The opinion of the court was delivered by: Keep, District Judge.
ORDER DENYING WRIT OF
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.
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.
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.
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.
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)
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
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)
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
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)).