Sierra v. Immigration & Naturalization, 99-1379

• Decision Date: 02 August 2001
• Docket Number: No. 99-1379,99-1379
• Parties: (10th Cir. 2001) ROLANDO MORENO SIERRA, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE; BRYAN T. GUSTAFSON; J.C. HIGGINS, Respondents-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1213

258 F.3d 1213 (10th Cir. 2001)

ROLANDO MORENO SIERRA, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE; BRYAN T. GUSTAFSON; J.C. HIGGINS, Respondents-Appellees.

No. 99-1379

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 2, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 99-K-518) [Copyrighted Material Omitted] Submitted on the briefs:^* Rolando Moreno Sierra, pro se.

Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal Public Defender, Denver, Colorado, for Petitioner-Appellant.

Mark C. Walters, Assistant Director, and Loreto S. Geisse, Attorney, Office of Immigration Litigation, Department of Justice, Washington, D.C.; and Michael E. Hegarty, Assistant United States Attorney, Denver, Colorado, for Respondents-Appellees.

Before EBEL,HOLLOWAY, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Rolando Moreno Sierra is an excludable alien¹ who is currently detained in a federal prison pending Cuba's decision to allow him back into that country. In 1998, he was recommended for parole, but he was involved in a prison fight before his release and his parole was subsequently withdrawn. He filed a pro se petition for a writ of habeas corpus, arguing that the Due Process Clause entitles him to a hearing on the withdrawal of parole and an opportunity to appeal the disciplinary conviction for fighting. The district court dismissed his petition on the merits. We hold that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C.), did not deprive us of jurisdiction to consider Sierra's petition. On the merits, we find that Sierra has received the process he is due and we therefore AFFIRM.

BACKGROUND

Sierra is a Cuban who came to the United States during the 1980 Mariel boat lift. He was paroled into the United States. Over the next twelve years, he was convicted of several crimes, including theft. Because of this criminal history, the Immigration and Naturalization Service (INS) denied his application to become a lawful permanent resident in 1987. In 1992, an immigration judge denied Sierra's application for asylum and ordered that he be excluded and deported. Sierra's appeal of this decision was summarily dismissed by the Board of Immigration Appeals. Because Cuba will not accept him back, Sierra has been detained in federal prisons for most of the last eight years.

Mariel Cubans who are being detained have their cases reviewed every year to determine whether they should be paroled. See 8 C.F.R. 212.12(g)(2). A Cuban Review Panel makes a recommendation to the Associate Commissioner for Enforcement of the INS, who has the discretion to approve parole. See id. 212.12(b), (d). This approval may be withdrawn prior to release if "the conduct of the detainee, or any other circumstance, indicates that parole would no longer be appropriate." Id. 212.12(e).

Sierra was denied parole in 1992 because of his "tendency to engage in criminal activities as reflected by [his] extensive criminal record." In 1994, he was released to a halfway house, but his parole was revoked six months later because he had violated its conditions. He was denied parole again in 1995, 1996, and 1997. While detained in prison, he was disciplined for numerous incidents, such as insolence, refusing an order, threatening others, and minor assaults.

On July 28, 1998, the Review Board recommended that he be paroled to a halfway house, noting that he had no disciplinary incidents in 1998. Before his release, however, he was cited for fighting. After a disciplinary hearing, a discipline hearing officer rejected Sierra's argument that he was acting in self-defense and upheld the charge. Sierra claims he has administratively appealed the discipline entered as a result of this hearing. Because of the fighting incident and apparently while Sierra's disciplinary appeal was pending, the Associate Commissioner for Enforcement, without a hearing, withdrew approval for Sierra's parole.

Sierra filed a petition for a writ of habeas corpus under 28 U.S.C. 2241 in the district court. In his petition, he argued: (1) he was entitled to a hearing on the parole withdrawal and (2) the Cuban Review Panel should not have withdrawn his parole while his appeal of the disciplinary decision was pending. The district court denied the petition on the merits, finding that the Due Process Clause did not entitle Sierra to a hearing on his parole withdrawal or the right to await the outcome of his appeal of the disciplinary hearing before the parole withdrawal proceeding continued.

DISCUSSION

I. Jurisdiction

We have an independent duty to examine issues relating to our jurisdiction. Ho v. Greene, 204 F.3d 1045, 1050 (10th Cir. 2000). Accordingly, we appointed counsel to represent Sierra and requested supplemental briefing on the federal courts' subject-matter jurisdiction. We now hold that IIRIRA did not strip the federal courts of jurisdiction to consider Sierra's habeas petition.²

IIRIRA added a provision to federal law restricting court review of discretionary decisions in the immigration context:

Notwithstanding any other provision of law, no court shall have jurisdiction to review --

. . .

(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under [asylum law].

8 U.S.C. 1252(a)(2)(B).

There are two reasons why this provision does not apply in this case. First, this statute addresses only "jurisdiction to review." In the immigration context, "jurisdiction to review" has a meaning distinct from "habeas corpus," and a statute stripping courts of the former does not also deprive them of the ability to hear a habeas challenge. INS v. St. Cyr, 121 S. Ct. 2271, 2285 (2001). The Supreme Court in St. Cyr concluded that the phrases "judicial review" and "jurisdiction to review" found in 1252(a)(1) and (a)(2)(C) preclude only "full, nonhabeas review," id. at 2286, and we see no reason why the same phrase in 1252(a)(2)(B)(ii) should have any greater reach. Sierra, accordingly, may proceed through a 2241 habeas petition, as he has done in this case.

Second, 1252(a)(2)(B)(ii) strips the courts of jurisdiction to review only matters falling within the Attorney General's discretion. Sierra does not seek review of the Attorney General's exercise of discretion; rather, he challenges the constitutionality of the procedures used in his parole proceeding. It is never within the Attorney General's discretion to act unconstitutionally. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (holding that statutes restricting judicial review of discretionary decisions do not preclude review of challenges to the constitutionality of INS regulations); Ho, 204 F.3d at 1052 (holding that 1252(a)(2)(B)(ii) does not bar challenges to the constitutionality of immigration statutes), overruled on other grounds by Zadvydas v. Davis, 121 S. Ct. 2491 (2001); cf. Zadvydas, 121 S. Ct. at 2497-98 (holding that " 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention").

The other jurisdictional provision of IIRIRA that is arguably implicated is found in 1226, which discusses the detention of aliens pending a decision on whether they are to be removed. It is not clear that this section applies to Sierra, who has already received a decision that he is to be removed. Cf. Ho, 204 F.3d at 1052 n.4 ("Arguably . . . 1226(e) applies only to discretionary decisions made by the Attorney General pending the entry of a final removal order.") Assuming it applies, it does not deprive us of jurisdiction. Section 1226(e) states:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

Although the wording of this section varies slightly from those sections specifically discussed by the St. Cyr Court in that it does not use the phrases "judicial review" or "jurisdiction to review," we find this difference unimportant. Section 1226(e), like 1252, does not explicitly mention habeas review or 2241. "Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal." St. Cyr, 121 S. Ct. at 2278-79. We hold that 1226(e) does not "speak[] with sufficient clarity to bar jurisdiction pursuant to the general habeas statute." Id. at 2286.

None of the other jurisdictional provisions of IIRIRA appear to apply to this case. We therefore hold that we have jurisdiction to address Sierra's 2241 habeas petition on the merits. We review de novo the district court's dismissal of the petition. Ho, 204 F.3d at 1052.

II. Merits

Sierra challenges the procedures used to withdraw his parole under the Mariel Cuban regulations, 8 C.F.R. 212.12. Specifically, he argues that he was entitled to a hearing on the withdrawal and a chance to await the appeal of his disciplinary conviction. Sierra's procedural due process arguments face a high hurdle.

Although he has been physically present in the United States for more than twenty years, Sierra is "legally considered to be detained at the border and hence as never having effected entry into this country." Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1440 (5th Cir.), amended by 997 F.2d 1122 (5th Cir. 1993). The Due Process Clause does not provide him a liberty interest in being released on parole. See Ho, 204 F.3d at 1060. Ordinarily, then, "[w]hatever...