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June 18, 1997

JORGE VARGAS, Plaintiff,
JANET RENO, et al., Defendants.

The opinion of the court was delivered by: BREWSTER

 This matter came on for hearing on plaintiff's motion for a preliminary injunction and petition for a writ of habeas corpus. After careful consideration of the moving and opposing papers, the Court hereby DENIES plaintiff's motion for preliminary injunction and DENIES plaintiff's petition for a writ of habeas corpus.

 I. Introduction

 The Immigration and Naturalization Service ("INS") obtained a deportation order against plaintiff Jorge Vargas, and he has initiated this suit to challenge to the validity of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") as applied to him and to prevent enforcement of the deportation order.

 II. Background

 Plaintiff Jorge Vargas ("Vargas") is a 27 year old Mexican citizen. He was born in Mexico on November 18, 1969, and immigrated to the United States when he was one month old. He has been a legal permanent resident since December 20, 1969. Complaint P 4. Vargas's entire family resides in the United States. He speaks both Spanish and English and attended elementary and high school in the United States. Complaint P 8.

 In 1991, Vargas was convicted of a felony sale of marijuana. He subsequently was convicted of two misdemeanors, one for possession of drugs and one for being under the influence of drugs. Due to the possession conviction, the INS served Vargas with an order to show cause why he should not be deported. Complaint P 9. Aliens convicted of drug offenses while in the United States become deportable. 8 U.S.C. § 1251(a)(2)(B)(1). Vargas sought a waiver of deportation pursuant to 8 U.S.C. § 1182(c). On September 12, 1995, the INS Immigration Judge ("IJ") granted plaintiff's petition for waiver of deportation pursuant to 8 U.S.C. § 1182(c). The IJ felt that it would be too harsh to deport plaintiff because he has lived here almost all of his life and his entire family lives here. Complaint P 11.

 The INS appealed this decision to the Board of Immigration Appeals ("BIA") on September 14, 1995. More than seven months later, on April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 was signed into law. The AEDPA amended the provision allowing waiver of deportation to exclude aliens convicted of drug offenses. AEDPA § 440(d) (codified at 8 U.S.C. § 1182(c)). Complaint P 13. Initially, the INS stated that it would not apply these amendments retroactively to aliens who had filed their applications for waiver prior to the enactment of the AEDPA. Complaint P 14. The Attorney General vacated this decision and ordered the INS to apply AEDPA § 440(d) retrospectively to all aliens with pending applications. See Matter of Soriano, BIA Int. Dec. No. 3289 (1996); Complaint P 15. Based on this opinion, on March 24, 1997, the BIA reversed the IJ and ordered Vargas deported. *fn1"

 The INS ordered Vargas to surrender himself on May 15, 1997 for immediate deportation. Plaintiff is not currently in custody. On May 13, 1997, Vargas filed suit in this court seeking a declaration that AEDPA § 440(d) cannot be applied retroactively and that § 440(d) violates the equal protection guarantee of the Fifth Amendment. He also seeks to enjoin the INS from deporting him. The government stipulated to a temporary restraining order preventing Vargas' deportation which has remained in effect from May 15 until the hearing on the motion for a preliminary injunction.

 III. Discussion

 A. Standard of Law

 In the Ninth Circuit, the party moving for preliminary injunctive relief or a temporary restraining order must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) "that serious questions are raised and the balance of hardships tips sharply in its favor." Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir. 1986); Apple Computer, Inc. v. Formula International Inc., 725 F.2d 521, 523 (9th Cir. 1984). As stated by the Ninth Circuit in Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1376 (9th Cir. 1985), "these two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Oakland Tribune, 762 F.2d at 1376. Under either formulation, plaintiff must show a significant threat of irreparable injury. Id.

 B. Jurisdiction to Challenge Deportation Order

 Plaintiff challenges the BIA's deportation order by seeking a writ of habeas corpus under 28 U.S.C. § 2241. Plaintiff could not directly appeal his deportation order because the AEDPA bars such appeals. "Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense . . . shall not be subject to review by any court." AEDPA § 440(a); 8 U.S.C. § 1105a(10). The Courts of Appeal previously had jurisdiction to review final deportation orders.

 The Ninth Circuit has held that § 440(a) bars direct review of deportation orders. Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996). In Duldulao, plaintiff admitted his deportability based on a firearms conviction, but sought a waiver under 8 U.S.C. § 1182(c). The BIA denied his application and he appealed to the Ninth Circuit after the enactment of the AEDPA. Id. at 397-98. The Ninth Circuit noted that Congress has the power to define the jurisdiction of the lower federal courts, and if it chooses to omit jurisdiction over deportation orders, it is free to do so. Id. at 400. "The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit." Id. The court further explained that "deportation is not a criminal proceeding and has never been held to be punishment . . . no judicial review is guaranteed by the Constitution." Id. The Ninth Circuit concluded that "since aliens have no constitutional right to judicial review of deportation orders, section 440(a) does not offend due process." Id. In a final footnote, the court left open the issue of whether § 440(a) precludes habeas review of deportation orders. "The availability and scope of collateral habeas review where the paramount law of the Constitution' may require judicial intervention was not an issue before us[.]" Id. at 400 n. 4;

 Section 440(a) states that deportation orders "shall not be subject to review by any court." This language appears to prohibit all judicial review, direct as well as collateral. In enacting the AEDPA, Congress may have intended to preclude all forms of judicial review of deportation orders and to commit them to the discretion of the INS. Traditionally, bringing a writ of habeas corpus was a valid way to challenge the validity of a deportation order. See Flores v. INS, 524 F.2d 627 (9th Cir. 1975). The issue, therefore, is whether Congress can bar deportable aliens from all avenues of judicial relief, including habeas corpus relief. Several circuits have noted that the potential presence of a habeas challenge to deportation orders renders Congress' removal of a direct appeal right acceptable. See Hincapie-Nieto, 92 F.3d 27, 31; Salazar-Haro, 95 F.3d 309, 311.

 The Supreme Court has stated that "it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993). As the Third Circuit noted in Salazar -Haro, if a deportee's constitutional rights are at stake, judicial review may not be withdrawn by statute. Salazar-Haro, 95 F.3d at 311 (citing Felker v. Turpin, 135 L. Ed. 2d 827, 116 S. Ct. 2333 (1996)). Thus, for alleged constitutional violations, there must be a judicial forum in which an alien subject to a deportation order may raise his constitutional claims. Absent such a right, the Attorney General could name aliens at random or even for some invidious reason and deport them with impunity. Aliens have a Fifth Amendment right not to be deported without due process of law, and this can only be guaranteed if there is judicial review of deportees' constitutional claims.

  Moreover, to disallow habeas review of deportation orders would run afoul of the Suspension Clause of the Constitution. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. Art I, § 9, P 2. Aliens such as Vargas who are subject to imminent deportation, even though they are not yet in physical custody, have standing to bring a petition for a writ of habeas corpus. Flores, 524 F.2d 627. Such aliens are faced with sufficient immediacy of action and interference with freedom to support habeas corpus jurisdiction. Id. In order to constitutionally suspend the right of these aliens to bring a petition for a writ of habeas corpus, there must be an invasion or rebellion. Clearly, there is currently no invasion or rebellion, so Congress must not have intended to suspend the writ of habeas corpus. Further, 28 U.S.C. § 2241 extends the right to petition for a writ of habeas corpus to resident aliens such as plaintiff who are subject to imminent deportation. Given that there are two conflicting interpretations of the interplay between 28 U.S.C. § 2241 and AEDPA § 440(a), and one of the interpretations would lead to an unconstitutional result, Congress must not have intended that result. Congress must not have intended to suspend the right of aliens in imminent danger of deportation to petition the courts for a writ of habeas corpus.

 Six district courts have addressed this issue and all have concluded that the AEDPA has not revoked § 2241 as it applies to aliens held in custody pursuant to an order of deportation. See Yesil v. Reno, 958 F. Supp. 828, 1997 WL 86391 at *9-*11 (S.D.N.Y. 1997); Eltayeb v. Ingham, 950 F. Supp. 95, 98-99 (S.D.N.Y. 1997); Veliz v. Caplinger, 1997 U.S. Dist. LEXIS 1655, 1997 WL 61456 at *2 (E.D.La. 1997); Powell v. Jennifer, 937 F. Supp. 1245, 1252-53 (E.D. Mich. 1996); Dunkley v. Perryman, 1996 U.S. Dist. LEXIS 11634, 1996 WL 464191 at *2-*3 (N.D. Ill. Aug. 9, 1996); Mbiya v. INS, 930 F. Supp. 609, 612 (N.D. Ga. 1996).

 The Court finds that § 440 of the AEDPA does not preclude the Court from reviewing plaintiff's constitutional claims upon a ...

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