Seale v. I.N.S.

• Decision Date: 14 March 2003
• Docket Number: No. 02-1431.,02-1431.
• Citation: 323 F.3d 150
• Parties: Michael A.R. SEALE, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 150

323 F.3d 150

Michael A.R. SEALE, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.

No. 02-1431.

United States Court of Appeals, First Circuit.

Heard January 8, 2003.

Decided March 14, 2003.

Albert F. Cullen, Jr., for appellant.

Mary Jane Candaux, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, and Ernesto H. Molina, Jr., were on brief for appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The Appellant, Michael Seale ("Seale"), appeals from the dismissal of his habeas petition. Seale, an alien, petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1994 & Supp. V), asserting that the order of removal (deportation) lodged against him based on a 1987 aggravated felony conviction constituted an improper retroactive application of the current immigration statute and a violation of the constitutional protections contained in the Ex Post Facto and Double Jeopardy Clauses. Rejecting the Immigration and Naturalization Services' ("INS") contention that the court lacked subject matter jurisdiction over Seale's petition, the district court ruled both that it had jurisdiction and that Seale's statutory and constitutional objections to his order of removal were without merit. We affirm, concluding that our decision in Sousa v. INS, 226 F.3d 28 (1st Cir.2000), foreordains the outcome on the merits. Because, under principles of stare decisis, our decision in Sousa is controlling, we need not and do not determine the more difficult and novel issue of whether or not the district court had subject matter jurisdiction under 28 U.S.C. § 2241.

I. Background

In 1980, Seale, a native of Barbados, was admitted to the United States as a permanent resident. On October 28, 1987, he was convicted in Plymouth Superior Court, a Massachusetts state court, of assault with intent to murder and was sentenced to a ten-year term of imprisonment. On November 6, 1997, the INS commenced removal proceedings against Seale, alleging removability as an alien convicted of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(iii) (1999). On April 20, 1999, an immigration judge determined Seale to be removable. Seale appealed from that decision to the Board of Immigration Appeals ("BIA"). On October 6, 1999, the BIA dismissed the appeal. Seale did not appeal from the BIA's determination to the United States Court of Appeals as permitted under 28 U.S.C. § 1252 (1999). See Sousa, 226 F.3d at 31.

On November 29, 1999, Seale brought a federal habeas petition pursuant to 28 U.S.C. § 2241 challenging the order of deportation on statutory and constitutional grounds. Seale contends that he is not deportable as a matter of statutory and constitutional law because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C., tit. III-B, 110 Stat. 3009-546 ("IIRIRA"), provision requiring the deportation of aggravated felons may not be applied retroactively. According to Seale, Congress did not make clear its intent to require the removal of aliens convicted of aggravated felonies prior to November 18, 1988, the date that the term "aggravated felony" first entered the immigration lexicon. He further argues that the order of removal violates the Ex Post Facto Clause and the Double Jeopardy Clause.

The INS moved to dismiss the habeas petition arguing that the district court lacked subject matter jurisdiction to hear the petition and, in any event, that the petition lacked merit. While the district court determined that it had subject matter jurisdiction, it concluded that Seale's substantive arguments failed as a matter of law. Seale thereupon filed a timely notice of appeal.

II. Discussion

A. Subject Matter Jurisdiction

Given the Supreme Court's recent admonishment that federal courts should, in most cases, avoid reaching the merits of a case prior to determining their subject matter jurisdiction, Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), our decision, see infra, not to address the district court's conclusion that it had habeas jurisdiction warrants explanation.¹ The basis of that decision is twofold: (1) the question of whether the district court has subject matter jurisdiction is close and, for us, one of first impression; and (2) precedent already existing in this circuit, in particular Sousa, 226 F.3d at 33-34, conclusively resolves against Seale his objections to the order of removal; our merits ruling here is thus "foreordained" and does not create new precedent. In such circumstances, the rule in Steel Co. requiring a definitive jurisdictional assessment may be circumvented, see infra.

The INS contends that the district court lacks subject matter jurisdiction to hear Seale's claims under 28 U.S.C. § 2241 because Congress, when it enacted IIRIRA placed jurisdiction exclusively in the courts of appeals for review of final orders of removal. See 8 U.S.C. 1252(a)(1); 28 U.S.C. § 2342 (1994 & Supp. VI). The INS argues that notwithstanding the jurisdiction-stripping language of 8 U.S.C. § 1252(a)(2)(C)², Seale's statutory and constitutional claims regarding his status as an aggravated felon could have been decided (had Seale sought direct review) by the court of appeals, as part of its jurisdictional inquiry relative to review of the final order. This being so, the INS says there is no justification for us to find the existence of habeas jurisdiction over the same order of removal, given Congress's vesting of exclusive jurisdiction over final removal orders in the courts of appeals, see § 1252(a)(1), and its express denial to courts of jurisdiction over deportation orders against an alien removable for committing an aggravated felony. See § 1252(a)(2)(C).

Neither the Supreme Court nor this court has had occasion to decide whether the district court has habeas jurisdiction over a removal order where an alien's objection to the order would also have been susceptible to adjudication in the courts of appeals in a statutory direct review proceeding. A majority of the Supreme Court has ruled, when no substitute process was available, that the district court retained habeas jurisdiction under 28 U.S.C. § 2241 to review an alien's objections to a final order of removal. INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The St. Cyr Court stated that "a serious Suspension Clause issue would be presented if we were to accept the INS's submission that the 1996 statutes have withdrawn [habeas] power from federal judges and provided no adequate substitute for its exercise." Id. at 305, 121 S.Ct. 2271. The Court went on to state:

If it were clear that the question of law could be answered in another forum, it might be permissible to accept the INS' reading of § 1252. But the absence of such a forum, coupled with the lack of clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions.

Id. at 314, 121 S.Ct. 2271. In this circuit's case of Carranza v. INS, 277 F.3d 65 (1st Cir.2002), the case relied on by the district court to support habeas jurisdiction here, we determined that the alien's complaints were beyond our own jurisdiction and transferred the matter to the district court for consideration in the form of a habeas petition. Id. at 67.

In arguing now that, despite the prohibition of § 1252(a)(2)(C), Seale's claims could have been adjudicated by this court on direct review of a final order, the INS relies upon holdings of this and other circuits that permit the courts of appeal to adjudicate those factors needed to trigger the jurisdiction-stripping provision in aggravated felony cases. Sousa, 226 F.3d at 31 (citing cases); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir.2000). We have held that a court of appeals should determine, as a threshold matter, if the alien is within the category of aliens removable because of conviction for a qualifying crime. Sousa, 226 F.3d at 31; Fierro v. Reno, 217 F.3d 1, 3 (1st Cir.2000).³ If not — as Seale contends is so here, because his conviction predates the laws deporting aliens for aggravated felonies — the courts of appeals retain the power under 8 U.S.C. § 1252 to stay deportation. Only if found to be an alien properly removable for an aggravated felony would Seale fit within the exception of § 1252(a)(2)(C) stripping the courts of any further review jurisdiction. Like courts in other circuits, we have in fact adjudicated contentions like Seale's upon direct review of a final order of removal. Sousa, 226 F.3d at 31 (concluding that § 1252(a)(2)(C) is not a "bar to our considering Sousa's claim that he is not removable as an aggravated felon" as part of our jurisdictional inquiry); see also Bell v. Reno, 218 F.3d 86, 89 (2d Cir.2000).

Whether, therefore, the district court now has habeas jurisdiction turns on whether the ability of the court of appeals to have adjudicated Seale's claim in a direct review proceeding has the effect of eliminating habeas corpus as an alternate remedy. At least one of the circuit courts has answered "no" to this question, holding insufficient the mere availability of jurisdictional review in the courts of appeals. See Kuhali v. Reno, 266 F.3d 93, 100-01 (2d Cir.2001). In support of this outcome, we note that the St. Cyr majority did not rest solely on the fact that the petitioner there would have no remedy without habeas corpus, but also held that the language in 8 U.S.C. § 1252(a)(2)(C) depriving any court of "jurisdiction to review" final removal orders was insufficient to...