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December 22, 2000


The opinion of the court was delivered by: Walker, U.S. District Judge.


Petitioner was deported in 1997 and illegally reentered shortly thereafter. The Immigration and Naturalization Service (INS) reinstated petitioner's previous order of deportation and plans to deport petitioner on December 22, 2000. Petitioner seeks collaterally to attack the legality of his prior order of deportation in light of legal developments occurring after his previous order became final. The court must determine whether INA section 241(a)(5), 8 U.S.C. § 1231 (a)(5), precludes such an attack and if so whether the provision is constitutional.


Petitioner is a native and citizen of El Salvador. He immigrated to the United States and was admitted on or about July 28, 1977. On or about June 17, 1993, petitioner was charged by the INS with being deportable under INA former section 241(a)(2)(A)(ii) because petitioner had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct. About a year later, petitioner applied for a waiver of deporation under INA former section 212(C). At a hearing before an Immigration Judge (IJ) on June 16, 1997, petitioner's application for 212(c) relief was pretermitted on the on the grounds that section 440(d) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub L No 104-132, 100 Stat 1214 (1996), precluded 212(c) relief for any person convicted of an aggravated felony. At the hearing, the IJ ordered petitioner deported to El Salvador. Petitioner declined to appeal that decision and was deported to El salvador on June 20, 1997.

Five months later, in November 1997, petitioner reentered the United States. He was discovered by an INS agent on or about July 20, 1999, in San Francisco county jail. On July 25, 1999, petitioner was given notice of the Attorney General's intent to reinstate his prior deportation order. On January 18, 2000, that prior order was reinstated. Meanwhile, on December 27, 1999, the Ninth Circuit decided Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). Magana-Pizano held that AEDPA section 440(d), which eliminated 212(c) for aggravated felons, should not be applied to persons in deportation proceedings when the provision was enacted on April 24, 1996. Petitioner had been in proceedings at that time.

Despite any doubt Magana-Pizano cast upon the validity of petitioner's prior deportation order, the United States indicted petitioner on January 27, 2000, for illegal reentry in violation of 8 U.S.C. § 1326. On August 4, 2000, petitioner moved to dismiss the indictment alleging that he had been denied due process when the IJ pretermitted his 212(c) application based on an erroneous legal interpretation. On August 22, 2000, the United States requested leave of court to dismiss the indictment and on August 24, 2000, leave was granted and the indictment was dismissed.

On August 28, 2000, petitioner moved to reopen his immigration proceedings on the grounds that Magana-Pizano rendered the IJ's decision not to allow petitioner to pursue 212(c) relief unlawful and that petitioner was entitled to have his application for 212(c) relief heard on the merits. The IJ denied petitioner's motion to reopen on September 6, 2000, finding that the immigration court lacked jurisdiction to hear petitioner's claim. Petitioner did not appeal the IJ's decision to the BIA but applied for and was granted a stay of deportation by the IJ, permitting petitioner to seek relief in this court.

On November 16, 2000, petitioner filed an application for a writ of habeas corpus in this court requesting that the court stay deportation and remand the matter to the IJ with instructions to conduct a 212(c) discretionary relief hearing. Petitioner claims that INA section 241(a)(5) does not apply to him but that if it does, then as applied to him, it violates the Due Process Clause of the United States Constitution.



The court has jurisdiction under 28 U.S.C. § 2241 to hear this petition. It is clear under Ninth Circuit precedent that section 2241 habeas jurisdiction in the district court remains wholly intact despite the various jurisdictional limitations of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub L No 104-208, 110 Stat 3009 (Sept 30, 1996), as amended by Act of Oct 11, 1996, Pub L No 104-302, 100 Stat 3656. Flores-Miramontes v. INS, 212 F.3d 1133, 1136 (9th Cir. 2000). Habeas remains intact because IIRIRA failed explicitly to revoke section 2241 habeas jurisdiction as required by Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Flores-Miramontes, 212 F.3d at 1136. While Flores-Miramontes found that IIRIRA had not limited habeas, the court itself limited habeas jurisdiction in cases in which direct review to the court of appeals is available. The Flores-Miramontes court stated:

To determine whether the district court or the court of appeals has jurisdiction over a claim such as the one at issue here, we must first ask whether or not § 1252(a) bars the filing of a petition for review. If it does, then the claim cannot be asserted in this court, although habeas corpus remains available in the district court. If, however, the bar does not apply and a petition for review is the appropriate procedure for resolving the issue, the petition must be heard in the court of appeals.

Flores-Miramontes, 212 F.3d at 1143. Under this rule, petitioner would be unable to bring a claim challenging his removal order in the district court if review in the court of appeals were available. In this case, review in the court of appeals is unavailable because petitioner is a criminal alien for purposes ...

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