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July 19, 1999


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

                           ORDER DENYING WRIT OF
                               HABEAS CORPUS

On March 19, 1999 petitioner Alireza Alikhani, through counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 ("Petition"). Petitioner is a native and citizen of Iran who became a lawful permanent resident of the United States on October 2, 1998. On April 26, 1999, respondents filed a return in opposition to the petition. Respondents filed a notice of lodgment regarding subject matter jurisdiction on May 18, 1999. In addition to a traverse, petitioner moved to strike the lodgment, or in the alternative, to file a supplemental brief in response. Petitioner's alternative request was granted and petitioner filed a supplemental brief on June 11, 1999. On June 18, 1999, petitioner requested oral argument.

I. Background

Petitioner is currently being held by INS without bond pursuant to the mandatory detention provision codified at 8 U.S.C. § 1226 (c). On April 22, 1997, petitioner pled guilty and was convicted of possession of methamphetamine for sale, an enhancement for having a firearm in the house, and of a charge of possession of phone cloning equipment. See Petition at ¶ 10. Petitioner was given a suspended sentence, and as a condition of his probation, he was sent to work furlough. See id. at ¶ 13. On October 20, 1997, petitioner was released from the California authorities directly to INS and charged with deportability on the grounds of the aggravated felony. INS released petitioner from custody on October 21, 1997, when petitioner posted a $5,000 bond.

Petitioner was arrested for a probation violation on September 18 or 19, 1998. Pursuant to a detainer filed by INS, the detaining authorities transferred custody of petitioner directly to the INS on October 21, 1998. See Respondents' Exhibits 25-27. Petitioner has remained in custody without bond.

On December 18, 1998, an immigration judge ordered petitioner removed from the United States to Cyprus, or in the alternative, to Iran. Petitioner's appeal to the Board of Immigration Appeals is still pending. The immigration judge denied petitioner's request for a change in his custody status on March 23, 1999.

II. Discussion

A. Subject Matter Jurisdiction

Prior to reaching the merits of petitioner's claims, this court must assess whether this court has subject matter jurisdiction over petitioner's writ. Absent intervening law, this court has jurisdiction pursuant to 28 U.S.C. § 2241. Respondents' and petitioner's respective positions require this court to review a number of provisions appearing in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). Accordingly, this court will turn to an examination of 8 U.S.C. § 1252 and 8 U.S.C. § 1226.

1. Section 1252(g)

It is clear to this court that 8 U.S.C. § 1252 (g) does not bar this court from hearing the § 2241 petition. Section 1252(g) states:

  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. § 1252 (g).

In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 943, 142 L.Ed.2d 940 (1999), the Supreme Court held that 8 U.S.C. § 1252 (g) should be read narrowly so as to apply only to "three discrete actions" that the Attorney General may take, namely the Attorney General's decision "to commence proceedings, adjudicate cases, or execute removal orders." Id. at 943.

The challenge to the mandatory detention provision in this case does not involve a decision to "commence proceedings," to "adjudicate cases," or to "execute" a removal order. Rather, petitioner's claims are unaffected by 1252(g) because they "constitute `general collateral challenges to unconstitutional practices and policies used by the agency.'" Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999) (quoting in part McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)). Petitioner's challenge to the mandatory detention law is therefore distinct from a petition that seeks review of the bond determination itself. Cf. Walters, 145 F.3d at 1052 n. 15 (analogizing to review of social security cases). In sum, a challenge to the constitutionality of confinement pending deportation does not address any discretionary action by the Attorney General, and "does not implicate the three categories of unreviewable decisions specified in § 1252(g)." Diaz-Zaldierna v. Fasano, 43 F. Supp.2d 1114, 1117 (S.D.Cal. 1999). Accordingly, this court finds that § 1252(g) does not deprive it of jurisdiction to hear petitioner's collateral challenges to the INS' implementation of federal law.

                          2. Section 1252(b) and
                            Section 1252(b)(9)

Respondents argue that the broad language contained in § 1252(b) divests this court of jurisdiction over any challenge to any aspect of the deportation process. This court, however, finds that § 1252(h) does not divest this court of jurisdiction over petitioner's collateral challenges to his detention. Section 1252(b) applies to a "review of an order of removal" under § 1252(a)(1). 8 U.S.C. § 1252 (b). The clear language of Section 1252(b)(1) demonstrates that it applies to final orders of removal, stating that petitions "must be filed not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252 (b)(1). District courts do not have jurisdiction over final removal orders. Rather, challenges to final removal orders are to be filed with the court of appeals for the judicial circuit "in which the immigration judge completed the proceedings." 8 U.S.C. § 1252 (b)(2).

Respondents rely on § 1252(b)(9), a section that has been referred to as an "unmistakable zipper clause," i.e. that § 1252(b)(9) regulates jurisdiction where no other specific provision applies. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 943, 142 L.Ed.2d 940 (1999). Respondents maintain that 8 U.S.C. § 1252 (b)(9) repeals this court's jurisdiction. Section 1252(b)(9) states that:

  Judicial review of all questions of law
  and fact, including interpretation and
  application of constitutional and statutory
  provisions, arising from any action
  taken or proceeding brought to remove
  an alien from the United States under
  this subchapter shall be available only
  in judicial review of a final order under
  this section. 8 U.S.C. § 1252 (b)(9)
  (emphasis added).

Although the Supreme Court reviewed the scope of § 1252(g) in American-Arab Anti-Discrimination Committee, the Supreme Court also discussed § 1252(b)(9) in that case. As described above, the Supreme Court held that § 1252(g) was not susceptible to a broad reading that would allow it to be applied to all deportation claims. In comparing the narrow scope of § 1252(g) to § 1252(b)(9), the Supreme Court indicated that § 1252(b)(9) "covers the universe of deportation claims." American-Arab Anti-Discrimination Committee, 119 S.Ct. at 943. In essence, respondents urge this court to expand the dicta of the Supreme Court so as to apply § 1252(b) and § 1252(b)(9) to an alien's habeas petition regardless of what aspect of the deportation proceeding petitioner challenges.

This court finds that the § 1252(b)(9) "zipper clause" does not deprive this court of jurisdiction over petitioner's claims regarding his detention. Section 1252(b)(9) only applies to final orders of deportation. In arguing that § 1252(b)(9) applies to any aspect of the deportation process, respondents conflate petitions addressing the final orders of removal, addressed by § 1252, with petitions addressing procedures unrelated to a final removal order such as this one, predicated on § 1226. Petitioner is not challenging the removal decision itself, but rather his detention at this time. Oftentimes, habeas petitions will be brought long before a final order of removal is entered because an individual believes that he or she is being unconstitutionally detained.

This court finds that § 1252(b)(9) is not intended to cover all challenges by an alien to all aspects of the treatment he or she receives during the deportation process. Although American-Arab indicates that § 1252(b)(9) is a zipper clause, there is no support in the statute for expanding § 1252(b)(9) beyond the scope of removal/deportation orders into the area of an alien's detention. The language of § 1252(b)(9) itself does not indicate that it applies to all claims by aliens including detention. Rather, § 1252(b)(9) specifically discusses actions or proceedings brought "to remove an alien." The language of § 1252(b)(9) therefore appears to apply to removal proceedings, and not to other issues such as detention.

The court's interpretation is consistent with the statutory scheme. Section § 1252(b)(9) appears under the heading entitled "Judicial review of orders of removal" (emphasis added). The heading under which a section appears aids a court in determining how to apply a certain section. See Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998). Section 1226 of the statute, in contrast, explicitly addresses "Apprehension and detention of aliens." The petitioner in this case is challenging his detention, not a final order of removal. The petition would appear to be governed by § 1226 by the clear language of the statute. To read § 1252(b)(9) as covering all claims, including claims regarding an alien's detention, would render § 1226 superfluous. Such an interpretation is to be avoided. See, e.g., Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).

Were respondents' position adopted, an alien in petitioner's position would be left without recourse. Petitioner is challenging his detention. If respondents are correct that § 1252(b)(9) applies to all claims, petitioner would be barred from challenging an allegedly unconstitutional detention because no final order regarding his removal has been issued. To read § 1252(b)(9) as revoking this court's jurisdiction to review constitutional challenges to collateral aspects of the deportation procedure, and to consequently immunize INS' implementation of federal immigration laws from due process challenges, "would raise difficult constitutional issues." Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (quoting Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 927 (9th Cir. 1997)). It is well-established that "when constitutional questions are in issue, the availability of judicial review is presumed, and we will not read a statutory scheme to take the `extraordinary' step of foreclosing jurisdiction unless Congress intent to do so is manifested by "clear and convincing' evidence." Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (quoting in part Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)). Instead, ...

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