2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-10-2004

Bakhtriger v. Elwood

Precedential or Non-Precedential: Precedential

Docket No. 02-4134P

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1

PRECEDENTIAL

UNITED STATES COURT OF

 APPEALS FOR THE THIRD CIRCUIT

 

No. 02-4134

 

MICHAEL BAKHTRIGER,

 Appellant

 

v.

KENNETH JOHN ELWOOD, ACTING

DISTRICT DIRECTOR OF THE

PHILADELPHIA OFFICE OF THE

IMMIGRATION AND

NATURALIZATION SERVICE;

THEODORE NORDMARK,

ASSISTANT DISTRICT DIRECTOR

FOR 

 DEPORTATION AND DETENTION;

AND THE IMMIGRATION AND 

 NATURALIZATION SERVICE 

 

On Appeal from the United States

District Court for the Eastern District of

Pennsylvania

(Dist. Court No. 02-cv-00535)

District Judge: Hon. Herbert J. Hutton

 

Argued: October 14, 2003

Before: SLOVITER, ROTH and

CHERTOFF, Circuit Judges

(Filed: March 10, 2004 )

Steven A. Morley, Esq. (Argued)

Morley, Surin & Griffin 

325 Chestnut Street 

Suite 1305 

Philadelphia, PA 19106 

Counsel for Appellant

Sonya F. Lawrence, Esq. (Argued)

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

Counsel for Appellees

 

OPINION

 

CHERTOFF, Circuit Judge.

Appellant Michael Bakhtriger, a

lawful permanent resident in the United

States, was convicted of a felony and

subjected to immigration removal

proceedings. Bakhtriger challenged the

removal proceedings by petition for habeas

corpus. The District Court determined that

Bakhtriger was essentially seeking review

of a discretionary determination of the

Immigration and Naturalization Service

(INS). The District Court held, however,

that there is no jurisdiction under the

habeas statute, 28 U.S.C. § 2241, to review
2

discretionary determinations or factual

findings of the INS. 

This question of the scope of

habeas jurisdiction is one of first

impression in this Circuit. We agree with

the District Court’s reading of the law and

we will affirm. 

I.

Bakhtriger entered the United

States in February 1993, from the former

Soviet Republic of Moldova, his native

country. He was granted the protection of

the United States as a refugee and became

a lawful permanent resident in April 1994.

In April 1998, Bakhtriger was convicted of

possession of both cocaine base and heroin

in the Court of Common Pleas in

Montgomery County, Pennsylvania. Less

than a year later, in January and February

of 1999, Bakhtriger was arrested for

violating his probation, and sentenced to 2-

12 months imprisonment.

Bakhtriger’s controlled substance

conviction rendered him removable1 under

8 U.S.C. § 1227(a)(2)(B)(i), which

provides:

(B) Controlled substances

(i) Conviction

Any alien who at any time

after admission has been

convicted of a violation of

(or a conspiracy or attempt

to violate) any law or

regulation of a State, the

United States, or a foreign

country relating to a

controlled substance (as

defined in section 802 of

Title 21), other than a single

off ense invol vin g

possession for one’s own

use of 30 grams or less of

marijuana, is [removable].

8 U.S.C. § 1227(a)(2)(B). The INS

initiated removal proceedings against

Bakhtriger on April 17, 2000. Before the

Immigration Judge (IJ), Bakhtriger did not

contest that he was an alien or that he had

committed a removable offense. Rather,

Bakhtriger applied for asylum and

withholding of removal under 8 U.S.C. §

1158, and relief from removal under the

Convention Against Torture, 8 U.S.C. §

1231. 

Bakhtriger, through his own

testimony and that of his mother,

attempted to show that he had a reasonable

fear of persecution should he return to

Moldova. The evidence presented by

1 Under recent amendments to the

Immigration and Nationality Act, the term

“removal” embraces concepts of both

“deportation” and “exclusion.” See Illegal

Immigration Reform and Immigrant

Responsibility Act, Pub. L. No. 104-208,

Div. C, § 308, 110 Stat 3009-619. Saying

that Bakhtriger was “removable” is

equivalent to saying that he was

“deportable.” 
3

Bakhtriger focused on his history of past

religious persecution as a member of the

Jewish faith in Moldova, and his fears of

what might befall him if he should return.

Bakhtriger’s mother recounted that

her husband had been an officer in the

Soviet army, but had been hampered in his

advancement as a result of his religion.

She also explained that Jews in Moldova

were prevented from publicly practicing

their religion. Both witnesses emphasized

that anti-semitism was pervasive under the

old Soviet regime, and that the post-Soviet

Moldovan government took no action to

curb the open hostility emanating from

large segments of the public. 

Other testimony indicated that,

while living in Moldova, Bakhtriger was

routinely harassed, called derogatory

names, and physically beaten as a result of

his religion. According to his mother,

Bakhtriger was prevented from attending

any prestigious colleges or universities.

Instead, he was directed to a trade school

to learn television repair. At this school,

too, Bakhtriger was beaten by fellow

students. Later, mirroring the experience

of his father, Bakhtriger lost two

successive jobs in factories as a result of

his religion.

Both Bakhtriger and his mother

recounted that anti-semitic signs and

graffiti regularly marred fences and

buildings. In the spring of 1992, the door

of the apartment in which the Bakhtrigers

lived was etched with a Star of David,

something the Bakhtrigers took as a

threat—that anti-semitic elements were

“marking” the apartment as one in which

Jews lived. Bakhtriger recounted that

during a recent trip back to Moldova he

was attacked in public and a necklace

bearing the Star of David was ripped from

his neck. 

The IJ credited the testimony of

both witnesses and found that Bakhtriger

had suffered past persecution. But the IJ

found that the INS had presented sufficient

proof of “changed country conditions” in

Moldova to rebut the presumption that

Bakhtriger had a well-founded fear of

persecution. Even so, the IJ exercised his

discretion to grant asylum where the

applicant has “demonstrated compelling

reasons for being unwilling or unable to

return to the country arising out of the

severity of the past persecution.” 8 CFR §

208.13(b)(1)(iii)(A). 

The INS appealed the IJ’s decision

to the Board of Immigration Appeals

(BIA). The BIA deferred to the IJ’s

determination that Bakhtriger and his

mother were credible witnesses, and

accepted the IJ’s summary of the evidence.

However, the BIA overturned the IJ’s

grant of asylum and ordered that

Bakhtriger be removed to Moldova. The

BIA decided that even if the IJ accurately

described the level of persecution,

Bakhtriger’s experience did not rise to the

level found in previous cases where the

Board determined to exercise its authority

to grant asylum for compelling reasons. 

Bakhtriger filed a petition for a writ

of habeas corpus in the Eastern District of

Pennsylvania. Before the District Court,
4

Bakhtriger did not claim a denial of a

constitutional right or an error in

application of the statutory standards.

Rather, he argued that the factual record

did not support the finding by both the IJ

and the BIA that there was no wellfounded fear of future persecution because

conditions in Moldova have changed. As

he put it, “the IJ and BIA ignored evidence

in the record of centuries of anti-semitism

and persecution of Jews.” J.A. 7.

Bakhtriger also urged that even if

there was no well-founded fear of

persecution, the BIA wrongly reversed

what was concededly the IJ’s “broadly

define[d]” discretion to grant asylum based

on past persecution. J.A. 20. Again, in the

habeas petition’s own words, Bakhtriger

contended that the BIA wrongly

determined that he “was not entitled to

asylum on a discretionary basis.” J.A. 7.

Based on the petition, the District

Court reasoned that Bakhtriger sought

review of a discretionary determination,

and therefore dismissed the petition for

want of subject matter jurisdiction. The

District Court noted that habeas review of

criminal alien removal proceedings falls

under the general habeas statute, 28 U.S.C.

§ 2241. The District Court held, however,

that the scope of review of immigration

proceedings under section 2241 is limited

to constitutional claims or errors of law.

The District Court reasoned that factual

and discretionary determinations are not

cognizable under section 2241, and the

federal courts therefore lack jurisdiction to

entertain such claims in habeas challenges

to removal proceedings.

This timely appeal followed.

A district court’s determination that

it lacks subject matter jurisdiction is a

determination of law over which we

exercise plenary review. See Gould Elecs.

Inc. v. United States, 220 F.3d 169, 176

(3d Cir. 2000). Moreover, we exercise

plenary review where a district court

dismisses a habeas corpus petition based

on a legal conclusion without holding an

evidentiary hearing. See Zettlemoyer v.

Fulcomer, 923 F.2d 284, 291 (3d Cir.

1991). 

II.

In 1996, Congress overhauled the

Immigration and Nationality Act (INA),

see 8 U.S.C. § 1101 et seq., by enacting

two statutes in rapid succession, the

Antiterrorism and Effective Death Penalty

Act (AEDPA), Pub L. No. 104-132, 110

Stat. 1214, and the Illegal Immigrant

Reform and Immigrant Responsibility Act

(IIRIRA), Pub. L. No. 104-208, Div. C,

110 Stat. 3009-546. Under the amended

INA, asylum remains a discretionary

determination on the part of the INS. But

AEDPA and IIRIRA enacted two changes

curtailing court review of removal

proceedings.2 To understand these

2 In addition to imposing a new set

of permanent rules, IIRIRA provided for a

set of “transitional” rules. All removal

cases commenced before April 1, 1997, in

which a final order of deportation was

filed after October 30, 1996 are subject to

the transitional rules. See Illegal

Immigrant Reform and Immigrant
5

changes, we must briefly review the

development of judicial review of

immigration determinations. 

Until 1952, judicial jurisdiction to

review executive decisions relating to

immigration was founded exclusively on

the writ of habeas corpus. See United

States v. Jung Ah Lung, 124 U.S. 621

(1888). During that period, “habeas

corpus was the only remedy by which

deportation orders could be challenged in

the courts.” Heikkila v. Barber, 345 U.S.

229, 230 (1953). A challenge to the

exclusivity of the habeas remedy was

briefly mounted after the 1946 passage of

the Administrative Procedure Act (APA),

which overhauled administrative law.

Some aliens sought to appeal executive

immigration decisions under the APA’s

general mandate that courts set aside any

administrative agency action that was an

abuse of discretion or unsupported by

substantial evidence. The Supreme Court

held the APA inapplicable, however,

reasoning that the then-existing specific

immigration statute was meant to preclude

judicial review of immigration decisions

“except insofar as it was required by the

Constitution.” Heikkila, 345 U.S. at 235.

In 1952, while the Heikkila case

was pending, Congress reconfigured the

immigration laws. Heikkila itself declined

to rule on the amended act, 345 U.S. at

232 n.4, but the Supreme Court soon had

the opportunity to address the new law. In

Shaughnessy v. Pedreiro, the Court held

that the amended INA was subject to the

APA’s expanded review because the 1952

revisions, passed after the APA became

effective, did not “expressly” supersede or

modify the expanded right of review

granted by the APA. 349 U.S. 48, 51-52

(1955). 

In 1961, Congress changed the

immigration statutes again. Under the

1961 amendments, aliens f acing

deportation were funneled into the courts

of appeals for direct review under a

standard similar to the APA standard. See

8 U.S.C. § 1105a(a) (1994); see also H.R.

Rep. No. 87-1086 (1961), reprinted in

1961 U.S.C.C.A.N. 2950, 2967-76. Aliens

subject to exclusion were not provided a

means of direct review. See H.R. Rep. No.

87-1086 (1961), reprinted in 1961

U.S.C.C.A.N. 2950, 2967-76. The 1961

amendments, however, clarified that all

aliens, whether facing deportation or

subject to exclusion, were entitled to

review by habeas corpus. See id.; see also

8 U.S.C. §§ 1105a(a)(10) & 1105a(b)

(1994).

3

 It is unclear—though irrelevant

Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, § 309, 110 Stat. 3009-

625. All cases commenced after April 1,

1997 are subject to the permanent rules.

See Illegal Immigrant Reform and

Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, Div. C, § 306(c), 110

Stat. 3009-612. Because Bakhtriger’s

removal proceedings were commenced on

April 17, 2000, we will restrict our

discussion to the permanent rules.

3 Section 1105a(a)(10) was

originally codified as section 1105a(a)(9).
6

to our analysis—whether the provision for

habeas corpus review contained in new

INA sections 1105a(a)(10) and 1105a(b)

actually created independent bases for

habeas corpus jurisdiction or merely

reserved the availability of habeas corpus

pursuant to 28 U.S.C. § 2241. See INS v.

St. Cyr, 533 U.S. 289, 310 (2001). 

In 1996, Congress enacted AEDPA

and IIRIRA to reorder and curtail court

review of deportation and exclusion

decisions. AEDPA repealed the

immigration habeas provision contained in

8 U.S.C. § 1105a(a) and IIRIRA

eliminated the remainder of 8 U.S.C. §

1105a. See AEDPA § 401(e), 110 Stat.

1268; IIRIRA § 306(b), 110 Stat. 3009-

612. IIRIRA also consolidated judicial

review in the courts of appeals under a socalled “zipper clause,” which stated that

“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”

must take place in the courts of appeals. 8

U.S.C. § 1252(b)(9); see also 8 U.S.C. §

1252(a). In sum, these provisions

appeared to consolidate all appeals of INS

determinations in a single action, brought

only from a final order of removal, and

brought only in the courts of appeals. See

8 U.S.C. §§ 1252(a)(1) and (b)(9). 

In addition to seeking to “zipper”

jurisdiction to review in the courts of

appeals, AEDPA and IIRIRA excluded

certain categories of INS decisionmaking

from this appellate judicial review

altogether. See 8 U.S.C. § 1252(a)(2)(C).

Among the determinations deemed

unreviewable were so-called “criminal

alien removal cases”—final orders of

removal where the alien was removable

for having committed controlled substance

offenses, aggravated felonies, certain

firearm offenses, miscellaneous national

security or defense-related crimes, or for

having multiple convictions for crimes

involving moral turpitude. See 8 U.S.C. §

1252(a)(2)(C); see also Patel v. Ashcroft,

294 F.3d 465, 468 & n.3 (3d Cir. 2002).4

See Immigration Act of 1990, § 545(b)(2),

Pub. L. No. 101-649, 104 Stat. 4978; H.R.

Rep. 87-1086 (1961), reprinted in 1961

U.S.C.C.A.N. 2950, 2967-76. 

4 At first blush, a separate provision

of the amended INA might suggest that

direct court of appeals review of asylum

determinations in criminal alien removal

cases remains available notwithstanding

the zipper. In addition to eliminating

direct review of criminal alien removal

orders in section 1252(a)(2)(C), the

amended INA also provides that

“notwithstanding any other provision of

law, . . . (ii) no court shall have

jurisdiction to review . . . any other

decision or action of the Attorney General

the authority for which is . . . in the

discretion of the Attorney General, other

than the granting of relief under 8 U.S.C.

§ 1158(a) [asylum] of this title.” 8 U.S.C.

§ 1252(a)(2)(B) (emphasis added). One

possible reading of section 1252(a)(2)(B)

is that courts retain jurisdiction to review
7

In cases where the basis for

removal is the commission of the crimes

enumerated in section 1252 the net effect

of the 1996 immigration law amendment

was to eliminate direct review by the

courts of appeals of the BIA’s

determination. We so held in Liang v.

INS. 206 F.3d 308, 323 (3d Cir. 2000).

5

But that shifted the issue of reviewability

back to the district courts. The question

arose whether in criminal alien removal

cases, the preclusion of direct review,

coupled with the zipper clause, eliminated

all court review, including collateral

review under the original habeas corpus

provision contained in section 2241. 

In Liang, we held that collateral

habeas review under section 2241 survived

the zipper in criminal alien removal cases.

Id. at 323. The Supreme Court confronted

this issue in St. Cyr. 533 U.S. at 292.

There, the Court definitively agreed that

habeas review of criminal alien removal

cases under section 2241 was not

foreclosed by AEDPA or IIRIRA. Id. at

314. Endorsing the approach we took in

Liang and earlier decisions, St. Cyr held

that, absent a crystal clear repeal of

jurisdiction to consider habeas claims by

aliens, the provisions of AEDPA and

IIRIRA that preclude judicial review

would not be interpreted to repeal section

2241 jurisdiction. Id. At least part of the

reasoning behind this ruling was the desire

to avoid the thorny constitutional question

posed if Congress had entirely pre-empted

review of an alien’s claims. Id.

asylum determinations notwithstanding the

limitations of section 1252(a)(2)(C). A

closer reading of section 1252(a)(2)(B),

however, and one that is more consonant

with section 1252(a)(2)(C), is that section

1252(a)(2)(B) leaves untouched—neither

limiting nor augmenting—the authority

courts would otherwise have to review

asylum determinations. Said another way,

section 1252(a)(2)(B) is n ot an

independent grant of authority for courts to

review asylum determinations, but merely

an exemption of asylum determinations

from the general class of discretionary

determinations that the section makes

unreviewable. That being the case, the

elimination by section 1252(a)(2)(C) of

jurisdiction to review any determination in

criminal alien removal cases also includes

elimination of jurisdiction to review

asylum determinations in those cases.

Such a reading was implicit in our holding

in Ogbudimkpa v. Ashcroft, 342 F.3d 207,

213 (3d Cir. 2003). 

5 Whether the courts of appeals

retain jurisdiction in criminal alien

removal cases to consider “challenges to

the factual determinations thought to

trigger the jurisdiction-stripping provisions

(such as whether an individual is an alien

and whether he or she has been convicted

of an ‘aggravated felony’ within the

meaning of the statute)” has been the

subject of some debate. See CalcanoMartinez v. INS, 533 U.S. 348, 350 n. 2

(2001). We have read the statute to allow

such jurisdictional review. See Drakes v.

Zimski, 240 F.3d 246, 247 (3d Cir. 2001).
8

Through its decision in St. Cyr, the

Court divide d the landscape of

immigration review into two parts. Noncriminal aliens retain a right under the

statute to deferential, but still substantive,

direct review in the courts of appeals. See

8 U.S.C. § 1252(a)(1); Dia v. Ashcroft,

353 F.3d 228 (3d Cir. 2003) (en banc).

Criminal aliens have no right to direct

review, but retain the residual right to seek

relief under the traditional habeas statute.

See St. Cyr, 533 U.S. at 314. Having

resolved this threshold jurisdictional issue,

the Court specifically left open the scope

of review available under residual section

2241. That set the stage for what has

become the most recent chapter in the

debate: Precisely what kinds of challenges

are cognizable in criminal alien removal

habeas petitions?

III.

In answering this question we do

not paint on a blank canvas.

The Supreme Court and this Court

have recently construed the range of

section 2241 review at least so far as to

establish what it comprehends at a

minimum. In St. Cyr, the Supreme Court

rejected the Government’s argument that

classic habeas review encompassed only

review of substantial constitutional or

jurisdictional questions. The Supreme

Court ruled that “pure questions of

law”—such as whether the Attorney

General had legal authority to waive

removal—fell within the ambit of

traditional habeas review. Id. at 301. This

Court has recently interpreted such

questions to include issues of application

of law to fact, where the facts are

undisputed and not the subject of

challenge. Ogbudimkpa v. Ashcroft, 342

F.3d 207, 222 (3d Cir. 2003).6

But if that marks the minimum

review available under general habeas

corpus, does it also mark the maximum

review? Or, as Bakhtriger contends, are

federal courts in habeas cases entitled to

address whether removal of a criminal

alien, while not erroneous as a matter of

constitutional or statutory interpretation, is

nevertheless an abuse of discretion or

unsupported by substantial evidence?

This, of course, is the APA-style standard

of review that is afforded when courts of

appeals directly review decisions of the

BIA, as is permitted in the cases of noncriminal aliens. 8 U.S.C. § 1252(a)(1);

see, Dia, 353 F.3d at 228.

6 In Sol v. INS, 274 F.3d 648, 651

(2d Cir. 2001), the Second Circuit read our

earlier decision in Catney v. INS, 178 F.3d

190, 195 (3d Cir. 1999), as holding that

section 2241 review does not embrace

“‘denial of discretionary relief to a

criminal alien.’” Respectfully, this reading

of our decision in Catney was incorrect.

While the context of our comment on

scope of review may have been somewhat

ambiguous, it actually related to review on

direct appeal of a deportation order from

the BIA, and did not address habeas

review. At any rate, the Second Circuit

correctly anticipated the position that we

now take in this decision.
9

We believe that, under section

2241, habeas proceedings do not embrace

review of the exercise of discretion, or the

sufficiency of the evidence. Our

conclusion is supported by the history of

interpretation of the general habeas

provision over the years; by the structure

of the immigration laws as amended in

1996; and by the reasoning of St. Cyr

itself.

A.

Over a century ago, Congress

enacted an early version of a zipper clause

by mandating that exclusion decisions of

immigration officials were to be final,

subject only to review within the executive

branch. Act of March 3, 1891, c. 517, § 5;

26 Stat. 827, 828, 1115. Shortly thereafter,

the Supreme Court considered an appeal

from the denial of a writ of habeas corpus

by an excluded citizen of Japan. The

Court acknowledged that because the

alien’s liberty was restrained, she was

“doubtless entitled to a writ of habeas

corpus to ascertain whether the restraint is

lawful.” Ekiu v. United States, 142 U.S.

651, 660 (1892) (italics in original). But

the court observed:

[T]he final determination of

those facts may be entrusted

by Congress to executive

officers; and in such a case,

as in all others, in which a

statute gives a discretionary

power to an officer, to be

exercised by him upon his

own opinion of certain facts,

he is made the sole and

exclusive judge of the

existence of those facts, and

no other tribunal, unless

expressly authorized by law

to do so, is at liberty to

reexamine or controvert the

sufficiency of the evidence

on which he acted.

Id.

Until the 1952 amendments to the

immigration law allowed broader APAstyl e judicial review f or IN S

determinations, the Court had hewed

mainly to this circumscribed scope of

review, with slight modification. See

Yamataya v. Fisher, 189 U.S. 86 , 97, 102

(1903); United States ex rel. Vajtauer v.

Commissioner of Immigration at Port of

New York, 273 U.S. 103 (1927); Bridges

v. Wixon, 326 U.S. 135, 149, 156 (1945);

Estep v. United States, 327 U.S. 114, 122-

23 & n.14 (1946). So long as there was

sufficient procedural fairness to comport

with due process, courts were not to

“weigh the evidence” and were required to

honor the administrative decisions “even

though they may be erroneous.” Estep,

327 U.S. at 122.7

7Both Vajtauer and Estep indicated

that the writ of habeas corpus might issue

where there is “no basis in fact”—i.e., no

evidence—for a determination. See

Vajtauer, 273 U.S. at 110; Estep, 327 U.S.

at 122. This may have been either as a

matter of reviewing the legal basis for the

agency’s jurisdiction, Estep, 327 U.S. at

122-23, or as a matter of due process, see
10

As we have already observed, when

the passage of the APA in 1946 first raised

the prospect that immigration decisions

might be reviewable under the broader

standards of abuse of discretion and

substantial evidence, the Supreme Court

specifically rejected that approach in the

context of habeas corpus. Heikkila, 345

U.S. at 236-37. The Court held that,

whatever the minor adjustments in the

measure of habeas review over the years,

habeas corpus must always be based on

bedrock requirements of due process,

rather than the “very different . . . statutory

[i.e., APA] standard of review, e.g.,

deciding on ‘the whole record’ whether

there is substantial evidence to support

administrative findings of fact.” Id. at

236. Heikkila concluded that “it is the

scope of inquiry on habeas corpus that

differentiates use of the writ from judicial

review as that term is used in the

Administrative Procedure Act.” Id.

United States ex rel Accardi v.

Shaughnessy, 347 U.S. 260 (1954), is

particularly instructive on this point. The

habeas corpus petition in that case was

based, inter alia, on the argument that the

Attorney General had impermissibly

interfered with the discretion that had been

delegated by regulations to the BIA,

thereby violating those regulations. The

Supreme Court held that this transgression

of the regulations violated due process and

warranted a new hearing.

But the petitioner also raised the

contention that “‘in all similar cases the

[BIA] ha[d] exercised favorable

discretion.’” Id. at 264 n.5. This

argument was rejected by the Supreme

Court, which pointedly observed: 

It is important to emphasize

that we are not here

reviewing and reversing the

manner in which discretion

was exercised. If such were

the case we would be

discussing the evidence in

the record supporting or

undermining the alien’s

claim to discretionary relief.

Rather, we object to the

Board’s alleged failure to

exercise its own discretion,

contrary to existing valid

regulations.

Id. at 268.

Despite the Court’s essential

constancy in restricting the use of habeas

corpus to assertions of constitutional or

statutory violations, the statutory landscape

changed in 1952. Congress’s choice in the

1952 immigration law amendments not to

expressly supersede or modify the APA for

immigration determinations effectively

broadened the scope of judicial review of

INS determinations. See Shaughnessy v.

Perdiero, 349 U.S. at 51-52. In point of

fact, the broadened scope of review was

literally applicable only to direct appeal of

INS determinations under the APA. But it

was not long before courts viewed

Heikkila 345 U.S. at 235-36 & n. 11; see

also Mahler v. Eby, 264 U.S. 32, 41-42

(1924); Zakonaite v. Wolf, 226 U.S. 272,

274 (1912).
11

Congress as having intended to augment

traditional habeas review with broader

APA-style review. Compare Jay v. Boyd,

351 US. 345, 354-55 (1956) (explaining

that executive discretion to suspend

deportation is “a matter of grace” and

“unfettered discretion”) with United States

ex rel Hintopolous v. Shaughnessy, 353

U.S. 72, 77 (1957) (rejecting a challenge

to suspension based on claim of abuse of

discretion and arbitrary and capricious

reasoning).8 Put another way, in effect

courts began treating APA judicial review

as one of the laws of the United States

enforceable through the habeas statute.

Once the habeas provisions of the

immigration statute were added in 1961,

they were viewed as consistent with a

standard of judicial review calling for

APA-style examination of the exercise of

discretion and substantiality of evidence.

In Moret v. Karn, this Court read the 1952

immi grati o n ame ndm ents (a s

supplemented by the 1961 legislation) to

require that in habeas cases:

[T]he appropriate standard

of review in such cases is

whether the a ge nc y’s

decision is “arbitrary,

capricious, and abuse of

discretion or otherwise not

in accordance with the law.”

5 U.S.C. § 706(2)(A) [the

APA].

. . . This standard of review

is consistent with the

legislative history of the

Immigration and Nationality

Act of 1952 . . . .

746 F.2d 989, 991 (3d Cir. 1984).9 

It seems fair to say, then, that

classic immigration cases under section

2241 before 1952 were reviewed for

constitutional and legal error only, and that

immigration cases that arose under the

habeas writ between 1952 and 1996 were

treated under the same standard of review

as direct appeals from the BIA—that is to

say, under broader APA review of 8 Because the Court in Hintopolous

rejected a challenge based on abuse of

discretion, the court did not actually

consider whether such a challenge was

within the scope of habeas review. See

Hintopolous, 353 U.S. at 78-79.

Decisions during the 1961 to 1996

time-frame, however, appear to treat the

APA standard of review as applicable

without any distinction between direct

review under old section 1105a(a) and

habeas corpus under old section 1105a(b).

See, e.g., Mondragon v. Ilchert, 653 F.2d

1254, 1255-56 (9th Cir. 1980). 

9 Some of the courts adopting the

view that section 1105a created a basis for

habeas corpus jurisdiction independent

from 28 U.S.C. § 2241 have found that,

from 1961 to 1996, broader review was

available exclusively through 1105a

habeas, and that 2241 habeas was available

only to aliens asserting constitutional or

statutory violations. See Gutierrez-Chavez

v. INS, 298 F.3d 824, 827-28 (9th Cir.

2002). 
12

discretion and of the sufficiency of the

evidence.

B.

That brings us to the 1996

amendments under AEDPA and IIRIRA.

The government initially advocated that

the amendments to the INA enacted by

AEDPA and IIRIRA be treated as

precluding all judicial examination of

removal determinations in the cases of

criminal aliens. The Supreme Court,

however, rejected that view. See St. Cyr,

533 U.S. at 312. The Court held that

Congress succeeded only in repealing

direct appellate review of such cases and

the special immigration habeas provisions

of section 1105a; what remained was the

original section 2241 habeas remedy. That

fact in itself suggests that the scope of

review one would expect to find under the

residual section 2241 is no greater than

what existed before Congress began to

graft APA-style review onto habeas

jurisdiction in 1952.

To be sure, St. Cyr does not

explicitly set forth the boundaries of

habeas review of removal actions under

section 2241, nor does it expressly address

whether review of discretion or

administrative fact-finding is available.

See Sol, 274 F.3d at 651. But the actual

reasoning in the St. Cyr decision compels

the conclusion that under section 2241 as

it currently stands, the broader species of

review for substantial evidence and abuse

of discretion typical of APA challenges

must be wholly out of bounds.

In St. Cyr, the Court confronted the

1996 statutory “zipper” language that

states:

Judicial review of all

questions of law and fact,

including interpretation and

application of constitutional

and statutory provisions,

arising from any action

taken or proceeding brought

to remove an alien from the

United States under this

subchapter shall be available

only in judicial review of a

final order under this

section.

8 U.S.C. § 1252(b)(9). The judicial review

section, 8 U.S.C. § 1252, in turn provides

for direct review by the courts of appeals

of BIA decisions, but prohibits it in the

case of criminal aliens.

The meaning of the term “judicial

review” became the critical interpretive

issue presented to the Supreme Court. If

judicial review meant all review by any

court, as the government and the

dissenting Justices urged, then the zipper

clause and the criminal alien preclusion

clause, taken together, made removal of

criminal aliens totally unreviewable under

the statutory scheme. If “judicial review”

was a term of art referring only to a certain

type of court review, however, then what

was precluded was not all review by the

courts, but only review of a certain kind.

The majority in St. Cyr adopted the

latter interpretation, seizing upon the

earlier decision in Heikkila to differentiate

between “judicial review” in a specific
13

sense, and court review under the

traditional habeas writ. See St. Cyr, 533

U.S. at 312 (citing Heikkila). The Court

declared: “In the immigration context,

‘judicial review’ and ‘habeas corpus’ have

historically distinct meanings.” St. Cyr,

533 U.S. at 311 (citing Heikkila, 345 U.S.

at 236). But for this distinction to make

sense in reading the 1996 zipper

amendments, there had to be some

significant difference between the scope of

review under “judicial review” and that

under section 2241 habeas corpus.

Otherwise,the amendments’ withdrawal of

“judicial review” on the one hand would

be nullified on the other hand by the

retention of habeas corpus with identical

scope of court review. In other words, a

definition of habeas corpus jurisdiction

that made the scope of claims available on

habeas review coextensive with the scope

of claims available on direct review would

necessarily render the preclusion provision

of AEDPA and IIRIRA utterly pointless

and would create an internal contradiction

within the immigration statutes. 

As a matter of logic, therefore, the

Court necessarily recognized that the

“limited role played by the courts in

habeas corpus proceedings was far

narrower than the judicial review

authorized by the APA.” Id. at 312. In

effect, the Court reaffirmed the rule set

forth in Heikkila. And by drawing that

distinction as to scope of review, the Court

was able to give meaning to the 1996

statutory preclusion provision. For under

this interpretation, AEDPA and IIRIRA

succeeded in precluding broader APAstyle “judicial review” for criminal aliens

by eliminating direct “judicial review” in

the courts of appeals. What remained for

criminal aliens facing removal was only

the core section 2241 habeas provision

with its narrower scope of pure legal

review.

The Supreme Court in St. Cyr also

addressed the provision of AEDPA that

specifically eliminated one of the 1961

special habeas provisions of the INA, by

deleting 8 U.S.C. § 1105a(a)(10). St. Cyr,

533 U.S. at 308-10. The Court held that

the repeal of this section 1105a special

habeas provisions did not implicitly repeal

the residual habeas statute, section 2241.

Again, that interpretation can make sense

only if, as we have seen, section 2241

residual habeas corpus is understood to

carry a more limited scope of review than

the broader APA-style review which the

courts applied under section 1105a. See

Gutierrez-Chavez v. INS, 298 F.3d 824,

828 (9th Cir. 2002). Were section 1105a

review and section 2241 review to have

identical scope, the repeal by AEDPA and

IIRIRA of the former—and not the

latter—would appear to be a vain or

incomplete legislative act.

In short, to accept Bakhtriger’s

contention here that section 2241 habeas

review incorporates an examination of the

exercise of discretion or weight of the

evidence in the underlying removal

proceedings would be to erase the

distinction between “judicial review” and

habeas review that was an indispensable

ingredient in the reasoning of St. Cyr. See

533 U.S. at 311-12. Bakhtriger’s
14

argument would also wholly nullify the

content of the preclusion provisions that

Congress enacted and would defy decades

of the history of interpretation of section

2241. Accordingly, we believe that the

scope of review under section 2241 must

be confined to questions of constitutional

and statutory law.

Our interpretation is consistent with

decisions in other circuits. In the wake of

St. Cyr, we are not aware of any cases that

have upheld habeas review of factual

findings or discretionary determinations in

criminal alien removal cases. Rather, all

circuits to decide the issue have limited

criminal alien habeas petitions to

constitutional challenges or errors of law.

See Bravo v. Ashcroft, 341 F.3d 590, 592-

93 (5th Cir. 2003); Gutierrez-Chavez, 298

F.3d at 828; Carranza v. INS, 277 F.3d 65,

72 (1st Cir. 2002); Sol, 274 F.3d at 651;

Bowrin v. INS, 194 F.3d 483, 490 (4th Cir.

1999).10

We join them.

IV. 

Bakihtriger’s habeas petition

challenges both the underpinnings of the

BIA factual findings and the BIA’s

decision not to exercise discretion in favor

of asylum. For the reasons stated above,

these matters are not reviewable under the

residual habeas provision—28 U.S.C. §

2241. Indeed, the BIA’s determination

that the circumstances of Bakhtriger’s case

do not rise to the level of other cases in

which the authorities have exercised their

discretion in favor of asylum is precisely

the sort of application of discretion that the

Supreme Court declined to review in

Accardi, 347 U.S. at 264. In Accardi, the

petitioner’s challenge to the exercise of

discretion by the immigration officials was

effectively the same as that mounted by

Bakhtriger—the “allegation that the

appellant was treated differently from

other aliens similarly situated.” 206 F.2d

at 901. The Supreme Court expressly

affirmed the court of appeals in its refusal

to entertain that challenge to discretion

(although the Court ultimately reversed on

another ground). Accardi, 347 U.S. at 264

n. 5. We reject Bakhtriger’s identical

challenge to discretion here.

Perhaps recognizing that his effort

to obtain review of discretion and evidence

would be ill-fated, Bakhtriger tries to

repackage these claims as matters of law

by pointing out that the reason he is

subject to removal is pursuant to a law of

the United States, and that the “substantial

evidence” standard under APA-style

review is established as a legal

requirement. The fact that there are legal

principles that govern these matters,

however, does not convert every question

of fact or discretion into a question of law.

If it did, rivers of ink expended in case law

distinguishing between legal and factual

10 Yang v. INS, 109 F.3d 1185,

1195-96 (7th Cir. 1997) takes the same

position, but we do not rely on it because

the Seventh Circuit appears to have relied

in part on its view that IIRIRA had

abolished review under section 2241, a

position later repudiated by St. Cyr.
15

questions would have been spilled for no

reason. Similarly, although review as a

matter of law encompasses deciding

whether legal principles have been

properly applied to undisputed facts, see

Ogbudimkpa, 342 F.3d at 222, it does not

encompass deciding the factual issues

themselves.

We will not delineate the precise

boundaries between permitted review of

legal questions and forbidden review of

factual issues or matters of discretion in

this opinion. What is clear in this case is

that the review Bakhtriger seeks is

squarely on the forbidden side of the line.

The District Court correctly determined

that it lacked jurisdiction to review the

claims in Bakhtriger’s habeas petition.

V.

For the foregoing reasons, we will affirm

the judgment of the District Court.