The opinion of the court was delivered by: Whelan, District Judge.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; TERMINATING CASE FOR
LACK OF SUBJECT MATTER JURISDICTION
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.
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.
III. SUBJECT MATTER JURISDICTION — GENERAL PRINCIPLES
"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
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.").
V. THE JUDICIAL REVIEW PROVISIONS OF INA § 242
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.