Vasquez v. Reno
| Citation | 97 F.Supp.2d 142 |
| Decision Date | 21 April 2000 |
| Docket Number | No. CIV. A. 00-10657-WGY.,CIV. A. 00-10657-WGY. |
| Parties | Francisco VASQUEZ, Petitioner, v. Janet RENO, Attorney General; Doris Meissner, Commissioner of the Immigration and Naturalization Service Steven J. Farquharson, District Director of Immigration and Naturalization Service, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
James C. Dragon, Lowell, MA, for Petitioners.
Frank Crowley, Immigration & Naturalization, Special Assistant U.S. Attorney, Boston, MA, for Respondents.
The Petitioner, Francisco Vasquez ("Vasquez") petitioned this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C § 2241, claiming that he is being unlawfully detained by the government in violation of the laws of the United States. The government moved to dismiss the petition pursuant to Fed.R.Civ.P. 12(b)(6) for lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue.
On April 18, 2000, the Court heard oral arguments on both the procedural bars and the merits of the petition. At that time the Court ruled that it has both subject matter and personal jurisdiction and that venue properly lies in the District of Massachusetts. At the conclusion of the hearing, however, the Court dismissed the petition on the merits. Here follows a summary of the Court's reasoning.
Vasquez is a twenty-seven year old native and citizen of the Dominican Republic who was admitted as a lawful, permanent resident on January 15, 1987. On October 21, 1993, Vasquez was convicted in Massachusetts for receiving stolen property. He served six months of an eighteen-month sentence. Based on this conviction, removal proceedings were brought against Vasquez by an Order to Show Cause dated February 2, 1999.1 He was originally detained in Massachusetts but within days of his arrest he was transferred to the Federal Detention Center in Oakdale, Louisiana. It was there that the removal proceedings and subsequent appeals took place. Because he met the statutory definition of an "aggravated felon," he was ordered removed to the Dominican Republic on September 27, 1999 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Through his attorney, Vasquez filed the necessary appeals which were denied on March 6, 2000.2 He was scheduled for removal on April 5, 2000 and filed an emergency stay of deportation and habeas petition in this district on April 4, 2000.
The Court granted the stay and heard initial oral arguments on April 5, 2000. At that time the government disputed this Court's subject matter jurisdiction to hear the petition as well as claiming lack of personal jurisdiction over the custodian and improper venue. Because of the unsettled law in this area, the Court took the matter under advisement and sought additional oral argument on April 18, 2000.
Vasquez's habeas petition contends that he is eligible for section 212(c) discretionary relief. Prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), aliens facing exclusion or deportation could seek a discretionary waiver from the Attorney General. Although an alien had no legal right to stay in the country, he was entitled to apply for a waiver and ask the Attorney General, in the exercise of her discretion, to allow him to remain here. In 1996, the availability of discretionary waivers was eliminated for individuals who, like Vasquez, had committed certain crimes. See IRRIRA § 304(b).3 The retroactive application of this provision to individuals embroiled in deportation proceedings prior to the effective dates of the amendments has been resolved in this circuit. See Wallace v. Reno, 194 F.3d 279 (1st Cir.1999); Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998). What remains unresolved by circuit precedent is whether the amendments prevent an alien, convicted of a crime prior to 1996 yet not involved in removal proceedings until after April 1, 1997, from seeking discretionary relief.
While the merits of this case present complex and serious questions, it is the procedural issues that are at the center of this dispute. In enacting AEDPA and IIRIRA, Congress severely restricted the judicial review available for aliens ordered removed and may have extinguished such review altogether in the district courts. See 8 U.S.C. § 1252. The extent of the restriction is the source of significant controversy in the courts. The government has prepared a gauntlet of jurisdictional traps through which a petitioner must run prior to having the merits of his claim heard. In the case at bar, the government contends that 8 U.S.C. § 1252 effectively repealed a district court's habeas jurisdiction and channeled all challenges to removal orders to the courts of appeals. Thus, before this Court can reach the merits, the procedural issues must be addressed.
The first question that must be addressed is one that has plagued the judiciary since the inception of AEDPA and IIRIRA — whether this Court has subject matter jurisdiction to hear this habeas petition. The government contends that the judicial review process provided for by the permanent rules in 8 U.S.C. § 1252 effectively repealed a district court's habeas review pursuant to 28 U.S.C. § 2241. This is an argument that has met with success in two circuits, see Max-George v. Reno, 205 F.3d 194, 196 (5th Cir.2000); Richardson v. Reno, 180 F.3d 1311, 1313 (11th Cir.1999), but has been rejected by a third. See Liang v. Immigration & Naturalization Service, 206 F.3d 308, 316 (3d Cir. 2000) (Sloviter, J.). The First Circuit Court of Appeals has yet to address this difficult issue directly.
The Fifth and Eleventh Circuits held that the permanent rules eliminated habeas jurisdiction in the district courts and funneled all review into the courts of appeals. Both courts relied on the Supreme Court's decision in American-Arab to rule that section 1252[b][9] was an "`unmistakable zipper clause' that `channels judicial review' of INS `decisions and actions' exclusively into the judicial review provided by INA." Richardson, 180 F.3d at 1315; see Max-George, 205 F.3d at 198 (). The Fifth Circuit went on to conclude that the "notwithstanding any other provision of law" phrase in section 1252(a)(2)(C) "clearly precludes habeas jurisdiction under 28 U.S.C. § 2241." Max-George, 205 F.3d at 198. Thus, district courts in the Fifth and Eleventh Circuit no longer have jurisdiction to hear any matter regarding the removal of aliens. Jurisdiction is exclusively in the courts of appeals, or in certain instances no review is available in any court. See 8 U.S.C. § 1252(a)(2)(C) ().
The Third Circuit viewed the reasoning and outcome in Richardson and Max-George as contrary to the dictates of the Supreme Court in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). See Liang, 206 F.3d at 320. Although the government urged the Liang court to adopt the reasoning from the Fifth and Eleventh Circuits, the court refused, see id., instead stating, "[w]e continue to believe that had Congress intended to eliminate habeas jurisdiction under § 2241, it would have done so by making its intent explicit in the language of the statute." Id. In so concluding, the court sought to avoid the "serious constitutional problems that would arise" if it were to adhere to its previous determination that section 1252(a)(2)(C) stripped the appeals court of jurisdiction over petitions for review by aliens with certain criminal convictions and then read the permanent rules to strip the district courts of habeas jurisdiction as well. See id.
While the First Circuit Court of Appeals has not ruled on subject matter jurisdiction under the permanent rules, at least one judge of the Massachusetts District Court has faced the unenviable task of divining congressional intent regarding the existence and scope of district court jurisdiction. See Carranza v. Immigration & Naturalization Serv., 89 F.Supp.2d 91, 94 (D.Mass.2000). In Carranza, Judge Keeton held that the jurisdictional limits stated in AEDPA and IIRIRA severely restricted a district court's habeas review. See id. Specifically, he ruled that "[i]nsofar as Carranza is asking this court to review a final removal order, the basis of which is the BIA's determination of the inapplicability of discretionary relief under [section 212(c)], ... both the [AEDPA] and [IIRIRA] have amended the [INA] to divest this court of jurisdiction." Id. To the extent that Carranza was seeking habeas review of his underlying criminal conviction, however, the court concluded that it had jurisdiction "to consider `fundamental constitutional questions.'" Id.; see also Mahadeo v. Reno, 52 F.Supp.2d 203, 204 (D.Mass.1999) (Stearns, J.) (). It is unclear whether Judge Keeton viewed AEDPA and IIRIRA as effectively repealing the statutory habeas jurisdiction and leaving available only the constitutional writ.
Although the First Circuit has not dealt with the issue of habeas jurisdiction under the permanent rules, it has addressed an identical question under the transitional rules. See Wallace v. Reno, 194 F.3d 279 (1st Cir.1999); Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998). The reasoning employed in both cases parallels the reasoning adopted by the Third Circuit in Liang. In Goncalves, the court relied on Felker to conclude "[t]here is no...
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