United States Court of Appeals,

Eleventh Circuit.

No. 98-4230.

Ralph RICHARDSON, Petitioner-Appellee,

v.

Janet RENO, Attorney General of the United States; Doris Meissner, Commission, Immigration

and Naturalization Service; Robert Wallis, Acting District Director, Immigration and Naturalization

Service; United States Immigration and Naturalization Service; United States Department of

Justice; and Executive Office of Immigration Review, Respondents-Appellants.

Dec. 22, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 97-3799-CIVEBD), Edward B. Davis, Chief Judge.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HULL, Circuit Judge:

The Court VACATES and WITHDRAWS the previous opinion dated December 9, 1998 and

substitutes the following opinion. While the remainder of the opinion stays the same, the Court has

revised footnotes 88, 137, and the third paragraph in Section IV(H) and added the following

subsequent history to the citations of Hose v. INS, 141 F.3d 932 (9th Cir.1998): withdrawn and

reh'g en banc granted, --- F.3d ----, No. 97-15789, (9th Cir. December 2, 1998). Although the

Ninth Circuit's order granting the rehearing en banc was dated December 2, 1998, the order did not

appear in the on-line subsequent history of Hose until December 10, 1998—the date after the Court

published its original decision in this case.

TABLE OF CONTENTS

 I. FACTS AND PROCEDURAL HISTORY 933
2

 II. RICHARDSON'S HABEAS CORPUS PETITION 936

III. NEW IMMIGRATION LAWS 937

A. "Removal" Proceedings 937

B. Permanent Resident Criminal Aliens Returning From Abroad 938

C. Supreme Court's Fleuti Doctrine 939

D. Detention of Criminal Aliens "Seeking Admission" 940

E. Detention Under TPCRs in IIRIRA § 303(b)(3) 942

F. Detention Under INA § 236(c) 943

G. INA § 236(e) Restricts Review of Bond and Parole Decisions 945

H. Procedures for Removal Hearings 945

I. IIRIRA Consolidates Judicial Review in the Court of Appeals 946

J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal

Aliens 948

K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions

949

 IV. DISCUSSION 949

A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration

Decisions 949

B. No Constitutional Infirmities to Avoid 953

C. Eleventh Circuit's Boston-Bollers Decision 954

D. Due Process Clause 957
3

E. Article III 959

F. Suspension Clause 960

G. Second Circuit's Henderson Decision 962

H. Ninth Circuit's Magana-Pizano Decision 963

I. Seventh Circuit's Yang Decision 965

J. INA §§ 242(b)(9) and (d) Require Final Removal Order 970

K. Alternative Review Under INA Satisfies Suspension Clause 971

 V. CONCLUSION 976

This appeal arises from a district court's order granting a writ of habeas corpus to a

thirty-year permanent resident alien petitioner with a cocaine-trafficking conviction who was

detained as he attempted to enter the United States after a two-day trip to Haiti. The INS district

director denied bond pending the outcome of petitioner's removal proceedings. Petitioner filed his

habeas corpus petition under 28 U.S.C. § 2241 asserting that the INS' illegal detention, denial of

admission, and denial of a bond hearing violated his constitutional and statutory rights as a lawful

permanent resident alien.

This case presents issues of first impression in this Circuit regarding subject matter

jurisdiction under the Immigration and Nationality Act ("INA"), as amended by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). After review, we find

the district court lacked jurisdiction over the habeas corpus petition. We reverse and order the

district court to dismiss the petition.

I. FACTS AND PROCEDURAL HISTORY
 1

Richardson initially served only three years of his five-year sentence on the drug-trafficking

offense. In 1993, he was arrested for violating his probation by eluding police and served the

remainder of his sentence in prison. He was released from prison on January 11, 1994. 

 28 U.S.C. § 1251(a)(1)(1990); 8 U.S.C. § 1182(a)(10)(1990); 8 U.S.C. § 1227(a)(2)(b)(i)

(Supp.1998). 

 3

8 U.S.C. § 1101(a)(43) (Supp.1998). This opinion utilizes the section numbers of the INA

and IIRIRA because the text of those statutes references INA and IIRIRA sections and because

certain parts of IIRIRA are not codified. See footnote 42 infra. At the Miami International

Airport, the immigration inspector prepared a four-page sworn statement signed by Richardson

that outlined his criminal history. 

4

Appellee-petitioner Ralph Richardson ("Richardson") is a native and citizen of Haiti who

has been a lawful permanent resident alien in the United States since 1968. In 1984, Richardson was

convicted of carrying a concealed weapon. In 1990, Richardson was convicted of trafficking

cocaine and served five years in prison.1

 The parties do not dispute that Richardson could have been

deported under the immigration laws in existence in 1990 and could be deported under current

immigration law but that deportation proceedings were never initiated.2

On October 24, 1997, Richardson left the United States and traveled to Haiti. On October

26, 1997, Richardson attempted to re-enter the United States at the Miami International Airport, but

was not allowed to enter. At the initial immigration checkpoint, Richardson presented an expired

"I-151" card, also called an Alien Resident Card, and a valid Haitian passport. Richardson's use of

an expired card caused him to be referred to a secondary immigration inspector for a more detailed

interview regarding his eligibility to enter the United States.

Through this inspection, the INS concluded that Richardson, although a lawful permanent

resident alien, was no longer eligible to enter the United States under the new immigration laws due

to his prior criminal convictions. During the inspection, Richardson admitted his criminal history

including his cocainetrafficking conviction, an aggravated felony under INA § 103(a)(43).3
 4

8 U.S.C. § 1252 (Supp.1998). An INS "notice to appear," dated October 26, 1997 was

served on Richardson alleging that he was an arriving alien who was a citizen of Haiti, not the

United States, and was subject to removal due to his criminal convictions. 

 5

8 U.S.C. § 1101(a)(13)(C)(v) (Supp.1998). 

 6

Id. 

 7

See 8 C.F.R. § 103.1(g)(2)(ii)(B) (1997); 62 Fed.Reg. 10312, 10360 (1997) (codified in 8

C.F.R. § 236.1(c)(5) (Jan. 1, 1998)); see footnotes 38 and 40 infra. 

 8

The proceedings before the immigration judge on Richardson's release request were not

recorded or transcribed. On November 24, 1997, the immigration judge signed a form bond

order with blanks to check for granting or denying release. The immigration judge checked the

5

Richardson was taken to the Krome Detention Center, Miami, Florida, and immediately was placed

in "removal" proceedings under INA § 240.4

On November 13, 1997, Richardson's attorney sent a letter to the INS district director in

Miami requesting release from custody. On December 4, 1997, the district director denied

Richardson's request.

On November 18, 1997, while awaiting the district director's response, Richardson also

sought release on bond with the immigration judge at Krome. New INA § 101(a)(13)(C)(v)5

provides that a lawful permanent resident alien, returning from abroad, is not deemed to be seeking

an official "admission" to the United States, and can be admitted summarily, unless the alien has

been convicted of certain crimes. Since Richardson's conviction for trafficking cocaine is a crime

described in INA § 101(a)(13)(C)(v),6 the immigration judge found that Richardson was "seeking

admission" to the United States, that aliens "seeking admission" at the border can request release

only from a district director, and that immigration judges lack jurisdiction over such requests.7 On

November 24, 1997, the immigration judge denied Richardson's release request for lack of

jurisdiction.8
box stating that the request for release was denied and wrote "arriving alien" at the bottom of the

form. Although nothing in the record clearly establishes that the basis of the immigration judge's

decision was a lack of jurisdiction, both parties agree that the immigration judge did not conduct

a bond hearing, although witnesses were present ready to testify, and that the immigration judge

indicated lack of jurisdiction over Richardson's release request due to his status as an alien

seeking admission. 

 9

In the Matter of Ralph Richardson, Respondent: In Removal Proceedings, Case # A17-566-

876 (Immigration Court, January 1, 1998). 

6

On November 26, 1997, Richardson filed in the district court a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Richardson filed an amended petition on December 10, 1997.

Richardson's petition asserted, inter alia, that he was being illegally detained and, at a minimum,

was entitled to a hearing before an immigration judge on his release request and not merely

consideration by the district director. The INS moved to dismiss Richardson's petition for lack of

subject matter jurisdiction.

On December 30, 1997, the magistrate judge issued a report finding statutory habeas

jurisdiction under 28 U.S.C. § 2241 and recommending that Richardson be given "an individualized

hearing, within 14 days of any order adopting this recommendation at which time the immigration

judge should considered [sic] whether petitioner is an arriving alien, and if not, whether and under

what circumstances petitioner may be released from custody pending the completion of deportation

proceedings."

On January 8, 1998, Richardson's removal proceedings concluded with the immigration

judge's order that Richardson be removed to Haiti.9

 After a hearing during which Richardson

testified and was represented by counsel, the immigration judge found that, because of his criminal

convictions, Richardson was "inadmissible" under INA §§ 212(a)(2)(A)(i)(I), 212(a)(2)(A)(i)(II),
 108 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1182(a)(2)(A)(i)(II), & 1182(a)(2)(C) (Supp.1998). 

 118 U.S.C. § 1229b (Supp.1998). Denying cancellation of removal under INA § 240A(a), the

immigration judge found that Richardson was statutorily ineligible due to his cocaine-trafficking

conviction, deemed an aggravated felony under INA § 101(a)(43). 8 U.S.C. § 1101(a)(43)

(Supp.1998). INA § 240A (a), 8 U.S.C. § 1229b(a) (Supp.1998), provides that the "Attorney

General may cancel removal in the case of an alien who is inadmissible or deportable from the

United States if the alien—(a) has been an alien lawfully admitted for permanent resident for not

less than five years, (2) has resided in the United States continuously for seven years after having

been admitted in any status, and (3) has not been convicted of any aggravated felony." 

(Emphasis supplied.) 

 12Richardson's brief was filed with the BIA on October 15, 1998, and the INS brief was due

on November 28, 1998. 

7

and 212(a)(2)(C)10 and not entitled to cancellation of removal under INA § 240A(a).11 Richardson's

appeal of the removal order to the Board of Immigration Appeals ("BIA") remains pending.12

On February 19, 1998 and over the INS' objections, the district court adopted the magistrate

judge's report and recommendations, denied the INS' motion to dismiss and granted Richardson's

petition. The district court ordered the immigration judge to hold "an individualized hearing within

eleven (11) days from the date stamped on the Order, at which time the Immigration Judge should

determine whether Petitioner is an arriving alien, and if not, whether and under what conditions

Petitioner may be released from custody pending the completion of deportation proceedings."

This appeal ensued. On February 23, 1998, this Court granted the INS' motion to stay the

district court's order pending this appeal. Richardson remains in custody.

II. RICHARDSON'S HABEAS CORPUS PETITION

Before examining the new immigration laws, we outline Richardson's claims. In this case,

Richardson does not dispute that he is an alien, that he has a cocaine-trafficking conviction, and that
 13In the removal hearing before the immigration judge, Richardson contended that the INS'

evidence of his criminal conviction for cocaine trafficking was improperly certified, but the

judge admitted this evidence of his conviction. The INS also introduced Richardson's sworn

statement at inspection that he had a cocaine-trafficking conviction. At the removal hearing,

Richardson testified that while he signed the statement, he did not read it because he was

"confused," "shocked," and "upset." The immigration judge found that the INS had proved a

cocaine-trafficking conviction. This is one of many issues Richardson has raised on appeal to

the BIA; however, this issue was not raised in the district court. 

 148 U.S.C. § 1101(a)(13)(C) (Supp.1998). 

8

cocaine trafficking is a basis for both inadmissibility and deportability under the INA.13 Instead,

Richardson's habeas corpus petition asserts, inter alia, that his constitutional and statutory rights

were violated because:

(1) the INS ignored his thirty-year legal permanent resident alien status, misinterpreted INA

§ 101(a)(13)(C)14 in classifying Richardson as an arriving alien "seeking admission," unlawfully

detained him, and illegally denied him admission, as opposed to permitting entry into the United

States and then initiating removal proceedings based on "deportability;"

(2) the Attorney General's detaining and denying a legal permanent resident alien admission

back into the United States and delegating her custody release authority to only the INS district

director, without a bond hearing before an immigration judge, are ultra vires of the INA and illegal;

(3) the Attorney General's detaining and denying a legal permanent resident alien admission

and a bond hearing before the immigration judge solely because of his brief trip abroad violates that

resident alien's due process guarantees under the Due Process Clause of the Fifth Amendment; and

(4) the Attorney General's allowing a bond hearing before an immigration judge for legal

permanent resident aliens arrested in the United States, but denying a bond hearing to Richardson
 158 U.S.C. § 1252(g) (Supp.1998). 

 16IIRIRA was signed into law on September 30, 1996 and became effective on April 1, 1997. 

 17Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat.

1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"),

Pub.L. No. 104-208, 110 Stat. 3009 (1996). 

9

only because of his two-day sojourn abroad violates the equal-protection guarantees of the Due

Process Clause of the Fifth Amendment.

In explaining why he filed his habeas petition while his BIA appeal remained pending,

Richardson contends that exhaustion of administrative remedies is futile because the INA, as

amended by IIRIRA, eliminates judicial review in the courts of appeals over any prospective BIA

final order removing him as a criminal alien, and forecloses appeal of the INS' district director's

bond decisions to an immigration judge. Finally, Richardson asserts that INA § 242(g)'s

exclusive-jurisdiction provision15 does not repeal habeas jurisdiction under 28 U.S.C. § 2241 and

does not prevent the district court from hearing a permanent resident alien's habeas petition alleging

unlawful executive detention in violation of the INA and the Constitution.

Since Richardson attempted to enter the United States on October 26, 1997, IIRIRA's

extensive revisions to the INA undisputedly govern this case.16

III. NEW IMMIGRATION LAWS

In 1996, Congress twice revised the INA. The changes began incrementally with the

enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") in April 1996 and

accelerated with IIRIRA's major structural revisions to the INA in September 1996.17 Congress'

reconstruction of the INA includes, inter alia, these key elements applicable to Richardson's appeal:

(1) new custody rules mandating detention of aliens after a serious criminal conviction;
 18Before IIRIRA, the INA separated the concepts of exclusion proceedings and deportation

proceedings. Different procedural rules applied to proceedings to exclude an alien from entering

the United States. Compare 8 U.S.C. § 1226 (1996) with 8 U.S.C. § 1252b (1996). 

10

(2) new procedures for prompt removal of criminal aliens from the United States;

(3) new restrictions on judicial review that preclude all judicial involvement in the

administrative agency removal and detention process until after a final removal order is entered by

the BIA;

(4) new provisions directing that judicial review shall be exclusively under the INA and in

only the court of appeals after a final BIA removal order; and

(5) new provisions removing all other formerly available federal-court jurisdiction over the

detention and removal of criminal aliens, including repeal of statutory habeas under 28 U.S.C. §

2241.

Simply put, IIRIRA strips all jurisdiction, including § 2241 habeas, from the district courts,

places exclusive judicial review in the court of appeals, and delays even that judicial review until

after a final administrative agency order. Congress has reduced judicial review to one time in one

place in an effort to expedite the removal of resident aliens with serious criminal convictions. Since

these legislative revisions to the INA are extensive, complicated, and affect so many resident aliens

with criminal convictions in such a significant manner, we outline them in detail.

A. "Removal" Proceedings

Upon being denied entry, Richardson was detained and immediately placed in "removal"

proceedings.18 As one of its broad structural changes to the INA, IIRIRA eliminated some of the

distinctions between "deportation" and "exclusion" proceedings and created a unified set of
 198 U.S.C. § 1229a (Supp.1998). 

 208 U.S.C. § 1229a(a)(1) (Supp.1998). Removal proceedings were created in INA § 240. 

Other sections of the INA established the procedures to be employed in removal proceedings. 

For example, INA § 239, 8 U.S.C. § 1229 (Supp.1998), established the procedures for the

initiation of removal proceedings. INA § 240A, 8 U.S.C. § 1229b (Supp.1998), established the

procedures for the cancellation of removal proceedings. 

 218 U.S.C. § 1229a(e)(2) (Supp.1998). 

 228 U.S.C. § 1229a(a)(3) (Supp.1998). 

 23Within INA § 240's framework, certain procedures are still differentiated based on whether

deportability or inadmissibility is the subject of the removal proceeding. 8 U.S.C. § 1229a

(Supp.1998). For example, INA § 240(c)(2)(A) provides that an alien has the burden of

establishing eligibility for admission "clearly and beyond doubt" or "by clear and convincing

evidence that the alien is lawfully present in the United States pursuant to a prior admission;"

whereas, INA § 240(c)(3)(A) provides that the INS has the burden of establishing by clear and

convincing evidence "that the alien is deportable." 8 U.S.C. §§ 1229a(c)(2)(A) (Supp.1998) &

1229a(c)(3)(A) (Supp.1998). As discussed infra in footnotes 38 and 40, the INS district director

decides bond requests for arriving aliens detained while seeking admission into the United

States; whereas, aliens being deported may request bond from an immigration judge. 

11

proceedings in INA § 24019 called "removal proceedings."20 New INA § 240(e)(2) defines the term

"removable" as an alien who is "deportable" or an alien who is "inadmissible" (replacing the old

term "excludable").21 New INA § 240(a)(3) provides that unless specified otherwise under the INA,

a removal proceeding "shall be the sole and exclusive procedure for determining whether an alien

may be admitted to the United States or, if the alien has been so admitted, removed from the United

States."22

Under the unified framework in INA § 240, many of the procedures in "removal

proceedings" are now the same regardless of whether the alien is seeking admission to the United

States or the alien is being deported from the United States.23 In contrast, the substantive grounds

for determining "inadmissibility" and "deportability" are still handled in several separate parts of
 24Compare admission qualifications for aliens covered by 8 U.S.C. §§ 1181-1189

(Supp.1998), with the basis for deporting aliens in 8 U.S.C. § 1227 (Supp.1998). 

 25See 8 U.S.C. § 1182(a)(2) (Supp.1998) (listing criminal inadmissibility grounds); Id. §

1227(a)(2) (listing criminal deportability grounds). A permanent resident alien is "deportable"

for many more crimes than a permanent resident alien is deemed "seeking admission" and

"inadmissible." Id. 

12

the INA and vary considerably.24 However, Richardson's cocaine-trafficking conviction is a

sufficient basis alone for both deportation and inadmissibility under the INA.25

B. Permanent Resident Criminal Aliens Returning From Abroad

IIRIRA also altered the rules for permanent resident aliens returning from abroad, which is

why the INS detained Richardson and immediately initiated "removal proceedings" against him.

Under IIRIRA's restructuring, most permanent resident aliens returning from abroad are summarily

admitted back into this country.

In this regard, new INA § 101(a)(13)(c) provides that "an alien lawfully admitted for

permanent residence in the United States shall not be regarded as seeking an admission into the

United States for purposes of the immigration laws unless the alien":

(i) has abandoned or relinquished that status

(ii) has been absent from the United States for a continuous period in excess of 180 days

(iii) has engaged in illegal activity after having departed the United States

(iv) has departed from the United States while under legal process seeking removal of the

alien from the United States, including removal proceedings under this Act and extradition

proceedings,

(v) has committed an offense identified in section 212(a)(2) of this Act [which includes

controlled substances], unless since such offense the alien has been granted relief under

section 212(h) or 240A(a), or
 268 U.S.C. § 1101(a)(13) (Supp.1998). INA §§ 212(a)(2) and (h) are codified in 8 U.S.C. §

1182(a)(2) and (h) (Supp.1998). INA § 240A(a) is codified in 8 U.S.C. § 1229b(a) (Supp.1998). 

 27INA § 212(a)(2)(A)(i)(I) and (II), 8 U.S.C. § 1182(2)(A)(i)(I) and (II) (Supp.1998), includes

controlled substance offenses as follows:

... any alien convicted of ... a crime involving moral turpitude ... or ... 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 ... is

inadmissible.

Id. Pre-IIRIRA, certain criminal aliens could seek discretionary relief under INA §

212(h), 8 U.S.C. § 1182(h) (1995), or suspension of deportation under INA § 244, 8

U.S.C. § 1254 (1995). Post-IIRIRA an alien, including a permanent resident alien,

convicted of an aggravated felony as defined under INA § 101(a)(43), 8 U.S.C. §

1101(a)(43) (Supp.1998), is statutorily ineligible for a waiver under INA § 212(h), 8

U.S.C. § 1182(h) (Supp.1998), and also statutorily ineligible for cancellation of removal

under INA § 240A(a), 8 U.S.C. § 1229b(a) (Supp.1998). See footnote 11 supra. 

 28Since under INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (Supp.1998), Richardson was

"seeking admission" at a port of entry, the INS treated Richardson an "arriving alien" under INS

regulation 62 Fed.Reg. 10312, 10330 (1997) (currently codified in 8 C.F.R. § 1.1(q) (1998)),

which states: "The term arriving alien means an alien who seeks admission to or transit through

the United States ..." 

13

(vi) is attempting to enter at a time or place other than as designated by immigration officers

or has not been admitted to the United States after inspection and authorization by an

immigration officer.

INA § 101(a)(13)(C) (emphasis supplied).26 Section 101(a)(13)(C)(v) references offenses in

"section 212(a)(2)," which provides that any alien convicted of a controlled substance offense is

inadmissible.27 Because Richardson was a lawful permanent resident with a cocaine-trafficking

conviction covered by Section 1182(a)(2), the INS treated him as an arriving alien "seeking

admission" to the United States under INA § 101(a)(13)(C) and subjected him to inspection as any

other alien arriving to the United States.28

C. Supreme Court's Fleuti Doctrine
 29INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994), provided:

(13) The term "entry" means any coming of an alien into the United States, from a

foreign port or place or from an outlying possession, whether voluntarily or

otherwise, except that an alien having a lawful permanent residence in the United

States shall not be regarded as making an entry into the United States for the

purposes of the immigration laws if the alien proves to the satisfaction of the

Attorney General that his departure to a foreign port or place or to an outlying

possession was not intended or reasonably to be expected by him or his presence

in a foreign port or place or in an outlying possession was not voluntary: 

Provided, That no person whose departure from the United States was occasioned

by deportation proceedings, extradition, or other legal process shall be held to be

entitled to such exception.

Id. 

14

Immediately upon his detention, the INS initiated removal proceedings against Richardson.

In turn, Richardson filed his § 2241 habeas petition in the district court. Richardson contended, inter

alia, that the INS had interpreted erroneously new INA § 101(a)(13)(C), illegally considered him

an arriving alien "seeking admission," and therefore unlawfully detained him and denied him

admission and bond.

Before 1996, INA § 101(a)(13) provided that a returning permanent resident alien shall not

be regarded as making "an entry" into the United States if the alien's presence abroad was not

"intended or reasonably ... expected."29 In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10

L.Ed.2d 1000 (1964), the Supreme Court interpreted "intended" in former INA § 101(a)(13) as an

intent to depart the country in a manner "meaningfully interruptive of the alien's permanent

residence." The Court held that a lawful permanent resident's "innocent, casual and brief" excursion

was not sufficiently interruptive of the alien resident's status to be "intended" and would not be

deemed an "entry." Id.
 30IIRIRA § 301(a) enacted the new version of INA § 101(a)(13), 8 U.S.C. § 1101(a)(13)

(Supp.1998). 

 318 U.S.C. § 1101(a)(13)(A) (Supp.1998). 

 32See footnote 28 supra. 

 33See Matter of Collado-Munoz, Int. Dec. No. 3333 (BIA Dec. 18, 1997). 

 34Fleuti addressed the harsh result of a legal permanent resident alien suddenly being

excludable from the United States just because he left the country a few days, while not being

deportable for the same conduct. The INS stresses the concern in Fleuti is not applicable here as

Richardson is both inadmissible and deportable for his crimes. 8 U.S.C. § 1182(a)(2)

(Supp.1998); 8 U.S.C. § 1227(a)(2)(B) (Supp.1998). New INA § 101(a)(13)(C) is also arguably

15

Unfortunately for Richardson, IIRIRA replaces former INA § 101(a)(13) with an entirely

new statutory scheme.30 New INA § 101(a)(13)(A) replaces the term "entry" with the terms

"admission" and "admitted," which are defined as "the lawful entry of the alien into the United

States after inspection and authorization by an immigration officer."31 The statute no longer

references an alien's intent. Instead, new INA § 101(a)(13)(C) provides that a lawful permanent

resident "shall not be regarded as seeking admission," and thus shall be summarily admitted back

into the United States, unless the alien falls under one of the six subparagraphs (i) through (vi) of

INA § 101(a)(13)(C) quoted above. Since Richardson's cocaine-trafficking conviction is covered

expressly by INA § 101(a)(13)(C)(v), the INS treated Richardson as an arriving alien "seeking

admission."32

In the district court, the INS stressed that, in another case, the BIA had held that Fleuti 's

"innocent, casual, and brief" rule no longer applies because IIRIRA repealed the statutory language

relied upon in Fleuti.33 The INS emphasized that INA § 101(a)(13)(C) no longer defines

"admission" with reference to an alien's intent, thus removes the entire Fleuti concept, and requires

the INS to treat Richardson as "seeking admission."34 Rejecting the INS' position, the district court
more favorable for most legal permanent residents as they are able to re-enter the United States

automatically for up to 180 days (as opposed to just after a brief trip abroad under Fleuti ),

unless they fall into one of the six categories in INA § 101(a)(13)(C)(i-vi). 

 35The INS also asserts that the Attorney General is entitled to deference if her interpretation of

an immigration statute is reasonable, citing Chevron USA v. Natural Resources Defense Council,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Perlera-Escobar v. Executive Office for

Immigration, 894 F.2d 1292, 1296 (11th Cir.1990) (quoting Chevron ). 

 368 U.S.C. § 1225(b)(2)(A) (Supp.1998). INA § 240 is codified in 8 U.S.C. § 1229a

(Supp.1998). 

16

determined that the INS was not required to treat Richardson as "seeking admission." The district

court interpreted new INA § 101(a)(13)(C) as specifying only when a returning alien may not be

regarded as "seeking admission," as opposed to shall be regarded as "seeking admission." The INS

submits that the language of INA § 101(a)(13)(C) is explicit and nondiscretionary and that the

district court circumvented its plain language.35

The proper construction of INA § 101(a)(13)(C) and the Fleuti issue are some of the issues

Richardson has raised before the BIA in his pending appeal of the immigration judge's removal

order.

D. Detention of Criminal Aliens "Seeking Admission"

While his BIA appeal proceeds, Richardson's habeas claims also stem, in part, from IIRIRA's

new stringent custody rules for aliens with serious criminal convictions. INA § 235(b)(2)(A)

provides that any alien "seeking admission" to the United States who "is not clearly and beyond a

doubt entitled to be admitted" "shall be detained" for removal proceedings, as follows:

... in the case of an alien who is an applicant for admission, if the examining immigration

officer determines that an alien seeking admission is not clearly and beyond a doubt entitled

to be admitted, the alien shall be detained for a proceeding under section 240 [removal

proceedings].

INA § 235(b)(2)(A) (emphasis supplied).36
 378 U.S.C. § 1182(d)(5)(A) (Supp.1998). 

 388 C.F.R. § 103.1(g)(2)(ii)(B) (1997) stated:

(B) District directors are delegated the authority to grant or deny any application

or petition submitted to the Service, except for matters delegated to asylum

officers pursuant to part 208 and § 253.1(f) of this chapter, or exclusively

delegated to service center directors, to initiate any authorized proceeding in their

respective districts, and to exercise the authorities under § § 242.1(a), 242.2(a)

and 242.7 of this chapter without regard to geographical limitations. District

directors are delegated authority to conduct the proceeding provided for in §

252.2 of this chapter.

Id. 

 39Noting that Richardson's criminal convictions included an aggravated felony as defined by

INA § 101(a)(43), the district director's letter, dated December 4, 1997, stated: "The release of

Mr. Richardson into the community will be of no significant public benefit. Mr. Richardson has

not shown that his release would be warranted based upon urgent humanitarian reasons." 

17

An alien so detained may seek parole into the United States temporarily. INA §

212(d)(5)(A) provides that the Attorney General "may in his discretion ... parole into the United

States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent

humanitarian reasons or significant public benefit or for reasons deemed strictly in the public interest

any alien applying for admission to the United States."37 At the time of Richardson's attempted

entry, the Attorney General's regulations delegated to the INS district director the authority to review

"parole" requests.38 On December 4, 1997, the district director sent Richardson's counsel a letter

outlining Richardson's criminal convictions and denying parole on the basis of no showing of a

significant public benefit or urgent humanitarian reasons.39

After initial custody and release determinations by the INS district director, aliens may seek

release from the immigration judge. However, at the time of Richardson's attempted entry, the
 4062 Fed.Reg. 10312 (1997) (currently codified in 8 C.F.R. § 236.1(d)(1) (Nov. 3, 1998))

stated:

Application to immigration judge. After an initial custody determination by the

district director, including the setting of a bond, the respondent may, at any time

before an order under 8 CFR part 240 becomes final, request amelioration of the

conditions under which he or she may be released. Prior to such final order, and

except as otherwise provided in this chapter, the immigration judge is authorized

to exercise the authority in section 236 of the Act (or section 242(a)(1) of the Act

as designated prior to April 1, 1997 in the case of an alien in deportation

proceedings) to detain the alien in custody, release the alien, and determine the

amount of bond, if any, under which the respondent may be released, as provided

in § 3.19 of this chapter. If the alien has been released from custody, an

application for amelioration of the terms of release must be filed within 7 days of

release. Once a removal order becomes administratively final, determinations

regarding custody and bond are made by the district director.

Id. However, 62 Fed.Reg. 10312, 10360 (1997) (codified in 8 C.F.R. § 236.1(c)(5)(i)

(Jan. 1, 1998)) stated:

An immigration judge may not exercise the authority provided in this section, and

the review process described in paragraph (d) of this section shall not apply, with

respect to ... [a]rriving aliens as described in § 1.1(q) of this chapter....

Id. This provision was subsequently modified in 8 C.F.R. § 236.1(c)(11) (Nov. 3, 1998). 

18

Attorney General's regulations provided that immigration judges lacked jurisdiction over release

requests by "arriving aliens" facing removal proceedings.40

E. Detention Under TPCRs in IIRIRA § 303(b)(3)

IIRIRA enacted new mandatory custody rules for certain criminal aliens in both INA §

236(c) and the Transition Period Custody Rules ("TPCRs") in IIRIRA § 303(b)(3). When

Richardson attempted to enter the United States, the TPCRs mandated the detention of certain

criminal aliens, as follows:

(A) In General—During the period in which this paragraph is in effect pursuant to

paragraph (2), the Attorney General shall take into custody any alien who—
 41The TPCRs are not codified. The text of the TPCRs can be found in the historical notes

following 8 U.S.C. § 1226 (Supp.1998). Richardson argues that the interim TPCRs apply to

aliens detained while attempting to gain admission to the United States. Whether these rules

apply only to aliens within the United States or to any alien detained by the INS is not material

to the resolution of this appeal. The Court assumes without deciding that the detention and

release provisions of the TPCRs apply to aliens seeking admission and aliens already in the

United States. INA § 101(a)(43) is codified in 8 U.S.C. § 1101(a)(43) (Supp.1998). INA § 212

is codified in 8 U.S.C. § 1182 (Supp.1998). INA § 241 is codified in 8 U.S.C. § 1227

(Supp.1998). 

 42Successive definitions of the term "aggravated felony" have been enacted in INA §

101(a)(43), 8 U.S.C. § 1101(a)(43). As initially enacted in 1988, the term covered only a few

serious offenses, such as murder, drug trafficking, and illicit trafficking in firearms. The

definition has expanded continually to include less serious offenses. The adverse immigration

consequences legislated by Congress for permanent resident aliens with an aggravated felony

conviction, as defined under the INA, have likewise continued to expand. 

19

(i) has been convicted of an aggravated felony (as defined under section

101(a)(43) of the Immigration and Nationality Act, as amended by section 321 of

[IIRIRA] )

(ii) is inadmissible by reason of having committed any offense covered in

section 212(a)(2) of such Act

(iii) is deportable by reason of having committed any offense covered in

section 241 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act (before redesignation

under this subtitle), or

(iv) is inadmissible under section 212(a)(3)(B) of such act or deportable

under section 241(a)(4)(B) of such act (before redesignation under this subtitle)

when the alien is released, without regard to whether the alien is released on parole,

supervised release, or probation, and without regard to whether the alien may be arrested or

imprisoned again for the same offense.

IIRIRA § 303(b)(3)(A).41 The TPCRs mandated Richardson's detention because his

cocaine-trafficking conviction is an aggravated felony under the INA42 and thus falls under

subparagraph (i) of the TPCR in IIRIRA § 303(b)(3)(A). Richardson's cocaine-trafficking

conviction is also an offense covered by INA §§ 212(a)(2), 241(a)(2), 212(a)(3)(B), and
 438 U.S.C. §§ 1182(a)(2), 1227(a)(2), 1182(a)(3)(B), & 1227(a)(4)(B) (Supp.1998). 

 44The TPCR in IIRIRA § 303(b)(3)(B) states:

(B) Release.—The Attorney General may release the alien only if the alien

is an alien described in subparagraph (A)(ii) or (A)(iii) and—

(i) the alien was lawfully admitted to the United States and satisfies the

Attorney General that the alien will not pose a danger to the safety of

other persons or of property and is likely to appear for any scheduled

proceeding, ...

Subsections (A)(ii) and (A)(iii) describe aliens inadmissible because of an offense

described in INA § 212(a)(2) or deportable because of an offense described in INA §§

241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D). The TPCR in IIRIRA §§ 303(b)(A)(ii) &

303(b)(A)(iii). 

 45Commentators note that since criminal aliens, even if legal permanent resident aliens, are

now clearly removable for certain crimes, the mandatory custody rules for criminal aliens were

intended to insure removal because criminal aliens no longer have incentive to show up

voluntarily for removal proceedings. See, e.g., Peter H. Schuck, INS Detention and Removal: A

"White Paper", 11 Geo. Immigr. L.J. 667, 671 (1997). Similarly, the INS acknowledged at oral

20

241(a)(4)(B),43 and thus is also covered by the other three subparagraphs (ii), (iii), and (iv) of the

TPCR in IIRIRA § 303(b)(3)(A).

The TPCRs also significantly restricted the Attorney General's release authority for the

criminal aliens subject to the TPCRs' mandatory detention. The TPCR in IIRIRA § 303(b)(3)(B)

provides that the Attorney General "may release" an alien but only if the alien is an alien described

in subparagraphs (A)(ii) or (A)(iii) of the TPCR in IIRIRA § 303(b)(3), is lawfully admitted, will

not pose a danger and is likely to appear for any scheduled proceeding.44

Under the TPCRs, the Attorney General could not have released an alien detained because

of an aggravated felony conviction because that alien is in a category mandatorily detained under

the TPCR in IIRIRA § 303(b)(3)(A)(i) and is not in an (A)(ii) or (A)(iii) category subject to release

under the TPCR in IIRIRA § 303(b)(3)(B).45
argument that it is discovering permanent residents convicted of serious crimes when they seek

re-entry in part because of the difficulty of finding them through the myriad state courts. 

 46See footnote 40 supra. 

 47Id. 

 48Id. 

 49INA § 236(c), 8 U.S.C. § 1226(c) (Supp.1998). 

21

When Richardson attempted to enter the country, the Attorney General had implemented

regulations delegating her detention and release authority under the TPCRs and INA § 236(c).

Under those regulations, the INS district director made an initial determination regarding custody

and release of criminal aliens under both the TPCRs and INA § 236(c).46 After the district director's

initial determination, an alien could seek release from an immigration judge.47 However,

immigration judges lacked jurisdiction over release requests of "arriving aliens" facing removal

proceedings.48

In addition to denying parole, the INS district director's letter, dated December 4, 1997,

concluded that Richardson "would have no incentive to appear for Immigration hearings" and thus

in effect denied bond as well. Although Richardson was subject to mandatory detention and not

eligible for release on bond, it appears that the district director considered release on bond.

F. Detention Under INA § 236(c)

Although enacted by IIRIRA in 1996, new INA § 236(c) was not in effect when Richardson

attempted to enter the United States on October 24, 1997.49 IIRIRA § 303(b)(2) allowed the

Attorney General to delay the implementation of INA § 236(c) for up to two years by providing

notice to Congress that the INS lacked sufficient space and personnel to accommodate the mandate

of INA § 236(c). The Attorney General twice provided such notice and delayed the effective date
 50Id. 

 518 U.S.C. § 1226(a) (Supp.1998) (emphasis supplied). 

 528 U.S.C. § 1226(a) and (b) (Supp.1998). 

 53INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (Supp.1998), covers certain crimes involving "moral

turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a

crime," or "a violation of (or a conspiracy or attempt to violate)" any state, federal, or foreign

law "relating to a controlled substance." 

22

of INA § 236(c) until October 10, 1998. During the two-year interim, the TPCR in IIRIRA §

303(b)(3) supplanted INA § 236(c).50 As of October 10, 1998, INA § 236(c)(1) also mandates

Richardson's detention, whether he is considered inadmissible or deportable, for his criminal

convictions, as explained below.

New INA § 236 contains some general custody rules for aliens in removal proceedings and

some specific, more stringent, custody rules for certain criminal aliens. Under INA § 236(a) "[o]n

a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision

on whether the alien is to be removed from the United States."51 Under INA § 236(a) and (b), the

Attorney General may grant bond or parole and may revoke bond or parole for an alien so arrested.52

However, INA § 236(c) provides for mandatory detention of certain criminal aliens, whether

inadmissible or deportable. Subparagraph (1) of new INA § 236(c), entitled "Detention of criminal

aliens," mandates that the Attorney General shall take into custody a criminal alien who falls into

one of these four categories:

(A) is inadmissible by reason of having committed any offense covered in section

212(a)(2),53
 54These sections cover certain multiple criminal convictions in INA § 237(a)(2)(A)(ii), an

aggravated felony in § 1227(a)(2)(A)(iii), certain controlled substance offenses in INA §

237(a)(2)(B), certain firearm offenses in INA § 237(a)(2)(C), and other miscellaneous crimes in

INA § 237(a)(2)(D). INA §§ 237(a)(2)(A)(ii), (A)(iii), (B), (C) & (D), 8 U.S.C. §§

1227(a)(2)(A)(ii), (A)(iii), (B), (C) & (D) (Supp.1998). 

 55INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (Supp.1998), covers crimes involving

moral turpitude committed within a certain time frame after the date of admission and for which

a sentence of one year or longer may be imposed. 

 56INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (Supp.1998), and INA § 237(a)(4)(B), 8

U.S.C. § 1227(a)(4)(B) (Supp.1998), cover certain "terrorist activities." 

 578 U.S.C. § 1226(c)(1) (Supp.1998). 

 58INA § 236(c)(2), entitled "Release," provides:

The Attorney General may release an alien described in paragraph (1)

only if the Attorney General decides pursuant to section 3521 of Title 18, that

release of the alien from custody is necessary to provide protection to a witness, a

potential witness, a person cooperating with an investigation into major criminal

23

(B) is deportable by reason of having committed any offense covered in section

237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),54

(C) is deportable under section 237(a)(2)(A)(i)55 on the basis of an offense for which

the alien has been sentence[d] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 212(a)(3)(B) or deportable under section

237(a)(4)(B),56

when the alien is released, without regard to whether the alien is released on parole,

supervised release, or probation, and without regard to whether the alien may be arrested or

imprisoned again for the same offense.

INA § 236(c)(1).57 Next, subparagraph (2) of new INA § 236(c) provides that the Attorney General

"may release" an alien in one of these four mandatory detention classes "only if the Attorney

General decides" that the alien's release is necessary to the protection of someone cooperating in the

investigation of major criminal activity, and the alien satisfies the Attorney General that the alien

will not pose a danger to the safety of others and is likely to appear at any scheduled hearing.58
activity, or an immediate family member or close associate of a witness, potential

witness, or person cooperating with such an investigation, and the alien satisfies

the Attorney General that the alien will not pose a danger to the safety of other

persons or of property and is likely to appear for any scheduled proceeding. A

decision relating to such release shall take place in accordance with a procedure

that considers the severity of the offense committed by the alien.

INA § 236(c)(2), 8 U.S.C. § 1226(c)(2) (Supp.1998). 

 598 U.S.C. § 1226(c) (Supp.1998). 

24

Richardson's cocaine-trafficking offense brings him within several mandatory detention categories

in INA § 236(c)(1), but he does not fall within the discretionary release option in INA § 236(c)(2).

G. INA § 236(e) Restricts Review of Bond and Parole Decisions

Of particular relevance to Richardson's situation is INA § 236(e) which applies to detention

and release decisions under both INA § 236(c)59 and the TPCR in IIRIRA § 303. INA § 236(e)

significantly restricts the judicial review of the Attorney General's decisions as follows:

(e) Judicial review

The Attorney General's discretionary judgment regarding the application of this

section [236's custody rules] shall not be subject to review. No court may set aside any

action or decision by the Attorney General under this section regarding the detention or

release of any alien or the grant, revocation, or denial of bond or parole.
 608 U.S.C. § 1226(e) (Supp.1998). Richardson contends that INA § 236(e) does not apply to

this case because he was detained while the TPCRs were in place. Although Richardson

correctly argues that the TPCRs (and not INA § 236(c)) applied to his detention from October

26, 1997 to October 9, 1998, the TPCRs appear to supplant only INA § 236(c) and not INA §

236(e) for the reasons below.

IIRIRA § 303(b)(2), the effective date provision for IIRIRA § 303(a), allows the

Attorney General to delay for up to two years the effective date of INA § 236(c). During

the period when INA § 236(c) is not in effect, the TPCRs apply instead of INA § 236(c). 

However, IIRIRA § 303(b)(2) does not provide that the Attorney General can delay the

effective date of new INA § 236(e). Instead, INA § 236(e) is governed by the

effective-date provision in IIRIRA § 303(b)(1) which provides the general rule that INA

§ 236 is effective the same day as the rest of Title III of IIRIRA. In any event, we need

not resolve this issue because the two-year delay has expired and INA § 236(e) is now

clearly effective. 

 61Compare 8 U.S.C. § 1252 (1995) with 8 U.S.C. § 1229a(a)(1) (Supp.1998). 

25

INA § 236(e).60 Thus, the INS contends that the district court had no jurisdiction to review the INS

district director's discretionary decision to grant or deny Richardson bond or parole.

Richardson responds that INA § 236(e) applies to only final, not interim, orders, and that

historically bond decisions were considered collateral to the removal proceedings and cognizable

under § 2241 habeas in immigration cases. However, INA § 236(e), by its plain language, bars

judicial review of the INS' discretionary bond and parole decisions. Nonetheless, we note that

Richardson is not actually seeking review of those INS discretionary decisions but instead review

of his constitutional claim that denial of bond without a hearing before an immigration judge violates

his constitutional rights.

H. Procedures for Removal Hearings

While only the INS district director decided Richardson's request for parole and bond,

IIRIRA did not diminish Richardson's right to a full hearing before the immigration judge on the

merits of his removal from the United States.61 Before issuing any removal order, an immigration
 62The hearing can take several forms—a hearing with the alien present, a hearing without the

alien's presence if the alien so consents, through a video conference, or over the telephone if the

alien so consents. INA § 240(b)(2), 8 U.S.C. § 1229a(b)(2) (Supp.1998). 

 63Although an alien subject to removal may secure his or her own counsel, according to INA

§ 240(b)(4)(A) the government is not required to provide counsel to the alien. 8 U.S.C. §

1229a(b)(4)(A) (Supp.1998). 

 64INA § 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B) (Supp.1998). 

 65INA § 240(b)(4)(C), 8 U.S.C. § 1229a(b)(4)(C) (Supp.1998). 

 668 C.F.R. § 3.1(b)(3) (1998). 

 67INA § 240(c)(4), 8 U.S.C. § 1229a(c)(4) (Supp.1998). 

 68See generally 8 U.S.C. § 1105a (1995). 

26

judge still must hold a hearing62 in which the alien may be represented by counsel.63 The alien is

entitled to present evidence and cross-examine witnesses presented by the United States.64 A

complete record is required to be kept of all testimony and evidence produced at the hearing.65 A

"criminal alien" subject to removal (either as inadmissible or deportable) has a right to appeal a

removal order to the BIA,66 and the immigration judge "shall inform the alien of the right to

appeal."67

Represented by counsel, Richardson received a hearing before an immigration judge on the

merits of his removal from the United States and has appealed the judge's removal order to the BIA.

As of this date, the BIA has not issued its decision.

I. IIRIRA Consolidates Judicial Review in the Court of Appeals

IIRIRA also completed the major overhaul of federal-court jurisdiction over immigration

matters begun by the AEDPA. Prior to 1996, INA § 106 set out the judicial-review scheme for

deportation and exclusion orders.68 INA § 106(a)(2) provided for petition for review in the court
 698 U.S.C. § 1105a(a)(2) (1995). 

 708 U.S.C. § 1105a(a)(10) (1995). See general discussion of the old scheme of judicial review

and Congress' attempts as early as 1961 to streamline judicial review of deportations to avoid

"interminable procedural delays" in deportations through overlapping modes of judicial review. 

United States, ex rel. Marcello v. District Director, 634 F.2d 964, 967-72 (5th Cir. Jan.1981)

(INA § 106(a)(q) discussed in Marcello became INA § 106(a)(10).) 

 71See, e.g., Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990). 

 72Pub.L. No. 104-132, 110 Stat. 1214 (1996). 

 73Id. 

 74AEDPA § 440(a) amended INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995), to read:

Any final order of deportation against an alien who is deportable by reason of

having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B),

(C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both

predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject to

review by any court.

Id. See footnote 83 infra for IIRIRA's amendments to INA § 106(a)(10). INA § 241 is

codified in 8 U.S.C. § 1227 (Supp.1998). 

27

of appeals.69 In addition, INA § 106(a)(10) allowed aliens in custody to seek habeas corpus review

of final deportation orders under the INA.70 Aliens also could rely on 28 U.S.C. § 2241 habeas

corpus to challenge INS detention or deportation proceedings.71

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA").72 AEDPA § 44073 repealed INA § 106(a)(10), which had allowed habeas corpus

review under the INA. In its place, AEDPA § 440(a) enacted a new INA § 106(a)(10), which states

that a final deportation order against an alien deportable for certain criminal offenses "shall not be

subject to review by any court."74
 75Pub.L. No. 104-208, 110 Stat. 3009 (1996). 

 76As outlined infra at footnote 93, INA § 242(e)(2) does provide for a truncated form of

habeas review for non-resident aliens summarily rejected at ports of entry without any removal

proceedings. 8 U.S.C. § 1252(e)(2) (Supp.1998). Throughout the remainder of this opinion, we

repeatedly note that IIRIRA consolidates all judicial review into one procedure—a petition for

review in the court of appeals after a final removal order has been issued. We note that INA §

242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp.1998), remains a narrow exception to our statement about

IIRIRA's providing for judicial review in only the court of appeals. Since that narrow exception

applies only to non-resident aliens in limited circumstances, it has no applicability here or to any

immigration cases involving resident aliens. 

 77INA § 242(b)(2), 8 U.S.C. § 1252(b)(2) (Supp.1998), provides:

The petition for review shall be filed with the court of appeals for the judicial

circuit in which the immigration judge completed the proceedings.

Id. 

 788 U.S.C. § 1252(g) (Supp.1998). This Court recently held that INA § 242(g) divests district

courts of jurisdiction over removal orders under former INA § 106(a)(10) and that "judicial

28

Five months after the AEDPA, Congress enacted IIRIRA.75 Section 306 of IIRIRA repealed

the entire judicial-review scheme in INA § 106 and replaced it with a new judicial-review scheme

in INA § 242. IIRIRA did not eliminate all judicial review. Instead, IIRIRA removed all

jurisdiction from the district courts and consolidated judicial review into the court of appeals.76 INA

§ 242(b)(2) provides that the venue for judicial review is only in the court of appeals.77

More importantly, INA § 242(g), entitled "Exclusive Jurisdiction," provides that except as

provided in INA § 242, no court shall have jurisdiction over aliens' claims arising from the Attorney

General's decisions or actions, as follows:

Except as provided in this section [242] and notwithstanding any other provision of

law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien

arising from the decision or action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any alien under this Act.

INA § 242(g).78
review of orders of removal may only be initiated in the court of appeals" under the INA.

Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir.1998). Auguste did not address judicial review

under § 2241 habeas because Auguste, a non-criminal alien in custody, filed a habeas petition in

the district court pursuant to only INA § 106(a)(10) which provided for habeas review under the

old INA. The AEDPA repealed the habeas review in INA § 106(a)(10) and replaced it with the

version of INA § 106(a)(10) that restricted judicial review of deportation orders against criminal

aliens. Thus, whether INA § 242(g) repealed § 2241 was not discussed in Auguste. 

 79INA § 242(b)(9), 8 U.S.C. § 1252(b)(9) (Supp.1998). 

 808 U.S.C. § 1252(d)(1) (Supp.1998). IIRIRA imposes other timing requirements to expedite

judicial review. The petition for direct review in the court of appeals must be filed 30 days after

a final order, as opposed to 90 days under the pre-IIRIRA version of the INA. Compare INA §

242(b)(1), 8 U.S.C. § 1252(b)(1) (Supp.1998), with former INA § 106a(a)(1), 8 U.S.C. §

1105a(a)(1) (Supp.1996). 

29

IIRIRA also mandated the timing of the INA's exclusive judicial review. INA § 242(b)(9)

proscribes that judicial review shall be only after a final removal order, as follows:

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 chapter shall be

available only in judicial review of a final order under this section.

INA § 242(b)(9).79 INA § 242(d)(1) mandates that "a court may review a final order of removal only

if ... the alien has exhausted all administrative remedies available ..."80

In these new INA provisions, Congress has abbreviated judicial review to one place and one

time: only in the court of appeals and only after a final removal order and exhaustion of all

administrative remedies. In IIRIRA, Congress strictly regulated the exclusive mode and timing of

judicial review in order to remove overlapping jurisdiction and to prevent dilatory tactics previously

used to forestall departure of aliens.

J. INA § 242(a)(2)(C) Restricts Review of Removal Orders Against Criminal Aliens

Even within the INA's exclusive judicial-review scheme, Congress further limited what a

court of appeals can review after a final removal order. Of particular relevance to Richardson is
 818 U.S.C. § 1252(a)(2)(C) (Supp.1998). INA § 212(a)(2) is codified in 8 U.S.C. §

1182(a)(2). INA § 237(a)(2) is codified in 8 U.S.C. § 1227(a)(2) (Supp.1998). 

 828 U.S.C. § 1182(a)(2) (Supp.1998). 

 83See footnotes 74 and 176 in order to compare INA § 106(a)(10), as amended by the

AEDPA, with INA § 242(a)(2)(C), as amended by IIRIRA. IIRIRA made two amendments to

INA § 106(a)(10). First, IIRIRA § 306(d) eliminated the phrase "any offense covered by section

241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)" and

replaced it with the phrase "any offense covered by section 241(a)(2)(A)(ii) for which both

predicate offenses are, without regard to the date of their commission, otherwise covered by

section 241(a)(2)(A)(i)." IIRIRA § 306(d). This amendment was effective immediately and has

been applied by several circuits. Id.

IIRIRA's second amendment to INA § 106(a)(10) included more substantial

changes, although the end result—new INA § 242(a)(2)(C)—is overall very similar to its

predecessor. As a technical matter, IIRIRA repealed INA § 106(a)(10) and replaced it

with new INA § 242(a)(2)(C). Altering the language of INA § 106(a)(10) in several

respects, IIRIRA added the introductory phrase "Notwithstanding any other provision of

law, no court shall have jurisdiction to review (4)27" and replaced INA § 106(a)(10)'s

reference to a final order of "deportation" with a reference to a final order of "removal." 

Similarly, IIRIRA changed the citations listing the criminal offenses that precluded

judicial review to the citations corresponding to the sections amended under IIRIRA. 

The cumulative result of the two amendments enacted by IIRIRA is new INA § 242(a)(2)

which limits the judicial review of removal orders based on certain criminal convictions

with language similar to that in former INA § 106(a)(10). 

30

INA § 242(a)(2)(C), which provides that no court shall have jurisdiction to review "any final order

of removal against an alien who is removable" because of certain criminal convictions, as follows:

Notwithstanding any other provision of law, no court shall have jurisdiction to

review any final order of removal against an alien who is removable by reason of having

committed a criminal offense covered in section 212(a)(2) [covers certain controlled

substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section

237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of

commission, otherwise covered by section 237(a)(2)(A)(i).

INA § 242(a)(2)(C).81 Section 212(a)(2)82 includes Richardson's cocaine-trafficking conviction.

New INA § 242(a)(2)(C) is similar to former INA § 106(a)(10) which also placed restrictions

on judicial review of deportation orders against criminal aliens.83 As detailed later, this Court has
 848 U.S.C. § 1252(a)(2)(B)(ii) (Supp.1998). INA § 208(a) is codified in 8 U.S.C. § 1158(a)

(Supp.1998). The INS asserts that INA § 242(a)(2)(B)(ii) is a complete bar to judicial review of

any discretionary decision to deny bond and parole to Richardson. Even if that position is well

founded, Richardson points out that he is not seeking review of the discretionary denial of bond

and parole or the discretionary authority to delegate bond decisions to the INS district director. 

Instead, Richardson seeks review of his constitutional claims that denial of a bond by the INS

district director, without a bond hearing before an immigration judge, violated his constitutional

rights under the Due Process Clause of the Fifth Amendment. See footnote 179 infra. 

 8528 U.S.C. § 2241 (1994) states:

31

upheld the judicial review restrictions in former INA § 106(a)(10) as constitutional. Boston-Bollers

v. INS, 106 F.3d 352 (11th Cir.1997).

K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions

IIRIRA also limits other aspects of the exclusive judicial review remaining for aliens under

the INA. INA § 242(a)(2)(B)(ii) limits judicial review of the Attorney General's discretionary

decisions, as follows:

Notwithstanding any other provision of law, no court shall have jurisdiction to review—

...

(ii) any other decision or action of the Attorney General the authority for which is

specified under this title to be in the discretion of the Attorney General, other than the

granting of relief under section 208(a).

INA § 242(a)(2)(B)(ii).84

IV. DISCUSSION

Against this backdrop, Richardson filed his habeas petition in the district court under 28

U.S.C. § 2241. Given IIRIRA's overhaul of the judicial-review scheme in immigration cases, the

first question we must address is whether INA § 242(g), as enacted by IIRIRA, has eliminated

federal jurisdiction under § 2241 over Richardson's habeas petition.85
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice

thereof, the district courts and any circuit judge within their respective

jurisdictions. The order of a circuit judge shall be entered in the records of the

district court of the district wherein the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any circuit judge may decline to

entertain an application for a writ of habeas corpus and may transfer the

application for hearing and determination to the district court having jurisdiction

to entertain it.

Id. 

 86INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Fong

Haw Tan v. Phelan, 333 U.S. 6, 9-10, 68 S.Ct. 374, 92 L.Ed. 433 (1948). 

 87See McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005

(1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-72, 106 S.Ct.

2133, 90 L.Ed.2d 623 (1986). 

 88This Court notes two points relevant to the Hose decision. First, although Hose v. INS held

that INA § 242(g) repealed § 2241 habeas over a non-criminal alien's claims for discretionary

relief, the Ninth Circuit subsequently held that INA § 242(g) is unconstitutional when applied to

32

A. INA § 242(g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions

 We begin by recognizing and applying established canons of statutory construction

applicable to immigration statutes. First, ambiguities in the law are to be interpreted in favor of the

alien.86 Second, restrictions on jurisdiction are to be read narrowly, courts should not assume that

jurisdiction is repealed unless the statute says so explicitly, and repeals by implication of

jurisdictional statutes are disfavored.87

Although guided by these same principles, courts are divided on whether the new INA §

242(g) abrogates statutory habeas, as provided in § 2241, over an alien's petition challenging

detention or a final removal order. See Hose v. INS, 141 F.3d 932, 934-35 (9th Cir.) (holding that

INA § 242(g) deprives district court of habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241),

withdrawn and reh'g en banc granted, --- F.3d ----, No. 97-15789, (9th Cir. December 2, 1998);88
certain criminal aliens who cannot obtain judicial review under INA § 242(a)(2)(C). MaganaPizano v. INS, 152 F.3d 1213 (9th Cir.1998). Therefore, the Ninth Circuit concluded that INA §

242(g) does not repeal § 2241 in its entirety but that criminal aliens may proceed in the district

court under § 2241, whereas the non-criminal alien in Hose could not proceed under § 2241. 

Second, this Court notes that the Ninth Circuit has granted a rehearing en banc and withdrawn its

published decision in Hose. Nevertheless, this Court still finds persuasive the reasoning in Hose

and the Ninth Circuit's subsequent discussion of Hose in Magana-Pizano. 

 89A subsequent Second Circuit decision in Henderson v. Reno, 157 F.3d 106, 119 n. 9 (2d

Cir.1998), followed Jean-Baptiste but noted that "[w]ere we not bound by Jean-Baptiste, the

members of the panel would be strongly inclined to find that the proper mechanism for judicial

review is by petition for review in the courts of appeals, rather than by § 2241 habeas in the

district courts." 

33

Cabrera v. Reno, 5 F.Supp.2d 244, 245-46 (D.N.J.1998) (same); Ray v. Reno, 3 F.Supp.2d 1249,

1251 (D.Utah 1998) (same); Rusu v. Reno, 999 F.Supp. 1204, 1209-10 (N.D.Ill.1998) (same);

Mendez-Tapia v. Sonchik, 998 F.Supp. 1105, 1107 (D.Ariz.1998) (same); Marriott v. Ingham, 990

F.Supp. 209, 213-14 (W.D.N.Y.1998) (same); Mustata v. United States Dep't of Justice, 979

F.Supp. 536, 539 (W.D.Mich.1997) (same); Mayers v. Reno, 977 F.Supp. 1457, 1461

(S.D.Fla.1997) (same); Udenze v. Strapp, 977 F.Supp. 418, 421 (N.D.Tex.1997) (same); Moore

v. District Director, INS, 956 F.Supp. 878, 882 (D.Neb.1997) (same); see also Yang v. INS, 109

F.3d 1185, 1195 (7th Cir.) (stating in dicta that "effective April 1, 1997, § 306(a) of the IIRIRA

[INA § 242] abolishes even review under § 2241, leaving only the constitutional writ, unaided by

statute"), cert. denied sub nom, Katsoulis v. INS, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605

(1997). But see Goncalves v. Reno, 144 F.3d 110, 113, 120-21 (1st Cir.1998) (holding that IIRIRA

did not eliminate § 2241 habeas corpus jurisdiction); Jean-Baptiste v. Reno, 144 F.3d 212, 218-20

(2d Cir.1998)89 (same); Tam v. INS, 14 F.Supp.2d 1184, 1187-88 (E.D.Cal.1998) (same); Lee v.

Reno, 15 F.Supp.2d 26, 37 (D.D.C.1998) (same); Barrett v. INS, 997 F.Supp. 896, 900 (N.D.Ohio

1998) (same); Gutierrez-Martinez v. Reno, 989 F.Supp. 1205, 1209 (N.D.Ga.1998) (same);
 90See Auguste v. Reno, 152 F.3d 1325, 1328 (11th Cir.1998), and footnote 78 supra. 

 918 U.S.C. § 1252(g) (emphasis supplied). See, e.g., United States v. Gonzales, 520 U.S. 1,

117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) ("Read naturally the word "any' has an expansive

meaning, that is "one or some indiscriminately of whatever kind.' ") (citation omitted); Merritt v.

Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir.1997) (" "Congress did not add any language

limiting the breadth of that word,' so "any' means all.") (quoting in part Gonzales, supra ). 

 92On other occasions, this Court found that "notwithstanding any other provision of law"

means precisely "notwithstanding any other provision of law," especially where the Court's

jurisdiction is involved. Allen v. David, 334 F.2d 592, 597-98 (5th Cir.1964); United States v.

C.E. Sykes, 310 F.2d 417, 419-20 (5th Cir.1962). 

34

Morisath v. Smith, 988 F.Supp. 1333, 1338 (W.D.Wash.1997) (same); Mojica v. Reno, 970 F.Supp.

130, 157 (E.D.N.Y.1997) (same).

 After review, we conclude that INA § 242(g) abrogates jurisdiction over Richardson's §

2241 habeas corpus petition for several reasons. First, the language of INA § 242(g) is plain and

clear. INA § 242(g)'s language that "[e]xcept as provided in this section [242] ... no court shall have

jurisdiction" clearly and unequivocally precludes any jurisdiction in the district court except that

provided in INA § 242.90 INA § 242 does not permit the kind of habeas corpus review in the district

court Richardson sought. Instead, INA § 242 provides for judicial review for aliens only in the court

of appeals and only after a final removal order.

More importantly, INA § 242(g)'s broad admonition that it applies "notwithstanding any

other provision of law" sufficiently and clearly encompasses other provisions of law, such as §

2241.91 When Congress says "any," it means "any" law, which necessarily includes § 2241.92

In addition, while INA § 242 consolidates judicial review in the court of appeals for aliens,

there is another section within INA § 242 that does permit limited habeas corpus review under INA
 93INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp.1998), provides for habeas review for

non-resident arriving aliens subject to expedited and summary removal under 8 U.S.C. §

1225(b)(1):

(2) Habeas corpus proceedings

Judicial review of any determination made under section 235(b)(1) is available in

habeas corpus proceedings, but shall be limited to determinations of—

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed under such section, and

(C) whether the petitioner can prove by a preponderance of the evidence

that the petitioner is an alien lawfully admitted for permanent residence, has been

admitted as a refugee under section 207, or has been granted asylum under section

208 of this title, such status not having been terminated, and is entitled to such

further inquiry as prescribed by the Attorney General pursuant to Section

235(b)(1)(C).

INA § 242(e)(2), 8 U.S.C. § 1252(e)(2) (Supp.1998). INA § 235(b)(1) is codified in 8

U.S.C. § 1225(b)(1) (Supp.1998). INA § 207 is codified in 8 U.S.C. § 1157 (Supp.1998). 

INA § 208 is codified in 8 U.S.C. § 1158 (Supp.1998). This procedure, originally called

"summary exclusion," was created by the AEDPA but modified by IIRIRA before taking

effect. 

 94INA § 235(b)(1), 8 U.S.C. § 1255(b)(1) (Supp.1998). 

 95See footnote 93. 

35

§ 242(e)(2)93 for certain non-resident arriving aliens. INA § 235(b)(1) permits a single immigration

officer to remove summarily a non-resident arriving alien without a removal hearing or review,

unless the alien indicates an intention to apply for asylum or indicates fear of persecution.94

Therefore, INA § 242(e)(2) provides for statutory habeas review under the INA in this narrowly

limited situation.95 This evidences Congress' ability to create statutory habeas review under the INA

when it so desires. Congress' express provision of some limited habeas review within § 242 of the
 96See, e.g., United States v. White, 118 F.3d 739, 742 (11th Cir.1997) ("The selection of the

statutes set forth [in the Act] reflects an intent to omit all others."); United States v. Koonce, 991

F.2d 693, 698 (11th Cir.1993) ("The canon of statutory construction that the inclusion of one

implies the exclusion of others is well-established."). 

 97Pub.L. No. 104-132, 110 Stat. 1214 (1996). 

 988 U.S.C. § 1252(g) (Supp.1998). 

 99See, e.g., H. Rep. No. 104-469(I) (1996). Indeed, INA § 242(g), along with INA §

242(b)(9), should be properly understood not as an attempt to divest the courts of jurisdiction

they previously possessed, but as Congress' effort to make absolutely clear what should have

been apparent under the INA and AEDPA all along: that review of INS' conduct of deportation

proceedings is available only after the entry of a final order of deportation, and only under the

INA provisions specifically provided for that purpose. 

36

INA underscores Congress' clear intent in INA § 242(g) that no court shall have jurisdiction over

immigration decisions except as provided under INA § 242.96

 Second, in addition to the sweeping language of new INA § 242(g), the elimination of INA

§ 106(a)(10)'s habeas corpus review by the AEDPA further evidences congressional intent to

preclude statutory habeas corpus review over immigration decisions. AEDPA § 440 first eliminated

the specific habeas review granted under former INA § 106(a)(10).97 Then IIRIRA enacted the

broad language of INA § 242(g) that "notwithstanding any other provision of law, no court shall

have jurisdiction except as provided under INA § 242."98 Thus, the AEDPA and IIRIRA reflect

Congress' clear intent to avoid unduly protracted litigation over removal orders against resident

aliens by consolidating all judicial challenges in the courts of appeals under INA § 242(b)(2) after

a final removal order, and by removing all district-court jurisdiction, including § 2241 habeas

jurisdiction, over immigration decisions.99 Accordingly, we conclude that INA § 242(g) repeals any

statutory jurisdiction over immigration decisions other than that conferred by INA § 242. That
 100Richardson also asserts that INA § 242(g) affects only final removal orders and that the

INS ignores the critical distinction between review of interim detention orders—denying

admission, bond and parole—and review of final removal orders. We disagree. The INS'

interim orders and actions are not collateral proceedings but are inextricably part of the removal

proceedings and covered by the broad language of INA § 242(g). See, e.g., I.N.S. v. Chadha,

462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Massieu v. Reno, 91 F.3d 416 (3d

Cir.1996). 

 101Felker, 518 U.S. at 661, 116 S.Ct. 2333. Specifically, AEDPA § 106(b)(3)(E) states "the

grant or denial of an authorization by a court of appeals to file a second or successive application

shall not be appealable and shall not be the subject of a petition for rehearing or for writ of

certiorari." 28 U.S.C. § 2244(b)(3)(E) (Supp.1998). 

 102Felker, 518 U.S. at 660, 116 S.Ct. 2333. 

37

repeal includes § 2241 habeas jurisdiction over immigration decisions by the Attorney General under

the INA.

Richardson's main argument is that § 2241 habeas corpus jurisdiction survives IIRIRA's

enactment of new INA § 242(g) because INA § 242(g) fails to mention § 2241 expressly.100

Richardson emphasizes the presumption against implied repeal of habeas corpus jurisdiction

addressed in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

However, the jurisdictional repeal at issue in Felker was much narrower than the repealing

language of INA § 242(g). AEDPA § 106(b)(3)(E) repealed a narrow class of Supreme Court

jurisdiction—the Court's review of a court of appeals decision denying or granting authorization to

file a second or successive habeas corpus petition.101 In addition, AEDPA § 106(b) specifically cited

§ 2244(b) as the statute it amended. In Felker, the Supreme Court determined that this express

prohibition of a specific, limited form of judicial review of second or successive habeas corpus

petitions, did not also repeal by implication the Supreme Court's original jurisdiction to entertain

habeas petitions.102
 1038 U.S.C. § 1252(g) (Supp.1998). 

38

Conversely, the repeal of jurisdiction under INA § 242(g) is much broader. INA § 242(g)

does not address a limited set of statutory provisions. Instead, the jurisdiction-repealing language

in INA § 242(g) states comprehensively that "[e]xcept as provided in this section and

notwithstanding any other provision of law, no court shall have jurisdiction" over the specified

claims.103 INA § 242(g) expressly repeals any and all jurisdiction except that conferred by INA §

242. Unlike Felker, the language of INA § 242(g) does not require repeal by implication. Indeed,

Congress could hardly have chosen broader language to convey its intent to repeal any and all

jurisdiction except that provided by INA § 242.

Based on the foregoing, we conclude that INA § 242(g) repealed § 2241 habeas jurisdiction

over Richardson's claims challenging his executive detention without bond and removal order and

that the district court erred in exercising jurisdiction under § 2241.

B. No Constitutional Infirmities to Avoid

Richardson asserts that IIRIRA's elimination of § 2241 jurisdiction means he has no judicial

review of his executive detention. Although conceding many aliens can still obtain judicial review

in the court of appeals under the INA, Richardson stresses that other limitations within the INA's

judicial-review scheme result in his having no judicial review whatsoever. Richardson contends,

for example, that INA § 242(a)(2)(C) adds other limits to the judicial review available to criminal

aliens and thus he has no judicial review under the INA. Richardson argues that no judicial review

whatsoever of his executive detention violates the Due Process Clause, Article III, and the

Suspension Clause. For those reasons, Richardson submits INA § 242(g) cannot repeal § 2241

habeas.
 104144 F.3d at 219. 

39

The INS responds that INA § 242(g)'s repeal of § 2241 habeas jurisdiction over immigration

decisions creates no constitutional infirmities because the INA does not eliminate all judicial review

for Richardson. According to the INS, these new INA provisions, enacted by IIRIRA, do not

"operate to bar the court of appeals from redressing substantial claims of constitutional error as part

of the petition for review" of any final removal order against criminal aliens. The INS and

Richardson vigorously dispute how much judicial review is required under the INA to avoid

constitutional infirmities arising from the INA's repeal of § 2241 habeas jurisdiction over

immigration decisions. The INS concedes only that any constitutionally required judicial review

of administrative agency decisions must occur under the INA and in the form of a petition for review

in the court of appeals after a final removal order.

Richardson rejoins that the other circuits have held that INA § 242(g) does not repeal § 2241

habeas, in large part, to avoid what the Second Circuit described as "serious constitutional issues"

in Jean-Baptiste104 or what the First Circuit termed "serious, novel and complex constitutional

issues" in Goncalves, stating:

Finally, our refusal to find express repeal of § 2241 in new INA § 242(g) eliminates the need

to address serious, novel and complex constitutional issues. We would be loathe to find a

repeal where that repeal creates serious constitutional problems. We note these

constitutional concerns briefly to underscore the wisdom of avoiding them.
 105Goncalves was a 25-year permanent resident alien subject to a deportation order because of

certain criminal convictions. 144 F.3d at 114. His application for discretionary relief under

former INA § 212(c), 8 U.S.C. § 1182(c), was denied by the INS because the AEDPA made him

ineligible for such relief. Id. AEDPA § 440(d) greatly expanded the category of criminal

convictions rendering an alien ineligible to apply for INA § 212(c) relief. Id. Goncalves filed a §

2241 habeas, rather than a petition for direct review in the court of appeals. Id. at 115. The First

Circuit held that jurisdiction existed under § 2241 habeas, that § 2241 habeas encompassed legal

issues based on statutory construction as well as constitutional claims, and that the AEDPA §

440(d) did not apply retroactively to Goncalves. Id. at 123. But compare Boston-Bollers v. INS,

106 F.3d 352 (11th Cir.1997) (holding AEDPA § 440(d), effective April 24, 1996, applies

retroactively and listing six other circuits reaching same result). See footnote 110 infra. 

 106In Jean-Baptiste, two permanent resident aliens and one conditional permanent resident

alien faced deportation under INA §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) for criminal

convictions involving controlled substances. 144 F.3d at 214. Alleging that the INS' deportation

procedures deprived them of due process, the aliens filed a proposed class action in district court

in which they sought to enjoin their deportation proceedings. Id. The district court dismissed the

aliens' complaint for failure to state a claim upon which relief could be granted under

Fed.R.Civ.P. 12(b)(6), and the aliens appealed. Id.

Holding that INA § 242(g) eliminated the district court's jurisdiction over the

aliens' proposed class action, the Second Circuit affirmed the district court's dismissal of

the complaint. Id. at 218-220. Nevertheless, the court held that INA § 242(g) did not

repeal § 2241 jurisdiction over petitions for habeas relief by aliens facing removal from

the United States. Id. at 220. The Second Circuit still dismissed the aliens' complaint

because they "sought federal court jurisdiction under 28 U.S.C. § 1331, not habeas

jurisdiction under U.S.C. § 2241." Id. at 220. However, the court noted that "in finding

that § 2241 habeas review remains available for aliens deemed deportable under certain

circumstances to raise constitutional questions, we express no opinion on the permissible

scope of that review." Id. 

40

Goncalves, 144 F.3d at 122.105 Similarly, in Jean-Baptiste, the Second Circuit outlined how

historically habeas was available to aliens, why permanent resident aliens enjoy procedural due

process rights, and avoided what it foresaw as "serious constitutional issues" under the Suspension

Clause and Due Process Clause. Jean-Baptiste, 144 F.3d at 219. The Second Circuit worried that

without § 2241 habeas, a permanent resident criminal alien would lack a forum in which to vindicate

substantial constitutional rights. Id.106 We agree with Richardson that both the First and Second
 107See footnote 169 infra. 

41

Circuits' holdings that INA § 242(g) did not repeal § 2241, stemmed from their adopting a principle

of "constitutional avoidance," as opposed to following the plain language of INA § 242(g).

We reject this "constitutional avoidance" approach for two reasons. First, although courts

wisely prefer avoiding thorny constitutional issues, the language of INA § 242(g), in our view, is

plain, unambiguous, and yields only one permissible statutory construction. See United States v.

Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) ("[c]ourts cannot press statutory

construction "to the point of disingenuous evasion' even to avoid a constitutional question.");

American-Arab Anti-Discrimination Comm. v. Reno, 132 F.3d 531, 532-33 (9th Cir.1997)

(O'Scannlain, J., dissenting from the denial of rehearing en banc) ("Whatever the merits of

constitutional avoidance might be, no court may "avoid' a perceived conflict when the text is

unambiguous, as it is here. The avoidance canon, invoked with such abandon, amounts to nothing

less than rewriting the statute."), cert. granted, --- U.S. ----, 118 S.Ct. 2059, 141 L.Ed.2d 137

(1998).107

Second, examining, not avoiding, Richardson's constitutional concerns, we find that INA §

242(g)'s repeal of § 2241 habeas jurisdiction over immigration decisions does not violate the Due

Process Clause and Article III because neither provision mandates judicial review of immigration

decisions. This repeal also does not violate the Suspension Clause because Richardson still has

adequate and effective judicial review available under the INA. In light of these significant

constitutional issues, we outline why in considerable detail.

C. Eleventh Circuit's Boston-Bollers Decision
 108Boston-Bollers was decided on February 5, 1997. Although Congress enacted IIRIRA on

September 30, 1996, with some limited technical amendments thereafter in October 1996,

IIRIRA § 309(a) provided for a general effective date of April 1, 1997. Although there is some

dispute over whether certain parts of IIRIRA were effective immediately on September 30, 1996,

or only after April 1, 1997, Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir.1997), that question

is of no continuing significance because both dates have now passed. 

 109Paul Boston-Bollers entered the United States as a lawful permanent resident in January

1987. 106 F.3d at 353. In 1992, Boston-Bollers pled guilty to second-degree murder which

made him deportable under INA § 241(a)(2)(A)(iii) for a conviction of an "aggravated felony" as

defined under the INA. Id. 

 110In holding that AEDPA applied retroactively to Boston-Bollers' pending appeal, this Court

found that INA § 106(a)(10), as enacted by AEDPA § 440(d), did not impair Boston-Bollers'

substantive rights but was a jurisdiction-eliminating statute. Therefore, this Court declined to

apply the Supreme Court's presumption against the retroactive application of statutes which

impair substantive rights, citing Landgraf v. USI Film Prod., 511 U.S. 244, 265, 114 S.Ct. 1483,

128 L.Ed.2d 229 (1994). Boston-Bollers, 106 F.3d at 354 (listing six other circuits reaching

same result). See footnote 105 supra. 

 111See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97

L.Ed. 956 (1953) (noting that this Court's decisions "have long recognized the power to expel or

42

This Circuit already has upheld as constitutional the similar, restricted judicial review

afforded criminal aliens under former INA § 106(a)(10), enacted by the AEDPA. Boston-Bollers

v. INS, 106 F.3d 352 (11th Cir.1997). Although decided before the effective date of IIRIRA's repeal

of § 2241108 and involving a slightly different statute, Boston-Bollers is our necessary starting point

because it held that INA § 106(a)(10)'s precluding judicial review of a deportation order against a

permanent resident criminal alien109 did not violate the Due Process Clause or Article III.110

Quoting from Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), this

Court recognized that the "responsibility for regulating the relationship between the United States

and our alien visitors has been committed to the political branches of the Federal Government," and

that "over no conceivable subject is the legislative power of Congress more complete." BostonBollers, 106 F.3d at 355.111 Accordingly, this Court determined that INA § 106(a)(10) did not
exclude aliens as a fundamental sovereign attribute exercised by the Government's political

departments largely immune from judicial control."); Fiallo v. Bell, 430 U.S. 787, 794-95, 97

S.Ct. 1473, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765-67, 92 S.Ct. 2576,

33 L.Ed.2d 683 (1972); Harisiades v. Shaughnessy, 342 U.S. 580, 588-90, 72 S.Ct. 512, 96

L.Ed. 586 (1952). 

 112In Carlson v. Landon, 342 U.S. 524, 528-29, 72 S.Ct. 525, 96 L.Ed. 547 (1952), the alien

brought a habeas corpus petition alleging his detention without bond violated the Due Process

Clause of the Fifth Amendment and the Eighth Amendment. Because the alien had access to a

petition for habeas, there was no claim of conflict with the Suspension Clause. Id. at 528, 72

S.Ct. 525. The Supreme Court found no Due Process Clause or Eighth Amendment violation for

the reasons quoted above in Boston-Bollers. Carlson, 342 U.S. at 537, 72 S.Ct. 525. However,

in between these quotations about the executive and legislative power over expelling aliens, the

Supreme Court also stated: "This power is, of course, subject to judicial intervention under the

"paramount law of the Constitution.' " Carlson, 342 U.S. at 537 n. 27, 72 S.Ct. 525 (citing a

long line of Supreme Court precedent). 

43

violate the Due Process Clause because deportation is not a criminal proceeding or punishment and

no judicial review is guaranteed by the Due Process Clause, stating:

This restriction of federal court jurisdiction does not violate the Due Process Clause. As the

Supreme Court stated in Carlson v. Landon, "[t]he power to expel aliens, being essentially

a power of the political branches of government, the legislative and executive, may be

exercised entirely though executive officers, with such opportunity for judicial review of

their action as congress may see fit to authorize or permit." 342 U.S. 524, 537, 72 S.Ct. 525,

532-33, 96 L.Ed. 547 (1952) (internal quotation omitted). And since "[d]eportation is not

a criminal proceeding and has never been held to be punishment ... [n]o judicial review is

guaranteed by the Constitution." Id. at 537, 72 S.Ct. at 533 (footnote omitted). Because the

Constitution does not give aliens the right to judicial review of deportation orders, section

440(a)(10) does not violate the Due Process Clause.

106 F.3d at 355.112

In addition, this Court concluded that former INA § 106(a)(10) did not offend Article III

because Congress and the executive branch exercise plenary authority over immigration regulation.

Id. at 355. We also recognized that "the federal appellate courts have "jurisdiction to review certain

final orders of deportation and exclusion against aliens only because Congress has conferred it.' "

106 F.3d at 354 (quoting Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir.1996)). Accordingly, this
 113Boston-Bollers was before this Court on a petition for direct review of a final deportation

order. Both parties agreed "that the issue of whether section 440(a)(10) precludes judicial

review of deportation orders via a writ of habeas corpus is not presented in this appeal." 106

F.3d at 354 n. 1. In Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.), cert. denied sub nom, Katsoulis

v. INS, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997), the Seventh Circuit noted that four

courts of appeal have rejected contentions that INA § 106(a)(10) violates the Constitution but the

Yang court pointed out that "they observe that limited opportunity to apply for a writ of habeas

corpus may remain," citing Kolster v. INS, 101 F.3d 785, 790-91 (1st Cir.1996); Hincapie-Nieto

v. INS, 92 F.3d 27, 30-31 (2d Cir.1996); Duldulao v. INS, 90 F.3d 396, 399-400 & n. 4 (9th

Cir.1996). See also Morel v. INS, 144 F.3d 248, 251 (3d Cir.1998); Mansour v. INS, 123 F.3d

423, 426 (6th Cir.1997); Williams v. INS, 114 F.3d 82, 83-84 (5th Cir.1997); Fernandez v. INS,

113 F.3d 1151, 1154 (10th Cir.1997). 

44

Court concluded that INA § 106(a)(10)'s restricting judicial review of deportation orders against

criminal aliens "not only does not violate Article III, it is illustrative of the concept of separation of

powers envisioned by the Constitution." Id.

Boston-Bollers would resolve Richardson's constitutional concerns were it not for two facts:

(1) when this Court interpreted former INA § 106(a)(10) in Boston-Bollers, IIRIRA's repeal of §

2241 was not yet effective, and (2) in a footnote, this Court in Boston-Bollers expressly recognized

that whether INA § 106(a)(10) precluded judicial review of deportation orders against criminal

aliens "via a writ of habeas corpus" was not presented in that appeal. Id. at 354 n. 1.113

While Boston-Bollers informs our analysis, we recognize that it was decided under INA §

106(a)(10) as enacted by the AEDPA, was not colored by the same constitutional concerns created

by IIRIRA's repeal of § 2241 habeas in INA § 242(g), and did not address the restrictions now in

INA § 242(a)(2)(C) on judicial review of deportation orders against criminal aliens. Nonetheless,

we find that these additional circumstances still do not create constitutional infirmities in IIRIRA's

new judicial-review scheme. We reach this conclusion not only for the reasons outlined in BostonBollers but also because Congress clearly has the authority (a) to repeal § 2241 jurisdiction over
45

immigration decisions, (b) to legislate that all judicial review of immigration decisions must be

exclusively under the INA, and (c) to regulate the exclusive mode and precise timing of that judicial

review within the INA's provisions. As shown below, Congress' repeal of § 2241 and its enactment

of the requirement that all judicial review now be exclusively under the INA, in the court of appeals,

and after a final removal order do not violate the Due Process Clause, Article III, or the Suspension

Clause. We now examine each such constitutional provision in turn.

D. Due Process Clause

 Permanent resident aliens are protected by the Due Process Clause of the Fifth Amendment

which provides that "[n]o person shall be ... deprived of life, liberty or property, without due process

of law ..." U.S. Const. amend. V. Although the political branches exercise plenary control over the

admission and removal of aliens, INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317

(1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press,

347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72

S.Ct. 525, 96 L.Ed. 547 (1952).

 While an alien seeking initial admission to the United States has no constitutional rights

regarding an application for admission, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,

542, 70 S.Ct. 309, 94 L.Ed. 317 (1950), "once an alien gains admission to our country and begins

to develop the ties that go with permanent residence his constitutional status changes." Landon v.

Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Supreme Court has held that

a permanent resident alien "continuously present" in the United States has a right to procedural due
 114Although Richardson's leaving the United States may have changed his legal status under

INA § 101(a)(13)(C) to an arriving alien "seeking admission" due to his criminal convictions, we

assume solely for purposes of this case that it did not change his constitutional status in light of

his thirty-year permanent residency in the United States.

Specifically, the Supreme Court instructs that "[w]e do not regard the

constitutional status which petitioner indisputably enjoyed prior to his voyage as

terminated by that voyage. From a constitutional point of view, he is entitled to due

process without regard to whether or not, for immigration purposes, he is to be treated as

an entrant alien." Kwong Hai Chew v. Colding, 344 U.S. 590, 600, 73 S.Ct. 472, 97

L.Ed. 576 (1953). The alien in Chew was a lawful permanent resident who worked on an

American ship. Id. at 592, 73 S.Ct. 472. He was on a voyage to the Far East for about

four months. Id. at 594, 73 S.Ct. 472. Upon his return, he was denied entry to the United

States under an immigration regulation which allowed the Attorney General to exclude

certain aliens without a hearing when information relating to the exclusion would "be

prejudicial to the public interest." Id. Thus, not only was Chew excluded and detained,

he also was denied any notice of the reasons for his exclusion and any opportunity to

challenge those reasons. In contrast, Richardson has been afforded extensive procedural

safeguards in his removal proceedings. 

 115In Landon v. Plasencia, 459 U.S. 21, 31, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), the Supreme

Court stated: "although we have only rarely held that the procedures provided by the executive

were inadequate, we developed the rule that a continuously present permanent resident alien has

a right to due process ...," citing United States ex rel. Vajtauer v. Comm'r of Immigration, 273

U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560 (1927); Japanese Immigrant Case, 189 U.S. 86, 100-

101, 23 S.Ct. 611, 47 L.Ed. 721 (1903); United States ex rel. Tisi v. Tod, 264 U.S. 131, 133, 44

S.Ct. 260, 68 L.Ed. 590 (1924); Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed.

1165 (1912). 

46

process in any proceedings to remove that alien from the country.114 See, e.g., Reno v. Flores, 507

U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Landon v. Plasencia, 459 U.S. at 21, 103 S.Ct.

321.115 At the core of the alien's due process rights is the right to notice of the nature of the charges

and a meaningful opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590,

596-98, 73 S.Ct. 472, 97 L.Ed. 576 (1953).

 Removal proceedings under the INA are not criminal proceedings and are not summary

ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th Cir.1997). Instead, removal
 116See footnotes 62-67 supra. 

 117"The role of the judiciary is limited to determining whether the procedures meet the

essential standard of fairness under the Due Process Clause and does not extend to imposing

procedures that merely displace congressional choices of policy." Landon v. Plasencia, 459 U.S.

21, 32-33, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (emphasis supplied). 

47

proceedings are imbued with procedural safeguards that satisfy the Due Process Clause. The alien

has the right to notice, the opportunity to present evidence and cross examine witnesses, and the

right to do so with the assistance of counsel at a hearing before an immigration judge.116 Given these

procedural safeguards, no judicial review is required to provide the process due to a permanent

resident alien facing removal. See, e.g., Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 96

L.Ed. 547 (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 109 F.3d 1185, 1196-97 (7th

Cir.), cert. denied sub nom, Katsoulis v. INS, --- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997).117

Therefore, the fact that IIRIRA repeals § 2241 habeas jurisdiction over immigration decisions,

provides for exclusive judicial review under the INA, and within that INA scheme further limits the

mode, timing and types of issues for which Richardson can seek judicial review under the INA, does

not violate the Due Process Clause.

 We recognize that Richardson also asserts that the INA's limiting his bond requests in these

removal proceedings to written request to the INS district director, without any judicial review by

an immigration judge, deprives him of due process. We disagree. The sufficiency of that process

is evaluated under the three factors outlined in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct.

893, 47 L.Ed.2d 18 (1976):(1) a petitioner's interest in additional procedures; (2) the "risk" of the

procedure; and (3) the government's interest in the procedure. Richardson's "liberty interest" under
 118See, e.g., Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)

("Congress regularly makes rules that would be unacceptable if applied to citizens."). 

 119Congress acts well within its plenary power in mandating detention of a criminal alien with

an aggravated felony conviction facing removal proceedings. See INA § 236(c), 8 U.S.C. §

1226(c) (Supp.1998); TPCRs in IIRIRA § 303(b)(3). This poses no constitutional issue, for the

Supreme Court already has stated that "[t]he Eighth Amendment has not prevented Congress

from defining the classes of cases in which bail shall be allowed ..." Carlson v. Landon, 342 U.S.

at 545, 72 S.Ct. 525. The Supreme Court has determined that bail need not be provided in all

immigration cases. Id. at 546, 72 S.Ct. 525. More importantly, Richardson does not challenge

the INS district director's denial of his release request as incorrect under the INS regulations or

show why the opportunity to be heard by the regulations governing bond and parole was

inadequate. 

48

the Due Process Clause is weighty, although slightly attenuated given his resident alien status.118

However, the "risk" factor is low, as Richardson's counsel was able to make written bond and parole

requests to the INS district director, supported by evidence, which here included several documents

and affidavits on Richardson's behalf.

In contrast, the INS' interest is fairly high in its district director's being able to make parole

and bond decisions for arriving aliens facing removal proceedings in that district without a

subsequent hearing before an immigration judge. Given the volume of arriving aliens and numerous

ports of entry, it simplifies the procedures, expedites consideration, and reduces costs, while still

giving the alien an opportunity to request bond and parole.119 Being the initial step in the removal

proceedings, the INS' bond and parole procedures also must be evaluated in light of the many

procedural safeguards in the overall removal proceedings. Indeed, Richardson received a plenary

removal hearing before an immigration judge. Richardson has shown no due process violation.

E. Article III

 IIRIRA's repeal of § 2241 habeas over INS decisions also does not violate Article III. While

§ 2 of Article III extends the judicial power to "all cases ... arising under the Constitution," § 1 of
 120See Morel v. INS, 144 F.3d 248, 251 (3d Cir.1998); Chow v. INS, 113 F.3d 659, 668 (7th

Cir.1997); Yang v. INS, 109 F.3d 1185, 1196 (7th Cir.) cert. denied sub nom, Katsoulis v. INS, --

- U.S. ----, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997). In finding lack of jurisdiction under former

INA § 106(a)(10) over Morel's appeal of a final deportation order, the Third Circuit stated that

"we do not see any deprivation of his rights which is of constitutional proportion," noting "the

INS concedes that § 440(a) [INA § 106(a)(10) ] does not preclude Article III court review of

claims of substantial Constitutional error." Morel, 144 F.3d at 251. Finding Morel's appeal

raised only a "question of law," the Third Circuit concluded that "relevant Supreme Court

authority does not mandate judicial review by an Article III court of questions of law underlying

legislatively-created public rights such as immigration. See Crowell v. Benson, 285 U.S. 22, 52

S.Ct. 285, 76 L.Ed. 598 (1932) (drawing a distinction between public and private rights and

listing immigration as an exemplar of a public right)." Morel, 144 F.3d at 252. 

 121Congress has established significant limits on federal jurisdiction throughout history and

continuing today. For example, during the first century of the nation's existence, the inferior

courts lacked federal-question jurisdiction; and, until 1976 the federal-question jurisdiction

remained restricted by an amount-in-controversy requirement. Yang v. INS, 109 at 1195. The

Seventh Circuit in Chow v. INS, 113 F.3d 659, 668 (7th Cir.1997), also outlined the following

reasons why the AEDPA's enacting INA § 106(a)(10), restricting judicial review of deportation

49

Article III provides that this judicial power shall be vested "in one supreme Court, and in such

inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III

§§ 1, 2. Even if Richardson had no judicial review available in the district court under § 2241 or in

the court of appeals under the INA, Article III does not mandate the judicial review of immigration

decisions in any inferior court. Instead, Congress possesses the sole authority to establish the

jurisdiction of the inferior federal courts.120

 The jurisdiction of the inferior federal courts is created by statute and jurisdiction does not

exist except to the extent conferred by statute. Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed.

1147 (1850). Therefore, inferior federal courts must have some statutory basis upon which to retain

jurisdiction regardless of the character of Richardson's claims. Similar to many congressionally

enacted limits on federal jurisdiction, Article III does not preclude Congress from removing all

judicial review over immigration decisions from the inferior courts.121
orders against criminal aliens, does not offend Article III. Although Article III enumerates cases

over which the judicial power shall extend, Article III, however, grants Congress the power "to

ordain and establish" such lower federal courts and courts of appeal. Keene Corp. v. United

States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Northern Pipeline Constr.

Co. v. Marathon Pipeline Co., 458 U.S. 50, 57-60, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); 

Chow, 113 F.3d at 670. The Constitution does not prescribe how much judicial power must vest

in the inferior courts and leaves it to Congress to make that decision. Id. Thus, the Seventh

Circuit found that the INA, that limits the lower courts' jurisdiction, is not unconstitutional

unless it confers powers not enumerated in the Constitution. Sheldon, 49 U.S. (8 How.) at 449. 

Therefore, the court concluded that the INA does not offend Article III or the separation of

powers. Id. 

 122Swain v. Pressley, 430 U.S. at 386, 97 S.Ct. 1224 (Burger, C.J., concurring). The Second

Circuit also emphasized that "[t]he primary historical use of the writ of habeas corpus was

precisely against executive detention. See Felker, 518 U.S. at 663, 116 S.Ct. 2333 (noting that

the writ originally only extended to prisoners in federal custody who were not "detained in

prison by virtue of the judgment of a court' (citation and internal quotation marks omitted))." 

Henderson, 157 F.3d at 120; see also Brown v. Allen, 344 U.S. 443, 533, 73 S.Ct. 397, 97 L.Ed.

469 (1953) (Jackson, J., concurring) ("[T]he historic purpose of the writ has been to relieve

detention by executive authorities without judicial trial."). 

50

F. Suspension Clause

 Contending that he has no judicial review available under the INA, Richardson asserts that

the Suspension Clause entitles him to judicial review, and thus Richardson argues INA § 242(g)

cannot be read to repeal § 2241 habeas. The Suspension Clause provides that "[t]he Privilege of the

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

public Safety may require it." U.S. Const. art. I § 9. Since "the traditional Great Writ was largely

a remedy against executive detention,"122 the INS concedes that the Suspension Clause requires some

limited judicial review of Richardson's executive detention. The INS emphasizes, however, that any

constitutionally required judicial review (a) must be found under the INA and not § 2241 habeas,
 123The Second Circuit in Henderson observed that "the government itself does not argue that

the 1996 amendments completely forbid judicial review of deportation against criminal aliens.... 

In its view, the courts are only empowered to examine petitions presenting "substantial' or

"colorable' constitutional claims, and not petitions involving "mere' questions of statutory law." 

Henderson, 157 F.3d at 119. As the Second Circuit also noted, "[a]nd well [the INS] might

concede this point, for the Supreme Court decided more than seventy-five years ago that the

Constitution required judicial review of the executive's decision that a person facing deportation

was a non-citizen." Henderson, 157 F.3d at 122 n. 14 (citing Ng Fung Ho v. White, 259 U.S.

276, 42 S.Ct. 492, 66 L.Ed. 938 (1922)). In Ng Fung Ho, the Supreme Court stated that the

precise question in that habeas petition was whether a claim of citizenship by a resident entitles

him to judicial review of his claim. 259 U.S. 276, 282, 42 S.Ct. 492, 66 L.Ed. 938 (1922). The

Court held that "[j]urisdiction in the executive to order deportation exists only if the person

arrested is an alien. The claim of citizenship is thus a denial of an essential jurisdictional fact." 

Id. at 284, 42 S.Ct. 492. 

 124The United States Constitution became effective on March 4, 1789. In September 1789,

the First Congress passed the Judiciary Act of 1789. Section 14 of the Judiciary Act granted the

federal courts jurisdiction to issue writs of habeas corpus. 1 Stat. 81 (1789).

In 1867, Congress significantly expanded federal jurisdiction to issue writs of

habeas corpus. 14 Stat. 385 (1867). The Supreme Court has recognized that this

amendment to federal habeas jurisdiction increased the scope of habeas review beyond

the "bare legal review" of the common-law writ. Johnson v. Zerbst, 304 U.S. 458, 466,

58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see also McCleskey v. Zant, 499 U.S. 467, 477,

111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (noting inter alia that the 1867 amendments

expanded availability of the writ in federal court to people held in state custody). 

Accordingly, the Court has concluded that this revision to habeas jurisdiction conferred

on federal courts the ability to determine the legality and constitutionality of a person's

detention even if "the proceedings resulting in incarceration may be unassailable on the

face of the record." United States v. Hayman, 342 U.S. 205, 212, 72 S.Ct. 263, 96 L.Ed.

232 (1952).

Over the years, Congress amended habeas jurisdiction several times. For the

51

and (b) is limited to only "substantial constitutional claims" or "substantial claims of constitutional

error."123

The Supreme Court has not defined the level of judicial review preserved by the Suspension

Clause, unaided by § 2241 or its precursor statutes, because statutory habeas review historically has

been available since 1789.124 Both parties repeatedly cite Heikkila v. Barber, 345 U.S. 229, 73 S.Ct.
most part, these amendments have related to the form and procedure for seeking the writ

and to the codification of federal statutes in 1874 and 1948. Rev. Stat. §§ 751-766

(1874); 62 Stat. 869 (1948). However, the Supreme Court has recently recognized that

the Judiciary Act of 1789 is the "direct ancestor" of 28 U.S.C. § 2241(a) and the 1867

amendments to the Judiciary Act are the "direct ancestor" of 28 U.S.C. § 2241(c). 

Felker, 518 U.S. at 659 n. 1 & 2, 116 S.Ct. 2333; see also Hayman, 342 U.S. at 211 n.

11, 72 S.Ct. 263 (noting that the 1867 Act is [n]ow incorporated in 28 U.S.C. (Supp.IV) §

2241 et seq.) 

 125Both Richardson and the INS cite Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100

L.Ed.2d 632 (1988), which involved a discharge of a government employee based on sexual

preference. Chief Justice Rehnquist's majority opinion in Webster states it reached certain

conclusions "to avoid the "serious constitutional question' that would arise if a federal statute

were construed to deny any judicial forum for a colorable constitutional claim." (quoting Bowen

v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n. 12, 106 S.Ct. 2133, 90 L.Ed.2d

623 (1986)). Since we find that certain judicial review remains under the INA, as outlined infra,

this case also does not present a denial of all judicial review.

Also, two dissents stated that judicial review is not required over constitutional

claims challenging the validity of employment decisions by the Central Intelligence

52

603, 97 L.Ed. 972 (1953), in which the Supreme Court held that "the 1917 Immigration Act ...

clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was

required by the Constitution." Id. at 234-35, 73 S.Ct. 603. The Supreme Court upheld the

preclusion of judicial review in the 1917 Act, but in the context of statutory habeas remaining

available, stating:

The rule which we reaffirm recognizes the legislative power to prescribe applicable

procedures for those who would contest deportation orders. Congress may well have

thought that habeas corpus, despite its apparent inconvenience to the alien, should be the

exclusive remedy in these cases in order to minimize opportunities for repetitious litigation

and consequent delays as well as to avoid possible venue difficulties connected with any

other type of action.

Id. at 237, 73 S.Ct. 603. Thus, Heikkila does not resolve the issue here of whether IIRIRA's repeal

of § 2241 habeas would violate the Suspension Clause if Richardson has no judicial review under

the INA.125
Agency. In his dissent, Justice Scalia pointed out that "the denial of all judicial review is

not at issue," but "merely the denial of review in United States district courts." Id. at 611,

108 S.Ct. 2047. Since Article III, § 1 provides that the judicial power shall be vested "in

one supreme Court, and in such inferior Courts as the Congress may from time to time

ordain and establish," Justice Scalia stressed that "[w]e long ago held that the power not

to create any lower federal courts at all includes the power to invest them with less than

all the judicial power." Id. His dissent concluded that Congress can prescribe that for

certain jobs, the dismissal decision is "committed to agency discretion by law" and "that

not all constitutional claims require a judicial remedy." Id. at 614, 108 S.Ct. 2047. 

53

Unguided by direct Supreme Court precedent, the Second, Seventh, and Ninth Circuits have

thoughtfully addressed and reached different conclusions about what level of judicial review is

protected by the Suspension Clause, what scope of judicial review the INA provides, and whether

constitutional infirmities are created by INA § 242(g)'s repeal of § 2241 habeas jurisdiction over

immigration decisions. The Second and Ninth Circuits have outlined in great detail the two-hundred

year history of the Suspension Clause and why the Great Writ protected by the Suspension Clause

(whether under an originalist approach as it existed in 1789 or today) requires judicial review of an

alien's executive detention that is the equivalent of § 2241 habeas. Magana-Pizano v. INS, 152 F.3d

1213, 1217-21 (9th Cir.1998); Henderson v. INS, 157 F.3d 106, 112-21 (2d Cir.1998). In MaganaPizano, the Ninth Circuit concluded that INA § 242(g)'s repeal of § 2241 habeas violated the

Suspension Clause. In Jean-Baptiste, 144 F.3d 212 (2d Cir.1998), the Second Circuit, in order to

avoid the Suspension Clause issue, held that INA § 242(g) did not repeal § 2241 habeas. A

subsequent panel of the Second Circuit in Henderson followed yet questioned the correctness of the

Jean-Baptiste decision.

The Seventh Circuit took a different approach. After outlining the history of § 2241 habeas

and the Suspension Clause, the Seventh Circuit agreed that "[a]liens may seek the writ that Art. I

§ 9 cl. 2 preserves against suspension." Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.1997). However,
54

the Seventh Circuit found that "28 U.S.C. § 2241 offers an opportunity for collateral attack more

expansive than the Great Writ preserved in the Constitution." Id. While Yang 's direct holding

involved the restrictions on a criminal alien's judicial review under former INA § 106(a)(10), the

Seventh Circuit noted that "effective April 1, 1997, § 306(a) of the IIRIRA [INA § 242] abolishes

even review under § 2241, leaving only the constitutional writ, unaided by statute." Id. The Seventh

Circuit found that the particular errors of law and discretionary INS decision of which Yang, a

criminal alien in custody, sought judicial review were simply not protected by the "Great Writ." Id.

Similarly, the Seventh Circuit noted there is a "vast gulf between the non-suspendable constitutional

writ" and certain other forms of judicial review, such as under the Administrative Procedures Act.

Id.

Below we first discuss the different approaches of these three circuits in considerable detail.

Second, we address IIRIRA's clear mandate that judicial review be exclusively after a final removal

order—a factor we find not given sufficient weight by our sister circuits. Third, we outline why we

find INA § 242(g)'s repeal of § 2241 habeas and its requirement of exclusive judicial review under

the INA do not conflict with the Suspension Clause.

G. Second Circuit's Henderson Decision

When it decided Henderson, the Second Circuit in Jean-Baptiste already had held that INA

§ 242(g) did not repeal § 2241 habeas. Jean-Baptiste v. Reno, 144 F.3d 212, 218-19 (2d Cir.1998);

Henderson v. INS, 157 F.3d 106, 119 (2d Cir.1998). Subsequently, in Henderson the Second Circuit

revisited whether constitutional issues under the Suspension Clause are actually implicated by
 126Henderson, 157 F.3d at 119. 

 127Id. at 119 n. 9. 

 128Id. (emphasis supplied). 

 129Henderson, 157 F.3d at 119. 

 130Id. at 120. The Second Circuit also noted that the INS borrowed this standard from the

standard for reviewing successive habeas petitions but observed that this standard arose in an

entirely different context than presented under the immigration laws. Id. Specifically, the

Second Circuit recognized that the substantial-constitutional-question standard applied to

petitioners in state custody who had necessarily enjoyed several opportunities to challenge their

detention before in a judicial forum. Id. (citing Goncalves, 144 F.3d at 118 n. 8). Conversely,

according to the Henderson panel, aliens detained pending removal from the country are

detained by the executive with no prior judicial review of their detention. Henderson, 157 F.3d

at 120. 

55

IIRIRA's repeal of § 2241 habeas. Noting that it was bound by Jean-Baptiste, the Second Circuit

in Henderson held that INA § 242(g) did not repeal § 2241.126

However, in a footnote, the Second Circuit in Henderson expressly acknowledged that

"[w]ere we not bound by Jean-Baptiste, the members of this panel would be strongly inclined to find

that the proper mechanism for judicial review is by petition for review in the courts of appeals,

rather than by § 2241 habeas in the district courts."127 The Henderson panel noted that Congress

"clearly" meant to streamline judicial review and concluded that "it seems perverse to find that the

new laws [IIRIRA] actually added a layer of review in the district courts that did not generally exist

before."128

The Second Circuit in Henderson noted that Jean-Baptiste expressly had reserved the

question of the extent and nature of judicial review remaining available under the INA

post-IIRIRA.129 The Henderson panel rejected the INS' contention that judicial review under

IIRIRA is limited to "substantial constitutional issues."130 Instead, the Second Circuit indicated that
 131Id. at 119. 

 132Id. 

 133Id. at 122. The aliens in Henderson presented questions of pure law. The Second Circuit

also noted, almost in passing, that judicial review under the INA as long as "the equivalent of

habeas" would avoid any conflict with the Suspension Clause. Henderson, 157 F.3d at 119 n.

10. 

 134Id. at 122 (quoting 28 U.S.C. § 2241). 

 135Id. 

56

judicial review post-IIRIRA " "is much like it was prior to the enactment of the INA' and is similar

to that which existed under the early statutes that were "intended to make these administrative

decisions nonreviewable to the fullest extent possible under the Constitution.' "131 The Second

Circuit then noted that the Attorney General's position that no court has power to review her

interpretation of immigration laws "is, to put it mildly, not only at war with the historical record

described earlier in this opinion—for at least a hundred years, the courts have reviewed the

executive branch's interpretation of the immigration laws, and have deemed such review to be

constitutionally mandated—it is also hard to square with the core conception of habeas corpus as

it has been applied over many centuries."132

Ultimately, the Second Circuit in Henderson concluded only that whatever the remaining

parameters of § 2241 relief in the immigration context, the claims presented by the Henderson aliens

facing deportation fell within the remaining scope of § 2241.133 As its holding, the Second Circuit

stated "federal courts have jurisdiction under § 2241 to grant writs of habeas corpus to aliens when

those aliens are "in custody in violation of the Constitution or laws or treaties of the United States.'

"134 But, the Second Circuit immediately qualified that holding by stating that "[t]his is not to say

that every statutory claim that an alien might raise is cognizable on habeas."135 Instead, the court
 136Id. 

 137Again, we note that although the Ninth Circuit has withdrawn its published opinion in

Hose, this Court still finds persuasive the analysis used by the Ninth Circuit in Hose.

In Hose, after receiving a final exclusion order on April 25, 1997, the alien filed a

§ 2241 habeas petition in the district court which was dismissed for lack of jurisdiction

under INA § 242(g). 141 F.3d at 933-34. The alien appealed the district court's

dismissal, but did not file a petition for direct review in the court of appeals and,

importantly, did not request that the court of appeals treat her appeal of the district court's

order as a petition for review. Id. at 934.

Affirming the district court's dismissal for lack of jurisdiction, the Ninth Circuit

first noted that IIRIRA channeled judicial review to the court of appeals and that the

language of INA § 242(g) was "clear" and sufficiently broad to convey congressional

intent to repeal § 2241 jurisdiction. Id. at 935. The court reasoned that the rule

disfavoring implicit repeals of jurisdictional statutes was followed in Felker v. Turpin,

518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), because it was interpreting the

AEDPA's repeal of a "specific avenue for review" (appellate jurisdiction over a

successive habeas petition) and that repeal did not implicitly repeal another separate and

distinct avenue for review (the Supreme Court's original habeas jurisdiction) which was

not mentioned in the AEDPA. Hose, 141 F.3d at 935.

Conversely, the court in Hose found the clear language of INA § 242(g) provided

that unless jurisdiction otherwise existed under INA § 242, no court could exercise

57

concluded that the range of claims available under § 2241 consisted of "the sort that the courts have

secularly enforced ... in the face of statutes seeking to limit judicial jurisdiction to the fullest extent

constitutionally possible."136

H. Ninth Circuit's Magana-Pizano Decision

Two recent Ninth Circuit decisions also address INA § 242(g)'s repeal of § 2241 habeas. In

Hose v. INS, 141 F.3d 932, 935 (9th Cir.), withdrawn and reh'g en banc granted, 159 F.3d 1217, No.

97-15789 (9th Cir. December 2, 1998), the Ninth Circuit first held that INA § 242(g) repealed §

2241 jurisdiction, noting that the noncriminal alien in that case still could seek judicial review of the

BIA's final deportation order under INA § 242(b)(2) in the court of appeals.137 Subsequently, in
jurisdiction to review a removal order. Id. Finally, the court in Hose concluded that the

Suspension Clause did not prohibit this repeal because no suspension of the writ occurs if

a substitute procedure exists that is "neither inadequate nor ineffective to test the legality

of a person's detention." Id. at 936 (citing Swain, 430 U.S. at 381, 97 S.Ct. 1224). Since

judicial review of exclusion orders remained available under IIRIRA in the form of direct

review in the court of appeals, the court held that Ms. Hose had failed to demonstrate

how such review was either inadequate or ineffective to contest her detention. 

 138Magana-Pizano, 152 F.3d at 1220. 

 139Id. 

58

Magana-Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir.), modified, 159 F.3d 1217 (9th Cir.1998), the

Ninth Circuit held that, unlike the alien in Hose, a criminal alien cannot obtain full judicial review

in the court of appeals due to INA § 242(a)(2)(C), that INA § 242(g)'s repeal of § 2241 jurisdiction

as applied in that different context violated the Suspension Clause, and thus, § 2241 jurisdiction still

existed over Magano-Pizano's deportation order.

In light of Hose 's holding that INA § 242(g) repealed § 2241, the Ninth Circuit could not

construe INA § 242(g) to avoid constitutional issues. The Ninth Circuit found that Heikkila

established the minimum constitutionally permissible level of judicial review in immigration cases

and required the conclusion that, when Congress limits judicial review over immigration matters to

the extent permitted by the Constitution, habeas remains available. In other words, the Ninth Circuit

found that "[s]imply put, elimination of all judicial review of executive detention violates the

Constitution."138 Based on this premise, the Ninth Circuit concluded that, as interpreted in Hose and

applied to cases for which no judicial review is available, INA § 242(g)'s repeal of § 2241 was

invalid under the Suspension Clause.139

Prior to granting rehearing en banc, the Ninth Circuit thus had adopted a hybrid approach

to whether INA § 242(g) repeals § 2241. For cases where judicial review remains in the court of
 140Hose, 141 F.3d at 936. 

 141Magana-Pizano, 152 F.3d at 1220. 

 142The Seventh Circuit in Yang interpreted INA § 106(a)(10) as it existed following IIRIRA's

first amendment, but before it was amended the second time and moved to INA § 242(a)(C)(2). 

See footnotes 74 and 83 supra and 176 infra. 

 143Id. at 1189. 

59

appeals under the INA, the Ninth Circuit had interpreted INA § 242(g) as repealing § 2241

jurisdiction.140 Conversely, for cases in which the Ninth Circuit finds that there is no judicial review

under the INA, the Ninth Circuit concluded that INA § 242(g) cannot constitutionally repeal § 2241

habeas and that some form of habeas relief remains available.141

I. Seventh Circuit's Yang Decision

Although involving former INA § 106(a)(10),142 the Seventh Circuit's decision in Yang v.

INS, 109 F.3d 1185, 1187 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, --- U.S. ----, 118 S.Ct.

624, 139 L.Ed.2d 605 (1997), also contains an instructive analysis of the Suspension Clause and

Congress' plenary power to remove judicial review over immigration decisions to the full extent

permitted by the Constitution. The specific facts and legal issues in Yang are an important

background to its holding that the INA does not preclude all judicial review of deportation orders

against criminal aliens.

After finding that Yang's conviction for concealing stolen firearms was a deportable offense

under INA § 241(a)(2)(C), the immigration judge ordered Yang deported because of this conviction,

among other reasons.143 On his petition for direct review in the court of appeals, Yang argued, inter

alia, that he was not deportable under INA § 241(a)(2)(C) because his conviction for concealing
 144Id. at 1191. 

 145INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1995). 

 146Id. at 1192. The Yang case actually involved petitions for review by four aliens in separate

deportation proceedings. Id. According to the Seventh Circuit, in three of these four

consolidated cases, the INS contended that the court lacked jurisdiction if the BIA determined

that an alien was deportable based on one of the referenced criminal offenses. Id. Conversely,

the court noted that in one of these cases, the INS adopted a different position. Id. Specifically,

in the fourth case, the INS argued that the court retained jurisdiction over whether the alien

facing deportation was actually an alien deportable for an enumerated offense. Id. 

 147Id. at 1197. 

60

stolen firearms was not a crime involving the "possession" of a firearm.144 Although prior to

IIRIRA's repeal of § 2241 habeas, Yang was still faced with a similar judicial review bar in former

INA § 106(a)(10) which provided that "[a]ny final order of deportation against an alien who is

deportable by reason of having committed a criminal offense covered in section [designated sections

omitted] ... shall not be subject to review by any court."145

According to the INS, Yang was not entitled to judicial review of his final deportation order

because the BIA already had determined that he was an alien deportable based on one of the sections

referenced in INA § 106(a)(10).146 Like Boston-Bollers, the Seventh Circuit held that INA §

106(a)(10)'s restrictions on judicial review of Yang's deportation order did not violate the Due

Process Clause or Article III.147 The Seventh Circuit also discussed how the review protected by the

Suspension Clause is not co-extensive with § 2241 habeas as follows:

Aliens may seek the writ that Art. I § 9 cl. 2 preserves against suspension. But we are

reluctant to place weight on its availability, because the Supreme Court long ago made it

clear that this writ does not offer what our petitioners desire: review of discretionary

decisions by the political branches of government. [Citations omitted.] There is a vast gulf

between the non-suspendable constitutional writ and the Administrative Procedure Act.

[Citations omitted.] Similarly, in cases under 28 U.S.C. § 2254, "[a] a federal court may not

issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37,

41, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984). [Citations omitted.] Likewise with errors of
 148Id. at 1192. 

 149Id. 

 150Id. 

 151Id. 

61

federal law. See United States v. Caceres, 440 U.S. 741, 752, 99 S.Ct. 1465, 1472, 59

L.Ed.2d 733 (1979) (error "by an executive agency in interpreting its own regulations surely

does not raise any constitutional concerns"); Czerkies [v. U.S. Dept. of Labor], 73 F.3d

[1435] at 1443 [(7th Cir.1996)] ("The government does not violate the Constitution every

time it mistakenly denies a claim for benefits."). As a practical matter, the right to obtain

review, in any court, on the theories our petitioners advance is gone. That is the point of the

legislation. Congress wanted to expedite the removal of criminal aliens from the United

States by eliminating judicial review, not to delay removal by requiring aliens to start the

review process in the district court rather than the court of appeals.

Yang, 109 F.3d at 1195 (emphasis supplied). The Seventh Circuit in Yang recognized, as did the

Second Circuit in Henderson, that Congress wanted to eliminate review in the district courts and

allow review only in the court of appeals.

In addition to its Suspension Clause discussion, the Seventh Circuit in Yang explained how

the INA does not abrogate all judicial review for criminal aliens because courts always have

jurisdiction to determine whether a jurisdictional bar applies and to consider constitutional attacks

on any such jurisdictional bar.148 The Seventh Circuit explained succinctly that "a court has

jurisdiction to determine whether it has jurisdiction."149 The Seventh Circuit found that the language

of INA § 106(a)(10) did not condition its restriction on judicial review merely on the Attorney

General's saying that an alien is deportable for one of the enumerated criminal offenses.150 Instead,

the language of INA § 106(a)(10) conditioned its restriction on judicial review on there being "an

alien" "who is deportable" "by reason of having committed a criminal offense" enumerated in the

statute.151 The Seventh Circuit noted that "[w]hen judicial review depends on a particular fact or
 152Id. at 1192 (citing Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), for

the proposition that the court retains jurisdiction to determine its own jurisdiction). 

 153Id. at 1191-92. 

 154As did the Ninth Circuit in Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir.1997), the

Fifth Circuit in Anwar applied the pre-IIRIRA version of INA § 106(a)(10). 116 F.3d at 144. 

However, unlike in Coronado-Durazo, the fact that the pre-IIRIRA version of INA § 106(a)(10)

applied in Anwar meant that the court could exercise jurisdiction over the alien's petition for

review. Specifically, the court in Anwar noted that prior to IIRIRA, INA § 106(a)(10) precluded

the judicial review of a deportation order of an alien who was deportable under INA §

212(a)(2)(A)(ii) (i.e. for multiple criminal convictions of crimes involving moral turpitude) only

if both "predicate offenses" were also covered by INA § 212(a)(2)(A)(i). Id. An alien was

deportable under INA § 212(a)(2)(A)(i) only if the alien had been convicted of a crime involving

moral turpitude which crime occurred within five years of when the alien entered the United

States and for which the alien was sentenced to confinement for one year or more. Id. Because

one of Anwar's crimes had occurred more than five years after he entered the United States, the

court concluded that his multiple convictions did not fall under INA § 212(a)(2)(A)(i) and thus

did not fall under the jurisdictional bar of the pre-IIRIRA INA § 106(a)(10). Id.

We note that the Fifth Circuit has recognized an inconsistency between an earlier

Fifth Circuit decision, Pichardo v. INS, 104 F.3d 756 (5th Cir.1997), and a portion of the

Anwar decision that is not at issue in this case. Okoro v. INS, 125 F.3d 920, 924-25 (5th

Cir.1997)(noting the inconsistency between these two decisions); Anwar, 116 F.3d at

143 n. 2. In Pichardo, the Fifth Circuit applied the version of INA § 106(a)(10) that

included IIRIRA's first amendment to this section—the amendment adding the phrase

"without regard to the date of their commission" to INA § 106(a)(10). However, the

court in Anwar applied INA § 106(a)(10) "unamended by IIRIRA." 116 F.3d at 143. 

62

legal conclusion, then a court may determine whether that condition exists."152 Therefore, the

Seventh Circuit held that INA § 106(a)(10) permitted courts to exercise jurisdiction to determine

these three threshold issues in order to decide whether the jurisdictional bar in INA § 106(a)(10)

applies: (1) whether the person is an alien, (2) whether the alien is deportable, and (3) whether

deportation is based on an enumerated criminal offense.153

Without as extensive a discussion as in Yang, the Fifth Circuit in Anwar v. INS, 116 F.3d

140, 144 (5th Cir.1997), likewise concluded that even under INA § 106(a)(10)'s restrictions on

judicial review, it could still exercise some jurisdiction over the alien's petition for review.154 The
The court in Okoro decided to follow the earlier decision of Pichardo. Okoro, 125 F.3d

at 925. Nevertheless, neither Pichardo nor Okoro diminish the aspect of the Anwar

decision that illustrates the jurisdictional analysis discussed in Yang. Indeed, as was the

case in Anwar and Yang, the court in Pichardo also exercised its jurisdiction to the extent

necessary to determine whether it could exercise further jurisdiction. 104 F.3d at 758-59. 

In addition, as discussed below, Okoro expressly adopts a holding that is very similar to

the holding in Yang. Okoro, 125 F.3d at 925. 

 155Id. at 143-44. 

 156Id. 

 157Id. at 144. 

 158Likewise, the First Circuit in Choeum v. INS, 129 F.3d 29, 38 (1st Cir.1997), found the

jurisdictional bar in INA § 106(a)(10) did not apply because the deportation order was based on

a criminal offense not covered by that section. Although the alien had other criminal offenses

which were not charged in the deportation proceedings, the court held "that the INS cannot,

consistent with due process and the statutory and regulatory requirements governing its own

proceedings, substitute new grounds for deportation at this stage of the proceedings, solely for

63

Fifth Circuit noted that under INA § 106(a)(10), "unamended by IIRIRA," judicial review was

precluded if deportation was based on two convictions for a crime involving moral turpitude only

if both of the convictions occurred within five years of when the alien entered the United States.155

Because one of Mr. Anwar's criminal convictions occurred more than five years after he entered the

United States, the Fifth Circuit concluded that the jurisdictional bar of INA § 106(a)(10) did not

apply.156 Accordingly, the Fifth Circuit proceeded to review the alien's petition.157

Despite its lack of extensive discussion, the Anwar decision illustrates the same concept

followed in Yang. The Fifth Circuit did not simply decline to exercise jurisdiction based on the INS'

asserted grounds for deportation. Instead, the Fifth Circuit conducted its own review of the

allegations supporting deportation to determine whether these allegations prohibited further judicial

review. Finding that the judicial-review limiting provisions of INA § 106(a)(10) did not apply, the

Fifth Circuit proceeded to entertain the alien's claims.158
the purposes of depriving the federal courts of jurisdiction." 129 F.3d at 40.

Also, without extensive discussion, the Ninth Circuit reached a similar conclusion

in Coronado-Durazo v. INS, 108 F.3d 210 (9th Cir.1997), withdrawn by 123 F.3d 1322,

1323 (9th Cir.1997). The alien facing deportation in Coronado-Durazo claimed that the

immigration judge and BIA had erroneously concluded that the alien's conviction for

solicitation to possess cocaine was a deportable offense under INA § 241(a)(2)(B)(i) as

an offense "relating to a controlled substance." 123 F.3d at 1324. In both of its opinions

in Coronado-Durazo, the Ninth Circuit began with the premise that if the alien's

conviction constituted a deportable offense, the court "lack[s] jurisdiction to review the

final order of deportation issued by the INS" because of INA § 106(a)(10) as amended by

the AEDPA. 108 F.3d at 211, 123 F.3d at 1323. Without discussing the issue, in both

opinions, the Ninth Circuit proceeded on the premise that, under the terms of INA §

106(10), it could review whether the offense upon which deportation was based was a

deportable offense. 108 F.3d at 211, 123 F.3d at 1323. See also Mendez-Morales v. INS,

119 F.3d 738, 739 (8th Cir.1997) (finding that the petitioner was deportable for

conviction of an aggravated felony and therefore jurisdiction was barred); Perez v. INS,

116 F.3d 405, 408 (9th Cir.1997) (reversing agency's findings that the petitioner's crime

made him deportable and rendered judicial review unavailable). 

 1598 U.S.C. § 1251(a)(2)(A)(i) (Supp.1996). 

 160125 F.3d at 922-23. 

 1618 U.S.C. § 1251(a)(2)(A)(ii) (Supp.1996). 

64

Moreover, in a subsequent decision, the Fifth Circuit expressly adopted the aspect of the

Yang decision holding that the court of appeals can exercise jurisdiction in order to determine

whether a jurisdictional bar precludes further jurisdiction. Okoro v. INS, 125 F.3d 920, 925 (5th

Cir.1997). Okoro involved a petition for review by an alien facing deportation under INA §

241(a)(2)(A)(ii),159 which provided for the deportation of any alien with two or more convictions

of crimes involving moral turpitude.160 As a "threshold matter," the Okoro court examined its own

jurisdiction in light of INA § 106(a)(10), as amended by IIRIRA, which precluded judicial review

of any final deportation order "against an alien who is deportable by reason of having committed ...

any offense covered by [INA] section 241(a)(2)(A)(ii)161 for which both predicate offenses are
 162This section is the same jurisdictional bar interpreted by the court in Yang. Compare

Okoro, 125 F.3d at 925 with Yang, 109 F.3d at 1188. For a discussion of the amendments to

INA § 106(a)(10) by both the AEDPA and IIRIRA and the successor to INA § 106(a)(10) now

found in INA § 242(a)(2), see footnote 83 supra. 

 163125 F.3d at 923. 

 164125 F.3d at 927. 

 165Boston-Bollers, 106 F.3d at 353. 

65

covered by [INA] section 241(a)(2)(A)(i)162."163 Thus, the court held that its jurisdiction depended

on whether the alien was deportable based on convictions covered by INA § 241(a)(2)(A)(i) & (ii),

as follows:

To determine whether this jurisdictional bar applies to [the alien's] petition for review, we

must examine whether the underlying offenses relied on by the INS to deport [the alien] are

(1) crimes involving moral turpitude, (2) not arising out of a single scheme of criminal

misconduct, and (3) for which [the alien] was sentenced to one year or more of

imprisonment, regardless of actual confinement.

Id. at 925 (citing Yang, 109 F.3d at 1192). After determining that all three of these elements applied

to the alien, the court concluded that it lacked jurisdiction over the alien's petition for review.164

In this same vein, this Court's decision in Boston-Bollers also exercised jurisdiction both over

the legal issue of whether AEDPA § 440(a)(10)'s enactment of INA § 106(a)(10) applied

retroactively and over whether that retroactive application violated Mr. Boston-Bollers'

constitutional rights. This Court in Boston-Bollers was not required to determine the three threshold

issues that the courts did in Yang or Anwar, because the permanent resident alien facing deportation

in Boston-Bollers conceded his alien status, criminal conviction, and deportability.165 The parties

did not dispute that the alien's petition for direct review fell within the expressed

jurisdiction-limiting language of INA § 106(a)(10). Nevertheless, in Boston-Bollers this Court
 166According to the court in Berehe, the transitional rule found in IIRIRA § 309(c)(4)(G)

applied when deportation proceedings were commenced before IIRIRA's general effective date

of April 1, 1997 but the final order of deportation or exclusion was entered more than thirty days

after IIRIRA's September 30, 1996 date of enactment. 114 F.3d at 161. Because the

proceedings to deport the alien in Berehe commenced before April 1, 1997 and the order of

deportation was issued after October 30, 1996, the court concluded that the transitional rule

governed the judicial review of the alien's deportation order. Id.

IIRIRA § 309(c)(4)(G) is similar to both INA § 106(a)(10) as amended by

IIRIRA and new INA § 242(a)(2)(C). See footnotes 74 and 83 supra and 170 infra.

Since 1996, the following four distinct statutes have restricted the judicial review of

orders deporting, excluding or removing certain criminal aliens from the United States: 

(1) INA § 106(a)(10) as enacted by the AEDPA § 440(d), (2) INA § 106(a)(10) as first

amended by IIRIRA § 309(d), (3) INA § 242(a)(2)(C) as enacted by IIRIRA § 306(a)(2),

and (4) the transitional rule in IIRIRA § 309(c)(4)(G) which was applied in Berehe. See

footnote 83 supra for a discussion of the amendments to INA § 106(a)(10). 

66

exercised jurisdiction over the alien's petition for direct review in the court of appeals attacking the

constitutionality of the judicial review restrictions in INA § 106(a)(10).

Before we conclude our discussion of the Yang decision, we note that the Tenth Circuit in

Berehe v. INS, 114 F.3d 159, 161 (10th Cir.1997), declined to follow the Yang approach. In Berehe,

the court applied IIRIRA § 309(c)(4)(G), which is a transitional rule restricting the judicial review

of the deportation of certain criminal aliens, as follows:

[T]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable

by reason of having committed a criminal offense covered in section 212(a)(2) or section

241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act ... or any offense

covered by section 241(a)(2)(A)(ii) of such Act ... for which both predicate offenses are,

without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of

such Act....

IIRIRA § 309(c)(4)(G).166 Rejecting the Yang approach, the court concluded that this language did

not "permit the court to review the merits of whether an alien is validly deportable by reason of

having committed one of the enumerated criminal offenses." Berehe, 114 at 161. In reaching this

conclusion the court specifically reasoned that:
67

To permit judicial review into the validity of the INS's determination that an alien is

deportable by reason of having committed one of the listed crimes, in the guise of making

a determination as to the court's jurisdiction, is to permit review of the very fact or condition

that the statute appears on its face to be precluding from review. We conclude that such

review is contrary to Congress's intent to expedite deportation of criminal aliens.

Id. at 162.

However, we observe two additional points about the Tenth Circuit's holding in Berehe.

First, although professing to follow Berehe, the Tenth Circuit in a subsequent case reviewed

constitutional and statutory claims raised by an alien who had been found deportable for a reason

enumerated in INA § 106(a)(10) before the court dismissed the case for lack of jurisdiction.

Wittgenstein v. INS, 124 F.3d 1244, 1245 (10th Cir.1997). Second, in Berehe, the Tenth Circuit did

not discuss IIRIRA's elimination of § 2241 habeas jurisdiction to review immigration matters, the

fact that jurisdiction to review immigration matters remains under only the INA, and the consequent

effect of criminal aliens being deprived of all judicial review under the INA. The Seventh Circuit

in Yang recognized these aspects of the problem and analyzed in considerable detail the potential

constitutional issues arising from the limitations placed on its jurisdiction. Accordingly, in addition

to being persuaded by the Seventh Circuit's construction of INA § 106(a)(10), we are convinced that

the court in Yang reached its conclusion after giving appropriate consideration to the issues arising

from such severe restrictions on judicial review.

J. INA §§ 242(b)(9) and (d) Require Final Removal Order

Before outlining our conclusions, we discuss another important IIRIRA mandate that our

sister circuits, in our view, have not given sufficient weight. Prior to IIRIRA, judicial review of the

INS' deportation decisions was unavailable before the entry of a final deportation order. That result
 1678 U.S.C. § 1105a (1994). 

 168See Massieu v. Reno, 91 F.3d 416, 421 (3d Cir.1996); see also I.N.S. v. Chadha, 462 U.S.

919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). 

 1698 U.S.C. § 1252(b)(9). The judges dissenting to the denial of rehearing en banc in the

Ninth Circuit's decision of American-Arab v. Reno concluded that IIRIRA unambiguously

foreclosed all judicial review of the non-criminal alien's claims until the entry of a final

deportation order, and that the INA § 242(g) so construed creates no genuine constitutional

difficulty. American-Arab Anti-Discrimination Comm. v. Reno, 132 F.3d 531 (9th Cir.1997)

(allowing aliens post-IIRIRA to seek an injunction in district court before a final removal order),

cert. granted, --- U.S. ----, 118 S.Ct. 2059, 141 L.Ed.2d 137 (June 1, 1998) (granting certiorari

on "[w]hether, in light of the Illegal Immigration Reform and Immigrant Responsibility Act, the

courts below had jurisdiction to entertain respondents' challenge to the deportation proceedings

prior to the entry of a final order of deportation"). 

68

was implicit in former INA § 106(a)167 which provided that review in the courts of appeal was the

"sole and exclusive procedure" for challenging a final deportation order, and which required

exhaustion of administrative remedies as a prerequisite to obtaining judicial review.168 IIRIRA

strengthened these pre-existing limitations on judicial review. In addition to retaining a mandatory

exhaustion provision, IIRIRA added INA § 242(b)(9) which now expressly provides that judicial

review is available of only "a final order."169

 Congress has chosen to delay federal court review of all claims of aliens against whom

removal proceedings have been instituted until the conclusion of the administrative proceedings.

Neither the district court nor this Court can override that decision. See, e.g., McCarthy v. Madigan,

503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (stating "where Congress specifically

mandates, exhaustion is required"); Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998). This

exhaustion requirement is statutorily mandated by the INA and not judicially created. Although

judicially developed exhaustion requirements might be waived for discretionary reasons by courts,

statutorily created exhaustion requirements bind the parties and the courts. When a statute requires
 170In McCarthy, the Supreme Court noted that where Congress specifically mandates, a

plaintiff must exhaust the administrative remedies available to him before he may file in federal

court, but held that there was no specific mandate in the pre-PLRA section 1997e(a) context. 

503 U.S. at 144, 112 S.Ct. 1081. 

 171See, e.g., FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-45, 101 S.Ct. 488, 66 L.Ed.2d

416 (1980) (holding agency's issuance of an administrative complaint was not subject to review

until final agency action despite its evident assumption that the propriety of the initial charging

decision would not be subject to administrative review); United States v. Hollywood Motor Car

Co., 458 U.S. 263, 268-70, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (holding that criminal

defendants could not immediately appeal the denial of motion to dismiss indictment based on

prosecutorial vindictiveness); Massieu v. Reno, 91 F.3d 416, 424-26 (3d Cir.1996) (holding

"[a]lthough the immigration judge is not authorized to consider the constitutionality of the

statute, this court can hear that challenge upon completion of the administrative proceedings"

and dismissing alien's complaint alleging irreparable selective enforcement in retaliation for an

exercise of First Amendment rights). 

 172See Weinberger v. Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). 

69

exhaustion, a petitioner's failure to do so deprives this court of jurisdiction. Importantly, mandatory

statutory exhaustion is not satisfied by a judicial conclusion that the requirement need not apply due

to futility. Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (holding

that where exhaustion is a statutorily specified jurisdictional prerequisite, "the requirement ... may

not be dispensed with merely by a judicial conclusion of futility").170

IIRIRA's mandate is consistent with the long-established administrative law principle that

courts should not intervene in an ongoing administrative agency process to reach potential

constitutional issues.171 Deferring Richardson's claims until the entry of a final order of deportation

does not raise substantial constitutional concerns. Congress has broad latitude to regulate the mode

and timing of judicial review of administrative agency decisions, even where constitutional claims

are involved. It is a familiar feature of administrative law that a litigant may be required to obtain

a final agency decision on all claims before being able to seek judicial review.172
 173Although the immigration judge is not authorized to consider the constitutionality of INA §

242(a)(2)(C), the court of appeals can hear such a challenge upon completion of the

administrative proceedings. See I.N.S. v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 77

L.Ed.2d 317 (1983). Ramallo v. Reno, 114 F.3d 1210 (D.C.Cir.1997). See footnote 178 infra.

Contrary to Richardson's arguments, the potential for an incomplete record on

appeal regarding alleged constitutional violations does not preclude any such violations

from being presented during review in the court of appeals. Pursuant to 28 U.S.C. §

2347(b)(3) (Supp.1998), an appellate court can transfer a case to district court in order to

develop a more complete factual record if deemed necessary. Accordingly, in the

absence of a factual record of an alleged constitutional violation due to an immigration

judge's inability to rule on such matters, the court of appeals can upon proffer transfer the

case to the district court. See e.g. Coriolan v. INS, 559 F.2d 993, 1003 (5th Cir.1977)

(Tuttle, J.) (applying the procedures in § 2347 in the immigration context). In

Richardson's particular case, we note that the facts in his case are basically undisputed

and that his constitutional claims raise primarily legal questions, such as the scope of

judicial review required by the Suspension Clause, that are not fact intensive or

necessarily in need of record development. 

70

This final-decision requirement avoids enmeshing courts in constitutional litigation about

the scope of judicial review left under INA that might prove to be unnecessary. For example,

Richardson raises numerous statutory issues before the BIA about INA § 101(a)(13)(C) and the

Fleuti doctrine that, if decided in his favor, would remove certain constitutional issues. This

requirement also avoids piecemeal review by consolidating all challenges to the deportation process

into a single judicial proceeding. Richardson's contentions that the INA, especially INA §

242(a)(2)(B), unconstitutionally restricts his judicial review can be made in his direct petition for

review in the court of appeals, just as the alien did in Boston-Bollers. Richardson does not need §

2241 habeas to do that.173

K. Alternative Review Under INA Satisfies Suspension Clause

We are not required to resolve the circuits' ongoing debate about whether judicial review

under the Suspension Clause approximates § 2241 habeas jurisdiction. This is so because the
 1748 U.S.C. §§ 1252(b)(2), 1252(b)(9), & 1252(d)(1) (Supp.1998). 

 1758 U.S.C. § 1252(b)(9) (Supp.1998). 

71

Supreme Court has held that the Suspension Clause permits Congress to replace habeas corpus with

another avenue of judicial review as long as that alternative vehicle is adequate and effective. Swain

v. Pressley, 430 U.S. 372, 383-84, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); see also Lonchar v.

Thomas, 517 U.S. 314, 116 S.Ct. 1293, 1298, 134 L.Ed.2d 440 (1996). Congress had done just that

in enacting IIRIRA. We find that the repeal of § 2241 habeas does not violate the Suspension

Clause because the INA, as amended by IIRIRA, still provides adequate and effective judicial

review.

In most immigration cases, non-criminal aliens, and even certain criminal aliens, facing

removal orders can seek adequate and effective judicial review under the INA by a petition for direct

review in the court of appeals after a final removal order. INA §§ 242(b)(2), 242(b)(9), &

242(d)(1).174 INA § 242(b)(9) expressly provides that this judicial review covers "all questions of

law and fact, including interpretation and application of constitutional and statutory provisions."175

A complication arises for Richardson only because the INA, within the confines of the INA,

places additional restrictions on the INA-proscribed judicial review for criminal aliens with certain

enumerated serious criminal offenses. Richardson asserts that INA § 242(a)(2)(C) precludes all

judicial review of removal orders against criminal aliens, and thus INA § 242(g)'s repeal of § 2241

habeas unconstitutionally removes his only remaining vehicle for judicial review. Alternatively,

Richardson argues that the INS' proposition—that INA § 242(a)(2)(C) still permits review of

"substantial constitutional claims"—does not satisfy the Suspension Clause's requirement of
 176INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (Supp.1998) (emphasis supplied), provides:

Notwithstanding any other provision of law, no court shall have

jurisdiction to review any final order of removal against an alien who is

removable by reason of having committed a criminal offense covered in section

212(a)(2) [covers certain controlled substance offenses] or 237(a)(2)(A)(iii), (B),

(C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both

predicate offenses are, without regard to their date of commission, otherwise

covered by section 237(a)(2)(A)(i).

Id. INA § 237 is codified in 8 U.S.C. § 1227 (Supp.1998). INA § 212 is codified in 8

U.S.C. § 1182 (Supp.1998). 

72

adequate and effective review which, Richardson says, means judicial review of all constitutional

and statutory errors.

For several reasons, we reject Richardson's contention that he will not have adequate and

effective review under the INA. First, Congress clearly has the power to repeal § 2241 habeas

jurisdiction over immigration decisions in the inferior courts and to provide for judicial review of

immigration decisions exclusively under a different jurisdictional statute, to wit: the INA. Congress

has the power to remove all immigration decisions from the jurisdiction of the district courts, which

is exactly what Congress has done. Second, in enacting the INA, Congress has the power to outline

the mode and timing of judicial review under the INA, to wit: only by direct petition for review in

the court of appeals and only after a final removal order.

Third, Congress has the power to mandate detention and removal of aliens with serious

criminal convictions and to expedite their removal by limiting judicial review over their detention

and removal to the fullest extent allowed under the Constitution. This is why Congress enacted,

within the INA's judicial-review scheme, the additional restriction on judicial review found in INA

§ 242(a)(2)(C).176
 177See full text of INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), at footnote 176 supra. 

 178See Morel v. INS, 144 F.3d 248 (3d Cir.1998); Mansour v. INS, 123 F.3d 423, 426 (6th

Cir.1997); Boston-Bollers, 106 F.3d 352 (11th Cir.1997); Okoro v. INS, 125 F.3d 920, 923 (5th

Cir.1997); Fernandez v. INS, 113 F.3d 1151, 1154 (10th Cir.1997) (noting the government

conceded judicial review was available for "substantial" constitutional errors); Yang v. INS, 109

F.3d 1185 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, --- U.S. ----, 118 S.Ct. 624, 139

L.Ed.2d 605 (1997); Yeung v. INS, 76 F.3d 337 (11th Cir.1995); Massieu v. Reno, 91 F.3d 416,

420-24 (3d Cir.1996) (district court lacked jurisdiction to entertain constitutional challenge to

deportation order, which court of appeals had exclusive jurisdiction to entertain); PerezOropeza v. INS, 56 F.3d 43, 45-46 (9th Cir.1995); Raya-Ledesma v. INS, 42 F.3d 1263, 1265

(9th Cir.), modified by 55 F.3d 418 (9th Cir.1994). But compare Chow v. INS, 113 F.3d 659, 667

(7th Cir.1997) (deciding jurisdictional bar itself, in INA § 106(a)(10) enacted by AEDPA §

73

 While INA § 242(a)(2)(C) significantly restricts Richardson's judicial review, we disagree

with Richardson's contention that this INA provision leaves him without any judicial review in

violation of the Suspension Clause. Courts of appeal retain jurisdiction under INA § 242(a)(2)(C)

to determine whether the jurisdictional bar in that section applies. See Yang, 109 F.3d at 1192;

Okoro v. INS, 125 F.3d at 925; Anwar, 116 F.3d at 144; Coronado-Durazo, 123 F.3d at 1323. But

cf., Berehe v. INS, 114 F.3d at 161. INA § 242(a)(2)(C) does not state that judicial review is

prohibited if the Attorney General finds that the person being removed is an alien and removable

for a reason covered in INA § 242(a)(2)(C). To the contrary, jurisdiction is prohibited if such

conditions actually exist. Under the language of INA § 242(a)(2)(C), in order to decide whether the

jurisdictional bar applies, courts must determine that the removal order: (1) "is against an alien" (2)

"who is removable" (3) "by reason of having committed a criminal offense covered" in certain

enumerated sections.177

 In addition to these three jurisdictional facts, a court of appeal retains jurisdiction to

entertain a constitutional attack on this INA statute as part of an alien's petition for review of a final

order under the INA.178 If judicial review of a constitutional attack on a jurisdiction-stripping statute
440(a), did not violate Article III or Due Process Clause but declining to find sufficient

jurisdiction under that jurisdictional bar to consider the alien's other constitutional claims that

procedures in the BIA proceedings violated his constitutional rights because Chow still had other

potential avenues for relief remaining open for those constitutional claims such as a writ

pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 1651 or Art. I, § 9 cl.2); Turkhan v. INS, 123 F.3d

487, 489 (7th Cir.1997) (following Chow, and noting other avenues of habeas review were still

available and therefore INA § 106(a)(10) is unlike other "true door-closing statutes—[where] the

constitutional claims ... would be reviewed either pursuant to the statutes at issue or not at all"). 

Lerma de Garcia v. INS, 141 F.3d 215, 217 (5th Cir.1998) (holding INA § 106(a)(10) forecloses

all judicial review including constitutional claims in the context raised as "criminal deportees

retain some opportunity to apply for writs of habeas corpus"). Williams v. INS, 114 F.3d 82, 83-

84 (5th Cir.1997); Nguyen v. INS, 117 F.3d 206, 207 (5th Cir.1997). The courts strictly

foreclosing all review under INA § 106(a)(10) did so in large part because § 2241 habeas

jurisdiction remained available. That is no longer the case. 

 179In addition to his claim that INA § 242(a)(2)(C) conflicts with the Suspension Clause, we

recognize that Richardson also alleges that he has been denied equal protection guaranteed under

the Due Process Clause of the Fifth Amendment. An alien facing removal from the United

States as inadmissible can request review of bond/release decisions only from the INS district

director, but an alien being removed based on deportability can seek review from an immigration

judge. Richardson contends that this disparate treatment constitutes a violation of equal

74

in this court of appeals was not foreclosed by INA § 106(a)(10), Boston-Bollers, 106 F.3d at 352,

it is not foreclosed by INA § 242(a)(2)(C). This approach is consistent with the admonition in

Heikkila v. Barber, 345 U.S. 229, 234, 73 S.Ct. 603, 97 L.Ed. 972 (1953), that "Congress ... intended

to make these administrative decisions non-reviewable to the fullest extent possible under the

Constitution."

 Thus, we find that the INA still assures Richardson a significant degree of judicial review

in the court of appeals after a final removal order, despite INA § 242(a)(2)(C). While that review

is definitely restricted, INA § 242(a)(2)(C) does not remove all judicial review. Any constitutional

infirmities Richardson perceives in that INA-proscribed judicial review must be raised in an attack

on the constitutionality of INA § 242(a)(2)(C) only in the court of appeals and only after a final

removal order.179 If review of such questions under INA § 242(a)(2)(C) does not satisfy the
protection.

As a permanent resident alien, Richardson enjoys equal-protection rights. Yick

Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Classifications in

the immigration context are subject to the rational-basis standard under which a

classification is valid if rationally related to a legitimate government purpose. Yeung v.

INS, 76 F.3d 337, 339 (11th Cir.1995) (addressing waivers under former INA § 212(h)). 

An arguable fatal defect in Richardson's equal-protection argument is that most resident

aliens returning to the United States can re-enter summarily. Thus, it is returning aliens

with serious criminal convictions, not all returning aliens, that are deemed "seeking

admission," detained, and restricted to seeking bond from the INS district director. The

INS has a valid interest in using ports of entry as a screening mechanism for removing

criminal aliens expeditiously and restricting bond decisions to review by the district

director, as opposed to admitting them and then instituting deportation proceedings. The

Supreme Court has recognized that although a permanent resident alien who is returning

from a brief trip abroad enjoys rights to procedural due process, such aliens do not have a

right to "identical treatment" to a permanent resident alien who has not left the country. 

Landon v. Plasencia, 459 U.S. 21, 31, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982).

Although we briefly comment on the merits of Richardson's equal-protection

claim, this claim is precisely the type of claim that Richardson must raise on a petition

for review after a final removal order has been issued. Thus, we do not resolve the

equal-protection issue or whether review of this type of constitutional claim is permitted

under INA § 242(a)(2)(C), or, if not, whether INA § 242(a)(2)(C) violates the Suspension

Clause. 

75

Suspension Clause and INA § 242(a)(2)(C) is held to be unconstitutional, then at worst Richardson

will be left with the INA's underlying general judicial review of "all questions of law and fact"

available under INA §§ 242(b)(2) and 242(b)(9) in the court of appeals. Such judicial review clearly

satisfies the Suspension Clause.
 180IIRIRA Title VI subtitle E specifically provides for severability:

SEVERABILITY.—If any provision of this division or the application of such

provision to any person or circumstances is held to be unconstitutional, the

remainder of this division and the application of the provisions of this division to

any person or circumstance shall not be affected thereby. 

 181This applies not only to Richardson's claims about INA § 242(a)(2)(C) but also to

Richardson's constitutional claims regarding the effect of INA § 236(e) (restricted judicial

review of bond and parole decisions) and INA § 242(a)(2)(B)(ii) (restricted judicial review of

discretionary decisions). Similar to footnotes 179 and 182, we do not address whether INA §

242(a)(2)(C) permits, or whether the Suspension Clause requires, the judicial review of all

constitutional claims or only "substantial constitutional claims" as the INS contends. We do

know, however, from Boston-Bollers and Yang that, at a minimum, judicial review exists under

INA § 242(a)(2)(C) to determine whether that jurisdictional bar applies and whether that

jurisdictional bar violates the Suspension Clause. 

76

IIRIRA expressly provides for the severability of its numerous provisions.180 Therefore, even

if a court of appeals were to find INA § 242(a)(2)(C) does not satisfy the Suspension Clause, this

does not mean that INA § 242(g)'s repeal of § 2241 habeas is unconstitutional. What it means is that

without INA § 242(a)(2)(C)'s specific additional limitations on judicial review under the INA,

Richardson then could avail himself of the general judicial review provided under INA §§ 242(b)(2)

and 242(b)(9). Thus, Richardson's concerns at most boil down to whether INA § 242(a)(2)(C) is

unconstitutional, and not whether INA § 242(g)'s repeal of § 2241 is constitutional. IIRIRA

mandates that constitutional claims about the INA's provisions be made in only one place and one

time: in the court of appeals and after a final removal order.181

We pause to observe that Richardson's removal order is based on his having a

cocaine-trafficking conviction, which is deemed an aggravated felony conviction under the INA and

is a basis for both inadmissibility and deportation under the INA. We also note that Richardson does

not dispute that he is an alien. Making sure that the BIA record establishes the jurisdictional facts
77

under INA § 242(a)(2)(C)—that the criminal alien: (1) is "an alien," not a citizen; (2) "who is

removable"; (3) "by reason of having committed a criminal offense covered" in certain enumerated

sections—goes a long way, and very well may be sufficient in this particular type case, to provide

an adequate and effective collateral judicial review of the validity of Richardson's executive

detention and removal order. This is so at least where the sole basis of an alien's being detained and

removed is one fact: his having committed an aggravated felony conviction as defined by the
 182Judicial review of statutory and legal errors is expressly provided for under INA §§

242(b)(2) and 242(b)(9). In this case, we do not address whether INA § 242(a)(2)(C) permits, or

whether the Suspension Clause requires, the judicial review of statutory or legal errors other than

to the extent necessary to determine whether a jurisdictional bar to judicial review exists. 

Several courts have addressed this issue and reached different conclusions.

The Second Circuit reasoned, albeit in dicta, that the nature of the Suspension

Clause suggests that it preserves a writ which encompasses statutory claims. In

Henderson, the Second Circuit observed that "before the Constitution was enacted, the

writ could only have been granted based on errors of law, since there was no such thing

as a constitutional error." 157 F.3d at 121 n. 13. The court also noted that, especially

since the Bill of Rights was not adopted until 1791, it would not "have made much sense

for the framers to have intended the writ ... to be available just for the enforcement of

rights protected by the new Constitution." Id. Thus, according to the Second Circuit "the

Constitution itself inevitably seems to mandate habeas corpus review of some statutory

questions." Id. Perhaps as further support for this interpretation, statutory errors in

executive detention historically have been reviewed under § 2241 and its precursor

statutes. See, e.g., Felker, 518 U.S. at 661, 116 S.Ct. 2333; Delgadillo v. Carmichael,

332 U.S. 388, 390-91, 68 S.Ct. 10, 92 L.Ed. 17 (1947); Bridges v. Wixon, 326 U.S. 135,

149, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); Kessler v. Strecker, 307 U.S. 22, 35, 59 S.Ct.

694, 83 L.Ed. 1082 (1939); Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 68 L.Ed. 549

(1924); Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915); Gonzales v.

Williams, 192 U.S. 1, 24 S.Ct. 177, 48 L.Ed. 317 (1904); The Japanese Immigrant Case,

189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Ekiu v. United States, 142 U.S. 651, 12

S.Ct. 336, 35 L.Ed. 1146 (1892). The precursor statute to § 2241 did not specifically

mention that constitutional claims could support the issuance of a writ of habeas corpus

until 1867. See Felker, 518 U.S. at 659-60, 116 S.Ct. 2333.

Conversely, other courts have concluded that the judicial review under § 2241 is

significantly broader than the judicial review available in the writ protected by the

Suspension Clause. The Seventh Circuit noted that "28 U.S.C. § 2241 offers an

opportunity for collateral attack more expansive than the Great Writ preserved in the

Constitution." Yang v. INS, 109 F.3d at 1195. In this same vein, the Seventh Circuit also

noted that "[t]here is a vast gulf between the non-suspendable constitutional writ and the

Administrative Procedures Act." Id.; see also Felker, 518 U.S. at 663, 116 S.Ct. 2333

("The class of judicial actions reviewable by the writ [as known to the Framers] was

more restricted as well.").

We recognize that Richardson asserts other legal or statutory errors, such as the

Fleuti issue, but no court should decide whether jurisdiction exists either under or despite

INA § 242(a)(2)(C) to address those errors until after a final removal order. This is what

78

INA.182 This is especially true since discretionary relief from, and cancellation of, that type of
IIRIRA mandates. We need not enter this debate about what the Suspension Clause

requires and whether INA § 242(a)(2)(C)'s limitations on judicial review violate the

Suspension Clause; even if that section were held unconstitutional, Richardson still has

adequate and effective review under INA §§ 242(b)(2) and 242(b)(9). 

 183See footnotes 11 and 27 supra. 

 184Whether Richardson may seek a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, or an

Art. I § 9, cl.2 writ in the Supreme Court is an issue we need not address as Richardson sought

only § 2241 habeas jurisdiction. Because we find, to the extent required by the Constitution,

Richardson's claims can be sufficiently reviewed under INA §§ 242(b)(2), 242(b)(9), and

242(a)(2)(C), we also do not address the INS' alternative contention that INA § 242(g)'s repeal of

§ 2241 habeas does not violate the Suspension Clause because some form of "residual" habeas

exists under a constitutional writ, unaided by statute, to address "fundamental miscarriage of

justice" and that Richardson's constitutional and legal claims do not rise to a "fundamental

miscarriage of justice." 

79

removal is no longer allowed under the INA.183

In summary, Congress through IIRIRA indisputably intended to remove all jurisdiction in

the district courts and to abbreviate the judicial review of removal orders against criminal aliens to

the fullest extent allowed by the Constitution. Preserving judicial review in the court of appeals

under the INA, to the extent necessary to pass constitutional muster, more closely approximates

congressional intent than the anomalous situation of disregarding the plain language of INA § 242(g)

and preserving a layer of additional judicial review in the district courts for criminal aliens for whom

Congress intended to expedite removal by restricting judicial review to the extent it could.184

V. CONCLUSION

After careful consideration, we conclude that INA § 242(g) repeals § 2241 habeas

jurisdiction over immigration decisions. Even if this repeal leaves Richardson with no judicial

review of his detention or removal, the repeal of § 2241 does not violate the Due Process Clause or

Article III. The Due Process Clause is not violated because Richardson's constitutional rights as a

permanent resident alien are fully met by the INA's extensive procedures for bond decisions, parole
 185See, e.g., S.Rep. No. 104-48 at 2-6 (1995) (discussing the presence of at least "450,000

criminal aliens in the United States who are currently incarcerated or under some form of

criminal justice supervision," the fact that "the Federal Bureau of Prisons confines about 22,000

criminal aliens—25 percent of the total Federal prison population," the "confinement of criminal

aliens in state and federal prisons costs ... approximately $724,000,000 in 1990," that the "INS is

overwhelmed by the criminal alien problem," and that "criminal aliens are ... a growing drain on

scarce criminal justice resources."). 

80

decisions, and removal proceedings. Article III is not violated because Article III does not mandate

the judicial review of immigration matters but instead leaves establishing the jurisdiction of the

inferior federal courts to Congress.

This repeal also does not violate the Suspension Clause. INA § 242(a)(2)(C) does not

remove all judicial review. At a minimum, judicial review remains available to Richardson under

INA § 242(a)(2)(C) to determine if the specific conditions exist that would bar jurisdiction. If the

bar applies, jurisdiction remains to consider whether the level of judicial review remaining in INA

§ 242(a)(2)(C) in a particular case satisfies the Suspension Clause. If not, Richardson can pursue

adequate and effective judicial review of statutory and constitutional issues under INA §§ 242(b)(2)

and 242(b)(9). However, IIRIRA mandates the mode and timing of any constitutional attack on INA

§ 242(a)(2)(C) or any other INA provisions: only in the court of appeals, only after a final removal

order has been issued, and only after Richardson has exhausted all administrative remedies.

In enacting IIRIRA, Congress has mandated the detention and expedited the removal of

aliens, including long-term permanent resident aliens, who commit serious criminal offenses while

in the United States. Richardson correctly points out many harsh consequences created by these new

immigration laws, but those consequences are not the result of constitutional violations but are the

result of political decisions made by Congress exercising its plenary power to regulate

immigration.185 As outlined in this decision, the Supreme Court has recognized repeatedly that
81

immigration decisions present peculiarly political issues to be decided by the executive and

legislative branches. Our judicial task is not to rewrite these new immigration laws, but to apply

these laws as written by Congress to the full extent permitted by the Constitution. We have done

so.

Accordingly, we REVERSE the decision of the district court, VACATE the stay entered by

this Court on February 23, 1998, and direct the district court to dismiss Richardson's petition for lack

of subject matter jurisdiction.

REVERSED AND VACATED.