FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 14, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-13742

________________________

D.C. Docket No. 00-02572 CV-ASG

NECASTILLE DAVID BEJACMAR,

Petitioner-Appellant,

versus

JOHN ASHCROFT, Attorney General

of the United States,

KEVIN D. ROONEY, Acting Commissioner

of the Immigration Service, et al., 

Respondents-Appellees.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(May 14, 2002)
*

 Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District

of Ohio, sitting by designation.

2

Before BIRCH and WILSON, Circuit Judges, and DOWD*, District Judge.

BIRCH, Circuit Judge:

Necastille Bejacmar appeals the district court’s decision to dismiss his

habeas corpus petition for lack of subject matter jurisdiction. Bejacmar, a citizen

of the Bahamas, lived in the United States as a lawful permanent resident until he

committed an aggravated felony and was ordered removed. After an unsuccessful

appeal of the removal order, Bejacmar sought habeas corpus review pursuant to 28

U.S.C. § 2241. The district court dismissed Bejacmar’s petition, reasoning that 8

U.S.C. § 1252(b)(9) barred subject matter jurisdiction, a conclusion consistent with

our statutory interpretation in Richardson v. Reno, 162 F.3d 1338 (1998)

(Richardson I), and Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999)

(Richardson II). 

The Supreme Court, however, has since abrogated our statutory

interpretation of 8 U.S.C. § 1252(b)(9) in the Richardson decisions, concluding

that § 1252(b)(9) does not bar habeas jurisdiction over final removal orders which

are not subject to judicial review under § 1252(a)(1). I.N.S. v. St. Cyr, 533 U.S.

289, 312-13, 121 S. Ct. 2271, 2286 (2001). Because Bejacmar’s removal order is
3

subject to § 1252(a)(2)(C) and not subject to judicial review under § 1252(a)(1),

the district court did in fact have jurisdiction to address Bejacmar’s case. 

Accordingly, we REVERSE and REMAND so that the district court may address

the merits of Bejacmar’s argument.

I. BACKGROUND

Bejacmar entered the United States in 1973 and became a lawful permanent

resident in 1978. In June 1997, Bejacmar pled guilty to conspiracy to commit bank

fraud, a violation of 18 U.S.C. § 371. The trial court found that Bejacmar and his

co-defendants defrauded three banks of over $34,000, and sentenced Bejacmar to

eight months of home detention and five years of probation. 

 Bejacmar’s immigration status was not altered at the time of sentencing.

In May 1999, the Immigration and Naturalization Service (“INS”) arrested

Bejacmar and initiated removal proceedings. These proceedings were based on 8

U.S.C. § 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is convicted of

an aggravated felony at any time after admission is deportable.” Bank fraud is

considered an aggravated felony under immigration law if the loss to the bank

exceeds $10,000. 8 U.S.C. § 1101(a)(43)(M). Bejacmar was ordered removed in

October 1999, and his appeal to the Board of Immigration Appeals was dismissed
1

 Before St. Cyr, several circuits besides our own had concluded that AEDPA

and IIRIRA eliminated district court jurisdiction in habeas corpus cases. See, e.g.,

Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000), Max-George v. Reno, 205

F.3d 194 (5th Cir. 2000) (per curiam). Other circuits held that AEDPA and IIRIRA

did not limit such jurisdiction. Mahadeo v. Reno, 226 F.3d 3 (1st Cir. 2000), Liang

v. I.N.S., 206 F.3d 308 (3rd Cir. 2000), Flores-Miramotes v. I.N.S., 212 F.3d 1133

(9th Cir. 2000), Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000). 

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in March 2000. Bejacmar then sought review under habeas corpus, arguing that he

should be eligible for discretionary relief from removal. The district court

dismissed Bejacmar’s petition for lack of subject matter jurisdiction, a conclusion

compelled by our decisions in Richardson I and Richardson II. 

II. DISCUSSION

We review de novo the district court’s decision to dismiss Bejacmar’s case

for lack of subject matter jurisdiction. Ochran v. United States, 273 F.3d 1315,

1317 (11th Cir. 2001). The relevant statutory authority in this case is the

Immigration and Nationality Act (“INA”), which was substantially modified in

1996 when Congress passed the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”). Since 1996, there has been debate over the effect of AEDPA and

IIRIRA on district court jurisdiction in habeas corpus cases.1

 On 25 June 2001 —

the same day that the district court dismissed Bejacmar’s habeas petition — the
2

 Since IIRIRA’s passage, judicial interpretation of the statute’s effect on

habeas jurisdiction has evolved. In 1998, we read 8 U.S.C. § 1252(g) in concert with

several other IIRIRA provisions as barring district court jurisdiction over habeas

cases. Richardson I, 162 F.3d at 1354. Section 1252(g) provides for exclusive

jurisdiction:

Except as provided in this section and notwithstanding any other

provision of law, no court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the decision or action by

the Attorney General to commence proceedings, adjudicate cases, or

execute removal orders against any alien under this chapter. 

8 U.S.C. § 1252(g). The Supreme Court, however, concluded that § 1252(g) does not

apply to habeas. Reno v. American-Arab Comm., 525 U.S. 471, 482-83, 119 S. Ct.

936, 943 (1999). Instead, the Court determined that § 1252(g) “applies only to three

discrete actions that the Attorney General may take: her ‘decision or action’ to

‘commence proceedings, adjudicate cases, or execute removal orders.’” AmericanArab, 525 U.S. at 482, 119 S. Ct. at 943 (quoting § 1252(g)). On remand, we affirmed

the holding of Richardson I, removing § 1252(g) from the statutory calculus and

basing our decision instead on § 1252(b)(9). Richardson II, 180 F.3d at 1315. 

5

Supreme Court addressed this issue. Citing deference to constitutional parameters,

the Court held “that habeas jurisdiction under § 2241 was not repealed by AEDPA

and IIRIRA.” St. Cyr, 533 U.S. at 314, 121 S. Ct. at 2287. This conclusion

resolves a circuit split, id. at 293 n.1, 121 S. Ct at 2275, and requires us to reverse

the decision of the district court in Bejacmar’s case.

St. Cyr removes the last statutory pillar supporting our circuit’s earlier

conclusion that IIRIRA repealed district court jurisdiction in habeas cases.2

 In

Richardson II, we held that 8 U.S.C. § 1252(b)(9) — known as the “zipper clause”

— effectively repealed district court jurisdiction by consolidating judicial review
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of removal decisions in the courts of appeal. Richardson II, 180 F.3d at 1314-15. 

The zipper clause provides:

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). This requirement of consolidation is accompanied by a

provision which establishes venue in the court of appeals, § 1252(b)(2). Taken in

tandem, we reasoned that IIRIRA repealed district court jurisdiction over habeas

cases where the petitioner is subject to a removal order. Richardson II, 180 F.3d at

1314-15.

In St. Cyr, the Supreme Court addressed the zipper clause. The Court began

by articulating a standard: the repeal of habeas jurisdiction in the district courts

would require “overcom[ing] both the strong presumption in favor of judicial

review of administrative action and the longstanding rule requiring a clear

statement of congressional intent.” St. Cyr, 533 U.S. at 298, 121 S. Ct. at 2278

(footnote omitted). Also, the Court observed that such a repeal must not run afoul

of the Suspension Clause, which provides that “The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or

Invasion the public Safety may require it.” Id. at 300, 121 S. Ct. at 2279 (quoting
3

 The Court acknowledged that the scope of § 1252(a)(2)(C)’s preclusive effect

is “not entirely clear” in a companion case to St. Cyr. Calcano-Martinez v. I.N.S., 533

U.S. 348, 350 n.2, 121 S. Ct. 2268, 2270 (2001). In dicta, the Court indicated that §

1252(a)(2)(C) does not appear to preclude courts of appeal from adjudicating an

alien’s “substantial constitutional challenge[]” or a challenge of the factual

determinations relevant to jurisdiction. Id.

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U.S. Const. art. I, § 9, cl. 2). With the Suspension Clause in mind, the Court

explained that “if an otherwise acceptable construction of a statute would raise

serious constitutional problems, and where an alternative interpretation of the

statute is fairly possible, we are obligated to construe the statute to avoid such

problems.” Id. at 299-300, 121 S. Ct. at 2279 (internal quotations and citation

omitted). 

The Court turned to the language of § 1252(b)(9), which applies “to review

of an order of removal under subsection (a)(1).” 8 U.S.C. § 1252(b). Excluded

from the scope of subsection (a)(1) is “any final order of removal against an alien

who is removable by reason of having committed [particular] criminal offense[s].” 

8 U.S.C. § 1252(a)(2)(C).3

 St. Cyr had pled guilty to selling a controlled

substance, which removed his case from the scope of § 1252(a)(1). See 8 U.S.C. §

1227(a)(2)(B). Furthermore, the Court noted that § 1252(b)(9) applies to cases on

“judicial review,” a label the Court identified as “ historically distinct from

habeas.” St. Cyr, 533 U.S. at 313-14, 121 S. Ct. at 2286-87. The Court concluded
8

that “§ 1252(b)(9) does not clearly apply to actions brought pursuant to the general

habeas statute, and thus cannot repeal that statute either in part or in whole.” Id. at

314, 121 S. Ct. at 2287.

The facts of St. Cyr are squarely on point with the facts of Bejacmar’s case. 

Bejacmar pled guilty to conspiracy to commit bank fraud, which is categorized as

an aggravated felony. 8 U.S.C. § 1101(a)(43)(M). Like St. Cyr, Bejacmar was

ordered removed from the United States. There is no doubt that the outcome of the

jurisdictional issue in Bejacmar’s case is controlled by St. Cyr: § 1252(b)(9) “does

not bar habeas jurisdiction over removal orders not subject to judicial review under

§ 1252(a)(1) — including orders against aliens who are removable by reason of

having committed one or more criminal offenses.” St. Cyr, 533 U.S. at 313, 121 S.

Ct. at 2286. 

Accordingly, the district court’s decision to dismiss Bejacmar’s habeas

petition for lack of subject matter jurisdiction is REVERSED, and we REMAND

for consideration of the merits of Bejacmar’s argument.