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May 21, 1999


The opinion of the court was delivered by: Whelan, District Judge.



On April 29, 1999 petitioner Ramon Maldonado filed a writ of habeas corpus arising under 28 U.S.C. § 2241. On May 12, 1999 petitioner filed an application for a temporary restraining order ("TRO") seeking to stay his deportation pending resolution of petitioner's writ. On May 13, 1999 the government opposed petitioner's TRO request and petitioner's request for habeas relief. Both parties are represented by counsel. For the reasons expressed below, petitioner's request for a stay of deportation is DENIED AS MOOT and his petition for a writ of habeas corpus is DISMISSED for lack of subject matter jurisdiction.


Petitioner is a native and citizen of Mexico who was lawfully admitted to the United States on May 25, 1972. On December 17, 1996 petitioner was convicted of infliction of corporal punishment to a spouse*fn1 with an enhancement due to a prior violation and sentenced to two years in custody. On February 11, 1998 petitioner was released from criminal custody. On February 12, 1998 petitioner was placed in removal proceedings by the INS after being served and charged with removability under Immigration and Naturalization Act ("INA") Section 237(a)(2)(A) (iii) [8 U.S.C. § 1227(a)(2)(A) (iii)] as an alien convicted of an aggravated felony and under Section 237(a)(2)(E)(I)] [ 8 U.S.C. § 1227(a)(2)(E)(I)] as an alien convicted of spousal abuse.

On April 30, 1998 a hearing was held before an Immigration Judge during which petitioner attempted to submit an application for waiver of deportation under Section 212(c) of the former immigration act. The Immigration Judge found petitioner ineligible for § 212(c) relief based on the Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-132, 110 Stat. 3009-546 ("IIRIRA"). Petitioner's order of removal became final when the Board of Immigration Appeals (BIA) denied petitioner's appeal on March 25, 1999.

On April 29, 1999 petitioner filed a writ of habeas corpus seeking relief from removal.*fn2 On April 30, 1999 this court issued an Order to Show Cause requiring the government to file a return to petitioner's habeas corpus request. On May 12, 1999 petitioner submitted a request for a temporary restraining order ("TRO") seeking to stay execution of the INS' final removal order pending resolution of his habeas corpus petition. On May 13, 1999 the government filed a return to petitioner's TRO and habeas request. On May 14, 1999 the court was informed that petitioner would not file a traverse.


"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, ___, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998)(quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)). Accordingly, federal courts are under a continuing duty to confirm their jurisdictional power and are "obliged to inquire sua sponte whenever a doubt arises as to [its] existence. . ." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977)(citations omitted).


Respondent contends that the court's subject matter jurisdiction under 28 U.S.C. § 2241 has been revoked by several jurisdiction-removing provisions in IIRIRA, specifically provisions in INA § 242(a) and (b).

Sections 309(c)(1) and 309(a) of IIRIRA provide that the jurisdictional limitations contained in INA § 242(a) and (b) became effective on April 1, 1997. See IIRIRA §§ 309(c)(1) & (a), Pub.L. No. 104-208, 110 Stat. 3009. Accordingly, since the INS did not commence removal proceedings against petitioner until February 12, 1998-over ten months after the effective date of IIRIRA-the permanent jurisdictional provisions of the act (and not the transitional rules under IIRIRA or AEDPA) apply to this case.

Statutes precluding or restricting judicial review are not favored, and courts will generally presume Congress did not intend to eliminate existing avenues of judicial review absent "`clear and convincing evidence' of a contrary legislative intent."

Lindahl v. Office of Personnel Management, 470 U.S. 768, 778, 105 S.Ct. 1620, 1626, 84 L.Ed.2d 674 (1985)(quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)). However, the presumption favoring judicial review may be overcome "by specific language or specific legislative history that is a reliable indicator of congressional intent," or "by specific inferences of intent drawn from the statutory scheme as a whole." Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270 (1984). "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Id. at 345, 104 S.Ct. at 2453-54.*fn3

Courts will generally interpret jurisdictional statutes to permit judicial review if the language is reasonably susceptible to such a construction. See Lindahl, 470 U.S. at 779-80, 105 S.Ct. at 1627 (statute providing that administrative agency's determinations concerning "questions of disability and dependency . . . are final and conclusive and not subject to review" applied only to factual determinations). In addition, whenever "fairly possible," courts will narrowly construe jurisdiction-limiting statutes to avoid constitutional questions and to preserve judicial review over constitutional issues. See, e.g., Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974)(statute providing that agency's decision "on any question of law or fact . . . shall be final and conclusive" did not expressly preclude jurisdiction over constitutional issues); Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988)(statute providing that agency's employee discharge decisions were "committed to agency discretion by law" did not preclude jurisdiction over constitutional claims brought by discharged employee). of course, this principle of constitutional avoidance has its limits: courts "cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question." United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985)(quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933)); United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985)("Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature.").



INA Section 242, as amended by IIRIRA, is a comprehensive statute governing judicial review of final orders of removal. Specifically, INA § 242(a)(1) states that "[j]udicial review of a final order of removal . . . is governed only by chapter 158 of Title 28, except as provided by [INA § 242(b)]". 8 U.S.C. § 1252(a)(1). The reference to chapter 158 of Title 28 refers to the Hobbs Act, a statute which provides judicial review of administrative agency decisions in the court of appeals. See 28 U.S.C. § 2341-2351.

Subsection (b) is the core of INA § 242, defining the contours of judicial review conferred by § 242(a)(1). INA § 242(b)(1) and (b)(2) require the petitioner to file his or her petition for review with the court of appeals within 30 days of the date of the final order of removal. 8 U.S.C. § 1252(b)(1)-(2). INA § 242(b)(4) specifies the scope and standard of review, requiring the court of appeals to limit its review to the administrative record and to afford considerable deference to the administrative agency's factual determinations and decisions concerning an alien's eligibility for admission to the United States as asylum. 8 U.S.C. § 1252(b)(4). Under INA § 242(b)(5), if a petitioner makes a reasonable ...

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