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For Opinion See 1997 WL 55472
United States District Court, E.D. New York. Neil JEAN-BAPTISTE, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana, on be-
half of themselves and all others similarly situated, Plaintiffs, v.
Janet RENO, Attorney General of the United States of America, and Immigration and Naturalization Service, Defendants. No. CV 96 4077. August 19, 1996.
Complaint
Go, M. Johnson, J. INTRODUCTION
1. This class action lawsuit challenges the procedures employed by the defendant Immigration and Naturalization Service (hereinafter INS) with respect to the deportation of federally licensed lawful permanent resident aliens who have, in the past, been convicted of certain criminal acts after entry and lawful admission into the United States and during their continuous residence in the United States. The procedures of the INS deprive the plaintiffs herein of liberty and property without due process of law.
2. Under the provisions of the Administrative Procedure Act “ ‘license’ includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission.” The Alien Registration Card, which is issued to resident aliens by the INS, is physical evidence of a federally issued license permitting resident aliens to reenter, reside, work, travel, become United States citizen, and live permanently with their families in the United States. As licensees, permanent resident aliens have a constitutionally protected property interest and therefore cannot be deprived of their license absent due process of the law.
3. Prior to being admitted into the United States, prospective resident aliens pay a fee for their license to reside and work in the United States and thereby, acquire lawful permanent residence status. Prior to, at the time of, and after admission to the United States, under current policies and procedure of the defendants, resident aliens are not given: (1) actual notice of the future conditions under which they will be permitted to continue to reside permanently in the United States; (2) any prior notice of the grounds or conditions which could subject them to revocation of their permanent residence license and possible deportation from the United States; and (3) actual prior notice that engaging in certain types of criminal behavior is ground for the revocation of their license as well as deportation. At the time the
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INS issues and mails the Alien Registration Card (Form I-551, which is physical evidence of the alien's federally issued license), to lawfully admitted resident aliens, the INS again fails to give the resident aliens notice of the grounds under which the aliens will lose their license to reside permanently in the United States. Further, resident aliens are not given notice of the existence of any statutory provisions which provide for the revocation of the license to reside permanently in the United States and the subsequent penalty of deportation.
4. Legal permanent residence in the United States is a federally licensed status for which a fee is paid and thus, under the Due Process Clause, permanent resident aliens are entitled to prior notice of the grounds under which their license to reside permanently in the United States will be revoked.
5. Despite their obligations under the Due Process Clause of the Fifth Amendment, the defendants have adopted policies, practices or procedures that deprive the plaintiffs herein, and the member of the plaintiff class, of the right to due process of law. The defendants consistently fail to provide resident aliens, prior to the commission and conviction of a criminal act, with prior notice of the grounds under which their license to reside permanently in the United States may be revoked.
6. The policies, practices or procedures of defendants have caused, are causing and will cause irreparable harm to the plaintiffs and the proposed plaintiff class defined below. The plaintiffs are being and will be deprived of the freedom to reenter, reside, work, travel, live permanently with their families, and attend to their property within the United States, rights which the plaintiffs were formerly granted when they became permanent resident. Defendants' conduct also has had the effect of depriving the plaintiffs of their right to reside and remain “united” with their immediate families which is a declared congressional intent in enacting the Immigration and Nationality Act (hereinafter INA).
II.
JURISDICTION AND VENUE
7. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction), 2201 and 2202 (declaratory judgment and injunction), 8 U.S.C. § 1329 (disputes arising under the Immigration and Nationality Act), and 5 U.S.C. § 702 et seq. (Administrative Procedure Act).
8. An actual controversy has arisen and now exists between the parties relating to their rights and duties. No administrative remedy exists to cure the conduct alleged herein. Administrative action is futile.
9. Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(e) because the representative plaintiffs reside within the Eastern District of New York and defendants are the Attorney General of the United States charged with the enforcement of the United States immigration laws.
III.

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PARTIES
A. Plaintiffs
10. Plaintiff NEIL JEAN-BAPTISTE is a legal permanent resident of the United States with permanent residence license number A30-675-077, which entitles him to reenter, reside, work, travel, and live permanently with his family in the United States.
11. The plaintiff GUSTAVO ENRIQUE CEPEDA-TORRES is a legal permanent resident of the United States with permanent residence license number A37-760-324, which entitles him to reenter, reside, work, travel, and live permanently with his family in the United States.
12. The plaintiff VICTOR ISRAEL SANTANA is a legal permanent resident of the United States with permanent residence license number A42-094-364, which entitles him to reenter, reside, work, travel, and live permanently with his family in the United States.
C. Defendants
13. Defendant JANET RENO is the Attorney General of the United States. Pursuant to INA § 103(a), 8 U.S.C. § 1103(a), defendant Reno is charged with administering and enforcing all laws relating to immigration and naturalization and with controlling, directing and supervising the INS. Defendant Janet Reno is sued in her official capacity only.
14. Defendant IMMIGRATION AND NATURALIZATION SERVICE is an agency of the United States Department of Justice charged with implementing the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq..
IV.
CLASS ACTION ALLEGATIONS
15. This action is brought by plaintiffs as a class action, on their own behalf and on behalf of all similarly situated individuals, pursuant to the provisions of Rules 23(a) and 23(b)(1) and (b)(2), and 23(c)(4) of the Federal Rules of Civil Procedure, for injunctive and declaratory relief, and relief incident and subordinate thereto.
V.
16. The class so represented by plaintiffs in this action, and of which plaintiffs are themselves members, consists of: All licensed permanent resident aliens, arrested and convicted for the commission of criminal acts, who: (1) at the time of obtaining a permanent residence visa abroad; or (2) at the time of entry to the United States; or (3) at the time of adjustment of status to that of a lawful permanent resident; or (4) at any time prior to committing a criminal act, were not given notice by INS officials and examiners, that engaging in certain type of criminal behavior is a ground for revocation of their

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license to reenter, reside, work, travel, and live permanently with their families in the United States and would subject them to the penalty of deportation; and who will undergo deportation proceedings or are under deportation proceedings on account of a criminal conviction and have not yet been deported.
VI.
17. The exact number of members of the class, as hereinabove identified and described, is not known, but it is estimated that there are not less than 10,000 members throughout the United States. The class is so numerous that joinder of individual members herein is impracticable.
VII.
18. There are common questions of law and fact in the action that relate to, and affect, the rights of each member of the class and the relief sought is common to the entire class. Common questions of law include whether the INS' procedures, policies or practices regarding deportation of resident aliens convicted of certain criminal acts violate the Due Process Clause of the Fifth Amendment to the Constitution of the United States.
VIII.
19. The claims of plaintiffs, who are representatives of the class herein are typical of the claims of the class, in that the claims of all members of the class, including plaintiffs, depend on a showing of the acts and omissions of defendants giving rise to the right of plaintiffs to the relief sought herein. There is no conflict as between any individual named plaintiff and other members of the class with respect to this action, or with respect to the claims for relief herein set forth.
IX.
20. The named plaintiffs are the representative parties for the class, and are able to, and will fairly and adequately protect the interests of the class. The attorneys for plaintiffs are experienced and capable in litigation in the field of Immigration and Nationality Law and have successfully represented claimants in other litigation of this nature. Antonio C. Martinez will actively conduct and be responsible for plaintiffs' case herein.
X.
21. This action is properly maintained as a class action in that the prosecution of separate actions by individual members of the class would create a risk of adjudication with respect to individual members of the class which would as a practical matter be dispositive of the interest of the other members not parties to the adjudications, or would substantially impair or impede their ability to protect their interest.
22. This action is properly maintained as a class action inasmuch as the defendants herein have acted or refused to act, as hereinafter more specifically alleged, on
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grounds which are applicable to the class, and have by reason of such conduct, made appropriate final injunctive relief or corresponding declaratory relief with respect to the entire class, as sought in this action.
23. This action is properly maintained as a class action inasmuch as the question of law and fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. In support of the foregoing allegations, plaintiffs show as follows:
XI.
FACTUAL ALLEGATIONS
24. Defendant IMMIGRATION AND NATURALIZATION SERVICE is an agency of the United States Department of Justice charged with implementing the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. Defendant INS is subject to the provisions of the Administrative Procedure Act, 5 U.S.C. § 101 et seq.
25. The Alien Registration Card that is issued by defendant INS falls within the purview of the Administrative Procedure Act, § 551(8), (9) and (10) relating to the definition of license, licensing procedures, and sanctions, respectively.
26. All the members of the class paid the required fee and received a license from the INS which gives class members the right to reenter, reside, work, travel, and live permanently with their families in the United States.
Named Plaintiffs
27. Plaintiff NEIL JEAN-BAPTISTE is a national of the Republic of Haiti. He resides permanently at 135 Eastern Parkway, Apt. 8J, Brooklyn, New York, within the jurisdiction of this Court. He was born on November 27, 1969, and legally entered the United States on January 25, 1972, when he was only two years old.
28. On January 24, 1972, plaintiff NEIL JEAN-BAPTISTE, after paying a fee therefor, was granted a visa for permanent residence by the Vice Consul of the United States, American Embassy at Portau-Prince, Haiti. On January 25, 1972, the plaintiff was admitted to the United States as a lawful permanent resident. The INS issued the plaintiff license number A30-675-077, which entitles the plaintiff to reenter, reside, work, travel, and live permanently with his family in the United States. The Vice Consul Officer in Haiti, who issued the plaintiff the immigrant visa, and the INS officers and examiners at the time the plaintiff was admitted to the United States, failed to give the plaintiff or plaintiff's parents: (1) actual notice of the conditions under which the plaintiff will be permitted to reside permanently in the United States; (2) actual notice of the grounds which could subject the plaintiff to deportation from the United States; and (3) actual notice that engaging in certain type of criminal behavior constitutes ground for revocation of the plaintiff's license to reside permanently in the United States as well as ground for deportation.

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29. At the time the INS issued and mailed to the plaintiff the license for permanent residence, the INS did not give the plaintiff actual notice respecting revocation of the license to reside in the United States and the grounds for deportation. Further, the INS failed to give the plaintiff such notice when the plaintiff attained majority.
30. The plaintiff NEIL JEAN-BAPTISTE has lived almost his entire life in the United States. The plaintiff knew that he could be incarcerated for committing a crime, but did not know that he could be deported from the United States on the basis of a criminal conviction. The plaintiff's parents and siblings are all citizen of the United States and reside in this country.
31. On the basis of a guilty plea, on October 23, 1989, the plaintiff NEIL JEANBAPTISTE was convicted in the Supreme Court, Kings County, State of New York, of the offense of criminal possession of a controlled substance, in violation of section 220.18 of the New York State Penal Law.
32. On the basis of the plaintiff's conviction as aforesaid, the INS charged the plaintiff with deportation pursuant to sections 241(a) (2)(B)(i) and 241(a)(2)(A)(iii) of the (INA). The plaintiff pleaded guilty, to violating section 220.18 of the New York State Penal Law, without actual notice from the INS that his license to reside permanently the United States would thereby be revoked on the basis on his conviction.
33. On August 9, 1996, Hon. Joe Miller, Immigration Judge, after finding that the plaintiff is not eligible for any type of administrative relief from deportation, ordered that the plaintiff be deported to the Republic of Haiti.
34. The plaintiff GUSTAVO ENRIQUE CEPEDA-TORRES is a national of the Republic of Colombia. He resides permanently at 90-56 176th Street, Jamaica, New York, within the jurisdiction of this Court. He was born on October 30, 1974, and legally entered the United States when he was eight years old.
35. On October 6, 1982, plaintiff. GUSTAVO ENRIQUE CEPEDATORRES, after paying the required fee therefor, was issued an immigrant visa to enter the United States for permanent residence by the Vice Consul of the United States, American Embassy, Consular Section, Bogota, Colombia. On November 8, 1982, the plaintiff was admitted to the United States as a lawful permanent resident. The INS issued the plaintiff alien registration number A37-760-324, which constitutes a license that entitles the plaintiff to enter, reside, work, travel, and live permanently with his family in the United States.
36. The United States Vice Consul in Colombia, who issued the plaintiff the immigrant visa, and the INS officers and examiners at the time the plaintiff was admitted to the United States, failed to give the plaintiff or plaintiff's parents: (1) actual notice of the conditions under which the plaintiff will be permitted to reside permanently in the United States; (2) actual notice of the grounds which could subject the plaintiff to the penalty of deportation from the United States; and (3) actual notice that engaging in certain type of criminal behavior constitutes ground
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for revocation of the plaintiff's license to reside permanently in the United States as well as ground for deportation.
37. At the time the INS issued and mailed to the plaintiff the license for permanent residence, the INS did not give the plaintiff actual notice respecting revocation of the license to reside in the United States and the grounds for deportation. Further, the INS failed to give the plaintiff such notice when the plaintiff attained majority.
38. On the basis of a guilty plea, the plaintiff, on or about March 9, 1995, was convicted in the Supreme Court, Queens County, State of New York, of the offense of criminal sale of a controlled substance, in violation of section 220.31 of the New York State Penal Law.
39. On the basis of the plaintiff's conviction, the INS charged the plaintiff with deportation pursuant to sections 241(a)(2)(B)(i) and section 241(a)(2)(A)(iii) of the (INA).
40. On July 3, 1996, Hon. Joe Miller, Immigration Judge, after finding that the plaintiff is not eligible for any type of administrative relief from deportation, ordered the plaintiff deported to the Republic of Colombia. The plaintiff appealed the decision of the Immigration Judge to the Board of Immigration Appeals (BIA). Said appeal is still pending before the BIA. However, there are no administrative remedies available to the plaintiff to redress the injuries which the plaintiff has, and will continue to suffer as a result of the defendants' conduct. The Immigration Court and the Board of Immigration Appeals do not have jurisdiction to rule on issues of constitutional law.
41. The plaintiff VICTOR ISRAEL SANTANA is a national of the Dominican Republic. He was born on July 5, 1961. He resides permanently at 54 East Chestnut Street, Central Islip, New York, within the jurisdiction of this Court. He entered the United States, as a conditional permanent resident, when he was 28 years old on July 30, 1989.
42. Upon satisfaction of all conditions, including the payment of the required fee, the plaintiff was issued a visa for conditional permanent residence by the Vice Consul of the United States, American Embassy, Santo Domingo, Dominican Republic. The Vice Consul, who issued the plaintiff the immigrant visa, and the INS officers and examiners at the time the plaintiff was admitted to the United States, failed to give the plaintiff: (1) actual notice of the conditions under which the plaintiff will be permitted to reside permanently in the United States; (2) actual notice of the grounds which could subject the plaintiff to the penalty of deportation from the United States; and (3) actual notice that engaging in certain criminal behavior constitutes ground for revocation of the plaintiff's license to reside permanently in the United States as well as ground for deportation.
43. At the time the INS issued and mailed to the plaintiff the license for permanent residence, the INS did not give the plaintiff actual notice respecting the revocation, for the commission of crimes, of the license to reside in the United States
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and the grounds for deportation. Further, the INS failed to give the plaintiff such notice at the time the INS removed the conditions of the plaintiff's permanent residence.
44. The plaintiff, VICTOR ISRAEL SANTANA, on or about November 9, 1995, was convicted in the Supreme Court, Suffolk County, State of New York, of the offense of criminal sale of controlled substance, in violation of section 220.39 of the New York State Penal Law. On the basis of the plaintiff's conviction, the INS charged the plaintiff with deportation pursuant to Sections 241(a)(2)(B)(i) and 241(a)((2)(A)(iii) of the INA.
45. The plaintiff has completed his criminal sentence and paid his debt to society. However, the INS is holding the plaintiff at the Federal Detention Center, Oakdale, Louisiana, for purposes of deporting the plaintiff on the basis of the plaintiff's criminal conviction. On August 13, 1996, the plaintiff was ordered deported to the Dominican Republic by Hon. Duck, Immigration Judge, Federal Detention Center, Oakdale, Louisiana, after finding that the plaintiff is not eligible for any type of administrative relief from deportation, nor release from detention.
Non-Plaintiff class members
46. Non-plaintiff class member RAFAEL GREGORIO MOREL is a citizen of the Dominican Republic. He resides permanently at 218 Willow Avenue, Hackensack, New Jersey. He is currently serving sentence for a criminal conviction, related to a controlled substance, at Fishkill Correctional Facility, Beacon, New York. Mr. Morel was born on May 28, 1945. He legally entered the United States in 1958, when he was 12 years old. The INS issued Mr. Morel a license, which entitles Mr. Morel to reenter, reside, work, travel, and live permanently with his family in the United States. Mr. Morel is an honorably discharged veteran of the United States Army with 13 months active duty services in Vietnam during a period of hostilities. Mr. Morel's wife, six children, sister, brother and parents are citizens of the United States. In 1993, Mr. Morel was sentenced to a minimum of six years imprisonment for the commission of a crime related to a controlled substance. Based on information and belief, Mr. Morel is under investigation by the INS and, it is expected that the INS will charge Mr. Morel with deportation, and will stop his work release program benefits, on the basis of his criminal conviction and non-eligibility for any type of waiver of deportation.
47. Non-plaintiff class member JOSE ANTONIO ESPINAL is a citizen of the Dominican Republic. He resides permanently at 1103 Jerry Way, Summerville, South Carolina. Mr. Espinal was admitted to the United States as a lawful permanent resident on May 12, 1982, when he was fifteen years old. The INS issued Mr. Espinal license number A37-632-841, which entitles Mr. Espinal to reenter, reside, work, travel, and live permanently with his family in the United States. Mr. Espinal is married to Angelica Rodriguez, a citizen of the United States, and there are two children born of the marriage, to wit: Jonathan Antonio Espinal, born July 12, 1990, in New York City, and Jose Anthony Espinal, born on October 13, 1993, in North Charleston, South Carolina.

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48. On or about June 17, 1996, Mr. Espinal and his family went on vacation to the Dominican Republic. On July 8, 1996, when the family was returning to the United States, the INS detained and arrested Mr. Espinal at JFK International Airport, at Jaimaca, New York, and denied Mr. Espinal entry to the United States on the basis that Mr. Espinal has been convicted of a violation of law relating to a controlled substance. The defendant INS has commenced exclusion/deportation proceedings against Mr. Espinal and refuses to release Mr. Espinal on bail.
49. Non-plaintiff class member GERMAN GARCIA-HANDAL, also known as Herman GarciaHandal, is a citizen of the Republic of Honduras. He resides permanently at 1264 Croes Avenue, Bronx, New York. He was born on July 3, 1961. He entered the United States in May 1979 as a visitor for pleasure. On July 1, 1982, at New York, New York, the INS adjusted Mr. Garcia's status to that of a lawful permanent resident of the United States. The INS issued Mr. Garcia a permanent residence license number A24-027-802, which entitles Mr. Garcia to reside permanently in the United States. Mr. Garcia's family, immediate and non-immediate, live in the United States. He has a ten year old United States citizen son, David Garcia, and a United States citizen wife, Ana Garcia Parra. On or about April 29, 1994, Mr. Garcia was convicted in the Supreme Court of the State of New York, County of Bronx, of the offense of criminal sale of a controlled substance in violation of Section 220.39 of the New York State Penal Law. In December 1994, the INS charged Mr. Garcia with deportation pursuant to sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA. An Immigration has ordered that Mr. Garcia be deported from the United States.
50. Non-plaintiff class member MARTIN DE JESUS THEN is a citizen of the Dominican Republic. He resides permanently at 116 Evergreen Street, Harrisburg, Pennsylvania. Mr. Then entered the United States on or about February 25, 1981, without inspection. On May 15, 1990, at Boston, Massachusetts the INS adjusted his status to that of a lawful permanent resident. The INS issued Mr. Then a license for permanent residence number A090-566-776, which entitles him to reside permanently in the United States. On or about February 13, 1991, on a plea of nolo contendere, Mr. Then was convicted in the Superior Court, County of Providence, State of Rhode Island, of one count of simple possession of heroin and conspiracy to possess a controlled substance. On the basis of his conviction, the INS has charged Mr. Then with deportation pursuant to Sections 241(a)(A)(iii) and 241(a)(2)(B)(i) of the INA.
51. Non-plaintiff class member BOYDY DELANO BECKFORD is a citizen of the Republic of Jamaica. He was born on March 4, 1969. He resides permanently at 679 Magenta Street, Apt. 4A, Bronx, New York. He was admitted to the United States as a legal permanent resident on March 10, 1993. The INS issued Mr. Beckford a permanent residence license number A43-730-153, which entitles Mr. Beckford to reside permanently in the United States. On or about November 21, 1995, Mr. Beckford was convicted in the Supreme Court of the State of New York, County of the Bronx, for the offense of criminal sale of a controlled substance in violation of section 220.39 of the New York State Penal Law. Mr. Beckford is currently serving his sentence of one to three years of incarceration at Lakeview SICF, Brocton, New York, 14716. On the basis of his conviction, the INS, on April 26, 1996, charged Mr. Beckford with deportation under Sections 241(a)(A)(iii) and 241(a)(2)(B) (i) of the INA. An Immigration judge
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has ordered that Mr. Beckford be deported from the United States.
52. Non-plaintiff class member MANUEL JOVINO DURAN is a citizen of the Dominican Republic. He was born on August 18, 1967. He resides permanently at 2532 University Avenue, Apt. 4J, Bronx, New York. On July 23, 1982, Mr. Duran entered the United States as a nonimmigrant visitor for pleasure. On February 24, 1986, the INS adjusted Mr. Duran's status to that of a lawful permanent resident of the United States. The INS issued Mr. Duran a permanent residence license number A27-050-893, which entitles Mr. Duran to enter, reside, work, travel, and live permanently with his family in the United States. On October 31, 1988, in New York, New York, Mr. Duran was convicted of certain crimes including criminal possession of a weapon. On the basis of Mr. Duran's conviction the INS, on June 25, 1992, charged Mr. Duran with deportation under Sections 241(a)(2)(C) and 241(a)(2)(A)(iii) of the INA.
Policies and Practices.
53. On information and belief, the injuries suffered by the plaintiffs and set forth above are due to the procedures, practices or policies of the defendants, which cause plaintiffs and the class they represent to be deprived of their liberty and property without due process of law when they become eligible for work release or after completion of their sentences.
54. At each and every step of the plaintiffs' application process to secure their license as lawful permanent residents of the United States, the Defendants failed to give the plaintiffs any actual notice that engaging in certain types criminal behavior constitutes ground for revocation of the license to reside permanently in the United States as well as ground for deportation.
55. The defendants have failed to establish reasonable procedures to ensure that licensed permanent resident aliens receive, at a meaningful time, adequate and meaningful notice that engaging in certain types of criminal behavior constitutes ground for revocation of the license to reside permanently in the United States as well as a ground for their deportation. As a result, the plaintiff and the class they represent have suffered, are suffering, and will continue to suffer from the deprivation of their right to liberty and property without due process of law.
56. The defendants knew or reasonably should have known that the plaintiffs, and members of the class, did not have actual notice that their license to reside permanently in the United States could be revoked on the basis of a criminal conviction.
57. As a result of defendants' acts or failure to act, plaintiffs and the class they represent have suffered and are suffering direct and continuing injury.
XII.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
58. Plaintiffs have no administrative remedy for challenging the unlawful deprivation of their liberty and property as alleged herein.
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XIII.
IRREPARABLE INJURY
59. Plaintiffs have suffered, are suffering and will suffer irreparable harm because of defendants' challenged procedures, practices or policies as described above. Plaintiffs and the class they represent have experienced and will continue to experience improper detention, deportation, ousters under “voluntary” and “involuntary” departure, exclusions, and denials of the right to reenter, reside, work, travel, become United States citizens, and live permanently with their families in the United States.
XIV.
FIRST CLAIM FOR RELIEF
60. Plaintiffs hereby incorporate by reference paragraphs 1 through 59 of the complaint as if fully set forth herein.
61. Under the Due Process Clause of the Fifth Amendment to the Constitution of the United States, the plaintiffs are entitled to actual notice of the grounds for deportation and revocation of their license to reside permanently in the United States: (1) before lawful entry to the United States; (2) or at the time of entry or adjustment of status to that of a lawful permanent resident; (3) or at any time prior to the commission or conviction of a crime which constitutes ground for deportation and revocation of the license to reside permanently in the United States.
62. The revocation of the plaintiffs' license to reside permanently in the United States and subsequent deportation, without: (1) actual prior notice of the conditions under which the plaintiffs will be permitted to reside permanently in the United States; (2) actual prior notice of the grounds which could subject the plaintiffs to deportation from the United States; and (3) actual prior notice that engaging in certain type of criminal behavior constitutes ground for revocation of the plaintiffs' license to reside permanently in the United States as well as ground for deportation, is in violation of the due process guarantee of the Fifth Amendment to the Constitution of the United States.
XV.
SECOND CLAIM FOR RELIEF
63. Plaintiffs hereby incorporate by reference paragraphs 1 through 62 of the complaint as if fully set forth herein.
64. The plaintiffs have been adversely affected and aggrieved by the unlawful acts and omissions of the defendants and are entitled to judicial relief pursuant to § 702 of the Administrative Procedure Act.
XVI.

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PRAYER FOR RELIEF
WHEREFORE, plaintiffs and the members of the plaintiff class pray that this court grant the following relief:
A. Assume and maintain continuing jurisdiction of this action;
B. Certify this action as a class action;
C. Issue a judgment declaring that the acts and omissions of the defendants described herein violate the Due Process Clause of the Fifth Amendment to the Constitution of the United States and the Administrative Procedure Act;
D. Issue a preliminary and permanent injunction enjoining defendants, their agents, servants, employees, and all persons acting under, in concert with or for them:
(1) from depriving any and all members of the plaintiff class described herein of their right to enter, reside, work, travel, and live permanently with their families in the United States;
(2) from issuing any orders of deportation against the plaintiffs and members of the plaintiff class on the basis of a criminal conviction;
(3) from detaining, arresting, or incarcerating the plaintiffs on the basis of crimes for which the plaintiffs have completed their criminal sentence or have been released from prison on parole or pursuant to an early work release program;
(4) from requesting state or federal parole boards to deny plaintiffs, and members of the plaintiff class, release from prison on parole or pursuant to an early work release program.
E. Issue a judgment declaring null and void any orders of deportation which hereto have been issued, or in the future may be issued, against the plaintiffs and the members of the plaintiff class;
F. Awarding plaintiffs the cost of this action, including reasonable attorneys' fees;
G. Grant such other and further relief as the court shall deem just and equitable.
Neil JEAN-BAPTISTE, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana, on behalf of themselves and all others similarly situated, Plaintiffs, v. Janet RENO, Attorney General of the United States of America, and Immigration and Naturalization Service, Defendants. 1996 WL 33670225 (E.D.N.Y.)
END OF DOCUMENT

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For Opinion See 1997 WL 55472
United States District Court, E.D. New York. Neil JEAN-BAPTISTE, et al., Plaintiffs, v. Janet RENO, et al., Defendants. No. 96 CV 4077 (SJ). October 30, 1996.
Plaintiffs' Memorandum in Opposition to Defendant' Motion to Dismiss Complaint
This memorandum is submitted by Plaintiffs in opposition to defendants' motion dismiss Plaintiffs' complaint. Defendants' claim, that the newly enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 divests the Court of subject matter jurisdiction over Plaintiffs' claim, is without merit. Likewise, defendants' motion to dismiss Plaintiffs' complaint pursuant to Fed. R. Civ P. 12(b)(6) is without merit since Plaintiffs have stated a claim upon which relief may be granted.
I. ARGUMENT
A. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 did not divest the Court of subject matter jurisdiction over the present cause of action
On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the “IIRIRA”). The defendants assert that the IIRIRA divests the Court of subject matter jurisdiction of the present cause of action. However, such claim is misplaced. Defendants' cite § 306(a) of the IIRIRA, as divesting the Court of subject matter jurisdiction.[FN1] Section §306(a) amends §242(g) of the Immigration and Nationality Act (the “INA”) by adding:
FN1. The text of § 306 is attached herein as Exhibit 1.
EXCLUSIVE JURISDICTION.-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 Act.
Section 306(c)(1) of the IIRIRA provides: IN GENERAL.-Subject to paragraph (2)[FN2], the amendments made by subsections (a) and (b) shall apply to all final orders of deportation or removal and motions to reopen filed on or after the date of enactment of this Act and subsection (g) of section 242 of the Immigration and Nationality (as added by subsection (a), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act.[FN3] (emphasis added)

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FN2. Paragraph (2) provides: “LIMITATION.- Paragraph (1) shall not be considered to invalidate or to require the reconsideration of any judgment or order entered under section 106 of the Immigration and Nationality Act, as amended by section 440 of Public Law 104-132.”
FN3. The IIRIRA was enacted on September 30, 1996, when President Clinton signed it into law.
Section 306(a) of the IIRIRA does not apply to the present cause of action. The addition to § 242(g) of the INA is part of subsection (a) of § 306 of the IIRIRA. As stated in § 306(c), “the amendments made by subsections (a) and (b) shall apply to all final orders of deportation or removal and motions to reopen filed on or after the date of enactment” of the IIRIRA. Section 242 of the INA, as amended by the IIRIRA, applies only to claims which arise from past, pending, or future exclusion, deportation, or removal proceedings and which claims are filed on or after the date of enactment of the IIRIRA. Section 306(c) of the IIRIRA makes it clear that “subsection (g) of section 242 of the [[INA] (as added by subsection (a) [of the IIRIRA]), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings [under the INA].” (emphasis added). Thus, § 305(a) of the IIRIRA divests the Court of subject matter jurisdiction only with respect to claims arising from past, pending, or future exclusion, deportation, or removal proceedings which are filed on or after the date of enactment of the IIRIRA, September 30, 1996. Congress did not intend to remove the Court's jurisdiction over claims which were already pending on the date of enactment of the IIRIRA. Had Congress intended to remove the Court's jurisdiction over claims which were already pending before the Court on the date of enactment of the IIRIRA, Congress would have made its intentions clear by using broader language in the statute. Congress could have stated that “subsection (g) of section 242 of the [INA] (as added by subsection (a) [of the IIRIRA]), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under” [the INA], notwithstanding the date of filing of such claims.
The IIRIRA does not apply to the present cause of action because plaintiffs claim was pending before the date of enactment of the IIRIRA. Defendants' contention that Congress intended the amended § 242(g) of the INA to apply to cases pending on the date of enactment of the IIRIRA is without merit. Defendants would have this Court believe that the language “claims arising from past, pending, or future exclusion, deportation, or removal proceedings” is equivalent to past claims, pending claims, or future claims arising from deportation, exclusion, or removal proceedings. (emphasis added). However, as stated above, the amendment to § 242 of the INA by §306(a) of the IIRIRA applies only to “claims, arising from all past, pending, or future exclusions, deportation, or removal proceedings under” the INA, which are filed on or after the date of enactment of the IIRIRA.
In addition, the defendants' argument, regarding jurisdiction, must fail because contrary to defendants' contention, the Plaintiffs' cause of action does not arise from any “past, pending, or future exclusion, deportation, or removal proceedings” under the INA. The defendants are not correct in their contention that “[t]he in-

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stant action arises ‘from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders' against the Plaintiffs” under the INA. Instead, the instant action arises under the Constitution of the United States; specifically, under the Due Process Clause of the Fifth Amendment. See Complaint at ¶¶ 4,5,7,18,53,55,58,61, and 62.
The Plaintiffs here do not seek review, or determination, of the merits of any individual deportation order issued by the defendants, but challenge only the defendants' policies, practices, and procedures on constitutional grounds. Although, the IIRIRA may have removed the jurisdiction of the federal district courts 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 the INA, “that is not to say that a program, pattern or scheme by immigration officials to violate the constitutional rights of aliens is not a separate matter subject to examination by a district court and to the entry of at least declaratory and injunctive relief.” Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. 1982). Therefore, the lack of jurisdiction of the federal courts 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 [the INA],” “does not apply to suits alleging a pattern and practice by immigration officials which violates the constitutional rights of a class of aliens.” Campos v. Nail, 940 F.2d 495, 497 (9th Cir. 1991) citing Montes v. Thornburg, 919 F.2d 531, 535 (9th Cir. 1990). To the extent that the Plaintiffs herein “set forth matters alleged to be part of a pattern and practice by immigration officials to violate the constitutional rights of a class of aliens they constitute wrongs which are independently cognizable in the district court under its federal question jurisdiction.” Smith, at 1033; 28 U.S.C. § 1331(a).
“[I]n spite of the broad power of Congress ‘to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country,’ the executive is subject to the constraints of due process in implementing and enforcing congressional immigration policy.” Smith, 676 F.2d at 1036-37. citing Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954) (citations omitted). The Supreme Court has stated:
There are literally millions of aliens within the jurisdiction of the United States. The Fifth amendment, as well as the Fourteenth, protects every one of these persons from deprivation of life, liberty, or property without due process of law ..... Even one whose presence in this country is unlawful, involuntary or transitory is entitled to that constitutional protection.
Smith, at 1036, citing Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976). Consequently, the enactment of the IIRIRA does not affect nor limits “the authority of a district court to wield its equitable powers when a wholesale, carefully orchestrated, program of constitutional violation is alleged.” Smith, at 1033. See also Montes v. Thornburg, 919 F.2d 531, 535 (9th Cir. 1990) citing International Union. United Automobile Workers v. Brock, 477 U.S. 274, 285, 106

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S.Ct. 2523, 2530, 91 L.Ed.2d 228 (1986) ( “claims that a program is being operated in contravention of a federal statute or Constitution may be brought in federal court even where statute bars review of individual eligibility determination”); In re Thornburg, 869 F.2d 1503, 1512 (D.C.Cir. 1989) (“District court may entertain a statutory or constitutional challenge to the manner in which an amnesty program is being administered”). Simply stated, “the Due Process Clause is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘Fue Process of Law,’ by its mere will ....” Rafeedee v. I.N.S., 880 F.2d 506 (D.C.Cir. 1989) citing Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 276, 15 L.Ed. 372 (1855). Congress does not have the power to declare, ipso facto, what procedural “due process” is due to a particular class of people and then, divest all the federal courts of jurisdiction to hear a constitutional challenge to said procedures. The IIRIRA is unconstitutional in so far as it stands for the proposition that the federal courts do not have jurisdiction to hear a cause of action, brought by legal permanent residents, alleging the deprivation of liberty and property interests without due process of law. Therefore, the Court has jurisdiction to adjudicate the present cause of action, and defendants' motion to dismiss the complaint for lack of jurisdiction must be denied.
Citing Hincapie-Nieto v. I.N.S., 92 F.3d 27 (2nd Cir. 1996), the defendants also assert that under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104132, 110 Stat. 1214 (1996), the Court lacks jurisdiction to hear the present case. The defendants are not correct in their assertion. The case of Hincapie-Nieto v. I.N.S. involved only the repeal of the United States Court of Appeals' jurisdiction to entertain petitions for review of deportation orders. In that case, the alien filed a petition for review of “an order of the Board of Immigration Appeals finding him deportable because of a narcotics conviction, denying his request for discretionary relief, and ordering his deportation.” Hincapie-Nieto v. I.N.S., 92 F.3d at 28. In the present case, the Plaintiffs are not asking the court to review the merits of the orders of deportation issued against them, as was the case in Hincapie-Nieto. Here, the Plaintiffs mount a constitutional challenge to defendants procedures, practices, and policies which deprive the Plaintiffs of certain property and liberty interests without due process of law. In Hincalie-Nieto, the Second Circuit Court of Appeals held only that “the AEDPA has repealed the jurisdiction a court of appeals formerly had over petitions for review filed by aliens convicted of drug offenses like those committed by Hincapie-Nieto, and that the Act's removal of jurisdiction validly applies to petitions filed before the Act's effective date.” Id. at 28. (emphasis added). The Court found that “[t]he absence of an opportunity for some aliens to file a petition for review in a court of appeals does not necessarily mean, however, that the federal courts are closed to all claims by such aliens arising in the course of deportation proceedings.” Id. at 30. In the present case, the Plaintiffs are not asking the Court to review the individual orders of deportation issued against them, rather, they are asking the Court to determine whether those orders of deportation were issued in conformity with the requirements of the Due Process Clause of the Fifth Amendment. Thus, the AEDPA does not remove the district court jurisdiction to hear the present case, and the defend-

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ants' motion to dismiss the complaint should be denied.
B. Defendants' 12(b)(6) motion to dismiss Plaintiffs' complaint should be denied because the Plaintiffs have stated a claim upon which relief can be granted
On motion to dismiss complaint for failure to state claim upon which relief can be granted, complaint is construed in light most favorable to the plaintiff, i.e., read with great generosity, and should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. U.S. v. Private Sanitation Industry Ass'n of Nassau/Suffolk, Inc., 793 F.Supp. 1114 (E.D.N.Y. 1992). To warrant dismissal of a case for failure to state cause of action, it must appear with certainty that nonmoving party is not entitled to relief under the facts presented in the pleadings. In the present case, it cannot be said, beyond doubt, that the Plaintiffs have not set forth facts which will entitled them at least to declaratory and injunctive relief. Accordingly, the defendants' motion to dismiss the complaint must be denied.
Due process is “the condition precedent to the deprivation of a life, liberty, or property interest.” Smith, 676 F.2d at 1037 citing Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (citations omitted). Thus, “the due process guarantee is not applicable until some protected interest has been identified.” Smith at 1039 n.39. In the present case, it is clear that the Plaintiffs have a liberty interest in their rights to be and remain in the United States. Id. at 1037-38. In addition, the Plaintiffs have a property interest in their legal permanent residence. Complaint at ¶ 2.
Even thought, the Plaintiffs have clearly shown that a protected interest is implicated in the present cause of action, the question remains what process is due. The defendants assert that the Due Process Clause of the Fifth Amendment does not impose a duty on the INS, or the government, to provide prior notice to the Plaintiffs that the commission of certain crimes could subject the Plaintiffs to the penalty of deportation.[FN4] However, adequate and sufficient notice is a fundamental requirement of due process, and the type of “notice required will vary with circumstances and conditions.” Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S.Ct. 200, 202 (1956). See also Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330 (1982) (“The constitutional sufficiency of procedures provided in any situation varies with circumstances”). Therefore, whether the Due Process Clause imposes a duty on the defendants to provide the plaintiffs with prior notice, that the commission of certain criminal acts would subject the Plaintiffs to deportation, depends on the circumstances of the case. Since, all of the circumstances which could affect the outcome of this case have not been brought to the Court's attention, it would not be improper for the Court to deny defendants' motion to dismiss the complaint. The defendants have not shown, beyond doubt, that the circumstances of this case do not entitle the Plaintiffs to any kind of relief.
FN4. It is important to note that the defendants give nonimmigrant prior notice, at the time of entry to the U.S., that accepting unauthorized employment would subject them to deportation. (See Exhibit 2). Consequently, there is no

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reason why the defendants should not be required to give a similar notice, to persons admitted for permanent residence, that engaging in criminal behavior would subject them to deportation.
The defendants contend that the complaint should be dismissed because “ignorance of the law is no excuse”.[FN5] The Plaintiffs are cognizant of the existence of said principle and did not fail in bringing it to the attention of the Court.[FN6] As the Plaintiffs have already pointed out, in their memorandum in support of motion for preliminary injunction, “ignorance of the law excuses no one” is a principle which was generally applied in common law cases when mistake or ignorance of the existence of a criminal prohibition was advance as a defense. See United States v. Mancuso, 420 F.2d 556, n.5 (2d Cir. 1970). The present case is a civil action involving the denial of due process to the Plaintiffs by the defendants. Further, during their deportation proceedings the Plaintiffs did not claim, nor are they claiming now, a “mistake or ignorance” of the existence of a criminal prohibition as a defense.[FN7] In Lambert v. People of the State of California, 335 U.S. 225, 228, 78 S.Ct. 240, 243 (1957), the Supreme Court, after examining the circumstances and conditions in that case, rejected the rule that “ignorance of the law excuses no one”. The Court stated, “[e]ngrained in our concept of due process is the requirement of notice.” Id. See also United States v. Mancuso, 420 F.2d 556, n.5 (2d Cir. 1970). Thus, “ignorance of the law is no excuse” is a legal principle that is subordinate, and subject to, the requirements of due process of law. The Plaintiffs are confident that this Court, after it examines the circumstances and conditions in this case, would hold that the principle “ignorance of the law is no excuse” does not apply to the present cause of action; and therefore, the defendants' motion to dismiss the complaint must be denied.
FN5. See Defendants' Memorandum in Support of their Motion to Dismiss Complaint, p.10 (October 15, 1996).
FN6. See Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, p.14-17 (September 19, 1996).
FN7. See Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, p.15 (September 19, 1996).
Another of defendants' contentions is that “[t]he publication of the grounds of deportation and exclusion in the INA clearly placed Plaintiffs on notice that committing drug offenses ... and other serious crimes would subject them to deportation.” In support of this contention, the defendants cite Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). However, that case is not analogous to the Plaintiffs' cause of action herein. The present case relates to a civil penalty sought to be imposed on the Plaintiffs by the defendants on the basis of the Plaintiffs' criminal conviction. The Merrill case was a contract case, and it did not involved any allegations of denial of due process in connection with a civil penalty sought to be imposed on the basis of any of the parties' criminal conviction. The defendants state that the court, in Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947), held that “government regulations were binding on all who

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sought to benefit therefrom, regardless of their actual knowledge of what is in the regulations or of the hardship resulting from their ‘innocent ignorance’.”[FN8] However, it is important to note that the court in Merrill reached that particular holding only after finding that the regulations, involved in that case, were published in the Federal Register.[FN9] In the present case, defendants point to no regulation, published in the Federal Register, which gives the Plaintiffs notice that the commission of certain criminal acts would subject the Plaintiffs to the civil penalty of deportation, in addition to any criminal penalties that might be imposed. Whether the INA constitutes adequate “notice”, so as to satisfy the requirements of due process of law, depends on the circumstances. Under the circumstances of the present case, the publication of the INA did not give the Plaintiffs notice, as required by the due process clause, that committing drug offenses and other serious crimes would subject them to deportation. See Lambert v. People of the State of California, 335 U.S. 225, 78 S.Ct. 240 (1957); United States v. Mancuso, 420 F.2d 556 (2d Cir. 1970); Corniel-Rodriguez v. I.N.S., 532 F.2d 301 (2d Cir. 1976) (the Government's improper actions may preclude it from deporting aliens, even if the language of the Immigration and Nationality Act, read in vacuo, might suggest a different result).
FN8. See Defendants' Memorandum in Support of their Motion to Dismiss Complaint, p.11 (October 15, 1996).
FN9. Having been published in the Federal Register, the Wheat Crop Insurance Regulations are binding on all who seek to come within the Federal Insurance Act, regardless of lack of actual knowledge of the regulations. See Merrill, 332 U.S. at 385.
The defendants argue that aliens are charged with knowledge of the immigration laws, and a mistake as to the law's requirements is generally no defense to criminal conduct.[FN10] However, the plaintiffs herein are not advancing any claim in defense of their criminal conduct.[FN11] Further, contrary to defendants contention, all aliens are not, per se, charged with knowledge of the immigration laws so as to relief the defendants from providing the Plaintiffs with “notice” within the meaning of the Due Process Clause. See Corniel-Rodriguez v. I.N.S., 532 F.2d 301 (2nd Cir. 1976) (Failure of American consul in Santo Domingo to warn alien, who was issued visa as unmarried minor child of special immigrant, that she would forfeit her exemption from labor certification requirement for entry if she married before admission to the United States, precluded deportation of alien who married her childhood sweetheart three days before her departure from the Dominican Republic). Here, one of the Plaintiffs entered the United States at the age of two, and another when he was just 8 years old. Complaint at ¶ 27,34. Thus, it is absurd to suggest that these Plaintiffs had notice, at the time they entered the U.S., that engaging in criminal behavior would subject them to deportation. In fact, they grew up not knowing that they could be deported.
FN10. See Defendants' Memorandum in Support of their Motion to Dismiss Complaint, p.10 (October 15, 1996).

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FN11. See Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, p.9-10 (September 19, 1996).
Other legal authorities set forth by the defendants, to support their motion to dismiss the complaint, are not applicable to the present cause of action. Defendants cite United States v. Arzate-Nunez, 18 F.3d 730, 737 (9th Cir. 1994) (INS has no obligation to inform of precise penalties which might attach to illegal reentry); United States v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994) (same).[FN12] However, those cases dealt with the imposition of criminal penalties within the context of a criminal prosecution for illegal reentry to the United States. In those cases, the criminal defendants claimed “ignorance or lack of knowledge” as a defense to a criminal prohibition. Unlike the Plaintiffs in the present cause of action, the criminal defendants in Arzate-Nunez and Meraz-Valeta were actually given prior notice by INS officials of the criminal penalties for illegal reentry into the United States after deportation. See United States v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994); United States v. Arzate-Nunez, 18 F.3d 730, 737 (9th Cir. 1994) (“The INS's warning letter correctly informed Arzate-Nunez that he could be subject to criminal penalties for reentering the country; it misinformed him only as to the magnitude of these penalties”) (emphasis added). The present cause of action involves neither a criminal prosecution nor criminal penalties.
FN12. It is worth noting that defendants are not correct in their assertion that they have no duty to inform of the penalties which might attach to illegal reentry. Section 438 of the Antiterrorism and Effective Death Penalty Act of 1996, which amended § 242(h) of the Immigration and Nationality Act, provides that “Any alien deported pursuant to this subsection shall be notified of the penalties under the laws of the United States relating to the reentry of deported aliens, particularly the expanded penalties for aliens deported under paragraph (2)”. (emphasis added).
The defendants also assert that the Alien Registration Card issued by the government to the Plaintiffs is not a license which entitles the Plaintiffs to reenter, reside, work, travel, and live permanently with their families in the United States. Defendants claim that a “green card” is only an identity document which does not confer any right on the Plaintiffs apart from their status as legal residents. The defendants' statement: “Plaintiffs have not cited any authority, and there is none, to support the proposition that a green card is a ‘federal license’ conferring the right to live, work, and travel permanently,” is unfounded. The Plaintiffs have cited, and there is, authority for the proposition that an Alien Registration Card is a federal license which entitles the Plaintiffs to reenter, reside, work, travel, and live permanently with their families in the United States. Complaint at ¶ 2. See also Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, p.3-4 (September 19, 1996) citing Hamava v. McElroy, 797 F. Supp. 186 (E.D.N.Y. 1992) (Legal permanent residents have the freedom to reside, work, and travel within the United States, rights which they were formerly granted when they became resident aliens); Administrative Procedure Act[FN13], 5 U.S.C. § 551 (“license” includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission) (emphasis added). It is
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almost impossible to find that an Alien Registration Card does not fall within the meaning of “permit”, “certificate”, “registration” or other form of permission. In fact, the stamp which the defendants use to issue temporary Alien Registration Card reads as follows:
FN13. In their motion to dismiss complaint, the defendants state that Congress has eliminated actions under the Administrative Procedure Act (“APA”) that challenge immigration procedures. However, the Immigration and Naturalization Service is subject to the APA. The APA is not applicable only to deportation proceedings, and then only with respect to the procedure governing deportation hearings. See Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir. 1991). The present case is not challenging the procedures governing deportation hearings. Thus, the Plaintiffs are not precluded from seeking relief under relevant provisions of the APA.
PROCESSED FOR I-551. TEMPORARY EVIDENCE OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE VALID UNTIL _____. EMPLOYMENT AUTHORIZED. (emphasis added).[FN14]
FN14. See Etuk v. Slattery, 936 F.2d 1433, 1445 (2nd Cir. 1991)
Finally, it seems that the defendants have misconstrued the Plaintiffs' cause of action. It appears that the defendants view the present action as a challenge to the power of Congress to enact legislation concerning the deportation of non-citizens who have been convicted of crimes.[FN15] However, the Plaintiffs are not challenging the power of the government to deport non-citizens from the United States. Plaintiffs mount only a constitutional attack on the procedures, or lack of procedures, devised for the deportation of lawful residents who have been convicted of criminal offenses. As the court stated in Hamaya v. McElroy, 797 F. Supp. 186 (E.D.N.Y. 1992), “[a]lthough Congress enjoys enormous power in framing statutes (and authorizing regulations) concerning [the admission and retention] of aliens, those statutes and regulations cannot be enforced in a manner inconsistent with the requirements of due process.” The Plaintiffs' cause of action is entirely separate from their substantive claim to the right to reside, work, travel, and live permanently with their families in the United States. The Plaintiffs' claim is simply that they cannot be deprived of a liberty and property interest in a manner inconsistent with the requirements of due process of law. The term used to define those entitled to protection under the due process clause, i.e., “person, does not differentiate between criminals and noncriminals or between citizens and non-citizens. Thus, the Plaintiffs' right to due process of law is not, by any means, diminished just because they have been convicted of a criminal offense, and have deportation orders pending against them. See Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976).
FN15. Among other things defendants state that “Congress deemed the commission of crimes so reprehensible that aliens who have committed controlled substance violations ... may be removed from the United States”; “Congress provided few waivers of excludability or deportability and recently amended the INA to completely preclude criminal aliens ... from seeking previously available forms

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of relief.” See Defendants' Memorandum in Support of their Motion to Dismiss Complaint, p.6-9 (October 15, 1996).
Giving the type of interests involved herein, and the high value which the Plaintiffs place on those interests, the court should refrain from making a determination, at this stage, of “what process is due”. The Court should make such determination only after a full and extensive consideration of the circumstances of this case. The Plaintiffs would also like to point out that, as far as the Plaintiffs are able to determine, the present cause of action presents a question of first impression to the Court. Although this action presents a question of first impression, that is not to say that the Plaintiffs have failed to state a claim upon which relief can be granted. In a cause of action presenting a question of first impression, a party need not cite legal authority which is “on all fours” with the party's claim. It is sufficient to set forth the legal principles, and analogous case authorities, by which the Court should be guided in adjudicating the cause of action. The Plaintiffs have provided the Court with sufficient legal authority to subject the present cause of action to a full examination by the Court, and to the consideration of the entry of at least declaratory and injunctive relief.
II. CONCLUSION
It cannot be said, and the defendants have shown, that the Plaintiffs' complaint fails to state a claim upon which relief can be granted. It is simply not true that it “appears beyond doubt that the Plaintiffs can prove no set of facts which would entitle them to relief. The Court has jurisdiction to hear the present cause of action. WHEREFORE, the defendants' motion to dismiss complaint must be denied.
Neil JEAN-BAPTISTE, et al., Plaintiffs, v. Janet RENO, et al., Defendants. 1996 WL 33670192 (E.D.N.Y.)
END OF DOCUMENT

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 Jean-Baptiste v. Reno, Not Reported in F.Supp. (1997)
1997 WL 55472 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Neil JEAN–BAPTISTE, Gustavo Enrique Cepeda–Torres, and Victor Israel Santana,
Plaintiffs, v.
Janet RENO, Attorney General of the United States of America and the Immigration and
Naturalization Service, Defendants,
No. 96 CV 4077(SJ). | Feb. 5, 1997.
Attorneys and Law Firms
Law Offices of Antonio C. Martinez, by Antonio C. Martinez, New York City, for plaintiffs.
Department of Justice, Office of Immigration Litigation, Civil Division, by Quynh Vu, Washington, D.C., for defendants.
Zachary W. Carter, U.S. Atty, by Mary Elizabeth Delli–Pizzi, Brooklyn, New York, for defendants.
Opinion
MEMORANDUM AND ORDER
JOHNSON, District Judge.
*1 Before this Court are plaintiffs’ motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a) and for class certification pursuant to Fed.R.Civ.P. 23 and defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) or for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants’ motion to dismiss the complaint for failure to state a claim is granted, and plaintiffs’ motions are therefore dismissed.
BACKGROUND
The three named plaintiffs in this case, Neil Jean–Baptiste, Gustavo Enrique Cepeda–Torres, and Victor Israel Santana (collectively “plaintiffs”), resided until recently in this country as lawful permanent residents.1 Mr. Jean–Baptiste arrived in the United States in 1972 at the age of two from the Republic of Haiti; Mr.

Cepeda–Torres arrived in 1982 at the age of eight from Colombia; and Mr. Santana arrived in 1989 at the age of 28 from the Dominican Republic.

1

Plaintiffs’ complaint also makes factual allegations

regarding “non-plaintiff class members” Rafael

Gregorio Morel, Jose Antonio Espinal, German

Garcia–Handal, Martin De Jesus Then, Boydy Delano

Beckford, and Manuel Jovino Duran. Because this

Court dismisses this action for failure to state a claim,

and therefore does not certify the proposed class, the

specific allegations regarding these proposed members

are omitted.

Because each of the named plaintiffs were convicted in New York State Supreme Court of crimes involving either the sale or possession of a controlled substance, deportation orders have been entered against them pursuant to Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”).2 Although Mr. Cepeda–Torres and Mr. Santana have appealed these orders to the Board of Immigration Appeals (“BIA”), Mr. Jean–Baptiste has waived his administrative appeal to the BIA.

2

INA § 241(a)(2)(B)(i) provides that any alien convicted

of a violation of law relating to a controlled substance

at any time after entry is deportable. 8 U.S.C. §

1251(a)(2)(B)(i).

INA § 241(a)(2)(A)(iii) provides that any alien

convicted of an aggravated felony at any time after

entry is deportable. 8 U.S.C. § 1251(a)(2)(A)(iii).

INA § 101(a)(43)(B), in turn, defines the term

“aggravated felony” as including “illicit trafficking

in a controlled substance.” 8 U.S.C. §

1101(a)(43)(B).

Plaintiffs filed this proposed class action on August 19, 1996, against Attorney General Janet Reno and the Immigration and Naturalization Service (“INS”) (collectively “defendants”) to challenge “the procedures employed by the defendant [INS] with respect to the deportation of ... lawful permanent resident aliens who have ... been convicted of certain criminal acts....” Complaint ¶ 1. Specifically, plaintiffs challenge the “procedures, practices, or policies” of the INS which systematically fail “to give the plaintiffs any actual notice that engaging in certain types of criminal behavior constitutes [a] ground for revocation of the license to reside permanently in the United States as well as [a] ground for deportation.” Complaint ¶ 54. Plaintiffs argue that this failure is a violation of the minimum procedural requirements imposed on the defendants by the Due Process Clause of the Fifth Amendment and by the Administrative Procedure Act. 5 U.S.C. §§ 702–706
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Jean-Baptiste v. Reno, Not Reported in F.Supp. (1997)
(“APA”).
Plaintiffs argue that the notice provided by the INS that deportation proceedings were being instituted against them was a “mere gesture” because it was provided only after state criminal convictions had been entered against them. Such notice, they contend, is empty because “it does not afford the Plaintiffs a meaningful opportunity to avoid the penalty [of revocation of legal permanent resident status and deportation] and to be heard at a meaningful time.” Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 9. In short, plaintiffs contend that by failing to notify immigrants at the outset of their legal permanent residence that certain criminal conduct will result in the revocation of what they term their “license” to stay here, and ultimately in their deportation, the INS violates the Constitution and the APA.
*2 Plaintiffs’ prayer for relief includes requests for both declaratory and injunctive relief. Specifically, plaintiffs ask this Court to declare that the acts and omissions of the defendants violate the Due Process Clause and the APA, and that the deportation orders that have already been entered against them are null and void. Plaintiffs also request that this Court enjoin defendants from depriving members of the class of their right to enter, reside, work, travel, and live permanently in the United States; from issuing orders of deportation against proposed class plaintiffs; from detaining, arresting, or incarcerating plaintiffs; and from requesting state or federal parole boards to deny plaintiffs release from prison. Plaintiffs have moved for a preliminary injunction and for class certification.
Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), or in the alternative, for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
DISCUSSION
I. Subject Matter Jurisdiction. As an initial matter, defendants argue that this Court lacks subject matter jurisdiction to consider plaintiffs’ claims. Specifically, defendants assert that the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L.No. 104–208, 110 Stat. 3009 (1996) (Division C of Omnibus Consolidated Appropriations Act, 1997) (“IIRIRA”), which was signed into law on September 30, 1996, immediately divested this Court of jurisdiction over plaintiffs’ claims.

IIRIRA § 306 replaces the INA’s current judicial review section 106 with new section 242, entitled “Judicial Review of Orders of Removal.” See IIRIRA §§ 306(a)(2) (adding new Section 242) and 306(b) (repealing Section 106). Of the new provisions contained in section 242, defendants specifically point out subsection (g), which provides:

EXCLUSIVE JURISDICTION. 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 Act.

INA § 242(g), 8 U.S.C. § 1252(g) (as amended by IIRIRA § 306(a)(2)) (“Section 242(g)”).

The IIRIRA’s general effective date is April 1, 1997, as provided by IIRIRA § 309(a).3 That section, however, also provides for certain exceptions to the general effective date, including an exception expressed in IIRIRA § 306(c). Section 306(c), in turn, provides:

3

IIRIRA § 309(a) provides, in part: “Except as provided

in this section and section ... 306(c), ... this subtitle and

the amendments made by this subtitle shall take effect

on the first day of the first month beginning more than

180 days after the date of the enactment of this Act....”

[T]he amendments made by subsections (a) [adding new section 242] and (b) [repealing section 106] shall apply as provided under section 309, except that subsection (g) of section 242 of the Immigration and Nationality Act (as added by subsection (a)), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act. *3 IIRIRA § 306(c) (as amended by the “Technical Correction to be added to the H–1A Nursing Bill,” set forth in the Act of October 11, 1996, Pub.L. No. 104–302, 100 Stat. 3656). Defendants argue that the language of IIRIRA § 306(c) plainly provides for the immediate effect of Section 242(g), which in turn divests this Court of jurisdiction over plaintiffs’ claims. The Seventh Circuit, however, recently held that Section 242(g)’s effective date, like the rest of the IIRIRA, is April 1, 1997. The court explained its holding as follows:
Section 309(a) clearly indicates that
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Jean-Baptiste v. Reno, Not Reported in F.Supp. (1997)

IIR[IR]A is to take effect on April 1, 1997, although it excepts certain sections from the general effective date, including section 306(c). Section 306(c), however, fails to specify an alternative effective date. Rather, it refers us back to section 309. Reexamining section 309, beyond the effective date provision in subsection (a), subsection (c) states that for aliens in exclusion or deportation proceedings before April 1, 1997, the IIR[IR]A amendments will not apply and judicial review will remain available.... Reading section 306(c) in light of section 309 as directed, we conclude that the reference to subsection (g) in section 306(c) is meant only to provide an exception to section 309(c)’s general principle of non-retroactivity, so that when IIR[IR]A comes into effect on April 1, 1997, subsection (g) will apply retroactively, unlike the other subsections. This interpretation gives meaning to each part of the statute.

Lalani v. Perryman, 105 F.3d 334, 1997 WL 24520 at *2 (7th Cir. Jan. 23, 1997). This Court adopts the reasoning set forth by the Seventh Circuit for finding that Section 242(g) is effective only on April 1, 1997, and therefore concludes that Section 242(g) does not apply to this case.
Despite the inapplicability of Section 242(g) to this action, this Court must still determine whether it otherwise has subject matter jurisdiction over plaintiffs’ claims. Plaintiffs primarily argue that the Court has the power to consider their claims pursuant to its federal-question jurisdiction.4 28 U.S.C. § 1331. This Court agrees.

4

Plaintiffs also allege jurisdiction pursuant to 28 U.S.C.

§§ 2201 and 2202; 8 U.S.C. § 1329; and 5 U.S.C. §§

702–706. Complaint ¶ 7.

Judicial review of individual orders of deportation is generally provided by the appropriate court of appeals. See INA § 106(a), 8 U.S.C. § 1105a(a). Recently, Congress eliminated such review for individuals who are found deportable for having committed certain criminal offenses, including aggravated felonies and violations of controlled substance laws. Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, 110 Stat. 1214 (1996) (“AEDPA”) § 440(a).5

5

Although AEDPA § 440(a) has been challenged on

both constitutional and retroactivity grounds, courts of

appeals that have considered these challenges have

upheld its elimination of their jurisdiction to review

final orders of deportation. See Arevalo–Lopez v. INS,

104 F.3d 100, 1997 WL 1898 (7th Cir. Jan. 3, 1997);

Kolster v. INS, 101 F.3d 785 (1st Cir.1996);

Salazar–Haro v. INS, 95 F.3d 309 (3d Cir.1996);

Hincapie–Nieto v. INS, 92 F.3d 27 (2d Cir.1996);

Qasguarigis v. INS, 91 F.3d 788 (6th Cir.1996);

Duldulao v. INS, 90 F.3d 396 (9th Cir.1996);

Mendez–Rosas v. INS, 87 F.3d 672 (5th Cir.1996) (per

curiam ), cert. denied, 519 U.S. 1061, 117 S.Ct. 694

(1997). But see Reyes–Hernandez v. INS, 89 F.3d 490

(7th Cir.1996) (finding that AEDPA § 440(a) does not

apply in cases where an alien conceded his

deportability before the AEDPA became law and had a

colorable defense to deportation).

In the instant case, however, plaintiffs do not request this Court to review administrative determinations that individual plaintiffs are actually deportable. See INA § 101(47)(A), as amended by AEDPA § 440(b) (defining “order of deportation”). Rather, plaintiffs’ complaint is correctly characterized by both defendants and plaintiffs as primarily a collateral attack on the manner in which defendants administer the deportation process against legal permanent residents.6 Specifically, plaintiffs ask this Court to determine whether the general practices and policies which defendants employ violate the minimum process which is due to legal permanent residents under the Constitution. Because plaintiffs’ claims are not based solely on “alleged procedural irregularities in an individual deportation hearing,” they remain “independently cognizable in the district court under its federal question jurisdiction.” Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir.1982) (emphasis added). See also McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 484, 492 (1991) (holding that INA § 210(e)(1), 8 U.S.C. § 1160(e)(1) does not preclude district court jurisdiction to entertain collateral challenges to unconstitutional practices and policies generally used by the INS in processing Special Agricultural Worker applications); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996) (recognizing that the McNary exception allows district courts to entertain collateral challenges to unconstitutional INS practices and policies); Montes v. Thornburgh, 919 F.2d 531, 535 (9th Cir.1990) (stating that INA § 106(a) “does not apply to suits alleging a pattern and practice by immigration officials which violates the constitutional rights of a class of aliens.”).

6

Defendants describe plaintiffs’ claims as a “collateral

attack on the Attorney General’s decision[s]....”

Defendants’ Reply Memorandum at 10. Plaintiffs

describe their claims as a general challenge to the

“policies and practices” defendants use in

implementing the INA. Complaint ¶¶ 53–57.

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*4 Because this Court has subject matter jurisdiction to consider plaintiffs’ claims pursuant to 28 U.S.C. § 1331, the Court now turns to defendants’ alternative motion to dismiss the complaint for failure to state a claim.7

7

Even if federal-question jurisdiction were not a proper

basis for finding subject matter jurisdiction, this Court

would find that plaintiffs present a colorable claim to

jurisdiction upon which it could then appropriately

assume jurisdiction arguendo. See Browning–Ferris

Industries of South Jersey, Inc. v. Muszynski, 899 F.2d

151, 154–160 (2d Cir.1990).

II. Failure to State a Claim Upon Which Relief Can be Granted. Plaintiffs allege that defendants’ failure to notify them at the outset of their legal permanent resident status that certain criminal convictions will make them deportable violates the requirements imposed on defendants by the APA and the Due Process Clause of the Fifth Amendment.
This Court agrees with defendants’ position that plaintiffs fail to state a claim upon which relief can be granted. Although it may be unfortunate that legal permanent residents are not informed that certain criminal convictions may cause their deportation—particularly when such residents decide to plead guilty to those crimes—that circumstance is not a violation of the Constitution or the APA.8

8

The Supreme Court has stated that immigration

proceedings are not governed by the APA. Ardestani v.

INS, 502 U.S. 129, 133–34 (1991). Even if this Court

accepts plaintiffs’ argument that their claims do not

regard immigration proceedings, however, they still fail

to state a claim upon which relief can be granted.
Defendants broadly assert that neither the APA nor the Constitution imposes any duty on them to inform legal permanent residents that deportation may be a consequence of certain criminal convictions. This Court finds that even if the law did impose such a duty, it was satisfied by the provisions of the INA itself which clearly state that aliens convicted of certain crimes are deportable. See INA § 241(a)(2), 8 U.S.C. § 1251(a)(2). Because “everyone is charged with knowledge of the United States Statutes at Large,” Federal Crop Ins. Corp. v. Merrill, et al., 332 U.S. 380, 384 (1947), plaintiffs cannot now argue that their ignorance of the law forms a basis for challenging defendants’ decisions and actions to deport them.
Additionally, while “[i]t is well-settled that the Fifth Amendment entitles an alien to due process of law in deportation proceedings[,]” Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir.1996) (citing Reno v. Flores, 507 U.S. 292, 305–07 (1993)), plaintiffs themselves concede that notice of the initiation of deportation proceedings was provided to them by the INS’ “Order to Show Cause” form. Accordingly, plaintiffs’ complaint fails to state a claim upon which relief can be granted.
CONCLUSION
For the reasons stated above, defendants’ motion to dismiss plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b)(6) is granted.
SO ORDERED.
	  

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Page 1

For Opinion See 1997 WL 55472
United States District Court, E.D. New York. Neil JEAN-BAPTISTE, et al., Plaintiffs, v.
Janet RENO, Immigration & Naturalization Service, et al., Defendants. Civil Action No. CV-96-4077. October 15, 1996.
Defendants' Memorandum in Support of Their Motion to Dismiss Complaint Zachary W. Carter, United States Attorney, Eastern District of New York, One Pierrepont Plaza, 14th Fl., Brooklyn, New York 11201.Mary Elizabeth Delli-Pizzi, Assistant U.S. Attorney, (Of Counsel).Quynh Vu, Office of Immigration Litigation, (Of Counsel).
(Johnson, J.) DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS COMPLAINT
This memorandum is submitted in support of Defendants' Motion to Dismiss Complaint, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Defendants seek dismissal of this action on the grounds that the new Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“1996 Act”) divests the Court of subject matter jurisdiction over plaintiffs' claims and that plaintiffs failed to state a claim upon which relief can be granted.[FN1]
FN1. On September 11, 1996, plaintiffs filed a Motion for Class Certification and Preliminary Injunction. Defendants file this Motion to Dismiss in lieu of a reply to the class certification and preliminary injunction motion, because if the Motion to Dismiss is granted, then plaintiffs' pending complaint and motions are rendered moot. The deportation of the named plaintiffs (Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana) is not imminent. Nevertheless, the INS has agreed not to effectuate plaintiffs' deportation, pending resolution of the Motion to Dismiss. I. PRELIMINARY STATEMENT
Plaintiffs are criminal aliens who are subject to deportation because they committed deportable criminal offenses. See Complaint at ¶ 1. The three named plaintiffs are Neil JeanBaptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana. Id. at ¶¶ 30, 34, 41. All three named plaintiffs are lawful permanent residents of the United States. Id. JeanBaptiste was convicted of criminal possession of a controlled substance and, following a deportation hearing on August 9, 1996, was ordered deported from the United States. Id. at ¶ 30. Cepeda-Torres was convicted of criminal sale of a controlled substance, and was ordered deported on July 3, 1996. Id. at ¶ 34. Santana was convicted of criminal sale of a controlled substance, and was ordered deported on August 13, 1996. Id. at ¶ 41. In addition, plaintiffs identified
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six other individuals as “non-party class members.” Id. at ¶¶ 46, 47, 49, 50, 51, 52. A class has not been certified.
III. ARGUMENT
A. Legal Standards for a Motion to Dismiss
A complaint should be dismissed where it “appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief.” Fed. R.Civ.R. P. 12(b); Hughes v. Rowe, 449 U.S. 5, 10 (1980); Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996).
In this case, plaintiffs allege that their deportation would violate due process because they were not forewarned that committing crimes in the United States would subject them to deportation. Complaint at ¶ 5, 54. They charge that INS's failure to provide such notice is deficient under the immigration statute, regulations, and Constitution. This claim should be dismissed, because plaintiffs are unable to demonstrate any set of factual circumstances that would entitle them to avoid deportation.
B. The Complaint Should be Dismissed under Rule 12(b)(1) Because the 1996 Act Divests the Court of Subject Matter Jurisdiction Over this Case
On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“the 1996 Act”). Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009 (1996) (Division C of Omnibus Consolidated Appropriations Act, 1997) (relevant provisions attached as Exhibit A). As explained below, effective September 30, 1996,[FN2] the 1996 Act divested this Court of jurisdiction over this litigation, and plaintiffs' case must therefore be dismissed.
FN2. The provisions of Sections 242(g) and 306(c) became effective on September 30, 1996, when President Clinton signed the 1996 Act into law. See United States v. Shaffer, 789 F.2d 682, 686 (9th Cir. 1986) (“ ‘In the absence of an express provision in the statute itself, an act takes effect on the date of its enactment.’ ”) (citations omitted). See also United States v. Bafia, 949 F.2d 1465, 1480 (7th Cir. 1991), cert. denied, 504 U.S. 928 (1992); United States v. King, 948 F.2d 1227, 1228-29 (11th Cir. 1991), cert. denied, 503 U.S. 966 (1992); Demars v. First Serv. Bank for Sav., 907 F.2d 1237, 123839 (1st Cir. 1990).
Section 306(a) of the 1996 Act amends Section 242 of the Immigration and Nationality Act (“INA”) by adding the following provision: EXCLUSIVE JURISDICTION. 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 [the INA].

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INA § 242(g), 8 U.S.C. § 1252(g) (as amended by the 1996 Act § 306(a)). The instant action arises “from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders” against the plaintiffs. Therefore, it falls squarely within the terms of the amended statute.
Section 306(c) of the Act makes clear that Congress intended the amended Section 242(g) to apply to pending cases. That section expressly states that the new Section 242(g) is applicable “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under [the INA].” 1996 Act § 306(c). Thus, according to the plain language of Section 242(g), this Court is divested of jurisdiction over plaintiffs' claims.
Where dismissal is sought based on statutory repeal of a court's jurisdiction, the basic inquiry is “whether Congress has expressly prescribed the statute's proper reach.” Landgraf v. USI Film Products, 114 S. Ct. 1483, 1505 (1994). “If Congress has done so, of course, there is no need to resort to judicial default rules.” Id. In this case, Congress could not have been more explicit as to the “proper reach” of the new Section 242(g). Congress plainly provided that Section 242(g) should apply “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under [[the INA].” The 1996 Act § 306(c). Accordingly, the Court should apply the terms of Section 242(g), and dismiss this case for lack of jurisdiction. See id.
In addition, dismissal is warranted under the Second Circuit's recent decision in Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir. 1996). In Hincapie-Nieto, the court heard a challenge to a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) that precludes the circuit courts from reviewing appeals from final orders of deportation entered against certain criminal aliens. See § 440(a) of the AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996). The court found that the AEDPA provision is jurisdictional and, as such, it “ ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ ”[FN3] Hincapie-Nieto, 92 F.3d at 29 (quoting Landgraf, 114 S. Ct. at 1502) (internal citation omitted)). The court noted that in ??, 239 U.S. 506, 508 (1916) (cited in Langraf, 114 S. Ct. at 1502), a statute enacted after commencement of the suit deprived the district court of jurisdiction it formerly had and left resolution of the disputes to the administrative agency or department. Hincapie-Nieto, 92 F.3d at 29. In light of that analysis, the court concluded that the intervening AEDPA statute removed its preexisting jurisdiction to review petitions of certain criminal aliens. See id.
FN3. The Third, Fifth, Sixth, Ninth, and Eleventh circuits have also heard challenges to the AEDPA provision and, like the Second Circuit, have concluded that it removes their jurisdiction over all cases brought by certain criminal aliens, including cases pending on the date of the AEDPA's enactment. See Salazar-Haro v. INS, ____ F.3d ____, No. 96-3007, 1996 WL 518261 (3d Cir. Sept. 13, 1996); Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996) (per curiam); Salmo v. INS, No. 96-3404 (6th Cir. Aug. 5, 1996), Oasguargis v. INS, 91 F.3d 788 (6th Cir. 1996), pet. for reh'g denied (Aug. 21, 1996); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996); Rolle v. INS, No. 96-4560 (11th Cir. July

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15, 1996). See also Sanchez-Rodriquez v. INS, No. 96-9518 (10th Cir. July 12, 1996) (holding that AEDPA provision divests court of jurisdiction over petition for review filed after AEDPA's effective date) Compare Reves-Hernandez v. INS, 89 F.3d 490 (7th Cir. 1996), pet. for reh'g denied (Sept. 27, 1996) (finding that AEDPA provision does not divest court of jurisdiction where alien admitted deportability but may have had defense thereto).
Like the AEDPA provision, Section 242(g) of the 1996 Act is a jurisdictional statute affecting only the power of the Court to hear the case, and not the substantive rights of any party. As such, there is no presumption against retroactive application in this case. See Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) (quoting In re Arrowhead Estates Dev. Co., 42 F.3d 1306, 1311 (9th Cir. 1994)). The Court's jurisdiction is removed according to the long-standing principle that “when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall within the law.” Id. (quoting United States, 343 U.S. 112, 116-17, 72 S. Ct. 581, 584 (1952)).
Congress has explicitly provided that the district courts do not have jurisdiction in cases of this kind. Accordingly, this case should be dismissed.
C. Alternatively, the Complaint Should be Dismissed under Rule 12(b)(6) Because Plaintiffs Failed to State a Claim Upon Which Relief Can Be Granted
In the unlikely event that the Court finds that Section 242(g) does not eliminate its subject matter jurisdiction over this case, the defendants moves for dismissal under Rule 12(b)(6).
At the outset, the Court should note that the scope of judicial inquiry is severely limited in the realm of immigration matters. “It is unchallenged that the federal government has plenary power over immigration.” Padavan, 82 F.3d at 26 (citing Truax v. Raich, 239 U.S. 33, 42 (1915)); see also Fiallo v. Bell, 430 U.S. 787. The formulation of “[p]olicies pertaining to the entry of aliens and their right to remain here ... is entrusted exclusively to Congress.” Pavadan, 82 F.3d at 26 (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)); see also Harisiades v. Shaughnessy, 342 U.S. 580, 596-97 (1952)).
In exercising its plenary powers, Congress enacted the Immigration and Nationality Act, which provides the procedure through which aliens are admitted to the United States and are removed from the United States. See 8 U.S.C. §§ 1101, et seq. The statute specifies the grounds on which criminal aliens are rendered excludable and deportable. See 8 U.S.C. §§ 1182(a), 1151(a), (b).[FN4] By enacting these provisions, Congress clearly signaled its intolerance for those who would abuse the hospitality of this country by engaging in criminal activity.
FN4. The 1996 Act amended these sections and combined them into one provision -- section 237, to become effective April 1, 1997. See the 1996 Act §§ 301(d), 309(a).
The named plaintiffs in this case were each given an opportunity to reside in the

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United States lawfully, and were admitted under an admission procedure that conformed with the statute, regulations, and Constitution. Their main contention in this lawsuit is that they were not informed, prior to admission or adjustment of status, as to the deportation or exclusion consequences of their criminal activity in the United States. Given that Congress has not seen fit to enact legislation that would provide incoming aliens such notice, plaintiffs have no actionable claim against deportation.[FN5]
FN5. Plaintiffs' reliance on the APA is misplaced, since it does not provide a basis for recovery or equitable relief. Section 702 of the APA provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Nevertheless, Congress has eliminated actions under the APA that challenge immigration procedures. Ardestani v. INS, 502 U.S. 129, 133-34. (1991) (INA supersedes APA with respect to administrative procedures). A cause of action against the INS is withdrawn to the extent the relevant statute “preclude[s] judicial review.” See Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984) [citations omitted).
Similarly, there is no support for the proposition that the Fifth Amendment creates a duty in the INS to give plaintiffs notice of the collateral consequence of deportation. Plaintiffs' argument that their deportation would deprive them of the “right” to live in the United States without due process is flawed in two respects. First, an alien's stay in this country is a privilege, not a right. Harisiades v. Shaughnessy, 342 U.S. 580 (1952). Aliens, therefore, are not immune from deportation. Fong Yue Ting v. United States, 149 U.S. 698 (1893). The Supreme Court has held that “ ‘deportation’ is the removal of an alien out of the country simply because his presence is deemed inconsistent with the public welfare, without any punishment being imposed or contemplated ...” Id. at 709. “[It is] but a method of enforcing the return to his own country of an alien who has not complied with the conditions ... [upon which] his continuing to reside here shall depend.” Id. at 730.
As stated above, Congress deemed the commission of crimes so reprehensible that aliens who have committed controlled substance violations, aggravated felonies, crimes involving moral turpitude, and other serious offenses may be removed from the United States. 8 U.S.C. §§ 1182(a), 1251(a) (as amended by the 1996 Act § 301(d)). Further reflecting its intolerance of aliens who abuse the hospitality of the United States by engaging in criminal activity, Congress provided few waivers of excludability or deportability and recently amended the INA to completely preclude criminal aliens, effective April 1, 1997, from seeking previously available forms of relief. See the 1996 Act §§ 304, 375, 309(a).
Second, contrary to plaintiffs' assertions, an Alien Registration Card (“green card”) is only an identity document that identifies them as lawful permanent residents. Etuk v. INS, Blackman, 973 F.2d 60, 63 (2d Cir. 1992). It does not confer upon plaintiffs any special privileges separate and apart from their status as legal resident aliens. Plaintiffs have not cited any authority, and there is none, to support the proposition that a green card is a “federal license” conferring the right to

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live, work, and travel permanently. See Complaint ¶¶ 2, 28, 32, 35. Similarly, there is no authority that the green card is a license that falls within the purview of the Administrative Procedure Act. See Complaint at ¶ 25.
Plaintiffs argue that, as “federally licensed” aliens, they were entitled to receive actual notice prior to their admission, entry, or admission that committing crimes in the United States would render them deportable. Id. at ¶ 4. The INS, however, had no duty to warn plaintiffs of the “precise penalties” which might occur if they violate the immigration laws. See United States v. Arzate-Nunez, 18 F.3d 730, 737 (9th Cir. 1994) (INS has no obligation to inform of precise penalties which might attach to illegal reentry); United States v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994) (same). It is well-settled that “ignorance of the law is no excuse.” Lambert v. People of the State of California, 355 U.S. 225, 228 (1957); Arzate-Nunez, 18 F.3d 730, 737 (9th Cir. 1994) (aliens are charged with knowledge of the immigration laws, and a mistake as to the law's requirements is generally no defense to criminal conduct). There is nothing in our judicial system that allows aliens to shirk the responsibility of learning and abiding by the laws of this country that is normally expected of citizens. To accord plaintiffs the type of notice contemplated would place aliens in the untenable position of receiving more procedural due process than citizens.
Furthermore, plaintiffs were in fact given legal notice of the collateral deportation consequences of their criminal activity. The publication of the grounds of deportation and exclusion in the INA clearly placed plaintiffs on notice that committing drug offenses, crimes involving moral turpitude, and other serious offenses would subject them to deportation. See INA, §§ 212(a), 241(a); Federal Crop Ins. Corp v. Merrill, 332 U.S. 380, 385 (1947) (holding that government regulations were binding on all who sought to benefit therefrom, regardless of their actual knowledge of what is in the regulations or of the hardship resulting from their “innocent ignorance”); Wei V. Robinson, 246 F.2d 739, 743 (7th Cir. 1957) (holding that proper publication of an immigration regulation in the Federal Register gives “notice of the contents ... to any person subject thereto or affected thereby”). Therefore, the same laws which entitled plaintiffs to immigrate to the United States also gave them proper notice that they must remain law-abiding in order to retain their lawful status. Because plaintiffs failed to state a cognizable legal claim, their Complaint should be dismissed.
IV. CONCLUSION
For the reasons set forth above, the Court should dismiss this action in its entirety. In the unlikely event that the motion to dismiss is denied, defendants respectfully request ten days from the receipt of the Court's order to file their answer to the Complaint and their reply to the motion for class certification and preliminary injunction.
Neil JEAN-BAPTISTE, et al., Plaintiffs, v. Janet RENO, Immigration & Naturalization Service, et al., Defendants. 1996 WL 33670191 (E.D.N.Y.)

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For Opinion See 1997 WL 55472
United States District Court, E.D. New York. Neil JEAN-BAPTISTE, et al., Plaintiffs, v.
Janet RENO, Immigration & Naturalization Service, et al., Defendants. No. 96-4077 (SJ). November 13, 1996.
Defendants' Reply in Support of Motion to Dismiss
INTRODUCTION
Plaintiffs' memorandum in opposition to the motion to dismiss fails to refute defendants' position that the new Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“1995 Act”) divests the Court of subject matter jurisdiction over this action and that plaintiffs failed to state a claim upon which relief can be granted. In this memorandum, defendants will demonstrate that the Court lacks jurisdiction because (2) plaintiffs have not established a claim for relief; (2) this case falls within the scope of the 1996 Act's jurisdictioneliminating provision; (3) notwithstanding their failure to state a colorable constitutional claim, Section 242(g) bars plaintiffs from bringing an action in this court that challenges INS policies and procedures on due process grounds; and (4) neither the federal question statute at 28 U.S.C. § 1331 nor any other statute provides jurisdiction for this action.
ARGUMENT
A. Plaintiffs Have No Claim to Relief
Plaintiffs' claims do not rest on a cognizable statutory or constitutional basis and therefore are not actionable. Plaintiffs contest their deportations under several theories that are somewhat unclear. First, they appear to claim a property interest in their “green card” that entitles them to remain permanently in the United States. Complaint at ¶¶ 2-6, 25-26; Plaintiffs' Opposition to Motion to Dismiss (“Pl. Opp”) at 10, 16. Second, as permanent residents they assert a liberty interest against deportation. Id. at 6. They further allege that these interests gave rise to an INS duty to provide express notice, when they entered the United States or adjusted status, that engaging in criminal activity could subject them to deportation. Eecause they did not receive such notice, plaintiffs contend, their deportation would amount to a deprivation of liberty and property without due process cf law. Complaint at ¶¶ 53-57, 60-62; Pl. Opp. at 4, 9-18.
Plaintiffs' conclusory allegations do not survive a motion to dismiss, since they have shown no legal basis for claiming the INS failed to discharge a duty owed to them. Malik v. Meissner, 52 F.3d 560, 562 (2d Cir. 1996) (citing Robinson v. Over-
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seas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994), and Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)). Congress has charged the INS with enforcing the immigration laws, and its conduct must therefore reflect the congressional intent. United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). Where Congress did not intend to provide a right or remedy, aliens may not bring suit to compel recognition thereof. Cort v. Ash, 422 U.S. 66, 84 (1975).
In this instance, the laws already afford plaintiffs a deportation procedure that is fundamentally fair. Felzcerek v. INS, 75 F.3d 112 (2d Cir. 1996); Bustos-Torres v. INS, 898 F.2d 1053 (5th Cir. 1990). That procedure provides notice of the charges of deportation, an opportunity to post bond, assistance of counsel, an adversarial hearing before an immigration judge, and de novo review by the Board of Immigration Appeals. See generallv 8 U.S.C. §§ 1252, 1252A; 8 C.F.R. §§ 242 et seg.; Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994); Augustin v. Sava, 735 F.2d 32 (2d Cir. 1984). It does not require the INS to advise incoming aliens of the grounds of deportation. Because plaintiffs have not shown that defendants disregarded the law, this action is not sustainable.[FN1]
FN1. Plaintiffs cited authority that discusses causes or actions challenging the implementation of a particular immigration statute or regulation. Pl. Opp. at 5-7, 16-18; see, e.g., Hamava v. McElrov, 797 F.Supp. 186 (E.D.N.Y. 1992) (concerning bond proceedings); Haitian Refucee Center v. Smith, 576 F.2d 1023 (1982) (concerning processing of asylum applications). These cases are inapplicable since plaintiffs' due process claim is not premised on the INA, but solely on the Fifth Amendment.
Nor can plaintiffs assert a private right of action under any INA provisions. There is nothing in the statute or its legislative history to indicate that Congress ever intended to provide aliens with pre-entry notice of the grounds of deportation. Implying a private right of action would therefore be inconsistent with the underlying purposes of the statute. Cort v. Ash, 422 U.S. at 66; Hernandez-Avalos v. INS, 50 F.3d 842 (10th Cir. 1995).
In addition, despite their amorphous reference to the Fifth Amendment, plaintiffs have failed to identify a constitutionally protected interest which triggers the due process safeguards. Board of Regents v. Roth, 408 U.S. 564, 569-72 (1972). It is not disputed that, when Congress grants property rights to aliens, the Fifth Amendment protects against the deprivation of those rights without due process of law. Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (citing Board of Regents v. Roth, 408 U.S. at 569-70, and Matthews v. Diaz, 426 U.S. 67, 77 (1976)). Plaintiffs, however, cannot prevail in their constitutional challenge, because they do not have an inherent property right in a “green card.” Their classification as legal residents under the INA creates no such interest. See Azizi v. Thornburgh, 908 F.2d at 1134; Knoetze v. U.S. Dep't of State, 634 F.2d 207, 211 (5th Cir. 1981). Although courts have characterized an alien's physical presence in this country as giving rise to a limited liberty interest see, e.g., Brides v. Wixon, 326 U.S. 135 (1945); The Japanese Immigrant Case, 189 U.S. 86 (1903), they have also found that the Constitution does not bar deportation. Linnas v. INS, 790 F.2d 1024, 1031 (2d Cir.

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1986) (“there is no substantive due process right not to be deported”), cert. denied, 479 U.S. 995 (1986).
To prevail upon their Fifth Amendment claim, therefore, plaintiffs must show that the challenged conduct -- INS's failure to provide notice -- unreasonably burdens any property or liberty interest they might have enjoyed at the time of their admission. It is simply not enough to assert that the Due Process Clause requires notice under any circumstances. Cf. Matthews v. Elridge, 464 U.S. 319 (1976) (balancing the alien's private interest against the government's interest in maintaining current procedures); Kleindienst v. Mandel, 408 U.S. 753 (1972), and Fiallo v. Bell, 430 U.S. 787 (1977) (establishing the “facially legitimate and bona fide reason” standard for testing constitutionality of government policy). Plaintiffs cannot make this showing because no liberty or property interests attach prior to their admission or entry. Fiallo v. Levi, 406 F.Supp. 162, 165 (E.D.N.Y. 1975), aff'd sub nom., Fiallo v. Bell, 430 U.S. 787 (1977).
Finally, plaintiffs urge the Court to continue this case so that they would have an opportunity to conduct discovery and demonstrate “whas process is due.” Pl. Opp. at 19-19. This request should be denied since the issue is whether the Court has jurisdiction to entertain this lawsuit. Even assuming that all facts as stated are true, plaintiffs have not presented a viable claim against deportation. As explained below, the Court also lacks jurisdiction due to the passage of the 1996 Act. The Court's subject matter jurisdiction turns on the facts existinc at the time the action is brought, Keene Corp. v. United States, 508 U.S. 200, 207 (1993), and continuing this action so that plaintiffs could further develop the record would conflict with the time-of-filing rule. Id.
B. The 1996 Act Expressly Removes District Court Jurisdiction Over This Action Which Challenges the Attorney General's Decision to Commence Proceedings, Adjudicate Cases, or Execute Removal Orders
1. Statutory Background
In 1996, Congress overhauled the immigration system by enacting two laws that fundamentally change the judicial review procedure under the INA. They were the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act (“1996 Act”), Pub. L. No. 104-208, 110 Stat. 3009 (published at 142 Cong. Rec. 11787 (daily ed. September 28, 1996)). With the passage of these laws, Congress expressed a clear intent to streamline the immigration appeal and removal process, by restricting access of deportable aliens to the federal courts. AEDPA Section 440(a) prohibits aliens convicted of serious crimes from petitioning the court of appeals to review their final deportation order and from filing statutory habeas applications in the district court. INA §106(a)(10), 8 U.S.C. § 1105a(a)(10) (as amended by AEDPA § 440(a) and 1996 Act § 306(c), 142 Cong. Rec. at 11804); Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir. 1996); see also AEDPA §§ 401(e) (repealing 8 U.S.C. § 1105a(a)(10)); Mbiva v. INS, 930 F.Supp. 609 (N.D. Ga. 1996).
The 1996 Act bars any cause or claim against a decision by the Attorney General to
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“commence proceedings, adjudicate cases, or execute removal orders.” 1996 Act § 306(a), 142 Cong. Rec. at 11803-11804 (to be codified at INA § 242(g), 8 U.S.C. § 1252). It also redefined district court jurisdiction under 8 U.S.C. § 1329 to allow only the United States to bring actions under Title II of the INA, and not “for suits brought against the United States or its agencies or officers.” 1996 Act § 381(a), 142 Cong. Rec. at 11814 (to be codified at INA § 279, 8 U.S.C. § 1329).
Altogether, these amendments effectively preclude review of the Attorney General's decisions and actions outside the context of the new streamlined judicial review scheme established in the INA. See H. Rep. No. 104-469(I), 104th Cong., 2d Sess. 359, 463 (1996) (available at 1996 WL 168955) (Addendum A) (explaining that “streamlined appeal and removal process” make it “easier to remove deportable aliens from the United States”). They make clear that Congress does not intend for federal courts to intervene in the deportation process by hearing direct appeals or entertaining collateral claims.[FN2]
FN2. The legislative history behind AEDPA and the 1996 Act highlights the degree to which Congress sought to prevent federal courts from unduly interfering with the Attorney General's ability to deport illegal and criminal aliens. The Senate Judiciary Committee, for example, criticizes judicial decisions that “characterize deportation as a grave penalty (Bridges v. wixon, 326 U.S. 135, 147 (1945)), and suggest that statutory ambiguities should be resolved in favor of the alien (INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).” See S. Rep. No. 104-249, 104th Cong., 2d Sess. 7 (1996) (Addendum B). The Senate Judiciary report further states: If the United States is to have an immigration policy that is both fair and effective, the law and the commitment of those with the duty to apply or enforce it must be clear .... This is a nation governed by law, and the law includes the immigration statutes and the regulations promulgated thereunder. Aliens who violate U.S. immigration law should be removed from this country as soon as possible. Exceptions should be provided only in extraordinary cases specified in the statute and approved by the Attorney General. Id.
2. Section 242(g) Applies to this Case
Plaintiffs do not dispute that Congress may statutorily repeal the Court's jurisdiction over cases of this kind. They argue, however, that Section 242(g) is inapplicable because they are not challenging their deportation, but rather the “defendants' policies, practices, and procedures on constitutional grounds.” Pl. Opp. at 5. This argument is unpersuasive.
Plaintiffs' motivation for bringing suit in the district court is quite apparent. In this case, all named plaintiffs are deportable criminal aliens who have deportation orders issued by an immigration judge some time in July or August, 1996.[FN3] Complaint at ¶¶ 27-45. On August 2, 1996, the Second Circuit decided Hincapie-Nieto, 92 F.3d 27 (2d Cir. 1996), finding that the AEDPA eliminated court of appeals' jurisdiction to hear petitions for review of individual criminal aliens. On August 19, 1996, plaintiffs filed this action in the district court. Casting their claims in

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constitutional terms, plaintiffs request the Court to nullify their deportation orders and to enjoin permanently their removal from the United States. Complaint, at 23-24. Thus, it is clear that their primary goal in this lawsuit is nothing more than to avoid deportation.
FN3. On November 7, 1996, the Clerk's Office for the Board of Immigration Appeals informed that plaintiff Neil Jean-Eaptiste did not appeal his deportation order to the BIA. Plaintiffs Gustavo Enrique Cepeda-Torres, Victor Israel Santana, Boydy Delano Eeckford, and Manuel Jovino Duran, however, have filed BIA appeals. Plaintiffs' failure to exhaust their administrative remedies is an impediment to establishing jurisdiction. Parties may not seek federal judicial review of an adverse administrative determination until they have first sought all possible relief within the agency itself. Howell v. INS, 72 F.3d 288, 290 (2d Cir. 1995) (citations omitted). While parties may bring for the first time before the court due process claims which are beyond the power of the Board to correct, the exhaustion requirement must be met where the Board has jurisdiction to correct the procedural errors alleged. Nsukami v. INS, 890 F.Supp. 170, 174-75 (E.D.N.Y. 1995); Liu v. Waters, 55 F.3d 421 (9th Cir. 1995). Plaintiff Jean-Baptiste has waived his right to Board review and cannot raise any constitutional arguments in this action. Other plaintiffs who have appealled have not exhausted their due process claims with the Board. Therefore, insofar as plaintiffs have failed to raise procedural issues that are within the Board's authority to consider, this Court does not have jurisdiction to hear their claims. Nsukami, 890 F. Supp. at 175; Lozada v. INS, 857 F.2d 10 (1st Cir. 1988).
The 1996 Act prevents plaintiffs from invoking the Court's jurisdiction simply by asserting an insupportable due process claim. In enacting the AEDPA and the 1996 Act, Congress was keenly aware of the practice under the old judicial review scheme, whereby deportable aliens have been able to delay their removal by filing lastminute legal challenges in the district courts. See Senate Judiciary Committee Report (Addendum B). The AEDPA was written specifically to preclude direct appeal of a criminal alien's deportation order, while Section 242(g) generally prohibits any challenge to the Attorney General's conduct on any claim relating to deportation. Plaintiffs, therefore, can no more rely on the Court to exercise jurisdiction in this case than on the Second Circuit to hear their petitions for review. Theirs is precisely the type of collateral attack on the Attorney General's decision “to commence proceedings, adjudicate cases, or execute removal orders” that Congress intended Section 242(g) to prohibit.
Plaintiffs further contend that Section 242(g)'s jurisdictional bar applies only to suits filed on or after September 30, 1996, the date of the 1996 Act's enactment. Pl. Opp. at 1-4. This argument misunderstands its effective date provision. As will be shown, Section 242(g) immediately divested courts of jurisdiction over actions already pending when the law was enacted.
The effective date for many of the 1996 Act provisions is coverned by Section 309(a).[FN4] Section 242(g)'s effective date, however, is controlled by Section

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306(c) (1), which has been amended by technical corrections enacted on October 11, 1996. It states:
FN4. Section 309(a) sets forth the effective date for most of the amendments in Title II of the 1996 Act, and provides as follows: Except as provided in this section and sections 303(b) (2), 306(c), 308(d) (2) (D), or 308(d)(5) of this division, this subtitle and the amendments made by this subtitle shall take effect on the first day of the first month beginning more than 180 days after the date of the enactment of this Act (in this title referred to as the ‘title III-A effective date’). 1996 Act § 309(a). See Red-lined version of the 1996 Act, Appendix A.
(1) IN GENERAL -- Subject to paragraph (2), the amendments made by subsections (a) and (b) shall apply as provided under Section 309, except that subsection (g) of section 242 of the Immigration and Nationality Act (as added by subsection (a) [of Section 306]), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act.
See 1996 Act § 306(c), as amended by the “Technical Correction to be added to the H-1A Nursing Bill,” set forth in the Act of October 11, 1996, Pub. L. No. 104-302, 100 Stat. 3656 (Addendum C).
Section 242(g)'s judicial review provision is jurisdictional in nature and must be construed with both precision and strict fidelity to its terms. INS v. Stone, 115 S. Ct. 1537, 1548 (1995) (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968) Its effective date provision makes clear that repeal of jurisdiction ocsurred instantly, regardless of when the claims arose. Thus, limiting its application to only prospectively filed actions, as plaintiffs suggest, would contravene the clear intent of Congress to remove the Court's jurisdiction over claims already pending on the date of enactment.
It is not significant, therefore, that plaintiffs filed their lawsuit prior to the enactment of the 1996 Act. As the Supreme Court explained in Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994), in deciding whether a new statute applies to pending cases, the courts first must determine whether Congress has expressly prescribed the statute's “proper reach.” Id. at 1505. Here, Congress made Section 242(g) expansive so that it applies to all actions regardless of when filed. Where the language of a statute is clear, as in this case, it may be overcome only if “there is a ‘clearly expressed, legislative intention’ contrary to that language, which would require us to question the strong presumption that Congress expresses its intent through the language it chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987); see also Chevron, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984) (courts “must give effect to the unambiguously expressed intent of Congress”). The sweeping language of Section 242(g), and its clearly prescribed effective date, leave no doubt that Congress intended to take away the Court's jurisdiction over this case.
3. Congress Clearly Intended Section 242(g) to Bar Review of Plaintiffs' Due Process Claims
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Plaintiffs also charge that the 1996 Act is constituionally defective because it prevents them from bringing constitutional claims before the district court. This argument was advanced in a single sentence of their twenty-page brief, without citation to any authority. Pl. Opp. at 7. Since plaintiffs have not stated a colorable constitutional claim, this is not even an issue before the Court. In any event, the language and legislative history of Section 242(g) show a clear intent by Congress to preclude review of certain constitutional issues.
It is settled that Congress has the authority to define the jurisdiction of the lower federal courts. Keene Corp. v. United States, 508 U.S. at 207. See, e.g., Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) (“Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisidiction but such as the statute confers.”); Yakus v. United States, 321 U.S. 414, 429 (1944); Kline v. Burke Const. Co., 260 U.S. 226, 234 (1922). This is especially true in immigration law, where Congress' legislative power is “more complete” than in any other area. Fiallo v. Bell, 430 U.S. at 792.
The application of Section 242(g) thus affects only the jurisdictional power of the Court, and not the rights of any party. Landgraf, 114 S. Ct. at 1501. For this reason, the Hincapie-Nieto court found that eliminating the court of appeals' jurisdiction over petitions for review filed by criminal aliens “ ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ ” 92 F.3d at 29 (quoting Landgraf, 114 S. Ct. at 1502) (internal citations omitted). No right is implicated because the Constitution does not guarantee aliens judicial review in an Article III court. Carlson v. Landon, 342 U.S. 524, 537 (1952) (“[n]o judicial review is guaranteed by the Constitution [as] deportation is not a criminal proceeding and has never been held to be punishment”).
The Supreme Court, moreover, determines whether and to what extent a particular statute proscribes judicial review by looking at the express language, the legislative history, and the nature of the administrative action involved. Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984) (citations omitted). In drafting Section 242(g), Congress was mindful of the statutory interpretation pitfalls that prior INA judicial review provisions encountered. ?? e Cheng Fan Kwok v. INS, 392 U.S. 206 (1970), with Foti v. INS, 375 U.S. 217 (1983).
In McNary v. Haitian Refugee Center, Inc., 498 U.S. 279 (1991), for example, the Supreme Court examined Section 201(e)(1) of the INA which governed the appeal procedure for seasonal agricultural workers (“SAW”). Id. That provision specifically prohibited judicial review “of a determination respecting an application for [SAW status]” outside the context of an exclusion or deportation hearing. Id. at 491-92. The Court found that Congress would have easily used broad language if it had intended to preclude constitutional and statutory challenges to the INS procedures governing the adjudication of SAW applications. Id. at 494. It could have modeled Section 210(e), for instance, on more expansive language such as to include “all causes ... arising under any of the provisions” of the legalization program. Id. Apparently heeding the Supreme Court's advice in McNary v. Haitian Refugee Center, Inc., Con-

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gress drafted Section 242(g) broadly to make the jurisdictional bar applicable to all causes or claims “arising from the Attorney General's decision to commence proceedings, adjudicate cases, or execute removal orders.” 1996 Act § 306(a), 142 Cong. Rec. 11804. This contruction gives Section 242(g) full preclusive effect.
The history of the 1996 Act also illustrates the legislative purpose to restrict federal court jurisdiction over immigration matters to the fullest extent possible. Congress has determined that aliens who have violated the United States laws shall receive no consideration by the federal courts and are to be removed from this country expeditiously. See Senate Judiciary Committee Report (Addendum B); Mbiva v. INS, 930 F. Supp. at 612. To accomplish this objective, it replaced the existing judicial review scheme with an even more restrictive procedure to be codified at INA Section 242. The new scheme encompasses the jurisdictional bar at Section 242(g), which removed the courts' prior jurisdiction to entertain collateral challenges to the Attorney General's decision making process. 1996 Act § 306(a), 142 Cong. Rec. at 11804. For non-criminal aliens, Sections 242(a)-(b) provide an expedited review procedure in the court of appeals for final orders of removal. See id., §§ 306(a)-(b), 142 Cong. Rec. at 11803-11804 (to be codified at INA § 242, 8 U.S.C. § 1252). All claims brought in the court of appeals must be consolidated into one petition for review. Id. at § 306(a), 142 Cong. Rec. at 11804 (to be codified at INA § 242, 8 U.S.C. § 1252).[FN5] These provisions are meant to channel reviewable claims to the circuit courts, thereby restricting district court jurisdiction over immigration cases.
FN5. The new INA Section 242(b)(9) requires consolidation of constitutional issues in the petition for review, as follows: CONSOLIDATION OF ISSUES FOR JUDICIAL REVIEW -- 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 title shall be available only in judicial review of a final order under this section. 1996 Act § 306(a), 142 Cong. Rec. at 11804 (to be codified at 8 U.S.C. § 1252).
The 1996 Act thus serves Congress' purpose in limiting aliens from extending their continued illegal stay in this country by removing a level of review. See H. Rep. Report 104469(I) (Addendum A). Claims that are not heard in the federal courts are placed within the exclusive jurisdiction of the executive department, which traditionally had the authority to decide immigration matters. See Langraf, 114 S. Ct. at 1505 (citing Hallowell v. Commons, 239 U.S. 506, 508 (1916)) (an intervening jurisdictional statute deprives the district court of jurisdiction it formerly had and leaves the resolution of the disputes to the executive department); see also Reno v. Flores, 113 S. Ct. 1439, 1449 (1993) (“For reasons long ago recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government”). Therefore, aliens subject to the Section 242(g) jurisdictional bar can only bring their claims before an administrative tribunal such as the immigration judge or the BIA.
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In light of the express language and clear purpose of the 1996 Act, there is no constitutional infirmity in the repeal of district court jurisdiction over suits brought by criminal aliens, even if it precludes their constitutional claims. See Webster v. Doe, 486 U.S. 592, 603 (1988) (“where Congress intends to preclude judicial review of constitutional claims, its intent must be clear”)(citing ?? 415 U.S. 361 (1974) and Weinberger v. Salfi, 422 U.S. 749 (1975)); see also Califano v. Sanders 430 U.S. 99, 109 (1977). The underlying intent is to deny illegal and criminal aliens a judicial forum to collaterally attack their deportation, while allowing other classes to bring constitutional claims -- through a consolidated petition for review -- before the appellate court. See 1996 Act § 306(a), 142 Cong. Rec. at 11804. The preclusion is intentional. Congress desires that only aliens eligible for some form of relief be relied upon to thallenge agency disregard of the law. Cf. Block v. Community Nutrition Center, 467 U.S. at 345-47. The judicial review scheme created by the 1996 Act merely embodies an immigration policy that, in Congress' view, is both fair and effective.
This is not to say that plaintiffs are left with no avenues of judicial relief. In Hincapie-Nieto, the Second Circuit found that repeal of its prior jurisdiction to hear a criminal alien's petition for review did not mean that the federal courts are closed to all claims by such aliens in the course of deportation proceedings. 92 F.3d at 30. Citing Felker v. Turpin, 116 S. Ct. 2333 (1996), a case concerning the AEDPA's limitation on habeas review, the court held that aliens may nevertheless petition the Supreme Court to entertain an original habeas application. Id.; see also Mbiva v. INS, 930 F. Supp. 609.
4. Plaintiffs May Not Invoke Jurisdiction Under Any Other Statutory Provision
Finally, plaintiffs suggest that jurisdiction still lies under 28 U.S.C. § 1331, notwithstanding Section 242(g)'s bar of district court jurisdiction. They maintain that jurisdiction is preserved under the federal question statute to the extent that their case is premised on the Fifth Amendment, not the INA. P1. Opp. at 5. This argument is no more availing than the others, given that their constitutional claim is not even colorable.
Moreover, Section 242 (g) does not permit recourse to statutes other than the INA for jurisdiction. Congress intended this result when it wrote Section 242(g) in preclusive terms: “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 of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” 1996 Act § 306(a), 142 Cong. Rec. at 11804 (emphasis added). The statute is intended to make the INA judicial review procedure the exclusive method by which immigration claims are heard. As such, plaintiffs cannot invoke federal question jurisdiction under 28 U.S.C. § 1331, because that is prohibited under the broad language of Section 242(g).
Weinberger v. Salfi, 422 U.S. 749 (1975), presents a similar situation and is dispositive on this point. In that case, the Supreme Court found that the district

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court did not have federal question jurisdiction under 28 U.S.C. § 1331 to hear the plaintiffs' constitutional claim arising under the Social Security Act, because § 405(h) of the SSA precluded any action brought against the federal government to recover social security survivor benefits. Id. The Court determined that the plaintiffs could not maintain an action for statutory benefits simply by arguing that is raised constitutional issues and was therefore governed by the federal question statute. Id. The Court further stated that while the plaintiffs' claim arose under the Constitution, it also must arise under the SSA, which “furnishes the standing and substantive basis for the presentation of their constitutional contentions.” Id. at 760-61. “To contend that such an action does not arise under the Act whose benefits are sought is to ignore both the language and the substance of the complaint and judgment.” Id. at 761.
In light of the Weinberger v Salfi analysis, plaintiffs' due process challenge to deportation cannot be independently maintained under 28 U.S.C. § 1331. Plaintiffs' legal theories do not sustain this cause of action, and as criminal aliens they are barred from asserting jurisdiction under the amended INA judicial review procedure. 1996 Act § 306(a), 142 Cong. Rec. at 11787.
CONCLUSION
For the reasons set forth above, the Court should dismiss this action in its entirety.
Neil JEAN-BAPTISTE, et al., Plaintiffs, v. Janet RENO, Immigration & Naturalization Service, et al., Defendants. 1996 WL 33670193 (E.D.N.Y.)
END OF DOCUMENT

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 Eastern District of New York - Live Database Version 3.0.5 Release - Docket Report

Page 1 of 5

CLOSED, CONSOLIDATED
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:96-cv-04077-SJ-MDG

Enrique, et al v. Reno, et al Assigned to: Senior-Judge Sterling Johnson, Jr Referred to: Magistrate-Judge Marilyn D. Go Demand: $0 Lead case: 1:96-cv-05070-SJ Member case: (View Member Case) Case in other court: 105.00
97-06062 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 08/19/1996 Date Terminated: 02/27/1997 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Neil Jean-Baptiste

represented by ATTORNEY LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gustavo Enrique Cepeda-Torres
Plaintiff Victor Israel Santana Victor Israel Santana, on behalf of themselves and all others similarly situated

Antonio C. Martinez 324 West 14th street New York, NY 10014 (212) 989-0404 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Antonio C. Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Antonio C. Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Atty General Janet Reno Janet Reno, Attorney General of the United States of America

represented by Mary Elizabeth Delli-Pizzi United States Attorneys Office Eastern District of New York 610 Federal Plaza Central Islip, NY 11722

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Defendant
Immigration and Naturalization Service

(631) 715-7900 Email: Beth.Dellipi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Quynh Vu Office of Immigration Litigation Civil Division P.O. Box 878 Ben Franklin Station Washington, DC 20044 (202) 616-9752 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/19/1996 09/11/1996 09/11/1996
09/24/1996 09/24/1996
09/24/1996 09/26/1996 09/26/1996

#

Docket Text

1 COMPLAINT filed and summons(es) issued against Janet Reno and Immigration and Naturalization Service FILING FEE $ 120.00 RECEIPT # 186152 (Brown, Marc) (Entered: 08/28/1996)

2 RETURN OF SERVICE executed as to Janet Reno & INS on 8/20/96. (Greves, Liz) (Entered: 09/11/1996)

4 NOTICE OF MOTION by Neil Jean-Baptiste, Gustavo Enrique CepedaTorres, Victor Israel Santana and motion for class certification and for preliminary injunction . Motion hearing set for 9:30 9/27/96 [4-1] motion . (Greene, Donna) (Entered: 09/24/1996)

3 MEMORANDUM by Neil Jean-Baptiste, Gustavo Enrique CepedaTorres, Victor Israel Santana in support of pltff's motion for preliminary injunction (Jackson, Ramona) (Entered: 09/24/1996)

5 MEMORANDUM by Neil Jean-Baptiste, Gustavo Enrique CepedaTorres, Victor Israel Santana in support of [4-1] motion motion for class certification and for preliminary injunction (Greene, Donna) (Entered: 09/24/1996)

6 CERTIFICATE OF SERVICE by Neil Jean-Baptiste upon the Local U.S. Attorney's Office of plaintiff's motion for class certification and for preliminary injunction. (Asreen, Wendy) (Entered: 10/02/1996)

7 Pltf.'s opposition to Deft.'s motion for extension of time to file deft.'s response to pltf's motion for class certification and for preliminary injunction. (Greene, Donna) (Entered: 10/07/1996)

9 MOTION by Janet Reno, Immigration and Natu for extension of time to file deft.'s response to pltf.'s motion for Class Certification and for Preliminary Injunction . Motion hearing set for 10/25/96 [9-1] motion . (Greene, Donna) (Entered: 10/07/1996)

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10/07/1996 10/16/1996 10/24/1996 10/30/1996 11/04/1996
11/08/1996
11/12/1996 11/12/1996 11/15/1996 11/15/1996 11/15/1996 11/22/1996 11/22/1996

8 ORDER that Quynh Vu be admitted pro hac vice to the bar of the Eastern District of New York for the purpose of trying or arguing the above-titled action pursuant to Local Rule 2(c). ( signed by Judge Sterling Johnson Jr. on 9/27/96). (Greene, Donna) (Entered: 10/07/1996)
10 LETTER dated 10/16/96 from Quynh Vu to Hon. Judge Johnson, respectfully requesting that the Court defer adjudication of pltf.'s class certification and preliminary injunction motion, pending resolution of the motion dismiss. (Greene, Donna) (Entered: 10/21/1996)
11 AFFIDAVIT OF SERVICE by Eladio A. Torres of the Stipulation Extending Time for Pltf.'s to file Response to Deft.'s Motion to Dismiss plt's Complaint. (Greene, Donna) (Entered: 10/29/1996)
13 MEMORANDUM by pltf.'s Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, Victor Israel Santana in opposition to deft. motion to dismiss complaint. (Greene, Donna) (Entered: 11/06/1996)
12 STIPULATION extending time for pltf.'s to file response to deft.'s motion to dismiss pltf.'s complaint to 10/30/96 . The return date on deft.'s motion to dismiss pltf.'s complaint is now Nov. 6, 1996. ( signed by Judge Sterling Johnson Jr. on 10/26/96). (Greene, Donna) (Entered: 11/04/1996)
14 LETTER dated 10/31/96 from Quynh Vu to Judge Johnson, on 10/29/96, Mr. Martinez and counsel for deft.'s stipulated to a new return day for the deft.'s motion t o dismiss. The return day is now 11/15/96. Accordingly, deft.'s will file a reply to pltf.'s response to the motion to dismiss by 11/13/96. (Greene, Donna) (Entered: 11/08/1996)
15 STIPULATION extending time for pltf.'s to file response to deft.'s motion to dismiss pltf.'s complaint until 11/6/96 . ( signed by Judge Sterling Johnson Jr. on 10/31/96). (Greene, Donna) (Entered: 11/12/1996)
16 NOTICE OF MOTION by Janet Reno, Immigration and Natu to dismiss complaint , with attached Memorandum in support of their Motion to dismiss complaint. (Greene, Donna) (Entered: 11/12/1996)
17 MEMORANDUM by defendants in support of their [16-1] motion to dismiss complaint. (Asreen, Wendy) (Entered: 11/18/1996)
18 MEMORANDUM by plaintiffs in opposition to defendants' [16-1] motion to dismiss complaint. (Asreen, Wendy) (Entered: 11/18/1996)
19 REPLY MEMORANDUM OF LAW by Janet Reno, Immigration and Naturalization in further support of their [16-1] motion to dismiss complaint. (Asreen, Wendy) (Entered: 11/18/1996)
20 ORDER consolidating 96 CV 5070 with 96 CV 4077 . It is ordered that 96 CV 5070 is administratively closed. ( signed by Judge Sterling Johnson Jr. 11/13/96). (Greene, Donna) (Entered: 11/22/1996)
Consolidated Lead Case. (Greene, Donna) (Entered: 11/22/1996)

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11/26/1996
01/27/1997
02/24/1997 02/27/1997 02/27/1997 03/18/1997
03/18/1997 04/04/1997 04/15/1997 04/23/1997 10/24/1997
06/22/1999

STIPULATION dated 11/18/96. The petitioner, in the above entitiled action, through his undersigned counsel, hereby stipulates to dismissal of this cause of action on the basis of mootness. ( signed by Judge Sterling Johnson Jr. on 11/18/96). (Note: orginial filed in 96 CV 5070 doc. #6). (Greene, Donna) (Entered: 12/27/1996)
21 LETTER dated 1/10/97 from Antonio C. Martinez, Esq. to Judge Johnson, submitting the enclosed article, circulated in 1975, not as an argument, but to aid the Court in coming to a just conclusion regarding the issue of "license" and "licensing". (Greene, Donna) (Entered: 01/27/1997)
22 MEMORANDUM AND ORDER granting defts. [16-1] motion to dismiss complaint. ( signed by Judge Sterling Johnson Jr. on 2/5/97). (Greene, Donna) (Entered: 02/24/1997)
23 JUDGMENT dated 2/27/97 that plaintiffs take nothing of the defendants; and, that defendants' motion to dismiss the complaint is granted. Signed by Robert C. Heinemann, Clerk. c/m w/appeals pkg. (Asreen, Wendy) (Entered: 02/27/1997)
Case closed (Asreen, Wendy) (Entered: 02/27/1997)
24 NOTICE OF APPEAL by Neil Jean-Baptiste in 1:96-cv-04077, Gustavo Enrique Cepeda-Torres in 1:96-cv-04077, Victor Israel Santana in 1:96cv-04077 Fee Paid $ 105.00 Receipt # 192986 Notice of Appeal and certified copy of docket sent appealing [22-1] order, [23-1] judgment order. Service made by clerk. (McGee, Maryann) (Entered: 03/18/1997)
Notice of Appeal and certified copy of docket to USCA: [24-1] appeal (McGee, Maryann) (Entered: 03/18/1997)
25 USCA Scheduling Order: [24-1] appeal Appeal record due by 4/28/97 . USCA Number: 97-6062 Appellant's brief due 5/5/97. Appellee's brief due 6/4/97. Argument set for 6/23/97. (McGee, Maryann) (Entered: 04/04/1997)
Certified and transmitted INDEX on appeal to U.S. Court of Appeals: [24-1] appeal . Acknowledgment requested. Documents 1-25. Missing: 5,25. (McGee, Maryann) (Entered: 04/15/1997)
26 Acknowledgment from USCA received re: [24-1] appeal (McGee, Maryann) (Entered: 04/23/1997)
Certified and transmitted record on appeal to U.S. Court of Appeals: [241] appeal . Acknowledgment requested. PLEASE NOTE: THIS RECORD IS BEING SENT TO DONNA AT THE USCA AS PER HER REQUEST . IT CONTAINS THE FOLLOWING DOCUMENTS#'1-4,624. (Gonzalez, Mary) (Entered: 10/24/1997)
27 MANDATE OF USCA (certified copy) Re: [24-1] appeal. Upon consideration thereof, it is ordered that the judgment be, and it hereby is, Affirmed. Mandate: issued 6/17/99. Judge Notified. Ackn. mailed. USCA# 97-6062. (Vasquez, Liz) (Entered: 06/22/1999)

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08/03/1999

28 Record on appeal returned from U.S. Court of Appeals included all documents. ( Copy of this receipt sent to Fred nunnery c/o Court of Appeals ). (Greene, Donna) (Entered: 08/03/1999)

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 USCA2 Docket Sheet for 97-6062

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INDIV HEARD CLOSED C70403
E04 4

Court of Appeals Docket #: 97-6062 Nsuit: 2440 CIVIL RIGHTS-Other Jean-Baptiste, et al v. Reno, et al Appeal from: U.S. District Court EDNY

Filed: 3/20/97

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case type information:
1) Civil 2) USA as party 3) none - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0207-01: 96-cv-4077 Trial Judge: Sterling Johnson, Jr. Magistrate Judge: Marilyn Dolan Go Date Filed: 8/19/96 Date order/judgment: 2/27/97 Date NOA filed: 3/18/97 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Panel Assignment:
Panel: ALK RJC PKL 1705 :CA2 11/18/97 am Date of decision: 5/8/98

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Docket as of February 5, 2000 1:24 am

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97-6062 Jean-Baptiste, et al v. Reno, et al

NEIL JEAN-BAPTISTE Plaintiff - Appellant

Antonio C. Martinez, Esq. 212-989-0404 [COR LD NTC ret] Law Office of

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Antonio C. Martinez, Esq. 324 W. 14th St. New York, NY 10014

GUSTAVO ENRIQUE CEPEDA-TORRES Plaintiff - Appellant

Antonio C. Martinez, Esq. (See above) [COR LD NTC ret]

VICTOR ISRAEL SANTANA, Victor Israel Santana, on behalf of themselves and all others similarly situated,
Plaintiff - Appellant

Antonio C. Martinez, Esq. (See above) [COR LD NTC ret]

-------------------------

JANET RENO, Attorney General of the United States of America,
Defendant - Appellee

Mary Elizabeth Delli-Pizzi, Esq. [COR LD NTC ret] U.S. Attorney's Office Eastern District of New York 1 Pierrepont Plaza, 14th Fl. Attn: Dahlia Joshua, Paralegal Specialist Brooklyn, NY 11201

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE
Defendant - Appellee

Quynh Vu, Esq. 202-616-9752 [COR LD NTC ret] Office of Immigration Litigation Civil Division PO Box 878 Ben Franklin Station Washington, DC 20044

Docket as of February 5, 2000 1:24 am

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97-6062 Jean-Baptiste, et al v. Reno, et al
Official Caption 1/ -------------------Docket no.(s):97-6062
NEIL JEAN-BAPTISTE, GUSTAVO ENRIQUE CEPEDA-TORRES, and VICTOR ISRAEL SANTANA, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
v.
JANET RENO, Attorney General of the United States of

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America, and IMMIGRATION AND NATURALIZATION SERVICE,

Defendants-Appellees.

--------------------

Authorized Abbreviated Caption 2/ ---------------------------------------------

Docket no.(s):97-6062

JEAN-BAPTISTE V. RENO

--------------------------------------------1/ Fed. R. App. P. Rule 12(a) and 32(a). 2/ For use on correspondence and motions only.

Docket as of February 5, 2000 1:24 am

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97-6062 Jean-Baptiste, et al v. Reno, et al

3/20/97

Copy of district court docket entries and notice of appeal on behalf of Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana filed. [97-6062] Form C due on 3/28/97. Form D due on 3/28/97. (ag41)

3/20/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana Form C filed, with proof of service. [97-6062] Form C deadline satisfied. (ag41)

3/20/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana Form D filed, with proof of service. [97-6062] Form D deadline satisfied. (ag41)

3/28/97

Scheduling order #1 filed. Record on appeal due on 4/28/97. Appellant's brief and appendix due on 5/5/97. Appellee's brief due on 6/4/97. Argument as early as week of 6/23/97. (Pre-Argument Conference scheduled for April 11, 1997, at 12:00 p.m.). (ag41)

3/28/97

Pre-Argument Conference Notice and Order from Stanley Bass, filed. (ag41)

4/2/97

Notice of Appeal Acknowledgment Letter from Antonio C. Martinez for Appellant Victor Israel Santana, Appellant Gustavo Enrique Cepeda-Torres, Appellant Neil Jean-Baptiste received. (ag41)

4/9/97

Notice of Appeal Acknowledgment Letter from Quynh Vu for Appellee INS received. (ag41)

4/17/97

Record on appeal index in lieu of record filed. (ag41)

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4/23/97

Letter from Respondent's counsel concerning oral arguments received. (ag41)

5/5/97

Notice of appearance form on behalf of Antonio C. Martinez, Esq., received. (Orig. to Calendar) (in04)

5/5/97

Appellant Neil Jean-Baptiste, Appellant Gustavo Enrique Cepeda-Torres, Appellant Victor Israel Santana brief FILED with proof of service. (ag43)

5/5/97

Appellant Neil Jean-Baptiste, Appellant Gustavo Enrique Cepeda-Torres, Appellant Victor Israel Santana appendix filed w/pfs. Number of volumes: 1. (ag43)

5/20/97

Appellee INS and Appellee Janet Reno motion to extend time to File Appellees', Brief FILED (w/pfs). [982245-1] (ag41)

5/20/97

Appellant Neil Jean-Baptiste, Appellant Gustavo Enrique Cepeda-Torres, and Appellant Victor Israel Santana reply brief received. Problem: Appellees' have not file brief and there is a pending motion to extend time to file the brief. (ag41)

Docket as of February 5, 2000 1:24 am

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97-6062 Jean-Baptiste, et al v. Reno, et al

5/23/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana Declaration in Opposition to Appellees' Motion for Extension of Time to File a Brief, FILED. [982245-1] filed (w/pfs). (ag41)

5/27/97

Order FILED GRANTING motion for extended time [982245-1] by Appellee INS, Janet Reno, endorsed on motion form dated 5/20/97. Extended appellee's brief due date is 7/3/97. Extended argument week as early as 7/28/97. "Having considered the motion and the opposition filed thereto. IT IS HEREBY ORDERED that the motion be and it hereby is granted. Were it not for the present state of this Court's calendar, we might well have been less generous to counsel for appellee here. However, the Calendar Clerk has reported tot he undersigned that this case is not yet on an approved, or proposed, calendar. Accordingly, denying the instant request." (SAB) (ag41)

5/27/97

New scheduling order number # 2 filed. New appellee's brief due date is 7/3/97. New argument week as early as 7/28/97. See Order granting extension of time dated May 27, 1997 (SAB). (ag41)

7/8/97

Appellees Janet Reno and INS brief filed with proof of service. (ag41)

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7/9/97

Letter from Appellee concerning wrong heading in their briefs received. (Each corrected page placed within the briefs). (ag41)

7/17/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana reply brief filed with proof of service. (ag41)

8/11/97

Appellees INS and Janet Reno 28(J) letter received. (ag41)

8/11/97

Order FILED REFERRING motion for extended time [982245-1] , to the panel that will hear the appeal. "A letter pursuant to FRAP 28(j) having been submitted by the appellee, United States Immigration and Naturalization Service, Upon consideration thereof, IT IS ORDERED that said letter be referred to the panel that will hear the appeal." (For the court: BJM) motion dated 5/20/97 (ag41)

8/11/97

Appellees INS and Janet Reno 28(J) letter FILED. (ag41)

8/15/97

Appellant Neil Jean-Baptiste, Appellant Gustavo Enrique Cepeda-Torres, Appellant Victor Israel Santana 28(J) letter FILED. (ag41)

8/20/97

Proposed for argument the week of 10/6/97. (ca91)

Docket as of February 5, 2000 1:24 am

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8/22/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana 28(J) letter FILED. (ag41)

9/11/97

Set for argument on 10/9/97 . [97-6062] (ca91)

9/15/97

Letter from Petitioner's counsel to reschedule oral arguments until November 1997, received. (ag41)

9/16/97

Appellee Janet Reno, Appellee INS motion for admission pro hac vice of: Quynh Vu, Esq., FILED (w/pfs). [1045805-1] (ag41)

9/17/97

Order FILED GRANTING motion for admission pro hac vice [1045805-1] by Appellee Janet Reno, INS, endorsed on motion form dated 9/16/97. (ca91)

9/18/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana 28(J) letter FILED. (ag41)

9/18/97

Appellant Neil Jean-Baptiste, Appellant Gustavo Enrique Cepeda-Torres, Appellant Victor Israel Santana motion to

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adjourn oral argument FILED (w/pfs). [1048307-1] (ag40)

9/19/97

Order FILED GRANTING motion adjourn oral argument [1048307-1] by Appellant Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, Victor Israel Santana, endorsed on motion form dated 9/18/97. (ca91)

9/25/97

Letter from Respondent concerning unavailability for oral arguments received. Respondent will not be available from Nov. 3 until Nov. 5, from Nov. 24 to Nov. 28, and from Dec. 8 thru Dec. 19, 1997. (ag41)

10/2/97

Proposed for argument the week of 11/17/97. (ca91)

10/21/97

Set for argument on 11/18/97 . [97-6062] (ca90)

10/27/97

Record on appeal after index filed. (ag41)

11/18/97

Case heard before KEARSE, CARDAMONE C.JJ., LEISURE D.J. (TAPE: #85+86) (ca95)

11/21/97

Appellants Victor Israel Santana, Gustavo Enrique Cepeda-Torres, and Neil Jean-Baptiste 28(J) letter FILED. (ag41)

11/24/97

Appellants Victor Israel Santana, Gustavo Enrique Cepeda-Torres, and Neil Jean-Baptiste 28(J) letter FILED. (ag41)

Docket as of February 5, 2000 1:24 am

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12/5/97

Appellants Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana motion for injunction pending appeal, FILED (w/pfs). [1090062-1] (ag41)

12/10/97

Appellees INS and Janet Reno opposition to motion for injunction pending appeal, FILED. [1090062-1] filed (w/pfs). (ag41)

12/10/97

Appellees INS and Janet Reno Memorandum in Support of Opposition to Appellants' motion for injunction pending appeal, FILED. [1090062-1] filed (w/pfs). (ag41)

12/11/97

Order FILED DENYING motion for injunction pending appeal [1090062-1] by Appellant Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, Victor Israel Santana, endorsed on motion dated 12/5/97. "Plaintiffs-Appellants having filed a motion for an injunction forbidding the INS to detain plaintiff Santana during the pendency of this appeal and from initiating bond forfeiture proceedings, Upon consideration thereof, IT IS HEREBY ORDERED that the motion

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for an injunction forbidding the INS to detain plaintiff Santana during the pending of this appeal be and it hereby is DENIED and the motion for an injunction forbidding the INS to initiate bond forfeiture proceedings be and it hereby is DENIED, unless plaintiff Santana surrenders to the INS on or before December 12, 1997." (Hons. ALK and RJC, CJJ) (Hon. PKL, DJ) (For the Court: AH) (ag41)

5/8/98

Judgment of the district court is AFFIRMED by published signed opinion filed. (RJC. CJ.) [97-6062] (ag40)

5/8/98

Judgment filed. (ag40)

6/8/98

Note: The OPINION PRICE is $ 3.40 (rek)

6/19/98

Appellee Janet Reno motion to extend time to file petition for rehearing en banc FILED (w/pfs). [1204880-1] (ag40)

6/25/98

Order FILED GRANTING motion for extended time to file petition for rehearing until 6 July 1998 [1204880-1] by Appellee Janet Reno, endorsed on motion form dated 6/19/98. (BJM,AA FOR THE COURT) (ag40)

6/25/98

Notice of so ordered motion to file petition for rehearing issued to all counsels. (ag40)

7/6/98

Appellees Janet Reno and INS Petition for Rehearing and Petition for Rehearing In Banc FILED, [1212736-2] with proof of service filed. (ag41)

7/30/98

Appellees Janet Reno and INS 28(J) letter received. (ag41)

9/23/98

Appellee INS, Appellee Janet Reno 28(J) letter received. (ag40)

Docket as of February 5, 2000 1:24 am

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11/2/98

Letter sent to Appellant Victor Israel Santana, Appellant Gustavo Enrique Cepeda-Torres, Appellant Neil Jean-Baptiste : The Panel has received a petition for rehearing in the above case from the government. Before determining whether to grant the petition, the panel wants to afford plaintiffs' counsel an opportunity to respond to it. See Fed. R. App. P. 40(a). Such response, if any should be filed on or before 5:00 P.M. on Monday, November 23, 1998 and be limited to a brief, that may be in the form of a letter, not to exceed 14 pages. (per Carolyn Clark Campbell, Clerk) (ag40)

11/23/98

Appellant Victor Israel Santana, Appellant Gustavo Enrique Cepeda-Torres, Appellant Neil Jean-Baptiste post argument letter brief filed. (Pursuant to the Court's Ordered of 2

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November 1998 in response to the government's petition for rehearing with suggestion for rehearing en banc) (ag40)

12/14/98

Appellant Victor Israel Santana, Appellant Gustavo Enrique Cepeda-Torres, Appellant Neil Jean-Baptiste 28(J) letter received. (ag40)

12/29/98

Appellee INS, Appellee Janet Reno 28(J) letter FILED. (ag44)

3/19/99

Letter sent to Appellee INS, Appellee Janet Reno, Appellant Victor Israel Santana, Appellant Gustavo Enrique Cepeda-Torres, Appellant Neil Jean-Baptiste, Counsels: The panel has received a petition for rehearing in the above case from the government, as well as a respondent letter brief from plaintiffs' counsel. Before determining whether to grant the petition, the panel wants to afford both plaintiffs' counsel and the government the opportunity to respond to the recent decision of the Supreme Court Court in Reno v. American-Arab Anti-Dicrimination Committee, 119 S. Ct. 936 (Feb.24, 1999). Such response, if any, should focus on the implications of the majority opinion, authored by Associate Justice Antonin Scalia, for the continued availablity of habeas review under 8 U.S.C.Par.1252. Such response should be filed on or before 5:00 p.m. on Friday April 9, 1999, and be limited to a brief, that may be in the form of a letter, not to exceed five pages. ( CCC, CLERK FOR THE COURT) (ag40)

4/9/99

Appellee INS, Appellee Janet Reno post argument letter brief filed. (ag40)

4/9/99

Appellant Victor Israel Santana, Appellant Gustavo Enrique Cepeda-Torres, Appellant Neil Jean-Baptiste post argument letter brief filed. (ag40)

Docket as of February 5, 2000 1:24 am

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97-6062 Jean-Baptiste, et al v. Reno, et al

5/17/99

Per Curiam Non-dispositive opinion filed, DENYING petition for REHEARING by Appellee Janet Reno, INS, endorsed on motion dated 7/6/98 Order states, "Petition for rehearing of this Court's May 8, 1998 opinion, 144 F. 3d 212, insofar as it recognized the availability of habeas corpus review under 28 U.S.C. #2241 for criminal aliens barred from direct appellate review by 8 U.S.C. # 1252(a)(2)(c) & (g). Petition denied. (Before ALK, RJC PKL). (ag44)

5/17/99

Order FILED DENYING petition for REHEARING by Appellee Janet Reno, INS, endorsed on motion dated 7/6/98. [See opinion filed this date]. (ag44)

5/17/99

Notice regarding denial of Petition for Rehearing issued to

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counsel. (ag44)

5/26/99

Note: The OPINION PRICE is $ 0.60 (rek)

6/8/99

Appellants Victor Israel Santana, Gustavo Enrique Cepeda-Torres & Neil Jean-Baptiste 28(J) letter received. (ag41)

6/10/99

Order FILED DENYING petition petition for rehearing in banc [1212736-2] by Appellee Janet Reno, INS, endorsed on motion dated 7/6/98. "A petition for rehearing and a petition for rehearing en banc having been filed herein by Defendants-Appellees Janet Reno & the Immigration and Naturalization Service. And the panel that decided the appeal having denied the petition for rehearing in an opinion filed May 17, 1999. It is further noted that the petition for rehearing en banc has been transmitted to the judges for the court in regular active service and to any other judge that heard the appeal and that no such judge has requested that a vote be taken thereon." [For the Court: BJM, AA] (ag41)

6/10/99

Notice to counsel regarding order denying petition for rehearing en banc filed on June 10, 1999. (ag41)

6/17/99

Judgment MANDATE ISSUED. (ag44)

7/19/99

Record on appeal RETURNED to lower court. No. of volumes: 1 (ref)

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 144 F.3d 212 (1998)
Neil JEAN-BAPTISTE, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v.
Janet RENO, Attorney General of the United States of America, and Immigration and Naturalization Service, Defendants-Appellees.
Docket 97-6062.
United States Court of Appeals, Second Circuit.
Argued November 18, 1997. Decided May 8, 1998.
213 *213 Eladio A. Torres, New York City (Antonio C. Martinez, Law Office of Dr. Antonio C. Martinez, New York City, of counsel), for Plaintiffs-Appellants.
Quynh Vu, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., Civil Div., William J. Howard, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Depart. of Justice, Washington, DC; Zachary W. Carter, U.S. Atty., Mary Elizabeth Delli-Pizzi, Special Asst. U.S. Atty., Eastern District of New York, Brooklyn, NY, of counsel), for Defendants-Appellees.
Before: KEARSE, CARDAMONE, Circuit Judges, and LEISURE[*], District Judge.
CARDAMONE, Circuit Judge:
Plaintiffs Neil Jean-Baptiste, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana appeal from a judgment of the United States District Court for the Eastern District of New York (Johnson, J.), entered February 27, 1997, granting the motion of defendants Janet Reno, Attorney General of the United States, and the United States Immigration and Naturalization Service (INS) to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6).
All three of the plaintiffs in this case are aliens who have been granted permanent residency in the United States. The INS ordered their deportation following their criminal convictions for drug offenses. Plaintiffs commenced the present suit in the district court challenging the deportation procedures followed by the INS under recentlyenacted immigration laws. They alleged that those procedures violated their Fifth Amendment rights to due process.
214 It is true that the immigration laws appear at times to be a monstrous legislative morass, *214 difficult to track and even more difficult to comprehend. Nonetheless, insofar as we can determine, Congress has removed from the jurisdiction of federal courts authority to entertain and decide the sort of action plaintiffs have instituted. Accordingly, we must affirm the district court's dismissal of the plaintiffs' claims.
BACKGROUND
The Plaintiffs
Plaintiff Neil Jean-Baptiste is a 27-year-old national of Haiti who became a legal permanent resident of the United States in 1972 at the age of two. In 1989, after pleading guilty, he was convicted in New York state court for criminal possession of a controlled substance in violation of N.Y. Penal Law § 220.18 (McKinney 1989 & Supp.1998). Based on this conviction, the Immigration Court ordered him deported on August 9, 1996 pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Naturalization Act (INA). See 8 U.S.C. §§ 1251(a) (2)(B)(i); 1251(a)(2)(A)(iii) (1994).

Plaintiff Gustavo Enrique Cepeda-Torres is a 23-year-old national of Colombia who became a lawful permanent resident of the United States in 1982 at the age of eight. In 1995 he pled guilty and was convicted in New York state court of the criminal sale of a controlled substance in violation of N.Y. Penal Law § 220.31 (McKinney 1989). Like Jean-Baptiste, he was ordered deported in 1996, pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA.
Plaintiff Victor Israel Santana, a 36-year-old national of the Dominican Republic, entered the United States in 1989 as a conditional permanent resident. He too was convicted in 1995 in New York state court of the criminal sale of a controlled substance in violation of N.Y. Penal Law § 220.39 (McKinney 1989 & Supp.1998) and was ordered deported based on that conviction by the Immigration Court in 1996. Plaintiffs' appeals to the Board of Immigration Appeals (BIA) from their deportation orders were dismissed.
The Relevant Statutory Scheme
The Immigration Court ordered plaintiffs deported pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA. Section 241(a)(2)(B)(i), now codified at 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996), stated at the relevant time that "[a]ny alien who at any time after entry has been convicted of a violation of ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... is deportable." Section 241(a)(2)(A)(iii), codified at 8 U.S.C. § 1251(a)(2)(A)(iii) (Supp. II 1996), then provided that "[a]ny alien who is convicted of an aggravated felony at any time after entry is deportable." There is no requirement in the INA that legal aliens granted permanent residency in the United States be given notice that they could lose such status were they to be convicted of committing these crimes. Nor were any of the plaintiffs, in fact, given such notice.
The Decision Below
Plaintiffs filed a proposed class action suit in the Eastern District before Judge Sterling Johnson, Jr. on August 19, 1996, challenging the procedures employed by the INS with respect to their deportations. They alleged that they, lawful permanent residents who have been convicted of certain criminal acts after their entry and grant of permanent resident status, were entitled to notice that engaging in criminal behavior could subject them to consequences under the immigration laws. They asserted that this lack of notice violates their constitutional rights under the Fifth Amendment's guarantee of due process. Because they had not received such notice, they argued that the INS should be enjoined from enforcing the deportation orders that have been filed against them. In response defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6), but agreed not to deport appellants until the dismissal motion was judicially resolved.
215 *215 1. Lack of Jurisdiction
Regarding the lack of jurisdiction claim, defendants asserted that INA § 242(g), codified at 8 U.S.C. § 1252(g) (Supp. II 1996), divested the district court of jurisdiction over the case. Section 242(g) states
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 [the INA].
Section 242(g) was enacted on September 30, 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Immigration Reform Act), Pub.L. No. 104-208, 110 Stat. 3009 (1996). That Act was the second of two signed into law in 1996 that substantially curtailed federal courts' jurisdiction over claims raised by aliens in deportation proceedings. The first was the Antiterrorism and Effective Death Penalty Act of 1996 (Antiterrorism Act), Pub.L. No. 104-132, 110 Stat. 1214 (1996), signed into law five months earlier on April 24, 1996.

Prior to the passage of the Antiterrorism Act, resident aliens facing deportation could seek federal judicial review under INA § 106(a)(10), which provided that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(a)(10) (1994) (amended 1996 and repealed 1996). Section 440(a) of the Antiterrorism Act, Pub.L. No. 104-132 at 440(a), 110 Stat. 1214, 1276-77 (1996) (hereinafter Antiterrorism Act § 440(a)), however, amended the text of INA § 106(a)(10) in April of 1996 and significantly withdrew federal jurisdiction over claims brought by aliens who have been ordered deported because of convictions for specified offenses. It read as follows
(10) Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241 (a)(2)(A)(i), shall not be subject to review by any court.
Antiterrorism Act § 440(a). The Immigration Reform Act repealed the amended § 106(a)(10) five months later, but enacted similar language in the new INA § 242(a)(2)(C). See 8 U.S.C. §§ 1105a & 1252(a)(2)(C) (Supp. II 1996).
Although the Immigration Reform Act specifically provided that its amendments to the INA would take effect on April 1, 1997, the general effective date of the Act, see Pub.L. No. 104-208, § 309(a), 110 Stat. 3009, 3009-625 (1996) (hereinafter Immigration Reform Act § 309(a)), it also stated that INA § 242(g) "shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." Pub.L. No. 104-208, § 306(c)(1), 110 Stat. 3009, 3009-612 (1996) (hereinafter Immigration Reform Act § 306(c) (1)). The defendants argued that this provision meant the district court was divested of jurisdiction as of September 30, 1996, the date the Immigration Reform Act was enacted. The district court disagreed and held that § 242(g) would become effective on April 1, 1997, as provided by Immigration Reform Act § 309(a). See Jean-Baptiste v. Reno, No. 96 CV 4077, 1997 WL 55472, at *3 (E.D.N.Y. Feb. 5, 1997). Thus, because the district court rendered its decision on February 5, 1997, prior to the Immigration Reform Act's April 1, 1997 effective date, it determined that § 242(g) did not divest it of subject matter jurisdiction. See id. Without § 242's impediment, it ruled that it had federal question jurisdiction under 28 U.S.C. § 1331. See id. at *4.
2. Failure to State a Claim
With respect to the merits of the case, plaintiffs' "collateral attack" on the manner in which the defendants administer the deportation process against lawful permanent residents, the district court judge agreed with the defendants that plaintiffs had failed to state a claim. It observed that even though legal permanent residents are not informed that certain kinds of convictions might cause their deportation, such a lack of warning did not violate 216 the Constitution or *216 the Administrative Procedure Act, even under those circumstances where, as here, the resident alien pled guilty to the crimes. See id.
Further, the district court held that the duty to inform legal permanent residents that they could be deported as a result of certain criminal convictions, if there indeed were one, was satisfied by the provisions of the INA, which clearly state that aliens convicted of certain crimes are deportable. See id. As such, the court continued, plaintiffs' own ignorance of this law could not form a basis for challenging the deportation procedures used against them. See id. The trial court noted that the INS met due process requirements here because the plaintiffs had received notice of their deportation pursuant to the order to show cause filed by the INS. Hence, the district court dismissed plaintiffs' case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. See id. Plaintiffs appeal this dismissal.
DISCUSSION
The district court, in determining that the effective date of INA § 242(g) was April 1, 1997, also stated that Immigration Reform Act § 306(c)(1) makes the provision explicitly retroactive so as to apply to cases pending on the September 30, 1996 enactment date of the Act. See Jean-Baptiste, 1997 WL 55472, at *3 (citing Lalani v.

Perryman, 105 F.3d 334, 336 (7th Cir.1997) (per curiam)). The question raised on appeal is whether federal courts have jurisdiction over the plaintiffs' case now that the April 1, 1997 date has passed.
The Effect of § 242(g) on Courts' Jurisdiction as Interpreted by Other Circuits
Other federal courts of appeals have already grappled with this question and, at least on the basis of the facts in the individual cases, come to different conclusions. The first case decided on § 242(g) was Ramallo v. Reno, 114 F.3d 1210 (D.C.Cir.1997), petition for cert. filed, 66 U.S.L.W. 3264 (U.S. Sept. 24, 1997) (No. 97-526). It concerned an alien, Marlena Ramallo, who sought to prevent her deportation by attempting to enforce in court an agreement she had made with the government regarding her immigration status. Ramallo claimed that the government agreed not to deport her and to restore her as a lawful permanent resident in exchange for her cooperation in prosecuting drug traffickers and her waiver of objections to her deportability. See id. at 1211. When the INS later obtained and attempted to execute a deportation order, Ramallo filed suit in the district court for the District of Columbia, seeking to enforce the agreement. See id. at 1212. The district court entered judgment in favor of Ramallo on July 23, 1996. See id. at 1213.
After the district court rendered its judgment, however, Congress enacted the Immigration Reform Act. Thus, on appeal, the D.C. Circuit had to consider that statute's effect on Ramallo's case. It concluded that the revised § 242(g) stripped it of jurisdiction to decide the appeal because the action had arisen from the decision or action of the Attorney General to execute a removal order against Ramallo. See id. at 1213 (holding that the "[Immigration Reform Act] now indisputably deprives both courts of appeals and district courts of jurisdiction to decide the instant action"). The Circuit Court asserted jurisdiction over the case for the limited purpose of vacating the district court decision and remanding with instructions to dismiss, stating: "[G]iven the firm command of 8 U.S.C. § 1252(g), we believe that Congress intended to afford this court residual jurisdiction to clear the decks of cases in which the District Court has entered judgment, but in which there can be no review by the Court of Appeals due to its lack of jurisdiction pursuant to [the new law]." Id. (emphasis added).
The next case was Auguste v. Attorney General, 118 F.3d 723 (11th Cir.1997). There the Eleventh Circuit reviewed the effect of § 242(g) on a French citizen's attempt to stay his deportation on the basis of his failure to make a "knowing and intelligent" waiver of his right to a deportation hearing. Auguste had signed a waiver form pursuant to the Visa Waiver Pilot Program, 8 U.S.C. § 1187 (1994), under which certain aliens may enter the 217 United States without a visa *217 for up to 90 days if they waive their right to contest any action for deportation (other than on the basis of an asylum application) against them. See id. at 724. When Auguste remained in the United States beyond the 90-day period, the INS issued an order of deportation without holding a hearing. See id. The district court agreed that Auguste's waiver had not been knowing and intelligent, granted a stay of deportation, and ordered that formal deportation proceedings be conducted. See id. at 724-25.
On appeal, the Eleventh Circuit ruled that Auguste's petition for habeas corpus had been filed pursuant to the old § 106 of the INA. See id. at 725. Since the Immigration Reform Act had repealed that section of the INA and replaced it with new § 242 during the intervening time period, the appellate court concluded that it did not have jurisdiction over Auguste's case. See id. at 725-26. It followed the result of Ramallo, stating that although it lacked jurisdiction over the appeal, it retained residual jurisdiction over Auguste's case in order to vacate the district court's judgment and remanded with instructions to dismiss. See id. at 727.
In American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367 (9th Cir.), reh'g denied, 132 F.3d 531 (9th Cir.1997), cert. granted in part, ___ U.S. ___, 118 S.Ct. 2059, 141 L.Ed.2d 137 (1998), the Ninth Circuit, apparently on the basis of facts unique to that case, came to a different conclusion than the two circuit cases just discussed. The Ninth Circuit case concerned deportation proceedings pursuant to 8 U.S.C. § 1251(a)(4)(B) (1994) against two permanent resident aliens affiliated with the Popular Front for the Liberation of Palestine for their alleged terrorist activity. See id. at 1370. They filed an action to contest the deportation proceedings, declaring that the INS singled them out for selective enforcement of the immigration laws in retaliation for their associational activity protected under the First Amendment. See id. The district court entered an injunction staying the deportation proceedings. See id. The government appealed from the injunction, asserting, among

other claims, that the subsequent enactment of § 242(g) retroactively divested the district court of jurisdiction over the matter. See id. at 1371.
The Ninth Circuit disagreed, stating that even though § 242(g) applied retroactively to cases pending on the Immigration Reform Act's April 1, 1997 effective date, such did not end the discussion regarding whether it had jurisdiction to consider the aliens' First Amendment claims. See id. at 1372. It pointed to the section's introductory phrase, "except as provided in this [new] section, [8 U.S.C. § 1252]," and concluded that the provision expressly incorporates certain exceptions from 8 U.S.C. § 1252 when § 242(g) applies to pending cases. See id. Were the court to interpret § 242(g) as precluding all judicial review of aliens' colorable constitutional claims, such as the plaintiffs' First Amendment claims, the Ninth Circuit continued, "serious constitutional question[s] ... would arise." See id. (quoting Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988)).
The Ninth Circuit proceeded to discuss which provisions of 8 U.S.C. § 1252 are incorporated by reference into § 242(g). In particular, it looked at 8 U.S.C. § 1252(f), which limits a court's authority to enjoin the operation of INA provisions related to entry and exclusion, other than with respect to their application to an "individual alien" against whom proceedings under such provisions have been initiated. The court held that § 1252(f) allowed federal jurisdiction over the aliens' pending First Amendment claims. See id. at 1372-73.
In Ramallo, the D.C. Circuit had held that it did not need to decide whether § 242(g) posed such constitutional problems because it determined that habeas review was available to the plaintiff in that case to raise whatever constitutional questions were implicated. See 114 F.3d at 1214. The Eleventh Circuit in Auguste also implied that habeas was available, in theory, to the plaintiff in that case, but found that it was "difficult to imagine a court granting the Great Writ under these circumstances." 118 F.3d at 726-27 n. 7. In American-Arab AntiDiscrimination Committee, the Ninth Circuit found, to the contrary, that review of the final order of deportation by 218 habeas corpus did not offer *218 adequate redress for the plaintiffs' claimed constitutional injuries. See 119 F.3d at 1374. It recognized that other courts 0907 for example, the D.C. Circuit in Ramallo 0907 had relied on the likely availability of habeas to preserve the constitutionality of the jurisdiction-narrowing provisions of § 242(g), but determined that the possibility of habeas review did not provide plaintiffs with sufficient redress. See id. The rationale for the Ninth Circuit's holding was that violation of the plaintiffs' First Amendment rights would injure them in a way that could not be vindicated by any post-deprivation remedies. See id.
The Effect of § 242(g) in this Case
With the legislation and case law construing it in mind, we turn to the matter before us. We read amended § 242 to divest this Court and the district court of jurisdiction to decide these plaintiffs' claims. The claims were made "by or on behalf of [aliens] arising from the decision of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders" against them, just as those made in Ramallo and Auguste. Congress in this statute has terminated the jurisdiction of federal courts to hear this sort of appeal. We are precluded therefore from entertaining or deciding it.
In holding that § 242(g) divests us and the district court of jurisdiction over plaintiffs' claims, we recognize the plenary power Congress has in the immigration field. As the Supreme Court noted
[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.... [O]ver no conceivable subject is the legislative power of Congress more complete.... Thus, in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.
Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 1448-49, 123 L.Ed.2d 1 (1993). Congress amended § 242 in the Immigration Reform Act with broad language in order to "expedit[e] the removal of excludable and deportable aliens, especially criminal aliens." Immigration Control & Financial Responsibility Act of 1996, S.Rep. No. 104-249, at 2 (1996). We are compelled to comply with that mandate.

The Availability of 28 U.S.C. § 2241 Habeas Review After the Enactment of the Immigration Reform Act
As we dismiss plaintiffs' claims for lack of jurisdiction, we must give thought to whether a statute that eliminates on jurisdictional grounds review of such a constitutional challenge passes constitutional muster itself. See Webster v. Doe, 486 U.S. at 603, 108 S.Ct. at 2053 ("[S]erious constitutional question[s] ... would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim."). But, as our sister circuits concluded, all review has not been eliminated. Because habeas corpus remains available, the Immigration Reform Act suffers from no constitutional infirmity.
The Constitution provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const., art. I, § 9, cl. 2. In addition, § 2241 of Title 28 of the U.S.Code empowers Supreme Court Justices and circuit and district court judges to grant a writ of habeas corpus to an individual "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (1994). Moreover, the availability of habeas to challenge deportation orders has long been recognized. See Heikkila v. Barber, 345 U.S. 229, 234-35, 73 S.Ct. 603, 605-06, 97 L.Ed. 972 (1953) (acknowledging that congressional efforts to restrict judicial review of aliens' deportation orders had been successful, but recognizing at the same time the continued viability of habeas corpus review); Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990) ("Challenges to deportation proceedings are cognizable under 28 U.S.C. § 2241."); Yesil v. Reno, 958 F.Supp. 828, 838-39 (S.D.N.Y.1997) (discussing Heikkila and stating that "the Supreme Court has made it clear that Congress cannot eliminate habeas corpus review over final deportation orders unless there is some alternative avenue for review").
219 *219 Nothing in the language of either the Antiterrorism Act or the Immigration Reform Act suggests that Congress expressly repealed § 2241, limited its scope, or eliminated the jurisdiction of the district courts under that statute to entertain petitions seeking writs of habeas corpus. Those two Acts therefore do not specifically exclude habeas review in deportation cases under § 2241, and repeal by implication of the right to petition for habeas corpus relief is disfavored. See Felker v. Turpin, 518 U.S. 651, 659-61, 116 S.Ct. 2333, 2338, 135 L.Ed.2d 827 (discussing Ex Parte Yerger, 75 U.S. 85, 8 Wall. 85, 105, 19 L.Ed. 332 (1868), and upholding the Supreme Court's authority to entertain a petition for a writ of habeas corpus). Thus, in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts' habeas jurisdiction pursuant to § 2241.
Further, we heretofore have recognized the need for some judicial review of aliens' constitutional challenges in Hincapie-Nieto v. INS, 92 F.3d 27, 31 (2d Cir.1996). There, in determining whether § 440(a) of the Antiterrorism Act and its elimination of jurisdiction over petitions to review final orders of deportation was sustainable, we stated that "[s]ince the Government acknowledges that at least some avenue for judicial relief remains available, we see no infirmity in the repeal of our prior jurisdiction to entertain Hincapie-Nieto's petition for review of his deportation order." Id. Our opinion in Garay v. Slattery, 23 F.3d 744, 745 (2d Cir. 1994), should not be read as foreclosing § 2241 habeas relief because Garay was decided based upon specific provisions of the INA 0907 subsections of 8 U.S.C. § 1105a(a) that made review under them the "sole and exclusive procedure" 0907that have since been repealed and hence no longer apply.
Even though Congress exercises broad power over immigration matters, the Supreme Court has ruled that aliens who have established permanent residency in this country are entitled to assert their constitutional rights. See INS v. Chadha, 462 U.S. 919, 940-41, 103 S.Ct. 2764, 2778-79, 77 L.Ed.2d 317 (1983) ("`Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, . . . so long as the exercise of that authority does not offend some other constitutional restriction.'") (quoting Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 688, 46 L.Ed.2d 659 (1976)); Landon v. Plasencia, 459 U.S. 21, 32-33, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) ("[A] continuously present resident alien is entitled to a fair hearing when threatened with deportation, ... and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a

situation."). Without the ability to seek a writ of habeas corpus under § 2241, certain lawful permanent residents subject to deportation orders would have no opportunity to address potentially serious constitutional issues.
Defendants argue that the Immigration Reform Act does not deprive an individual of a forum in which to adjudicate his or her constitutional rights, but rather removes district court jurisdiction over deportation matters and channels such actions directly to the courts of appeals. The courts of appeals did have jurisdiction over individual orders of deportation under INA § 106(a), 8 U.S.C. § 1105a(a), but Congress eliminated such review for individuals found deportable for certain criminal convictions in Antiterrorism Act § 440(a). As discussed above, we subsequently upheld § 440(a)'s elimination of courts of appeals' jurisdiction over petitions to review final orders of deportation in Hincapie-Nieto, 92 F.3d at 31. The INA, as amended by the Immigration Reform Act, does provide for judicial review of some aliens' deportation orders by courts of appeals in 8 U.S.C. § 1252(a)(1), but that review is taken away by the Act's transitional rule § 309(c)(4)(G), Pub.L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009, XXXX-XXX-XX (1996), and its permanent counterpart, 8 U.S.C. § 1252(a)(2)(C), for aliens convicted of certain criminal offenses, such as plaintiffs here. See Mayers v. Reno, 977 F.Supp. 1457, 1460-61 (S.D.Fla.1997) ("Pursuant to [Immigration Reform Act] section 309(c)(4)(G), the petitioner's conviction of an 220 aggravated felony will likely bar him from *220 raising his claim even before the Eleventh Circuit Court of Appeals."). Accordingly, defendants' arguments regarding review by courts of appeals are not well taken, being based on a misapprehension of the statutes. See Ozoanya v. Reno, 968 F.Supp. 1, 5-6 (D.D.C.1997) ("By their terms, of course, both section 440(a) of the [Antiterrorism Act] and section 306(a)(2) of the [Immigration Reform Act] bar review `by any court' of a final deportation order against an alien who has been found deportable because of his conviction of certain enumerated crimes.... Nothing in those sections suggests that a court of appeals would have jurisdiction to entertain claims made by someone in petitioner's shoes 0907 even for constitutional claims 0907 any more than would a district court.").
In sum, we join other courts in holding that § 2241 habeas review survives the amendments to the INA enacted by the Immigration Reform Act. See Ramallo, 114 F.3d at 1214 ("[A]s the government concedes, habeas review remains available to appellee to raise substantial constitutional questions."); Mojica v. Reno, 970 F.Supp. 130, 157-163 (E.D.N.Y.1997) ("While the amendments manifest Congress's desire to streamline the deportation process, [the two Acts] leave undisturbed the independent authority of federal district courts to entertain habeas petitions under section 2241 of Title 28."); Ozoanya, 968 F.Supp. at 7 (permitting habeas corpus review of deportation orders despite the passage of § 242(g)). But, in finding that § 2241 habeas review remains available for aliens deemed deportable under certain circumstances to raise constitutional questions, we express no opinion on the permissible scope of that review. See, e.g., Mojica, 970 F.Supp. at 163 (discussing district courts' narrowing the scope of § 2241 jurisdiction in the context of challenges to deportation orders).
Whatever the permissible scope of review, we do not believe this case implicates the jurisdiction of the federal courts under § 2241. Plaintiffs sought federal question jurisdiction under 28 U.S.C. § 1331, not habeas jurisdiction under 28 U.S.C. § 2241. INA § 242(g) deprives us and the district court of such jurisdiction.
As a consequence, we, as our sister circuits, assert residual jurisdiction over the plaintiffs' claims in order to affirm the district court's judgment dismissing this case, although such dismissal should have been under Fed.R.Civ.P. 12(b)(1) (lack of jurisdiction) instead of Fed.R.Civ.P. 12(b)(6) (failure to state a claim upon which relief can be granted).
CONCLUSION
For the foregoing reasons, we affirm the district court's judgment insofar as it dismisses plaintiffs' claims, but we do so pursuant to Fed.R.Civ.P. 12(b)(1) rather than Fed. R.Civ.P. 12(b)(6).
[*] Hon. Peter K. Leisure, Senior Judge, United States District Court for the Southern District of New York, sitting by designation.
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 175 F.3d 226 (1999)
Neil JEAN-BAPTISTE, Gustavo Enrique Cepeda-Torres, and Victor Israel Santana, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v.
Janet RENO, Attorney General of the United States of America, and Immigration and Naturalization Service, Defendants-Appellees.
Docket No. 97-6062.
United States Court of Appeals, Second Circuit.
Filed July 6, 1998. Decided May 17, 1999.
227 *227 Antonio C. Martinez, New York, New York (Eladio A. Torres, Law Office of Antonio C. Martinez, New York, New York, of counsel), for Plaintiffs-Appellants.
Quynh Vu, Washington, D.C. (Frank W. Hunger, Assistant Attorney General, Civil Division, Donald E. Keener, Deputy Director, Emily Anne Radford, Senior Litigation Counsel, Michele Y.F. Sarko, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.; Zachary W. Carter, U.S. Attorney, Scott Dunn, Mary Elizabeth Delli-Pizzi, Assistant U.S. Attorneys, Eastern District of New York, Brooklyn, New York, of counsel), for Defendants-Appellees.
Before: KEARSE, CARDAMONE, Circuit Judges, and LEISURE[*], District Judge.
PER CURIAM.
On petition for rehearing, defendants urge us to modify the holding of Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998), insofar as it recognized the availability of habeas corpus review under 28 U.S.C. § 2241 for criminal aliens barred from direct appellate review by 8 U.S.C. § 1252(a)(2)(C) & (g). Although that holding has since been criticized by another panel of this Court, see Henderson v. INS, 157 F.3d 106, 119 n. 9 (2d Cir.1998), cert. denied sub nom. Navas v. Reno, ___ U.S. ___, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999), a number of other circuits recognize the availability of some habeas review under § 1252(g) and similar provisions of the new immigration statutes, see Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C.Cir. 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 1139, 143 L.Ed.2d 207 (1999); Goncalves v. Reno, 144 F.3d 110, 123-25 (1st Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999); Sandoval v. Reno, 166 F.3d 225, 238 (3d Cir. 1999); Lerma de Garcia v. INS, 141 F.3d 215, 217 (5th Cir.1998) (IIRIRA § 309(c)(4)(G)); Mansour v. INS, 123 F.3d 423, 426 (6th Cir.1997) (AEDPA § 440(a)). Regardless of whether these courts agree as to the precise scope of the habeas review that remains, such scope is a question we expressly left unanswered in Jean-Baptiste, 144 F.3d at 220. Accordingly, the petition for rehearing is denied.
[*] Hon. Peter K. Leisure, Senior Judge, United States District Court for the Southern District of New York, sitting by designation.
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