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December 8, 1999


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



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 petition.


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 provides:*fn1

  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 Circuit.

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 jurisdiction survives. 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 American-Arab Committee.

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." Ibid.

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 ...

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