The opinion of the court was delivered by: Chesney, District Judge.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
This pro se petition for a writ of habeas corpus, brought by a
former detainee of the Immigration and Naturalization Service
("INS") pursuant to 28 U.S.C. § 2241, challenges an INS removal
order against the petitioner. Following an initial review of the
complaint, the court found that petitioner stated cognizable
claims for relief, ordered respondent to show cause why the
petition should not be granted, and denied petitioner's motion
for a stay of removal under 8 U.S.C. § 1252(f). A subsequent
motion for a stay was denied, respondent's motion to dismiss the
petition was denied, and respondent was again ordered to show
cause why the petition should not be granted. Respondent has
filed a response and petitioner has not filed a traverse.
Petitioner, a native of Bulgaria, was admitted to the United
States in October 1990. On February 23, 1998, she was convicted
of petty theft with a prior and sentenced to two years in
prison. Because of this conviction, the INS initiated removal
proceedings in 1999 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii),
which provides for removal of an alien who has been convicted of
an aggravated felony. An INS Immigration Judge found petitioner
removable on this basis on October 1, 1999. The Bureau of
Immigration Appeals ("BIA") agreed and dismissed her claim. The
BIA also found that because circumstances in Bulgaria had
changed, there was no reasonable likelihood of future torture
and her removal was not barred by the United Nations Convention
Against Torture ("UNCAT"). See 8 C.F.R. § 208.16; 208.17;
208.18 (2000). Petitioner's motion for a stay of removal in this
court was denied because petitioner did not show "by clear and
convincing evidence" that her removal was illegal. See
8 U.S.C. § 1252(f)(2). Petitioner was removed by the INS to
Bulgaria in September 2000.
This court may entertain a petition for writ of habeas corpus
from a person "in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
The court shall "award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or
person detained is not entitled thereto." 28 U.S.C. § 2243.
Summary dismissal is appropriate only where the allegations in
the petition are vague or conclusory, palpably incredible, or
patently frivolous or false. See Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990).
Petitioner's case must be analyzed under the permanent
provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub.L. No. 104-238, 110 Stat.
3009-625 (as amended by Act of October 11, 1996, Pub.L. No.
104-302, 110 Stat. 3657) ("IIRIRA") because immigration
proceedings were commenced against her in 1999, after the
effective date of IIRIRA's permanent provisions. See Kalaw v.
INS, 133 F.3d 1147, 1149-50 (9th Cir. 1997) (IIRIRA's permanent
provisions pertain to removal proceedings initiated after April
Respondent contends that the petition should be dismissed for
lack of jurisdiction. Section 1252(a)(2)(C) of Title 8 of the
United States Code provides in part: "Notwithstanding any other
provision of law, no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed a criminal offense covered in
[8 U.S.C. § 1227(a)(2)(A)(iii) . . . ]." This section governs the
jurisdiction of the federal courts of appeals to review BIA
decisions, but it does not abrogate the district court's federal
habeas corpus jurisdiction under 28 U.S.C. § 2241. See
Flores-Miramontes v. I.N.S., 212 F.3d 1133, 1135-36, 1143 (9th
Cir. 2000). Because petitioner was removable "by reason of
having committed a criminal offense covered by
8 U.S.C. § 1227(a)(2)(A)(iii)", 8 U.S.C. § 1252(a)(2)(C) may bar her from
filing a petition for direct review in the Court of Appeals.
See id. at 1143 n. 16 (declining to decide whether §
1252(a)(2)(C) precludes the Court of Appeals from exercising
jurisdiction over a claim challenging the merits of an INS
denial of relief from removal). However, that section does not
preclude review of the claims in this court under § 2241.
As explained above, § 2241 provides habeas jurisdiction over
alleged violations of the Constitution or laws or treaties of
the United States. Petitioner's three claims in this petition
are: (1) her removal is prohibited under UNCAT; (2) she received
ineffective assistance of counsel in violation of the Sixth
Amendment as to the state court conviction leading to the
removal order; and (3) her indefinite detention in county jail
pending removal without an individualized bond hearing deprived
her of due process. The second and third claims allege
violations of the federal constitution, and the first claim
asserts a violation of federal law. See U.S. Const. Amends. V,
VI; 8 C.F.R. § 208.16(c); 208.17 (UNCAT adopted into federal
law and may be basis for relief from removal); see also
Flores-Miramontes, 212 F.3d at 1135-36 (holding due process
challenge to BIA procedure falls within district court's habeas
jurisdiction). Respondent asserts that there is federal habeas
jurisdiction under § 2241 only over ...