United States District Court, Northern District of California
December 8, 1999
ARMANDO ROSAS-PANIAGUA, PETITIONER,
JANET RENO, ET. AL., RESPONDENTS.
The opinion of the court was delivered by: Alsup, District Judge.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Armando Rosas-Paniagua entered the United States in
1982 without inspection by an immigration officer. On December 1,
1990, his status was adjusted
to that of lawful permanent resident. On January 26, 1996,
petitioner pleaded guilty under California Vehicle Code Section
23152(b) to driving with a blood-alcohol content of .08 percent
or greater. Because it was petitioner's fourth such conviction,
the conviction constituted a felony. Cal. Veh.Code § 23175(a).
The conviction prompted the Immigration and Naturalization
Service to issue to petitioner on June 30, 1997, a notice to
appear. The notice alleged that petitioner's conviction made him
deportable by reason of having been convicted of an aggravated
felony. 8 U.S.C. § 1227(a)(2)(A)(iii). On October 8, 1997, an
immigration judge sustained the INS's allegations, and
consequently ordered petitioner removed to his native Mexico.
Petitioner then appealed to the Board of Immigration Appeals,
which upheld the immigration judge's ruling. Petitioner filed a
motion for reconsideration of the BIA's decision, which the BIA
Petitioner next filed a petition for writ of habeas corpus to
review the final removal order. Having reviewed the petition,
this Court concludes that it lacks subject-matter jurisdiction to
hear petitioner's claims. Accordingly, the Court DISMISSES the
Prior to the 1996 enactment of the Anti-terrorism and Effective
Death Penalty Act ("AEDPA") and the Illegal Immigration Reform
and Immigrant Responsibility Act ("IIRIRA"), persons seeking to
challenge the constitutionality of a final deportation order via
habeas corpus could do so under either of two procedures: Section
106(a)(10) of the Immigration and Nationality Act, then
8 U.S.C. § 1105a(a)(10); and the general statutory habeas provision of
28 U.S.C. § 2241. In replacing the old statutory scheme for judicial
review of deportation orders, the AEDPA and IIRIRA abolished the
first of those procedures. Petitioner and respondent disagree
about whether those enactments foreclosed the second. A review of
the newly-enacted framework governing judicial review of orders
of removal demonstrates that they have.
One provision that now restricts this Court's jurisdiction to
entertain petitioner's request is 8 U.S.C. § 1252(b)(9), which
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 [Section 1252].
In relevant part, the revised Section 1252 now requires that
"[j]udicial review of a final order of removal . . . is governed
only by chapter 158 of Title 28. . . ." 8 U.S.C. § 1252(a)(1). In
turn, chapter 158 of Title 28, popularly known as the Hobbs
Administrative Orders Review Act, assigns jurisdiction to review
administrative decisions exclusively to the federal court of
appeals. Thus, the only forum authorized by Congress to review
petitioner's claims is the Court of Appeals for the Ninth
Petitioner argues that the overwhelming majority of federal
courts of appeals to have considered the issue have reached the
contrary conclusion. According to petitioner, because neither the
AEDPA nor the IIRIRA explicitly abolished district court
statutory habeas jurisdiction under Section 2241, such
At first blush, the case law seems to support petitioner.*fn2
The Ninth Circuit has yet to address whether statutory habeas
corpus review of final removal orders survived the AEDPA and
IIRIRA. A preliminary opinion on the subject, Hose v. INS,
141 F.3d 932, 934-6 (9th Cir. 1998), concluded that it had not. That
opinion was withdrawn, however, pending a rehearing en banc. The
opinion issued pursuant to that rehearing expressly failed to
address "what habeas corpus remedies, if any, remain under
IIRIRA. . . ." Hose v. INS ("Hose II"), 180 F.3d 992, 995 n.
2 (9th Cir. 1999) (en banc). A later opinion on the continuing
vitality of Section 2241 habeas review of removal orders,
Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998), was
vacated by the Supreme Court for reconsideration in light of
All of the decisions that appear to support petitioner's
contention, however, are distinguishable because they arose under
the "transitional rules" governing the judicial review of removal
orders whose prosecution commenced before April 1, 1997, the date
on which the IIRIRA's permanent provisions took effect. See Hose
II, 180 F.3d at 994-5. Petitioner's case, by contrast, arises
under the IIRIRA's permanent provisions. And unlike the
transitional rules, the permanent provisions contain Section
1252(b)(9), which directs all judicial review of final removal
orders to the courts of appeals.
Those appellate courts that have examined Section 1252(b)(9)
have been impressed with its clarity of purpose. In
American-Arab Committee, the Supreme Court compared Section
1252(b)(9) to a different jurisdiction-limiting provision of the
new deportation review rules.*fn3 The Court concluded that the
provision under review in that case applied in relatively few
situations, and therefore couldn't be described as a "general
jurisdictional limitation." American-Arab Committee, 119 S.Ct.
at 943. The Court reasoned that, had Congress wished to preclude
all federal court jurisdiction under the provision under review
in that case, it would have drafted the provision to look more
like Section 1252(b)(9). "[T]hat those who enacted the IIRIRA
were familiar with the normal manner of imposing [a general
jurisdictional] limitation is demonstrated by the text of §
1252(b)(9)," the Court concluded. Ibid. The Supreme Court
further described Section 1252(b)(9) as an "unmistakable `zipper'
clause" that effectively foreclosed all "judicial review in
deportation cases unless this section provides judicial review."
The Eleventh Circuit, which also examined Section 1252(b)(9),
concluded that the provision demonstrates sufficient
"congressional intent to preclude § 2241 [statutory habeas]
jurisdiction" over final removal orders. Richardson v. Reno,
180 F.3d 1311, 1315 (11th Cir. 1999), reh'g and reh'g en banc
denied, 193 F.3d 525 (11th Cir. 1999). The Fifth Circuit has yet
to rule on Section 1252(b)(9), but has indicated a similar
conclusion. Requena-Rodriguez, 190 F.3d at 305-6 (stating that
none of the transitional
rules, which failed to abrogate district court habeas
jurisdiction over removal orders, "is nearly as explicit" as
several permanent provisions, including Section 1252(b)(9)).
A number of district courts also have concluded that the
permanent deportation review rules, in the form of Section
1252(b)(9), preclude district courts from entertaining habeas
challenges to removal orders.*fn4 Others, including at least two
in this district, have taken the opposite approach. See Tan v.
Reno, No. C 99-4000 MJJ, 1999 WL 969643, at *2-4 (N.D.Cal.
Oct.15, 1999); Tam v. Reno, No. C-98-2835 MHP, 1999 WL 163055,
at *4-7 (N.D.Cal. March 22, 1999). The first of the two courts in
this district to examine the issue, however, did so without the
benefit of Richardson. What's more, in each case the district
court relied on appellate cases interpreting the transitional
deportation review rules, rather than the permanent rules at
issue in this case. E.g., Tan, 1999 WL 969643 at *4; Tam,
1999 WL 163055 at *5.
Under the AEDPA and IIRIRA the appropriate forum for
petitioner's challenge to his final deportation order is not the
district court but the court of appeals. This Court lacks
subject-matter jurisdiction to review petitioner's claims.
Accordingly, the petition is DENIED. The Clerk of the Court SHALL
CLOSE the file.
IT IS SO ORDERED.