* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

 

1 Petitioner’s name appears on some pleadings in the record

as Masournejad Masoud and on others as Masoud Masournejad.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-30072 

 

MASOURNEJAD MASOUD,

Petitioner-Appellant,

versus

JANET RENO, U S Attorney General;

GARY L HENMAN;

Respondents-Appellees.

 

Appeal from the United States District Court

For the Western District of Louisiana

(96-CV-431)

 

January 8, 1998

Before WISDOM, HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

Masournejad Masoud1 appeals the district court’s denial of

his petition for writ of habeas corpus under 28 U.S.C. § 2241,

for failure to exhaust his administrative remedies. We DISMISS

for lack of jurisdiction.
 

2 At the time, § 1251(a)(1)(A) provided that any alien at

the time of entry into this country who is within one of four

following classes is excludable:

(1) an alien convicted of a violation of law relating to a

controlled substance; 

(2) an alien who sought to procure entry into the United

States by fraud; 

(3) an alien who was not in possession of a valid entry

document; and 

(4) a non-immigrant alien not in possession of a valid nonimmigrant visa. 

2

I.

Masournejad Masoud is a native and citizen of Iran. In

1983, he left Iran as a refugee to reside in Canada. Masoud

lived in Canada until 1994, when he entered the United States

without a visa and under fraudulent pretenses. Prior to entering

the United States, he was convicted in Canada of conspiracy to

traffic in a narcotic. He was sentenced to 30 months in prison

and allegedly served 11 months of this term. He was then

released to a halfway house for six months before being released

on parole.

On October 26, 1994, the Immigration and Naturalization

Service (INS) issued an order to show cause against Masoud,

charging him with deportability under 8 U.S.C. § 1251(a)(1)(A)2. 

After the issuance and service of an arrest warrant, Masoud came

into INS custody at Oakdale, Louisiana on November 7, 1994. 

Since Masoud fell within the definition of an “aggravated felon”

under immigration law due to his conviction in Canada, he was

detained without bond. He did not request a bond redetermination

hearing. After a deportation hearing, Masoud was found
3

deportable and, at Masoud’s request, the Immigration Judge

ordered him deported to Canada. Masoud was advised, however,

that if Canada was unwilling to accept him or failed to respond

to the Attorney General’s inquiry within three months, he would

be deported to his native country of Iran.

Masoud waived his appeal rights at the hearing, but

nonetheless filed a notice of appeal with the Board of

Immigration Appeals (BIA) alleging that the Immigration Judge

committed prejudicial error in finding him deportable. He then

withdrew his appeal, and the order of deportation became final. 

However, the Canadian Government refused to accept Masoud, and

the INS was unable to obtain travel documents from Iran.

On February 26, 1996, Masoud filed a petition for writ of

habeas corpus in the district court. On October 11, 1996, a

magistrate judge recommended denial of the petition as premature

because Masoud had failed to exhaust his administrative remedies. 

On December 23, 1996, the district court agreed with the

magistrate judge’s recommendations and denied his petition. 

Masoud filed a timely notice of appeal. 

In response to Masoud’s motion to proceed in forma pauperis,

the district court ordered him to pay $10.60 as an initial

partial filing fee and to make payments of 20% of the monthly

income in his account until the full $105 fee is paid.

II.

A.
4

Masoud contends that there are no administrative remedies

available to him, and even if there were, resort to them would be

futile. He contends that he is being detained unconstitutionally

because 8 U.S.C. § 1252(a)(2)(A) is unconstitutional, and that

the district court’s decision was the result of “prejudice and

bigotry against aliens.” Relying on § 1252(c), he argues that he

should be released from custody because the INS has been unable

to deport him within six months of his final order of

deportation. He also contends that he is entitled to release

under supervision or under bond. 

Masoud requests this Court to declare that: (i) exhaustion

of administrative remedies is not required; (ii) 8 U.S.C.

§ 1252(a)(2)(A) is unconstitutional; and (iii) illegal aliens are

entitled to the same rights as legal aliens.

B.

Jurisdiction of the federal courts over habeas corpus

petitions filed by aliens was significantly narrowed when

Congress amended the Immigration and Nationality Act (INA) by

enacting the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) on September 30, 1996, and

the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA) on April 24, 1996. Our first inquiry is whether this

Court has jurisdiction to review Masoud’s request for habeas

relief. 
5

Section 306(a) of the IIRIRA adds the following new

subsection to Section 242 of the INA:

(g) EXCLUSIVE JURISDICTION.-- Except as provided in this

section and notwithstanding any other provision of law, no

court shall have jurisdiction to hear any cause or claim by

or on behalf of any alien arising from the decision or

action of the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any

alien under this chapter. 

See IIRIRA § 306(a) (codified at 8 U.S.C. § 1252(g)). 

Congress divested the courts of jurisdiction by enacting this

statute in order to streamline the appeal and removal process by

preventing delays in the deportation of aliens convicted of

crimes. See H. Rep. No. 104-469(I), 104th Cong., 2d Sess. 359,

463 (1996). § 1252(g) constitutes clear and convincing evidence

that Congress intended to preclude judicial review. See Block v.

Community Nutrition Inst., 467 U.S. 340, 349 (1984). 

Section 309 of the IIRIRA, titled “EFFECTIVE DATES;

TRANSITION,” sets out procedures for making the transition from

the INA to the IIRIRA. Section 309(a), which establishes the

effective date for most of the amendments in Title III of the

IIRIRA, states:

(a) IN GENERAL.-- Except as provided in this section and

sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of

this division, this subtitle and the amendments made by this

subtitle shall take effect on the first day of the first

month beginning more than 180 days after the date of the

enactment of this Act.

Since the IIRIRA was enacted on September 30, 1996, the effective

date provided by § 309(a) is April 1, 1997.

An express exception to the language in § 309(a), which

calls for prospective application of the IIRIRA, is found in §
6

306(c) which provides for retroactive application of INA § 242 (8

U.S.C. § 1252(g)). Section 306(c) of the IIRIRA, titled

“EFFECTIVE DATE,” states:

(c) EFFECTIVE DATE.

(1) IN GENERAL.-- Subject to paragraph (2), the amendments

made by subsections (a) and (b) shall apply as provided

under Section 309, except that subsection (g) of section 242

of the Immigration and Nationality Act (as added by

subsection (a)), shall apply without limitation to claims

arising from all past, pending, or future exclusion,

deportation, or removal proceedings under such Act.

See IIRIRA § 306(c)(1).

Several other courts have also concluded that 8 U.S.C. §

1252(g) is to apply retroactively. American-Arab AntiDiscrimination Comm. v. Reno, 119 F.3d 1367, 1371 (9th Cir.

1997); Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir. 1997);

Ramallo v. Reno, 114 F.3d 1210, 1211-12 (D.C. Cir. 1997),

petition for cert. filed, 66 U.S.L.W. 3264 (U.S. Sep. 24, 1997)

(No. 97-526); Safarian v. Reno, 968 F. Supp. 1101, 1105 (E.D. La.

1997). However, courts have been divided over whether the

retroactive effect of § 1252(g) became effective on September 30,

1996, the enactment date of the IIRIRA, see, e.g., Ugwoezuono v.

Schiltgen, 1997 WL 102499, *3 (N.D. Cal. 1997), or April 1, 1997,

the effective date of the IIRIRA, see, e.g., Lalani v. Perryman,

105 F.3d 334, 336 (7th Cir. 1997). With respect to the instant

case, this is a distinction without a difference because §

1252(g) is effective now since both dates have passed. 

Therefore, §1252(g) deprives federal courts of jurisdiction. The

appeal must be then dismissed and the case remanded with
7

instruction to dismiss the petition for want of jurisdiction, if

the withdrawal of jurisdiction is constitutional.

C. 

Masoud alleges that the pre-IIRIRA § 1252(a)(2) is

unconstitutional. Under the IIRIRA which was enacted after this

petition was filed, his continued detention would now be governed

by a new provision §1226(c). We decline to address the

constitutionality of the new statute without it being raised by

the parties before the administrative agency and the district

court.

III.

We DISMISS Petitioner’s appeal for lack of jurisdiction and

dismiss his pending motions as moot.