* District Judge, United States District Court for the Western

District of Louisiana, sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

June 4, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-30115

_____________________

JAYSUKH ZALAWADIA,

Petitioner - Appellant,

versus

JOHN ASHCROFT , U.S. ATTORNEY GENERAL; JAMES ZIGLAR; LYNNE

UNDERDOWN; BUREAU OF IMMIG RATION AND CUSTOMS ENFORCEMENT; UNITED

STATES DEPARTMENT OF JUSTICE,

Respondents-Appellees.

__________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________________________________________________

Before JOLLY and WIENER, Circuit Judges, and WALTER, District

Judge. *

E. GRADY JOLLY, Circuit Judge:

Jaysukh Zalawadia was deported to India while his habeas

appeal challenging the legality of the de portation order was

pending. This appeal requires us to determine the effect

deportation of a habeas petitioner has on (1) our ability to

exercise continued jurisdiction over that petition and (2) the

nature and scope of habeas relief available to an alien deported

under a de fective deportation order. For the reasons explained

below, we hold that we have habeas jurisdiction over this petition.1 The INA defined “aggravated f elony” as “murder, any illicit

trafficking in any controlled substance (as defined in section

. .

. including any drug trafficking crime . . . or any illicit

trafficking in any firearms or destructive devices . . . or any

crime of violence

. . . for which the term of imprisonment imposed

(regardless of any suspension of such imprisonment) is at least 5

years . . .” 8 U.S.C. § 1101(a)(43)(1994 ed.).

2 Conviction of a crime of moral turpitude was a deportable

offense only when the conviction came within five years after the

original date of entry and resulted in confinement in prison for

one year or longer. 8 U.S.C. § 1251(a)(2)(A)(i). Zalawadia’s

conviction satisfies neither of these conditions.

2 We vacate this deportation order and also hold that, because of the

limited nature of habeas, we lack authority, in this habeas action,

to grant relief bey ond simply vacating the defective order under

which he was deported. The petitioner, whose liberty interests and

rights are now no longer encumbered by the deportation order, must

turn to other procedural remedies, if any, for further relief.

I

Jaysukh Zalawadia, a native and citizen of India, was admitted

i nto the United States in September 1988. In 1995, he pleaded

guilty to a charge of burglary and felony theft and was sentenced

to two years probation and required to pay restitution. At the

time, his guilty plea had no immediate effect on his immigration

status. Under the Immigration and Nationality Act (INA) as it then

existed, conviction of these offenses did not render him subject to

deportation; th ey were not deportable “aggravated felonies” as

defined by the Act 1 nor did they meet the conditions necessary to

constitute depo rtable “crimes of moral turpitude.” 2 These3

convictions did cre ate the possibility that Zalawadia could be

rendered inadmissible should he leave the country and attempt to

re-enter; under INA § 212(a)(2)(A)(i)(I), 8 § U.S.C.

1182(a)(2)(A)(i)(I), a lawful permanent re s ident who had been

convicted of a “crime involving moral t urpitude” would be deemed

inadmissible should that resident leave the United States and later

seek reentry. However, the Supreme Court had interpreted this

condition only to apply to travel outside the United States that

was not “brief, casual or innocent.” Rosenberg v. Fleuti , 374

U.S. 449 (1963) (holding that lawful permanent residents who travel

abroad should be admitted, even if otherwise inadmissible, if their

travel was “brief, casual, or innocent”). In addition, the INA

contained a provision granting the Attorney General of the United

States the broad discretion to admit aliens who were otherwise

excludable on the basis of a prior criminal conviction. Under §

212(c) of that act, any lawfully admitted alien “who temporarily

proceeded abroad voluntarily

. . . and wh o [is] returning to a

lawful unrelinquished domicile of seven years” was eligible for

this discretionary waiver. INA § 212(c), 8 U.S.C. § 1182(c) (1994

ed.). Thus, under the law as it then existed, Zalawadia’s criminal

conviction would affect his immigration status only if his travel

outside the United States was not “brief, casual or innocent” and

even then, he would be eligible to apply for discretionary relief

w ith the Attorney General could he prove seven years of

unrelinquished domicile.3 It appears no court has yet reviewed the BIA’s determination

that Fleuti ’s rule was superseded by statute. There is no need for

us to examine this conclusion in any detail, however, as it has not

been challenged here. All that is important in this case is that

immigration offic ials assumed that F leuti no longer applied,

leading them to detain Zalawadia when he attempted to reenter the

country.

4 The new provision considerably restricted the class of aliens

eligible for discretionary relief from the Attorney General. Under

its terms, the Attorney General was barred from granting waivers to

aliens who, among other things, had been convicted of an aggravated

felony. 8 U.S.C. § 1229b(a). The IIRIRA enlarged the definition

of offenses constituting aggravated felonies to include, i nter

alia

, burglary and theft offenses for which a one-year term of

imprisonment is imposed. 8 U.S.C. § 1101(a)(43)(G).

4 The passage of the Antiterrorism and Effective Death Penalty

Act (AEDPA) and I llegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA) in 1 996 had two specific effects on

Zalawadia’s immigration status. First, the IIRIRA’s amendments to

the INA ostensibly superseded the rule announced in Fleuti ; under

the amended INA, 8 U.S.C. § 1101(a)(13)(C)(v), as interpreted by

the Board of Immigration Appeals (BIA), a lawful permanent resident

could be barred from reentry regardless of the nature of his travel

outside the country. S ee In Re Collado

, 21 I. & N. Dec. 1061 (BIA

Dec. 18, 1997). 3 In addition, the IIRIRA specifically repealed §

212(c), replacing it with § 240(A), 8 U.S.C. § 1259b. Zalawadia

was no longer eligible for a discretionary waiver from the Attorney

General under this new provision. 4

Zalawadia s oon felt the effects of these statutory changes.

In 1998, he briefly left the country on a bu siness trip abroad.

Upon returning, because the INS had concluded that Fleuti ’s rule no5 Before filing his habeas petition, Zalawadia filed an appeal

of the BIA’s decision with this court and also sought a stay of

removal. We dismissed the petition for lack of jurisdiction and

denied the stay motion. S ee Zalawadia v. INS

, No. 99-6059 3 (5th

Cir. Oct. 21, 1999).

5 longer applied, he was treated as an arriving alien, detained, and

issued a Notice to Appear charging him with inadmissibility as a

result of his 1995 convictions. In the original removal

proceedings before an immigration judge, Zalawadia conceded

removability but requested cancellation of his removal order

pursuant to § 240A(a) of the INA

-- the provision that had replaced

§ 212(c). The immigration judge found that Zalawadia’s convictions

prevented him

from meeting the residency requirements for

cancellation of removal (seven years of unrelinquished lawful

domicile) and ordered him removed.

Zalawadia filed a timely appeal to the BIA. There, apparently

for the first time, he contended that he was entitled to claim

eligibility for a waiver under the old Immigration and Nationality

Act, § 212(c). That appeal was dismissed, because the BIA found

that the IIRIRA’s repeal of § 212(c) should be applied

retroactively. Zalawadia’s motion to reconsider and reopen was

also dismissed.

Zalawadia then filed a petition for a writ of habeas corpus in

federal district court. 5 There, he contended that his detention

and removal order were illegal because the BIA had improperly

applied retroactively the provisions of the I IRIRA, thereby6

erroneously determining him to be ineligible for § 212(c) relief.

The habeas petition was dismissed, as was Zalawadia’s request for

a stay of the removal order. Zalawadia appealed to this court, but

while his appeal was pending, he was deported. We then dismissed

his appeal. That dismissal did not end this case, however.

Following his deportation and our dismissal of his appeal,

Zalawadia filed a petition for a writ of certiorari with the

Supreme Court, which was granted. The Supreme Court vacated this

court’s judgment in the light of INS v. St. Cyr

, 533 U.S. 289

(2001), a 2001 case holding, in relevant part, that the IIRIRA did

not apply retroactively. We then vacated the decision of the

district cour t and remanded for further consideration consistent

with St. Cyr

.

After remand, a magistrate judge recommended that Zalawadia’s

habeas petition be denied because he had not accrued seven years of

unrelinquished lawful domicile at the time of the plea agreement in

his criminal case

-- a precondition to eligibility for § 212(c)

relie f. See 8 U.S.C. § 1182(c) (1994 ed.). In short, the

magistrate found that Zalawadia was not entitled to habeas relief

because the order of deportation did not violate Zalawadia’s rights

under the statute. The district court adopted the magistrate’s

recommendation and this appeal followed.

II

Zalawadia now contends that the district court erred in

considering the merits of his claim of eligibility for relief6 In Ventura

, the Supreme Court he ld that federal courts are

not generally empowered to conduct initial inquiries into matters

that statutes place primarily in agency hands. In such cases, the

agencies perform

the role of initial factfinders; federal courts

may only properly involve themselves after the agencies have first

considered the underlying merits of the claim, and then only in an

appellate review fashion. 537 U.S. at 16-17.

7 instead of remanding the matter to the BIA (which had not had the

chance to consider his arguments on t he seven-year domicile

requirement), as it should have under INS v. Ventura , 537 U.S. 12

(2002). 6 Accordingly, he urges us to grant habeas relief by

reversing and vacating the district court judgment and remanding to

that court with i nstructions that it remand the case to the BIA,

directing it to consider his claims under § 212(c).

In response, the government concedes that the district court

committed error in considering Zalawadia’s eligibility for relief

de novo ; it concedes that, in accordance with Ventura

, such

questions are for the BIA to determine in the first instance.

Irrespective of whether the district court erred in that respect,

its error is irrelevant to a determination of this appe al. More

fundamentally, the government contends that the district court had

no habeas j urisdiction to hear this case in the first place. It

asserts that because Zalawadia has been deported, he cannot satisfy

the “in custody” requirement for federal habeas jurisdiction.

Alternatively, the government contends that even if habeas

jurisdiction does exist, Zalawadia is still not entitled to any

relief as removed aliens are no t authorized by statute or8

regulation to apply for § 212(c) relief from abroad. We disagree

that we lack habeas jurisdiction. We do agree, however, that we do

not have authority as a habeas court to order the relief Zalawadia

seeks, albeit for different reasons than those urged by the

government. We hold that relief in this habeas proceeding is

limited to vacating the order of deportation.

III

As a threshold matter, we must determine whether the district

court had habeas jurisdiction over this case. We hold that it did.

The government contends tha t habeas jurisdiction no longer

exists here because Zalawadia has been deported and is no longer in

custody; accordingly, it argues that he is unable to satisfy the

“in custody” requirement of federal habeas jurisdic tion. This

argument, however, is foreclosed by our own precedent as well as

the unanimous precedent of our sister circuits.

The Supreme Court has made it clear that the “in custody”

determination is made at the time the habeas petition is filed.

Spencer v . Kemna , 523 U.S. 1, 7 (1998); C arafas v. LaVallee

, 391

U.S. 234, 237-38 (1968). Moreover, this court has previously held

that this rule applies to petitioners who have been deported in the

same way it applies to any other habeas petitioner no longer in

custody. In M ax-George v. Reno

, 205 F.3d 194 (5 th Cir. 2000), rev’d

on other grounds

, 533 U.S. 945 (2001), this court exercised habeas

jurisdiction over a deported alien where that alien had been in

custody at the time the suit was filed. When confronted with9

similar facts, our sist er circuits have reached the same

conclusion, uniformly holding that a deportation subsequent to the

filing of the petition in habeas corpus does not deprive the courts

of jurisdiction. See Leitao v. Reno , 311 F.3d 453, 455 (1st Cir.

2002); Chong v. District Director, INS

, 264 F.3d 378 (3d Cir.

2001); Smith v. Ashcroft

, 295 F.3d 425 (4th Cir. 2002); ZegarraGomez v. INS , 314 F.3d 1124 (9 th Cir. 2003).

The governmen t nevertheless objects to the district court

exercising jurisdiction, arguing that Zalawadia’s changed

condition, i.e., his deportation, has caused him to lose his “in

custody” status. It notes that the Supreme Court has never held

that a habeas petitioner’s “in custody” status, once established,

may never be lost as a result of an event occurring during the

pendency of the habeas litigation. Although this is certainly an

accurate statement of law, it incorrectly co nflates habeas’ “in

custody” requirement with the requirement that a peti tion not be

moot. As the Supreme Court explained in S pencer

, for a court to

exercise habeas jurisd iction over a petitioner no longer in

custody, the petitioner must demonstrate that he was in custody at

the time he filed the petition and that his subsequent release has

not rendered the petition moot, i.e., that he continues to present

a case or controversy under Article III, § 2 of the Constitution.

Spencer

, 5 23 U.S. at 7. The petitioner presents an Article III

controversy when he demonstrates “some concrete and continuing10

injury ot her than the now-ended incarceration” -- a “collateral

consequence of the conviction.” I d

. (internal quotations removed).

In Max-George , we dealt with a similar question. There, the

petitioner had been deported during the pendency of his habeas

petition. The government apparently conceded the fact that the

petitioner had filed the petition while in custody, but argued that

his subsequent deportation had rendered it moot. We rejected that

argument, finding that the petitioner continued to face a concrete

collateral consequence of his deportation -- a statutory ten-year

waiting period before he was eligible for reentry

-- and therefore,

that the petition was not moot. M ax-George

, 205 F.3 d at 196.

Other circuits have reached similar conclusions, holding that the

bar on readmission of a removed alien is a legally cognizable

collateral consequence that preserves a live controversy even after

deportation of the petitioner. S ee Leitao

, 311 F.3d at 455; Chong

,

264 F.3d at 385; Smith

, 295 F.3d at 428; Zegarra-Gomez

, 314 F.3d at

1127.

Here, it is undisputed that Zalawadia’s deportation bars him

from seeking reentry into the United States for a p eriod of five

years. S ee 8 U.S.C. § 1182(a)(9)(A)(I). This penalty constitutes

a cognizable collateral consequence; as such, his petition presents

a live case or controversy and is not moot. Accordingly, because

Zalawadia’s petition was fi led when he was in custody and is not

moot, we hold that we have habeas jurisdiction this case.

IV11

The government contends that even if we do have jurisdiction

over this matter, this court should affirm the distr ict court’s

judgment because no statute or regulation authorizes an alien who

has been removed from the United States to apply for section 212(c)

relief. The government notes that according to federal regulations

governing the BIA, “a motion to reopen or to reconsider shall not

be made by or on behalf of a person who is the subject of removal,

deportation, or e xclusion proceedings subsequent to his or her

departure from the Unit ed States.” 8 C.F.R. § 1003.2(d). It

asserts that upon lawful executio n of his removal order, the

removal case against Zalawadia, for all substantive purposes, was

completed. Accordingly, it argues that he is unable to bring this

claim before the BIA because federal regulations bar the BIA from

h earing it. This argument seems akin to a mootness argument --

that his removal mooted any claim for relief that might otherwise

be available to him.

In any event, finally resolving th is particular question of

the federal regulation is not necessary in order to reach a

conclusion concerning Zalawadia’s habeas petit i on. The basic

question before this court on habeas review is a narrow one: was

Zalawadia’s detention illegal? If it was, we must grant his

petition and apply the appropriate remedy. By granting certiorari,

reversing, remanding, and citing S t. Cyr

, the Supreme Court has

already made clear that the deportation order under which Zalawadia

had been detained was legally fla wed because the BIA improperly7 Under the IIRIRA, habeas actions are the only ave nue of

appeal open to an individual in Zalawadia’s position. The IIRIRA

12 applied the IIRIRA’ s restrictive provisions retroactively. It

follows that, like St. Cyr, Zalawadia’s detention ba sed on that

order, which deprived him of the discretionary benefits of the

applicable statute, was illegal. Moreover, as we have explained,

although Zalawadia has been released from detention, he still faces

concrete collateral consequences arising out of that illegal order.

Accordingly, Za lawadia is entitled to appropriate habeas relief

quite aside from how a particular government regulation may apply

to him now. The question is what relief is appropriate in this

habeas proceeding.

Zalawadia contends that the acknowledgment of the invalidity

of the order of deportation requires a remand to the BIA with

instructions to hold a new deportation proceeding in wh ich

Zalawadia’s request for § 212(c) relief may be properly considered.

After examining his arguments, however, we conclude that the only

form of habeas relief appropriate here is for the district court to

vacate the original deportation order. Ordering any other relief

would be inconsistent with the limited authorit y a habeas court

possesses. We must underscore what this case is and what it is

not. This case is n ot the direct appeal of the BIA’s decision, in

which we could review the full scope of Zalawadia’s claims and

order the BIA to correct its mistakes. The IIRIRA has indeed

stripped us of such jurisdiction. 7 This fact significantly narrowsspecifically states that court s of appeals have no authority to

engage in direct review of a final order of deportation against an

alien who is removable by reason of committing a criminal offense

like the one Zalawadia committed here. S ee 8 U.S.C.A. §

1252(a)(2)(c). The Supreme Court has held that this statute did

n ot, however, preclude individuals from seeking habeas rev iew of

such an order. See St. Cyr , 533 U.S. at 294-315.

13 the scope of our review and, by extension, the nature of the relief

available.

In St. Cyr

, the Supreme Court explicitly acknowledged the

significant distinction between direct review and habeas review in

the immigration context. Specifically, the Court stated that “it

is the scope of inquiry on habeas corpus that differentiates habeas

review from judicial review.” 533 U.S. at 312 (quoting H eikkila v.

Barber , 345 U.S. 229, 236 (1953)). The Court noted that the preIIRIRA statutor y regime allowed for direct review of immigration

decisions, observing that this type of review bestowed upon courts

the “broad authority to grant declaratory and injunctive relief in

immigration cases.” Id . at 309. In contrast, in the wake of the

IIRIRA’s withdrawal of such direct review jurisdiction, the sole

form of review available to aliens protesting the legality of their

deportation is habeas. I d

. Under this new, habeas-only regime,

“the limited role played by the courts” is “far narrower than the

judicial review authorized by the [the old statutory structure].”

Id . at 312.

Apart from acknowledging that “the scope of review on habeas

is considerably more limited than on [direct review],” St. Cyr did14

not discuss precisely what those limits are. These limits,

however, are readily identified by examining the nature of habeas

corpus and analyzing Supreme Court case law in this field. As its

Latin meaning suggests, the writ of habeas corpus performs a

precise and specific function: it forces the government to justify

a decision to hold an individual in custody. “The very office of

the Great Writ, its only function, is to inquire into the legality

of the detention of one in custody.” H eflin v. United States

, 358

U.S. 415, 421 (1959); see also Zadvydas v. Davis

, 533 U.S. 678, 699

(2001) (holding that the “historic purpose of the writ [is] to

relieve detention by executive authorities without judicial trial”)

(quoting Brown v. Allen

, 344 U.S. 443, 533 (1953) (Jackson, J.,

concurring in result)). A habeas court must thus confine the scope

of its review to considering the legality of the custody at issue.

Habeas exists “to enforce the right of personal liberty; when that

right is denied and a person confined, the federal co urt has the

power to release him. Indeed, it has no other power; . . . i t can

act only on the body of the petitioner

. ” F ay v. Noia

, 3 72 U.S.

3 91, 430-31 (1963) (emphasis added). This means that, unlike

direct review where the correctness of a court or agency order is

comprehensively and directly before the court, a habeas court

reviews the correctness of such an order only insofar as it relates

to “detention simpliciter,” id

. at 430. In other words, habeas is

not shorthand for direct review. Unlike direct review where courts15

have “broad authority” to grant relief, St. Cyr , 533 U.S. at 309,

habeas is not “a generally available federal remedy for every

violation of federal rights,” Lehman v. Lycoming County Children’s

Services Agency

, 458 U.S. 502, 510 (1982), nor can it “be utilized

to review a refusal to grant collateral administrative relief,

unrelated to the legality of custody.” A manullah v. Nelson

, 811

F.2d 1, 17 (1 st Cir. 1987).

Habeas’ singular focus on the legality of detention not only

constrains the scope of a habeas court’s review, it constrains both

the class of individuals to whom the writ i s available and the

nature of relief that court may afford if and when the writ issues.

As we previously indicated, only individuals who are in custody at

the time of filing may petition the court for habeas relief. The

relief available under the writ is similarly limited.

The traditional form of relief available under habeas is

discharge of the applica nt from current physical custody. S ee

,

e.g.

, Allen v. McCurry

, 449 U.S . 90, 98 n.12 (1980) (noting that

the “unique purpose of habeas corpus” is “to release the applicant

for the writ from unlawful confinement”). Habeas relief, however,

is not confined to this form alone; over the years, its mandate has

become broader. C arafas v. LaVallee

, 391 U.S. 234, 239 (1968).

See also Preiser v. Rodriguez

, 411 U.S. 475, 487 (1973) (stating

that “habeas corpus relief is not limited to immediate release from

illegal custody”). Where an individual is no longer in custody

(but was at the time he filed the action), the Court has recognized8 The habeas remedy removes the disability that may be a bar to

the exercise of liberty interests; it does not order the deprived

benefit be automatically granted by the government.

16 that the individual may be facing collateral legal restraints on

his liberty, flowing from the original order that placed him in

detention. Such restraints include legal ineligibility to serve on

a jury, vote, hold office or operate certain businesses. S pencer

,

523 U.S. at 8. S ee also Fiswick v. Uni ted States , 329 U.S. 211,

221-23 (1946) (conviction rendered petitioner liable to deportation

and denial of naturalization, and ineligible to serve on a jury,

vote, or hold office); United States v. Morgan

, 346 U.S. 502 (1954)

(conviction had been used to increase petitioner’s current sentence

under state recidivist law); Ginsberg v. New York

, 390 U.S. 629,

633 n.2 (1968) (conviction rendered petitioner liable to revocation

of his license to operate luncheonet te business). Where such

collateral consequences exist, the Court has indica ted that an

appropriate remedy is to vacate o r modify the underlying illegal

judgment or order under which the petitioner is detained. 8

Thus, Supreme Court jurisprudence in this field indicates that

habeas relief relates directly to the underlying nature of the writ

itself

-- undoing current or future legal restraints on a person’s

freedom flowing from an illegal detention. It cannot be utilized

to bootstrap other claims for relief unless necessary to assure or

to prot ect the right to the personal liberty interest that is at

issue. A manullah

, 811 F.2d at 17. In other words, habeas17

specifically is not a tool that can be broadly employed to restore

the habeas petitioner to his or her status quo ante beyond freeing

him from the rest raints on liberty arising directly from the

illegal order or judgment. Thus, for example, a habeas court may

have the power to vacate a conviction on the basis of police or

prosecutorial misconduct; however, the habeas court would not have

the power to award damages for the time spent in prison or, for

example, to order a state agency to hold a reinstatement hearing

for the purposes of determining the rights to a job lost because of

the conviction. Although there may be other causes of action or

other procedural remedi es under which such relief would be

available, it would not be under habeas, which, unlike remedies

involving the direct review of illegal or unconstitutional

government acts, has its essence in “detention simpliciter.” F ay

,

372 U.S. at 430.

Therefore, Zalawadia’s contention that, in granting the writ,

the district court, in this proceeding, should order the BIA to

hold a new hearing to consider his rights under § 212 to determine

whether he should be deported anew is rejected as beyond the bounds

of reviewing his “d etention simpliciter.” Having reached the

conclusion that vacating the deportation order is the beginning and

end of the habeas a uthority we have, we do not need to address

Zalawadia’s enti tlement to other forms of relief in this habeas9 Our authority t o order Zalawadia to be readmitted into the

country is not only constrained by the nature of habeas review;

this case also concerns subject matter in which courts are most

reluctant to involve themselves. The Supreme Court has long

recognized that power over aliens is “a fundamental sovereign

attribute

. . . largely immune from judicial control,” Shaughnessy

v. Mezei

, 345 U.S. 206, 210 (1953), and is “of a political

character and therefore subject only to narrow ju dicial review.”

Hampton v. Mow Sun Wong

, 426 U.S. 88, 101 n.21 (1976). S ee also

H a risiades v. Shaughnessy

, 342 U.S. 580, 596-97 (1952)

(Frankfurter, J., concurring) (“The conditions for entry of every

ali e n

. . . have been recognized as matters solely for the

responsibility of the Congress and wholly outside the power of this

Court to control.”).

18 action. These include his request that we order the INS to readmit

him into the country for the purposes of a § 212(c) hearing. 9

We should be clear: In reaching this conclusion, we do not

suggest that Zalawadia has no way of obtaining other non-habeas

remedies. Once his removal order has been vacated, he may be

eligible to apply for reentry with the BIA. That question is not

before us, however. Once again, we are not engaging in direct

review. The only question presented in this habeas case concerns

the legality of the order upon which Zalawadia’s detention was

based. By acknowledging the illegality of that order and his

detention and by vacating the order, thereby removing the

cognizable collateral legal consequences of that detention, the

federal habeas court has answered and addressed this question.

V

We sum up: Because Zalawadia filed his habeas petition while

he was in custody and continues to face a collateral legal

consequence of the order placing him there, we hold that the10 We fail to understand the dissent’s strenuous contention that

our holding in this case “render[s] nugatory the Supreme Court’s

express directive in its remand of this case to us.” Dissent at p.

1. In its succinct remand of this case, the Court stated:

“Judgment vacated, and case remanded to the United States Court of

Appeals for the Fifth Circuit for further consideration in light of

INS v. St. Cyr.” Z alawadia v. Ashcroft

, 533 U.S. 943 (2001). The

cursory and non-specific nature of the remand in this case is

typical of other remands of cases pending on certiorari before the

Supreme Court that are affected by a Court decision issued in

another analogous case. In characteristic fashion, the remand here

simply directed lower courts to reconsider Zalawadia’s case in the

light of the recently-decided St. Cyr and, implicitly, to grant any

appropriate corresponding relief. This course is precisely what we

have followed in this case. We have determined that St. Cyr does

control, that the order of deportation issued against Zalawadia was

invalid, and that the appropriate form of corresponding relief is

the vacatur of this order. Thus, while the dissent may disagree

with our conclusions concerning whether vacatur is the appropriate

form of corresponding relief, there is simply no basis for its

contention that our decision is inconsistent or in any other way

“irreconcilable” with the Supreme Court’s remand in this case.

19 district court had habeas jurisdiction. We also hold, however,

that a habeas court lacks the authority to grant the relief

Zalawadia seeks

-- either to order the INS to readmit Zalawadia

into the country or to direct the BIA to conduct a new deportation

proceeding on Zalawadia’s behalf

-- as either of these forms of

relief are beyond the discrete nature of a habeas action. The sole

remedy available under habeas here is for the district court to

vacate the removal order. Accordingly, we reverse and vacate the

judgment of the district court denying habeas relief. We remand

with instructions that the district court e nter an appropriate

order that vacates its judgment and grants the petition for habeas

corpus but only to the extent of vacating the BIA’s prior order of

deportation against Zalawadia. 10Secondly, we are a bit baffled by the dissent’s claim that

Zalawadia is entitled to “more” habeas relief than we have granted

him. Indeed, we cannot conceive the form such additional relief

would take, short of ordering the defendants to readmit Zalawadia

into the country

-- relief that the dissent explicitly concedes is

unavailable. The dissent’s proposed “additional” relief --

specifically, “an opportunity to plead his case to the BIA . . .

[and] seek 212(c) relief”

-- is not additional at all: The best

result Zalawadia could obtain from such an opportunity is a BIA

ruling that he indeed had been entitled to a waiver of deportation,

that the order of deportation was error, and a corresponding order

vacating the erroneous deportation order against him; yet this is

precisely the relief we have already granted him

-- the vacatur of

the deportation order. Thus, the dissent’s contention that we are

unjustifiably and improperly circumscribing the scope of habeas

remedies available to Zalawadia seems flawed and wrong.

20 REVERSED, VACATED and REMANDED WITH INSTRUCTIONS.WIENER, Circuit Judge, concurring in part and dissenting in part:

I concur in the panel majority’s conclusion that Mr. Zalawadia

satisfies the “in c ustody” requirement for federal habeas corpus

jurisdiction. With all due respect, however, I part company with

the panel majority when it proceeds to auto-emasculate the habeas

powers of federal courts by severely restricting the range of

remedies that I find to be available in habeas. Specifically, I

can find no statutory or jurisprudential support for the majority’s

conclusion that, even though we can and must vacate Mr. Zalawadia’s

removal order and remand his case to the district court, we are

powerless to instruct the district court to remand to the BIA for

it to consider affording him the opportunity to seek 212(c)

discretionary relief. And, I find distressing the unavoidable

conclusions that (1) the panel majority’s reasoning is wholly

irreconcilable with the Supreme Court’s prior decision in this very

case, and (2) the effect of the panel majority’s cabi ning of the

remedial powers of federal habeas courts is to render nugatory the

Supreme Court’s express directive in its remand of this case to us.

For these reasons, as flesh ed out below, I must respectfully

dissent.

I. Analysis

The panel majority’s opinion is constructed on two proffered

foundations: (1) Our authority to grant Mr. Zalawadia relief is

limited to “undoing current or future legal restraints on [his]11 Opinion at p. 17.

12 See opinion at p. 2 (“[W]e lack authority in this habeas

action to grant relief beyond simply vacating the defective order

....The petitioner, whose liberty interests and rights are no

longer encumbered by the deportation order, must turn to other

procedural remedies, if any, for further relief.”).

22 freedom flowing from an illegal detention” 11 ; and (2) because Mr.

Zalawadia has already bee n deported, the only such r estraint

(“collateral consequence”) that we are empowered to remedy is the

statutory 5-year ban on re-entry

—— ironically, the one consequence

that will be removed autom atically when we vacate his removal

order. 1 2 In combination, these two underpinnings are advanced by

the panel majority as supporting its ultimate conclusion that, even

though Mr. Zalawadia is entitled to habeas relief vel non

, the only

specific relief that we are empowered to grant is vacatur of the

unlawfu l removal order under which he was, in fact, deported.

Satisfied that the panel majority has incorrectly assessed the

collateral consequences faced by Mr. Zalawadia as a result of his

removal, which flawed assessment fatally undermines the majority’s

appl ication of the first of its foundational supports, I must

disagree strenuously with the opinion’s overly restrictive

conclusion regarding the nature and extent of the relief that we

have authority to fashion.13 Opinion at p. 10; see also Spencer v. Kemna , 523 U.S. 1, 7

(1998).

14 See INS v. St. Cyr , 533 U.S. 289, 295 (2001).

23 1. Remaining “collateral consequences” of Zalawadia’s unlawful

removal

As the majority notes, a petiti oner presents an Article III

case or controversy when he demonstrates that he s uffers from

“collateral consequences” from a conviction despite an end to his

incarceration. 1 3 Although it is true that our vacating Mr.

Zalawadia’s removal order will remove one such consequence —— the

5-year ban on re-entry that he would otherwise face

—— vacatur

would do nothing to rectify the standard for readmission that he

would need to meet on his return. Specifically, at the time of his

removal proceedings Mr. Zalawadia should have been allowed to apply

for a waiver under forme r INA § 212(c), which allows an eligible

returning alien to be admitted “in the discretion of the Attorney

General.” 14 This opportunity was improperly denied him through

retroactive application of IIRIRA. By contrast, when Mr. Zalawadia

applies for readmission following our vacatur of his removal order,

he will still be required to obtain a waiver to re-enter the

country; but he will not be permitted to try to do so under §

212(c) owing to IIRIRA. Instead, Mr. Zalawadia must apply for a

waiver under 8 U.S.C. § 1182(h), which will require him to

demonstrate “to the satisfaction of the Attorney General that [his]

denial of admission would result in e xtreme hardship to [his]15 8 U.S.C. § 1182(h)(1)(B) (emphasis added).

16 St. Cyr , 533 U.S. at 308.

17 Given that Mr. Zalawadia seeks not readmittance o r even a

212(c) hearing, but only the opportunity to demonstrate to the BIA

his eligibility for such a hearing, his request is consistent with

the panel majority’s description of what habeas relief is designed

to do: “The habeas remedy removes the disability that may be a bar

to the exercise of liberty interests; it does not order the

deprived benefit be automatically granted by the government.”

Opinion at p. 17 n8.

24 United States citizen or lawfully resident...parent[s].” 15 Clearly,

this is a different standard

—— and, in practical te rms, a much

higher hurdle —— for establishing eligibility for readmission.

That the standard Mr. Zalawadia would face in a 212(c) hearing

is discretionary is of no practical importance; the Supreme Court

itself noted in S t. Cyr that its own precedent has long provided

that “a deportable alien [has] a right to challenge the Executive’s

failure to exercise the discretion authorized by the law.” 16 And,

despite the discretionary nature of 2 12(c) relief (and the

mischaracterization by the panel majority), the only reli ef that

Mr. Zalawadia is now seeking is the opportunity to plead his case

to the BIA for an opportunity to se ek 212(c) relief 1 7

—— an

opportunity that was originally denied him through the illegal

retroactive application of IIRIRA. In other words, as a direct

result of the illegal removal proceedings to which he was

subjected, Mr. Zalawadia is now foreclosed from seeking rel ief18 In St. Cyr

, the Supreme Court noted that, hi storically, a

“substantial percentage” of 212(c) applications have been granted;

from 1989 to 1995, the percentage of successful applicati ons was

51.5%, representing over 10,000 admitted aliens. St. Cyr

, 533 U.S.

at 296.

19 In M ax-George v. Reno

, 205 F.3d 194, 196 (2000), rev’d on

other grounds

, 533 U.S. 945 (2001), we characterized a cognizable,

“concrete” collateral consequence as one which “change[s]

[petitioner’s] status with respect to his admissibility whether he

tries to return to the United States or not.” The higher standard

Mr. Zalawadia will face if he tries to return to the U.S. fits this

description.

20 Opinion at p. 20 n.10.

25 under the more relaxed standard of § 212(c). 18 This result is, to

me, indisputably a collateral legal consequence that flows from the

illegal removal order and is one that is not removed by simply

vacating tha t order. 1 9 Elimination of that untoward collateral

consequence can only be achieved through eq uitable relief ——

namely, giving Mr. Zalawadia the opportunity to h ave his

eligibility for 212(c) relief argued at a hearing before the BIA.

The panel majority nevertheless asserts it is “baffled” by the

idea that Mr. Zalawadia could hope to obtain relief other than

vacating the removal order, insisting that any “additional” relief

granted would be superfluous in light of the practical effects of

the majority’s decision. 20 As noted, this simply is not true, given

the higher standard Mr. Zalawadia must meet to be eligible for

admission under § 1182(h)(1)(B) instead of § 212(c). Furthermore,

the majority’s position underscores its confusion as to the

circumstances under which Mr. Zalawadia left the coun try and the21 IIRIRA combined exclusion and deportation proceedings into

a single, broader category, “removal proceedings,” which

encompasses both.

22 St. Cyr , 533 U.S. at 295.

23 That successfully requesting 212(c) relief would entail

readmittance, and not just vacating any illegal removal o rders

against an individual, also appears to be true, given the text of

the statute. As discussed, former § 212(c) indicates that eligible

returning aliens “may be admitted in the discretion of the Attorney

General.” St. Cyr , 533 U.S. at 295 (emphasis added).

26 relief that he now seeks. Specifically, Mr. Zalawadia was detained

at the border after a brief trip abroad because of his 1995 theft

convictions. In pre-IIRIRA parlance, he was subjected to e xclusion

proceedings, not deportation. 21 As the Supreme Court explained in

St. Cyr —— discussing 212(c) relief in the context of deportation

proceedings

—— successfully requesting such relief terminates those

proceedings and the alien “remains a permanent resident.” 22

P resumably, a successful application for 212(c) relief would

function similarly in the context of exclusion (now removal)

proceedings; that is, those proceedings would be terminated and the

alien would be allowed to re-enter, remaining a permanent

resident. 23

In the course of litigating to reach that result, Mr.

Zalawadia has contended, successf ully, that the BIA improperly

applied IIRIRA retroactively to foreclose the possibility of 212(c)

relief. What he seeks now, however, is a B IA determination of his

elig ibility for such relief, in accordance with INS v. Ventura

.

The “best result Zalawadia could obtain” from a BIA hearing, then,24 Opinion at p. 20 n.10.

25 See note 6, supra , and accompanying text.

26 See

, e.g. , notes 19-20, infra , and accompanying text.

27 is not “vacating the erroneous deportation order against him,” 24 but

rather a ruling that he meets the statutory requirements for 212(c)

eligibility. Then, obviously, the Attorney General would need to

make the discretionary decision on whether Mr. Zalawadia should be

admitted. But the Attorney General is vested with the statutory

authority to do just that, provided Mr. Zalawadia is found eligible

by the BIA; indeed, under St. Cyr

, the Attorney General is

obligated to do so. 2 5 The panel majority’s characterization of a

remand with ins tructions as “additional” to vacating the removal

order (as opposed to “different”) only muddies the water. As

discussed, a remand would simply be equitable relief designed to

eliminate a collateral consequence of the district court’s

admittedly illegal retroactive application of IIRIRA.

2. Would our granting any habeas relief beyond vacating the

original order exceed our power as a habeas court?

I fail to see anything about the relief requested in this case

that makes it different from other species of equitable relief that

are generally author ized by 28 U.S.C. § 2243 and which have been

previously fashioned by habeas courts. On the first point, § 2243

mandates that we “dispose of [habeas petitions] as law and justice

require”; the Supreme Court has long interpreted that phrase to

encompass a wide range of remedies 26 and recognized that the Great27 See

, e.g.

, Schlup v. Delo , 513 U.S. 298, 319 (1995)(“[T]he

Court has adhered to the principle that habeas corpus is, at its

core, an equitable remedy.”)(Partially abrogated, on other grounds,

by the Antiterrorism and Effective Death Penalty Act of 1996);

Withrow v. Williams

, 507 U.S. 680, 699 (1993)(“Concern s for

equity...resonate throughout our habeas jurisprudence.”); Kuhlmann

v. Wilson , 477 U.S. 436, 447 (1986)(“In decisions of the past two

or three decades,...the Court has reaffirmed that ‘h abeas corpus

has tradi tionally been regarded as governed by equitable

principles.’” quoting Fay v. Noia

, 372 U.S. 391, 438 (1963), citing

United States ex rel. Smith v. Baldi

, 344 U.S. 561, 573

(1953)(dissenting opinion)).

28 861 F.2d 612, 630 (10th Cir. 1988).

28 Writ is governed by equitable principles. 27 On the second point,

although it is true that our precedent contains no exact analogues

to the curr ent case —— indeed, it was produced by the unique

convergence of wildly dispa rate factors —— federal courts have

fashioned relief similar to (and, sometimes, more onerous than) the

remand with instructions that Mr. Zalawadia seeks.

For example, in Osborn v. Shillinger

, the Tenth Circuit upheld

a district court order (entered in a habeas proceeding) allowing a

d efendant to withdraw his guilty plea, enter a new one, and b e

tried and sentenced —— b efore a different state court jud ge in a

different venue

. 28 In considering the State’s contention that the

conditions im posed by the district court exceeded its authority,

the Tenth Circuit quoted the “law and justice” language of § 2243

and concluded that it “[did] not believe the lower court abused its

broad discr etion in requiring that new state proceedings be held29 Id. The Tenth Circuit also held in C apps v. Sullivan

, 13

F.3d 350, 352 (1993) that “barrin g a new trial is a permissible

form of judgment” in a habeas case, when “necessary to protect the

purpose of habeas corpus jurisdicti on when the error forming the

basis for the relief cannot be corrected in further proceedings.”

The court explained that “the district court had the power to grant

any form of relief necessary ....” Id. (emphasis added).

30 340 U.S. 206, 210 (1951)(emphasis added).

31 In fa ct, in O sborn

, the Tenth Circuit characterized the

relief in just this way, stating that it “view[ed] the district

court’s ‘remand’ order as, in effect, the issuance of a conditional

writ.” Osborn , 861 F.2d at 630.

29 under [those] circumstances....” 2 9 Similarly, in D owd v. Unite d

States ex rel. Cook

, the Supreme Court qu oted § 2243 and ordered

that “[o]n remand, the District Court should enter such orders as

are appropriate to allow the State a reasonable time in which to

afford respondent the full appellate review he would have received

but for the suppression of his papers....” 30

It is certainly true that typically —— and in both the cases

noted above —— the remand order is tied to the possibility of the

prisoner’s release, and could be labeled a conditional grant of the

writ. 31 It is also true that our arsenal of equitable remedies does

not contain the “big stick” of the threat of granting outright

release (or, in this situation, its analogue, forced readmission)

available to compel the district court or the BIA to co mply with

o ur remand instructions, as is typically the case. But this is

more a function of the confluence of factors that led to the32 Specif ically, this case arises out of the landmark

immigration reform that occurred in 1996, coupled with the district

court’s illegal retroactive application of that law, the

government’s decision to deport while Mr. Zalawadia’s habeas appeal

was still pending, and the district court’s subsequent ignorance of

INS v. Ventura

. These factors have combined to create a fact

pattern that is not easily found in our existing jurisprudence, and

unlikely to reoccur in the future.

33 See

, e.g.

, Parker v. Dugger

, 498 U.S. 308, 322-23 (1991)

(“We reverse...and remand with instructions to return the case to

the District Court to enter an order directing the State of Florida

to initiate appropriate proceedings in state court so that Parker’s

death sentence may be reconsidered in light of the entire record of

his trial and sentencing hearing and the trial judge’s findings.”);

Richmond v. Lewis

, 506 U.S. 40, 52 (1992) (“We reverse...and remand

with instructions to return the case to the District Court to enter

an order granting the petition for a writ of habeas corpus unless

the State of Arizona within a reasonable period of time either

corrects the constituti onal error...or vacates the sentence and

imposes a lesser sentence consistent with law.”).

34 Just as we, of course, are bound to follow the Suprem e

Court’s directions on remand

—— something that, as I discuss infra

, the panel majority opinion fails to do.

30 strange procedural posture of this case, 32 and is not determinative

of our authority to provide appropriate equitable relief. My point

is that, in the aforementioned cases as well as in many others, the

habeas courts remanded with specific instructions equitably crafted

to remedy the collateral effects of the defective proce dures at

issue. 33 This we c an do: Even though we do not enjoy the leverage

of the threat of forced readmission to enforce an order to remand

to the BIA for a hearing, the district court would still be bound

to accept our decision. 34

In my view, though, the most convincing evidence that we do

have the power to remand with such instructions —— the “proof” of35 Opinion at p. 13.

36 Opinion at p. 15.

31 this particular “pudding” —— lies in the Supreme Court’s original

decision and order in this very case

. Remember, it was back in

October 1999 that M r. Zalawadia first filed his habeas petition,

listing four causes of action, including erroneous denial of a §

212(c) hearing ( not relief). After the district court dismissed

that petition for lack of jurisdiction

—— and we dismissed Mr.

Zalawadia’s appeal for the same reason

—— the Supreme Court granted

his petition for certiorari and considered his case. At that time,

his case was in exactly the same posture as it is today, i.e., the

Supreme Court was not considering a “direct appeal of [a] BIA[]

decision,” 35 but rather was acting pursuant to its habeas authority.

According to the panel majority, this means that the Court was

obligated to “confine the scope of its review to considering the

legality of the custody at issue. ” 36 To the panel majority, the

Supreme Court then enjoyed no more authority

—— but no less

—— than

we do now when it comes to granting appropriate relie f under the

writ.

Thus, under the panel majority’s logic, the Supreme Court had

only one form of relief open to it after it considere d Mr.

Zalawadia’s habeas appeal, viz., to vacate the il legal removal

order. According to the panel majority, any other relief would be

“beyond the bounds of reviewing Zalawadia’s ‘detention37 Opinion at p. 18.

38 Opinion at p. 19.

39 Opinion at p. 12.

32 simpliciter.’” 37 This is so, insists the panel majority, because

“[t]he only question presented in [a] habeas case concerns the

legality of the order upon which [the] detention was based. By

acknowledging the illegality of [the] order...and by vacating the

order...the federal habeas court has an swered and addressed this

question.” 38 In fact, because the issue decided by the Supreme

Court was but one of four causes of action that formed the basis of

Mr. Zalawadia’s habeas petition, it is all the more obvious under

the majority’s reasoning that the only remedy open to the Court

would be to vacate the removal order. After all, the Supreme Court

had “already made clear that the deportation order under which

Zalawadia had been detained was legally flawed.” 39 Thus, according

to the panel majority’s “logic”, there was neither the need nor the

authority to remand with instructions. Yet that is precisely what

the Supreme Court did!

I emphasize that the situation as it existed then is

indistinguishable from what we face now: (1) The Supreme Court was

sitting as a habeas court; (2) it had already determined that the

prior proceedings were tain ted —— at that stage, by retroactive

application of IIRIRA; and (3) it remanded to us with instructions

to correct the defect, i.e., for “further consideration in light of40 Zalawadia v. Ashcroft

, 121 S.Ct. 2581 (2 001)(citation

omitted).

41 In its appellate brief, the government concedes: “Should the

Court find that Zalawadia may continue to litigate his section

212(c) claim, the Government agrees that the case should be

remanded to the Bo ard to decide Zalawadia’s section 212(c)

eligibility in the first instance.”

42 537 U.S. 12 (2002).

43 The panel majority asserts that Mr. Zalawadia requested that

we readmit him for the purposes of a § 212(c) hearing ( see Opinion

at p. 18), but the fact is that he did not

. Mr. Zalawadia’s

request for relief in both his original and reply briefs is simple:

He “requests that this Court reverse the District Court’s decision

and remand his case to the Board of Immigration Appeals for further

consideration in light of the Supreme Court’s decision in INS v.

St. Cyr

, or in the alternative, find that [he] is eligible for

212(c) relief and order that this matter be remanded to the [BIA]

with instructions to hold a hearing on 212(c) relief.” Mr.

Zalawadia raised the possibility of readmittance for the purpose of

attending a 212(c) hearing only in his reply brief in response to

the government’s arguments that (1) BIA regulations precluded Mr.

Zalawadia from continu ing his case and (2) the government was

“aware of no authority holding that removed aliens, such as

Zalawadia, have a ‘right’ to continue to litigate cl aims for

discretionary relief under former section 212(c) from abroad.”

Similarly, at oral argument this subje ct was addressed after

questioning by the panel on the point. Setting aside for the

moment that it is far from certain that Mr. Zala wadia would be

required to attend such a hearing, as he is ably repr esented by

counsel, the fact is that his appeal focuses exclusively on the

district court’s improper consideration (and ul timate denial) of

33 INS v. St. Cyr .” 40 In exact parallel: (1) We are sitting as a

habeas court; (2) we have already determined

—— thro ugh nothing

less than the government’s own concession 41

—— that the prior

proceedings were tainted, this time through the district court’s

failure to adhere to IN S v. Ventura ; 42 and (3) Mr. Zalawadia asks

only that we remand to the district court with instructions that it

remand to the BIA for a hearing on his 212(c) eligibility, 43 whichhis eligibility for 212(c) relief: The question of his readmission

has never been before us.

44 I note, also, that the Court’s remand in this case could not

be termed a conditional grant of the writ; i.e., the Court did not

say “conduct proceedings consistent with St. Cyr or release or

readmit the petitioner”; it simply remanded with instructions, just

as Mr. Zalawadia requests that we do now.

45 See

, e.g. , notes 19-20, supra , and accompanying text.

34 would cure the defect and would essentially be (as a comparison

point to the relief earlier granted by the Supreme Court) “further

consideration in light of Ventura .” When the panel majority states

that we are without power to do this because of the nature of the

writ

, it is telling the Supreme Court

—— unwittingly, I am sure

——

that it was without such power when it first considered Mr.

Zalawadia’s habeas petition. Even unintentionally, this is

audacious.

The S upreme Court cannot conceivably agree with the panel

majority’s assessm ent, however, because in remanding to us with

instructions the Co urt did precisely what the panel majority

insists no federal court can do. 44 This further buttresses my

unequivocal belief that (1) merely vacating Mr. Zalawadia’s removal

order does not remove all of the collateral legal consequences of

his illegal detention, and (2) federal court s sitting as habeas

courts do have the power to fashion appropriate equitable relief

——

such as, in this case, remanding with instructions to remand to the

BIA

—— to eliminate such collateral consequences. Indeed, federal

courts have done so for decades. 4546 458 U.S. 502, 506 (1982).

47 Id. at 510.

48 Id.

35 Several of the cases relied on by the panel major ity are so

factually distinguishable from the instant case that they provide

no real support for the majority opinion’s assessment of the limits

of our authority. In L ehman v. Lycoming County Children’s Services

Agency , for example, the petitioner sought the following forms of

relief: (1) invalidation of a state statute that had terminated her

parental rights, (2) a declaration that she was the legal parent of

the children at issue, and (3) an order releasing the children to

her custody. 4 6 Notably, this request was unrelated to i mpose d

custody of any sort: Petitioner had never been “in custody,” and

the Court noted that her children were “not in the ‘custody’ of the

State in the sense in which that term has been used by this Court

in determining the availability of the writ of habeas corpus.” 47

In that context, it is hardly surprising that the Court stated that

habeas is not “a generally available federal reme dy for every

violation of federal rights.” 48 It was the c ustody issue, however,49 The district court had originally held that “the custody

maintained by the Respondent over the three Lehman children is not

that type of custody to which the federal habeas corpus remedy may

be addressed.” S ee Lehman

, 458 U.S. at 506 ( q uoting Lehman v.

Lycoming County Children’s Services Agency

, Civ. No. 79-65, (MD Pa.

19 79)). The Third Circuit affirmed the district court dismissal,

and the Supreme Court affirmed the Third Circuit.

50 A manullah v. Nelson , 811 F.2d 1, 17 (1st Cir. 1987)

(emphasis added) ( quoting 2 C. Gordon & H. Rosenfield, Immigration

Law and Procedure . § 8.7(h) (Revised ed. and Cum. Supp. 1986).

51 Amanullah , 811 F.2d at 17 (emphasis added).

36 that was determinative, 49 and that issue is not (as the panel

majority concedes) a factor in the instant case.

Similarly, in Amanullah v. Nelson

, cited by the panel majority

on pages 15 and 17, the Fir st Circuit noted that habeas corpus

“cannot be utilized to review a refusal to grant collateral

administrative relief, unrelated to the legality of custody ,” 50 and,

in that case, “the appellants [had] not shown that their detention

v iolates the law.” 5 1 Those two facts led ineluctably to the

conclusion that the appellants in A manullah were not entitled to

the relief they sought

—— a mandate to conduct evidentiary

hearings. The instant case is diametrically opposite on both

counts: The collateral consequence under discussion here arises

directly from Mr. Zalawadia’s detention, the illegality of which

has already been established by the Supreme Court

. It was

precisely t he illegality identified by the Court —— the district

court’s improperly foreclosing any possibility of 212(c) relief

——

that caused the injury for which Mr. Zalawadia now seeks redress.52 Herein lies the flaw in the panel majority’s contention that

vacating the removal order alone comports with the Supreme Court’s

remand in this case. S ee opinion at p. 20, n.10. Although

“cursory and n on-specific,” I think it obvious that the Court’s

directive that (in the panel ma jority’s words) “lower courts ...

reconsider Zalawadia ’s case in the light of the recently-decided

St. Cyr ” dictates, at a minimum, that any district court

reconsideration be consistent with the Constitution, existing law,

and Supreme Court precedent. In this case, as noted and as the

government has conceded, the district court improperly decided the

question of Mr. Zalawadia’s 212(c) eligibility. The district court

was not empowered to make that decision. Therefore, when it did

so, it deprived Mr. Zalawadia of a reconsideration consistent with

St. Cyr

. Under the panel majority’s reasoning, a ny reconsideration

by the district court would meet the dictates of the Supreme Court

remand, regardless o f whether that reconsideration offended the

Constitution or was otherwise illegal. With all due respect, I

must wonder whether the panel majority would still consider the

district court’s reconsideration in line with the Sup reme Court

remand if the district court had disposed of Mr. Zalawadia’s case

by, say, flipping a coin.

37 T his leads to my final point: The panel majority’s opinion

renders illusory all prior decisions in this case

—— including the

Supreme Court’s ! The Court remanded for proceedings consistent

with St. Cyr

, but the district court’s purported conduct of such

proceedings on remand itself violated the mandate of INS v.

Ventura

. 52 Identically, our refusal to remand with instructions for

further remand to the BIA now (because of our purported inability

to employ the very same form of relief that the Supreme Court has

already employed in this very case) means that the appropriate

adjudicative body

—— the BIA

—— will never have determined Mr.

Zalawadia’s eligibility to apply fo r relief —— thereby violating

Ventura yet again. In turn, this means that Mr. Zalawadia will

never have had a full and fair hearing on that question

—— a direct53 Undermining the Supreme Court’s remand in this way not only

violates an intuitive understanding of how we should honor Supreme

Cour t decisions, but specific Supreme Court precedent as well:

“When this Court applies a rule of federal law to the parties

before it, that rule is the controlling interpretation of federal

law a nd must be given full retroactive effect in all cases still

open on direct review....” H arper v. Va. Dep’t of Taxatio n , 509

U.S. 86, 97 (1993).

38 violation of the Supreme Court’s remand in his case for proceedings

consistent with St. Cyr

. 53

II. Conclusion

In my opinion, this case boils down to several interrelated

fallacies. First, we do not remove all of the collateral

consequences of Mr. Zalawadia’s defective removal order simply by

vacating that order; he would still be subject to what is, in

reality, a standard to gain eligibility for reentry that we raise

to an impossibly high level, i.e., a hurdle markedly higher than

that applicable in a 212(c) hearing. Second, under principles of

equity, habeas courts have ofte n remanded with instructions to

remedy constitutionally defective proceedings, yet the majority

prevents us from doing that. Third, the Supreme Court’s remand i n

this very case

—— embodying as it does the exact form of relief Mr.

Zalawadia now req uests and the panel majority denies —— confirms

that we absolutely do have the power to order the kind of equitable

relief for which he asks. Fourth, remanding on the unduly limited

basis s et forth by the panel majority eviscerates the Supreme

Court’s decision in this case and fails to follow the overarching54 Carafas v. LaVallee , 391 U.S. 234, 239 (1968).

39 maxim that we dispose of habeas petitions “as law and justice

require.”

On this last point, I wou ld note that by doing nothing more

than vacating Mr. Zalawadia’s removal order, we give him no real

relief at all, as we neither remedy the constitutional violation

that the Supreme Court has already determined took place nor give

Mr. Zalawadia the opportunity to era se the collateral legal

consequences of that constitutional violation. In short, Mr.

Zalawadia “is suffering, and will continue to suffer, serious

disabilities because of the law’s complexities and not because of

his fault....There is no need in the statute, the Constitution, or

sound jurisprudence for denying to petitioner his ultimate day in

court.” 54 This is why I am constrained, with respect, to dissent.