Singh v. Reno

• Decision Date: 10 August 1999
• Docket Number: No. 98-3584,RESPONDENTS-APPELLANTS,PETITIONER-APPELLEE,98-3584
• Citation: 182 F.3d 504
• Parties: (7th Cir. 1999) SHAMSHER SINGH,, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, AND BRIAN R. PERRYMAN, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 504

182 F.3d 504 (7th Cir. 1999)

SHAMSHER SINGH, PETITIONER-APPELLEE, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, AND BRIAN R. PERRYMAN, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS-APPELLANTS.

No. 98-3584

U.S. Court of Appeals, Seventh Circuit

Argued February 17, 1999

Decided May 26, 1999

As Amended on Denial of Rehearing Aug. 10, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 582--Rudolph T. Randa, Judge. [Copyrighted Material Omitted] Harold D. Block (argued), Milwaukee, WI, for Petitioner-Appellee.

Papu Sandhu (argued), Thankful T. Vanderstar, Department of Justice, Civil Div., Immigration Litigation, Washington, DC, for Respondent-Appellant.

Before Cudahy, Coffey and Diane P. Wood, Circuit Judges.

Cudahy, Circuit Judge.

Shamsher Singh, a native of India, was admitted into the United States as a lawful permanent resident on July 11, 1988. Singh owned a food store in Milwaukee. On April 23, 1990, he got into a tussle with a customer which left the customer dead and Singh in jail, serving just under one year of a four year sentence following a state court conviction for second degree reckless homicide. On October 9, 1992, the Immigration and Naturalization Service (INS) issued an order to show cause (OSC) why Singh should not be deported pursuant to sec. 241(a)(2)(A)(i) of the Immigration and Nationality Act (INA) (redesignated INA sec. 237(a)(2)(A)(i), 8 U.S.C. sec. 1227(a)(2)(A)(i)), on the ground that he had been convicted of a crime involving moral turpitude. Evidently the INS paperwork was not in order and, in January 1994, an immigration Judge (IJ) closed the proceedings pursuant to the parties' stipulation. Singh then requested that the matter be recalendared so that it could be definitively put to rest. The INS continued to drag its feet and eventually a hearing was scheduled for late 1996. That hearing was canceled because the IJ was ill. It was subsequently rescheduled, but canceled again.

Meanwhile in 1996--while Singh's case was still pending--Congress amended the INA by way of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208, Div. C., 110 Stat. 3009. Among the significant changes introduced by the 1996 Amendments, three are immediately pertinent to this appeal: (1) judicial review of deportation orders was greatly curtailed and, in the case of certain classes of criminal aliens, virtually extinguished; (2) the availability of a discretionary waiver of deportation was denied for these classes of criminal aliens; and (3) the criminal category of aggravated felony was redefined for deportation purposes. The INS availed itself of the last of these changes to assert Singh's deportability on the ground that he had committed an aggravated felony (a category of criminal offense separate and distinct from the category of offense--a crime involving moral turpitude--originally cited by the INS). See INA sec. 101(a)(43), 8 U.S.C. sec. 1101(a)(43). After a brief hearing, on December 9, 1997, the IJ held that Singh was deportable as an aggravated felon and that he was ineligible for discretionary relief (by virtue of the second of the statutory changes noted above). The Board of Immigration Appeals (BIA) dismissed Singh's appeal as untimely. On June 8, 1998, the INS issued a "bag and baggage" letter summoning Singh to report for deportation.

Singh filed a petition for a writ of habeas corpus in the district court seeking review of his deportation order. The district court took the position that the 1996 Amendments did not foreclose habeas review and granted the petition, reasoning that AEDPA sec. 440(d) violates Singh's equal protection rights because it bars deportable criminal aliens from applying for a discretionary waiver while allowing certain excludable criminal aliens to do so. See INA sec. 212(h), 8 U.S.C. sec. 1182(h). In other words, the statute treats aliens within the same criminal class differently depending on whether they are inside the country and wish to remain or have left the country and wish to re-enter.

The government now appeals arguing that the district court lacked subject matter jurisdiction on the basis of our recent decision in LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998) (reh'g & reh'g en banc denied, Apr. 9, 1999). In LaGuerre--which was decided after the district court issued its opinion in the present case--we held that the 1996 Amendments generally foreclosed judicial review of deportation orders by way of habeas corpus. Id. at 1038-1040. However, we recognized that a safety valve remains whereby deportees can seek direct review of substantial constitutional issues in the courts of appeals. Id. at 1040. Singh now contends that he comes within the safety valve because his rights to equal protection and due process have been violated. The government maintains that Singh's constitutional claims are without merit and that, in any event, because his appeal to the BIA was untimely, Singh failed to exhaust his administrative remedies.

We find that the district court lacked subject matter jurisdiction and we therefore reverse its grant of Singh's habeas petition. However, we also find that Singh is entitled to direct review of his constitutional claims in this Court. And because Singh could not have known that he was in the wrong court--our case law pre-LaGuerre would have directed him to the district court rather than to this Court--we believe that he is entitled to another chance to argue his case.

Historically, aliens facing deportation could petition the district courts for a writ of habeas corpus. In 1961, however, Congress consolidated judicial review of deportation orders in the courts of appeals to streamline the deportation process. See LaGuerre, 164 F.3d at 1038 ("The purpose of consolidating review in the courts of appeals and thus cutting out the district courts was to thwart the dilatory tactics frequently employed by lawyers for deportable aliens.").¹ Then in 1996, Congress further curtailed judicial review. First, AEDPA sec. 440(a) amended INA sec. 106 to provide that "any final order of deportation against an alien who is deportable by reason of having committed a [covered] criminal offense . . . shall not be subject to review by any court." 8 U.S.C. sec. 1105a(a)(10) (repealed by IIRIRA, now see 8 U.S.C. sec. 1252(a)(2)(C)). Second, IIRIRA sec. 306(f)(1)(g) restricted review--for criminal and non-criminal deportees alike--in the following terms:

"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. sec. 1252(g). The Supreme Court recently recognized that sec. 1252(g) does not bar review generally but only review of the three listed discretionary decisions, namely to "commence proceedings, adjudicate cases, or execute removal orders." See Reno v. American-Arab Anti-Discrimination Committee, ___ U.S. ___, ___, 119 S. Ct. 936, 943 (1999); Parra v. Perryman, 172 F.3d 954, 957 (7th Cir.1999).

LaGuerre holds that the 1996 Amendments eliminate habeas corpus jurisdiction in cases to which they apply.² This appears to be just such a case. Singh's conviction for an aggravated felony--a covered criminal offense-- precludes the possibility of review by virtue of AEDPA sec. 440(a). In addition, since he is challenging his administrative adjudication and removal order, IIRIRA sec. 306(f)(1)(g), 8 U.S.C. sec. 1252(g) applies.³ Moreover since Singh concedes that he is detained pursuant to valid orders issued by the appropriate authorities, we need not concern ourselves here with the potential reach--noted in LaGuerre, see 164 F.3d at 1038--of the constitutional writ of habeas corpus. See U.S. Const. art. I, sec. 9, cl. 2; Parra, 172 F.3d at 957-958; Yang v. INS, 109 F.3d 1185, 1195 (7th Cir. 1997) ("Aliens may seek the writ that Art. 1 sec. 9 cl. 2 preserves against suspension. But we are reluctant to place weight on its availability, because the Supreme Court long ago made it clear that this writ does not offer what our petitioners desire: review of discretionary decisions by the political branches of government."). Thus, we conclude that the district court lacked subject matter jurisdiction to entertain Singh's habeas petition.⁴

The matter does not end there, however. The government concedes that the 1996 Amendments did not extinguish judicial review altogether. As we explained in LaGuerre, direct review in the courts of appeals remains an option for aliens wishing to challenge their deportation on constitutional grounds. Thus, "judicial review is curtailed as Congress intended, but enough of a safety valve is left to enable judicial correction of bizarre miscarriages of Justice." 164 F.3d at 1040. See also, Richardson v. Reno, 162 F.3d 1338, 1376 (11th Cir. 1998) ("a court of appeals retains jurisdiction to entertain a constitutional attack on this INA statute . . ."); Henderson v. INS, 157 F.3d 106, 119 n.9 (2d Cir. 1998) (stating that were it not for Second Circuit precedent "the members of this panel would be strongly inclined to find that the proper mechanism for judicial review is petition for review in the court of appeals"); Fernandez v. INS, 113 F.3d 1151, 1155 (10th Cir. 1997) (noting that judicial review is available for substantial constitutional errors). The genesis of this approach lies in the Supreme Court's acknowledgment that review may be implied where its absence would raise serious constitutional concerns. See Webster v. Doe, 486 U.S. 592, 603-04, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988); Czerkies v. U.S. Dept. of Labor...