July 14, 1999.

Thomas E. Scott, U.S. Attorney, Adalberto Jordan, Miami, FL, David J. Kline, Deputy Director, Ernesto H. Molina, Jr., David V. Bernal, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for Defendants-Appellants.

Helena Marie Tetzeli, Ira Kurzban, Kurzban, Kurzban, Weinger & Tetzeli, PA, Miami, FL, for Plaintiff-Appellee.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.^*.

HULL, Circuit Judge:

This case is before us on remand from the Supreme Court.¹ On June 1, 1999, the Court granted certiorari in this case, vacated our judgment, and remanded the case for further consideration in light of Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940, pet. for reh'g denied, ___ U.S. ___, 119 S.Ct. 1498, 143 L.Ed.2d 652 (1999). Richardson v. Reno, ___ U.S. ___, 119 S.Ct. 2016, ___ L.Ed.2d ____ (1999).

I. PROCEDURAL UPDATE

After we issued Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998) ("Richardson I"), the Supreme Court decided American-Arab. Following American-Arab, Richardson asked us to recall our mandate. On May 4, 1999, citing Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), we noted that the Supreme Court has restricted the circumstances under which a court of appeals can recall its own mandate. However, recognizing the effect of American-Arab on our opinion in Richardson, we noted in a published order dated May 4, 1999, that "we would welcome ... an opportunity to revisit our decision in Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998), in light of the Supreme Court's decision in" American-Arab. Richardson v. Reno, 175 F.3d 898 (11th Cir.1999).

On June 1, 1999, the Supreme Court granted certiorari in this case, vacated our judgment, and remanded the case for further consideration in light of American-Arab. Richardson v. Reno, ___ U.S. ____, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (1999). After review, we reaffirm the holding in Richardson I that IIRIRA's amendments to the INA preclude § 2241 habeas jurisdiction over Richardson's petition challenging his removal proceedings, which commenced after IIRIRA's effective date and his denial of bond and parole by the INS District Director without an individualized hearing before the immigration judge. In support of this holding, we readopt and reaffirm the reasoning in Richardson I except to the extent it relied on INA § 242(g) to support its holding. As discussed below, we find that IIRIRA's amendments to the INA, independently of § 242(g), channel judicial review of the INS' detention of Richardson and other issues in his removal proceedings exclusively into the judicial review provided under the INA. See American-Arab, 525 U.S. at ____, 119 S.Ct. at 943.

II. DISCUSSION

In Richardson I, we held that IIRIRA repeals district-court jurisdiction to issue writs of habeas corpus under § 2241 to aliens challenging their removal from the United States or their detention while awaiting removal. 162 F.3d at 1378-79.² In reaching this conclusion, we emphasized INA § 242(g), which 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 Act.

8 U.S.C. § 1252(g) (Supp.1998). We reasoned in Richardson I that this "sweeping language" illustrated congressional intent to consolidate the judicial review of removal proceedings into the INA's judicial-review scheme, and that INA § 242(g) "expressly repeals any and all jurisdiction except that conferred by INA § 242" including § 2241 habeas jurisdiction. 162 F.3d 1358-59.

The Supreme Court's decision in American-Arab holds that INA § 242(g) does not apply to the "universe of deportation or removal claims." 119 S.Ct. 943. The Court in American-Arab narrowly construed INA § 242(g) as applying only to these three discrete actions described in INA § 242(g): the "decision or action" to (1) "commence proceedings," (2) "adjudicate cases," or (3) "execute removal orders." 525 U.S. at ____, 119 S.Ct. at 943. Richardson's § 2241 petition does not involve any of these three discrete actions. Therefore, in light of American-Arab, we find that INA § 242(g) does not apply in this case.

Importantly, however, our holding in Richardson I did not rest exclusively on INA § 242(g). Instead, we concluded that the extensive revisions to the judicial review of removal proceedings enacted by IIRIRA and the AEDPA, viewed together, repealed § 2241 jurisdiction over petitions challenging removal proceedings. In particular, we relied on the overall judicial review scheme enacted in INA § 242(b). We did cite INA § 242(g) as an expression of congressional intent to streamline and consolidate the judicial review of immigration matters. However, in addition to INA § 242(g), we relied on such provisions as the AEDPA's repeal of habeas under former INA § 106(a)(10) and the express provision for limited habeas jurisdiction created by INA § 242(e)(2). Richardson, 162 F.3d at 1358 ("The elimination of INA § 106(a)(10)'s habeas corpus review by the AEDPA further evidences congressional intent to preclude statutory habeas corpus review over immigration decisions."); Id. at 1357 (noting that "INA § 242(e)(2) provides for statutory habeas review under the INA in this narrowly limited situation. This evidences Congress' ability to create statutory habeas review under the INA when it so desires."). Furthermore, we noted that "INA § 242(b)(2) provides that the venue for judicial review is only in the court of appeals." Id. at 1354.

More specifically, in Richardson, we also relied on INA § 242(b)(9) in support of our conclusion. We noted that INA § 242(b)(9) consolidates the time and manner of judicial review of "all questions of law and fact" in removal proceedings:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section.

Richardson, 162 F.3d at 1354 (quoting 8 U.S.C. § 1252(b)(9)(Supp.1998)). INA § 242(b)(9) instructs that "all questions of law and fact" includes all "interpretations and application of constitutional and statutory provisions." Id. In Richardson I, we also recognized that INA § 242(b)(9) provides clear evidence of Congress' desire to "abbreviate judicial review to one place and one time: only in the court of appeals and only after a final removal order and exhaustion of all administrative remedies." 162 F.3d at 1354; see also 162 F.3d at 1373 ("In addition to retaining a mandatory exhaustion provision, IIRIRA added INA § 242(b)(9) which now expressly provides that judicial review is available of only `a final order.'").³ In Richardson I, we also reasoned that INA § 242(b)(9), and not just INA § 242(g), clarified the restriction on the judicial review of immigration decisions:

INA § 242(g), along with INA § 242(b)(9), should be properly understood not as an attempt to divest the courts of jurisdiction they previously possessed, but as Congress' effort to make absolutely clear what should have been apparent under the INA and AEDPA all along: that review of INS' conduct of deportation proceedings is available only after the entry of a final order of deportation, and only under the INA provisions specifically provided for that purpose.

162 F.3d at 1358.

Similarly, the Supreme Court in American-Arab, albeit in dicta, described the text of § 242(b)(9) as a "general jurisdictional limitation."

We are aware of no other instance in the United States Code in which language such as this § 242(g) has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is demonstrated by the text of § 1252(b)(9) INA § 242(b)(9) , which stands in stark contrast to § 1252(g) INA § 242(g) .

525 U.S. at ____, 119 S.Ct. at 943. The Court then characterized INA § 242(b)(9) as an "unmistakable `zipper clause'" that "channels judicial review" of INS "decisions and actions" exclusively into the judicial review provided under the INA. Id.

The Supreme Court defined the effect of the "zipper clause:" "It is a sort of `zipper' clause that says `no judicial review in deportation cases unless this section provides judicial review.'" Id. at 943. As the Supreme Court stated, INA § 242 was intended to assure that issues of law and fact are not subject to "separate rounds of litigation." Id. at 944.

Thus, after review of American-Arab and the parties' supplemental briefs on remand, we reaffirm our holding that IIRIRA precludes § 2241 habeas jurisdiction over an alien's petition challenging his removal proceedings and detention pending removal proceedings. Judicial review of the issues raised in Richardson's § 2241 petition must await a final BIA removal order and can occur in the court of appeals through a petition to review that final order. We reach this conclusion for reasons similar to those outlined in Richardson I except that we rely on INA § 242(b)(9), rather than INA § 242(g), as the expression of congressional intent to preclude §...