Dominick AKINWALE, Plaintiff-Appellant,

v. Janet RENO, Honorable, U.S. Attorney General; PaulW. Schmidt, Chairman (BIA), et al., DefendantsAppellees.
No. 99-10823 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit.

June 30, 2000.Appeal from the United States District Court for the Northern District of Georgia.(No. 99-00324-CV-A-JEC1), Julie E. Carnes, Judge. Before TJOFLAT, BARKETT and HULL, Circuit Judges. HULL, Circuit Judge: Dominick Akinwale appeals from the district court's order dismissing for lack of subject matter jurisdiction his § 2241 habeas petition challenging a final deportation order. 28 U.S.C. § 2241. After review, we conclude that the district court had subject matter jurisdiction and thus reverse.
I. BACKGROUND A. Immigration Proceedings Akinwale is a native and citizen of Nigeria. In September 1984, Akinwale lawfully entered the United States on an F-1, nonimmigrant visa. In May 1987, Akinwale was granted permanent resident status. In March 1993, Akinwale was convicted in state court of trafficking heroin and sentenced to twenty-five years' imprisonment. In January 1995, the Immigrati on and Naturalization Service ("INS") ordered Akinwale to show cause why he should not be deported based on his drug-trafficking conviction, which the INS characterized as an "aggravated felony" under § 101(a)(43) of the Immigration and Nationality Act (the "INA").1 The pre- and post-AEDPA versions of INA § 212(c) are discussed at length in Alanis-Bustamante v. Reno, 201 F.3d 1303, 1305 n. 6 (11th Cir.2000). 

## 2 At his deportation hearing on June 25, 1996, Akinwa le, with counsel, conceded his deportability due to his conviction, but requested a waiver of de portation under INA § 212(c) (1994). The problem for Akinwale was that § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104- 132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"), had ame nded INA § 212(c) to expand the types of felonies that rendered an alien ineligib le for a waiver of deportation. 1 At the June 25, 1996 hearing, the Immigration Judge ("IJ") found Akinwale deportable as charged. Due to his drug-trafficking conviction, the IJ also concluded that Akinwale was statutorily ineligib le for a waiver of deportation under INA § 212(c), as amended by AEDPA § 440(d). Thus, the IJ denied Akinwale's § 212(c) request. Akinwale appealed. On March 10, 1997, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision that Akinwale was statutorily ineligible for waiver of deportation under INA § 212(c), as amended by AEDPA § 440(d). The BIA also noted that Akinwale could move to have his proceedings reopened for the limited purpose of challenging the IJ's deportability determination under Matter of Soriano, Int. Dec. 3289 (A.G., Feb. 21, 1997). In Soriano, the Attorney General ruled that AEDP A § 440(d) should be applied to INA § 212(c) cases pending on AEDPA's effective date. Int. Dec. 3289 (A.G., Feb. 21, 1997). However, the Attorney General recognized "the remote possibility that an alien who had a colorable defense to deportability may have conceded deportability in reliance on the availability of section 212(c) relief." Id. To eliminate that possibility, the Attorney General directed that, upon petition by an alien who had conceded deportability before AEDPA's April 24, 1996 effective date, that alien's case should be reopened for the limited purpose of permitting that alien to contest deportability. Id. Accordingly, on March 26, 1997, Akinwale requested the BIA to reopen his deportation proceedings. On April 11, 1997, the BIA granted Akinwale's request and remanded the proceedings to the IJ. On October 3, 1997, the IJ again found Akinwale deportable and orde red Akinwale deported to Nigeria. Akinwale did2 We note that Akinwale's § 2241 petition states that he requested the BIA to reopen his deportation proceedings a second time on November 27, 1998, but that request was denied.

3 We review issues of subject matter jurisdiction de novo. See Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir.1999); Mayers v. INS, 175 F.3d 1289, 1295 (11th Cir.1999).

4 Under IIRIRA, deportation orders are now called removal orders. See8 U.S.C. § 1229a. 

## 3 not appeal the IJ's second deportability determination to the BIA, and the time for such an appeal has expired. Thus, Akinwale's administrative proceedings are conc luded, and Akinwale remains subject to a final deportation order. 2
B. Section 2241 Habeas Petition On February 1, 1999, Akinwale filed his § 2241 habeas petition asserting that the BIA erred in applying AEDPA § 440(d) retroactively to his § 212(c) re quest. Akinwale asked the district court to issue a writ requiring the BIA to reopen his deportation proceedi ngs and reconsider his § 212(c) request. In April 1999, the district court dismissed his § 2241 petition for lack of subject matter jurisdiction, but later granted a certificate of appealability on the jurisdictional issue. Thus, we now review whether the district court had jurisdiction over Akinwale's § 2241 petition. 3
II. DISCUSSION To answer this jurisdictional issue, we first outline the provisions of the AEDPA and the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"), relevant to review of final deportation or removal orders. 4We then examine this circuit's decisions addressing § 2241 habeas jurisdiction in the post-AEDPA and IIRIRA era. Finally, we outline why the district court had subject matter jurisdiction over Akinwale's § 2241 petition under the particular circumstances of this case. A. AEDPA and IIRIRA Prior to the enactment of AEDPA and IIRIRA, INA § 106(a)(10) provided that aliens held "in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus

## 4 proceedings." 8 U.S.C. § 1105a(a)(10) (repealed 1996). In addition, this Court had recognized that aliens could challenge deportation pro ceedings through a petition for habeas relief under 28 U.S.C. § 2241. See Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990). In 1996, however, both AEDPA and IIRIRA restricted certain judicial review in immigration cases. Specifically, AEDPA § 401(e) repealed former INA § 106(a)(10), which had permitted in-custody aliens to obtain judicial review of a deportation orde r through habeas corpus proceedings. In lieu thereof, Congress enacted AEDPA § 440(a), whic h restricted judicial review as follows: "Any final order of deportation against an alien who is deportable by reason of having committe d [certain crimes that carry a deportation consequence under the INA] shall not be subject to review by any court." 8 U.S.C. § 1105a(a)(10) (repealed by IIRIRA). AEDPA § 440(a) became effective on April 24, 1996. Subsequently, IIRIRA replaced AEDPA § 440(a) with a new structure for judicial review. See IIRIRA § 306. IIRIRA, which became effective on Apr il 1, 1997, contains two sets of provisions relating to review of final deportation orders: the transitional rules and the permanent rules. SeeIIRIRA § 309(c)(4); Alanis-Bustamante v. Reno, 201 F.3d 1303, 1306 (11th Cir.2000); Richardson v. Reno, 180 F.3d 1311, 1313 n. 2 (11th Cir.1999). As summarized in Alanis-Bustamante, Congress has now divided deportation or removal cases into these three categories: (1) Proceedings that culminated in a fina l order before October 31, 1996 are governed by AEDPA § 440(a); (2) Proceedings that culminated in a final order after October 31, 1996, but that commenced before April 1, 1997 (the effec tive date of IIRIRA) are governed by the INA as amended by the special transitional rules of IIRIRA; (3) Proceedings that commenced after April 1, 1997 are governed by the provisions of the INA as permanently amended by IIRIRA. Alanis-Bustamante, 201 F.3d at 1306-07. Furthermore, four recent cases in this circuit address the availability of § 2241 jurisdiction post-AEDPA and IIRIRA: Innab v. Reno, 204 F.3d 1318 (11th Cir.2000); Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th Cir.2000); Mayers v. INS, 175 F.3d 1289 (11th Cir.1999);5Innab, Alanis-Bustamante, Mayers, and Richardson were all decided after the district court's order dismissing Akinwale's § 2241 petition for lack of subject matter jurisdiction. Therefore, the district court was without the benefit of these decisions. 

## 5 Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998) (" Richardson I "), vacated, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (June 1, 1999) (mem.), on remand, 180 F.3d 1311 (11th Cir.1999) (" Richardson II "), cert. denied, --- U.S. ----, 120 S.Ct. 1529, 146 L.Ed.2d 345 (2000). 5 Mayers, Innab , andAlanis-Bustamanteare transitional rule cases, and Richardson is a permanent rule case. As outlined later, we conclude Akinwale's § 2241 petition is governed by the transitional rules. Thus, we discuss Richardson only briefly and then focus more on Mayers, Innab, and Alanis-Bustamante. B. Richardson The removal proceedings in Richardson did not commence until October 1997—after IIRIRA's effective date of April 1, 1997. Section 306(a)(2) of IIRIRA contains IIRIRA's permanent rules and enacts INA § 242. 8 U.S.C. § 1252. In Richardson I, this Court held that INA § 242 allows for judicial review in only the federal court of appeals and only afte r entry of a final order of deportation. Richardson I, 162 F.3d
at 1378-79. In Richardson I, this Court further held that IIRIRA thus eliminated the district courts' § 2241 habeas jurisdiction to review immigrati on decisions in permanent rule cases. Id. In reaching this decision, Richardson I relies on several IIRIRA provisions, such as INA §§ 242(g), 242(b)(2), and 242(b)(9). Id. at 1356-79. After Richardson I, the Supreme Court decided Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("American-Arab "), and held that INA § 242(g) applies to only three discrete immigration decisions of the Attorney General—decisions to "commence proceedings, adjudicate cases, or execute removal orders." American-Arab, 119 S.Ct. at 943. On June 1, 1999, the Supreme Court issued a one-paragraph order remanding Richardson I for reconsideration in light of American-Arab. Richardson v. Reno, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (1999). On remand, this Court in Richardson II reaffirmed its prior conclusion that in permanent rule cases, IIRIRA allows judicial review in only the court of appeals after a final deportation order and eliminates6 Similarly, Richardson II, which was decided after Mayers, also emphasizes that Mayers was decided under IIRIRA's transitional rules rather th an the permanent rules applicable in Richardson. See Richardson II, 180 F.3d at 1315 n. 6. Therefore, most of IIRIRA's revisions to the INA, including INA § 242(b)(9), relied on in Richardson I and II, did not apply in Mayers. See id. 

## 6 district courts' § 2241 habeas jurisdiction "over cha llenges to removal orders, removal proceedings, and detention pending removal." Richardson II, 180 F.3d at 1315. This time we relied on INA §§ 242(b)(9) and 242(b)(2), along with the overall revisions throughout INA § 242. Id. On March 27, 2000, the Supreme Court denied certiorari in Richardson II. See Richardson v. Reno, --- U.S. ----, 120 S.Ct. 1529, 146 L.Ed.2d 345 (2000). C. Mayers, Innab, and Alanis-Bustamante The availability of § 2241 jurisdiction in transitiona l rule cases, however, was addressed by this Court
in Mayers, Innab, and Alanis-Bustamante. Mayers stresses that whereas Richardson I involved IIRIRA's permanent rules, Mayers concerns the different transitional rules. 175 F.3d at 1297-98 & nn. 9 & 11. 6 Mayers then addresses whether § 2241 habeas jurisdiction survives the enactment of AEDPA, as modified by IIRIRA's transitional rules. Id. at 1297. The Mayers Court held "that for aliens whose petitions fall within the purview of IIRIRA's transitional rules and who seek review of a final orde r of deportation, AEDPA's elimination of § 106(a)(10)'s grant of habeas jurisdiction does not extend to eliminat e the federal habeas jurisdiction previously available under 28 U.S.C. § 2241." Id. at 1301. The Mayers Court stated that "[i]t is important to emphasize ... that in exercising habeas corpus jurisdic tion in this case, we do not decide whether every statutory claim raised by an alien is cognizable on habeas." Id. at 1301. Instead, the Mayers Court addressed its holding only to the exercise of habeas corpus jurisdiction "over the cl aims of petitioners here on the question of whether AEDPA § 440(d) applies to pending cases to deprive pe titioners of the ability to apply for a waiver of deportation under § 212(c)." Id. at 1300-01. The Mayers Court "decline[d] to make a broad statement about the scope of habeas corpus relief available to criminal aliens in IIRIRA transitional cases." Id. at 1301 n. 17.7 Similar to Mayers, Richardson II observes that certain factors were crucial to Mayers 's decision about the availability of § 2241 habeas relief: (1) the aliens [in Mayers ] were subject to a final deportation order after BIA review; (2) the aliens first had filed a petition for judicial review under the INA in the court of appeals before filing a § 2241 petition; and (3) the a liens had been unable to obtain any judicial review whatsoever in the court of appeals. Richardson II, 180 F.3d at 1316 n. 6. 

## 7 The Mayers Court "further note[d] again that our exerci se of habeas corpus jurisdiction in this case is informed by the facts that [the petitioners] were unable to obtain any judicial review and are challenging final orders of deportation, not interim di scretionary decisions by the INS." Id. at 1301. 7
After Mayers, this Court addressed the availability of § 2241 jurisdiction in two more transitional rule

cases. See Innab v. Reno, 204 F.3d 1318 (11th Cir.2000); Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th Cir.2000). In both cases, the BIA had affirmed the IJ's de termination that the alien was statutorily ineligible for waiver of deportation under INA § 212(c) as amended by AEDPA § 440(d), the administrative proceedings were concluded, the alien was subject to a final deportation order, and the alien's § 2241 petition challenged the retroactive application of AEDPA § 440(d) to a § 212(c) request. There is one feature in Mayers and Innab that is arguably different from Alanis-Bustamante. Before filing their § 2241 petitions, the aliens in both Mayers and Innab had filed a petition for direct review of the BIA's decision which this Court dismissed for lack of jurisdiction. As noted above, Mayers expressly states that the exercise of § 2241 jurisdiction there was inform ed by the fact that the aliens had sought but been denied judicial review in thisCourt. 175 F.3d at 1301. The Alanis-Bustamantedecision does not indicate that the alien ever filed a petition for direct review of the BIA's decision in this Court or had such a petition dismissed for lack of jurisdiction. However, even if the alien in Alanis-Bustamantehad filed a petition for direct review of the BIA's § 212(c) decision, his petition would have faced the same obstacle as the petitions for direct review in Mayers and Innab. Section 309(c)(4)(G) of IIRIRA's transitional rules provides that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of8 The dismissal of the petition for direct review for lack of subject matter jurisdiction in Innab was on July 16, 1998, prior to Lettman. See Innab, 204 F.3d at 1320. The time period when Alanis-Bustamante would have filed his petition for direct revi ew in this Court was also 1998. See Alanis-Bustamante, 201 F.3d at 1306. The BIA's affirming the denial of § 212(c) relief to Akinwale was in 1997, also well prior to Lettman.

9 For post-Lettman cases, we point out that in Lettman, this Court had to: decide whether Section 309(c)(4)(G) prevents a ppeal (thereby depriving us of jurisdiction) when the BIA decides an alien is deportable or whether we have jurisdiction to decide if an alien is deportable. If the BIA's determinati on is binding on us, then we must dismiss this appeal. If we can decide whether [the alien] is deportable, then we retain jurisdiction until we conclude he is deportable. 168 F.3d at 464-65. Whether an alien is deportabl e and whether he should be granted discretionary § 212(c) relief from such deportability are two separate issues. Thus, even post-Lettman aliens may still face a § 309(c)(4)(G) obstacle in seeking review of certain issues regarding the BIA's denial of § 212(c) relief through a petition for direct reviewin this Court in transitional rule cases. Cf. Galindo-Del Valle v. Attorney General, 213 F.3d 594 (11th Cir.2000) (involving the judicial review restriction in INA § 242(a)(2)(C), which is similar to § 309(c)(4)(G)). However, that question is not directly before the Court in this appeal, and not hing in this opinion should be construed as suggesting any answer to that question. 

## 8 having committed [an aggravated felony]." See8 U.S.C. § 1101, Historical and Statutory Notes (1999). At the time the alien in Alanis-Bustamantewould have filed a petition for direct judicial review in this Court, we had not yet decided Lettman v. Reno, 168 F.3d 463 (11th Cir.1999), vacated in part, 185 F.3d 1216 (11th Cir.1999). 8 In Lettman, we held for the first time that this restriction in § 309(c)(4)(G) does not bar judicial review in this Court regarding whether th e petitioner is an alien or deportable. Id. at 465. Lettman explains that "we have jurisdiction to decide whether we have jurisdiction; but our jurisdiction disappears if [the alien] is deportable." Id. However, prior to Lettman, this Court was dismissing for lack of subject matter jurisdiction such petitions for direct review by aliens deportable due to aggravated felonies in transitional rule cases. For example, in Mayers, we expressly pointed out that this Court had dismissed that alien's petition for direct review of the BIA order in an unpublished, two-sentence decision prior to the published decision
in Lettman v. Reno, 168 F.3d 463 (11th Cir.1999). See Mayers, 175 F.3d at 1294 n. 6. 910Now that Lettman provides for at least some amount of direct judicial review of certain issues in this Court regarding the BIA's decision about an alien's deportability, we note that this Court has not addressed whether a petitioner-alien is required to exhaust his administrative remedies by appealing those issues to the BIA and then petitioning for direct review in this Court before filing a § 2241 petition in transitional rule cases. However, we do not have to answer that question here because we find that the particular circumstances of this case are more similar to, and thus controlled by, Mayers, Innab, and Alanis-Bustamante.


## 9 In summary, the common threads in Mayers, Alanis-Bustamante, and Innab supporting the exercise of § 2241 jurisdiction are: (1) that IIRIRA's transitional rules apply; (2) that before filing the § 2241 petitions, the alien's administrative proceedings were concluded and the alien was subject to a final deportation order; (3) that the alien's petition for dir ect review of the BIA's decision was dismissed by this Court for lack of subject matter jurisdiction in the pre-Lettman time period or the alien would likely have faced that same obstacle in filing a petition for direct review in this Court during that same time period before Lettman; and (4) that the alien raised the same statutor y issue about the retroactive application of AEDPA § 440(d). Innab, 204 F.3d at 1320-21; Alanis-Bustamante, 201 F.3d at 1308 n. 10 & 1311 n. 16; Mayers, 175 F.3d at 1301. 10 D. Jurisdiction over Akinwale's § 2241 Petition We now apply the principles of these recent deci sions to Akinwale's § 2241 petition. Akinwale's deportation proceedings began in January 1995, and his final deportation order was not entered until 1997. Thus, IIRIRA's transitional rules apply because Akinwa le was in deportation proceedings before April 1, 1997, and received a final order of deportation on or after October 31, 1996. SeeIIRIRA § 309(c)(4); AlanisBustamante v. Reno, 201 F.3d 1303, 1306-1307 (11th Cir.2000); Lettman v. Reno, 168 F.3d 463, 464, vacated in part, 185 F.3d 1216 (11th Cir.1999). Akinwale's admi nistrative proceedings are also concluded, and Akinwale is subject to a final deportation order. Because the BIA affirmed the denial of § 212(c) relief to Akinwale in 1997, and that denial was well prior to our 1999 Lettman opinion, Akinwale would likely have faced the same obstacle as the petitioner-aliens in Mayers, Innab, and Alanis-Bustamantein filing a petition in this Court for direct review of the BIA's § 212(c) decision.11 Akinwale's § 2241 petition appears to challenge only the denial of § 212(c) relief from deportation. However, to the extent that Akinwale seeks review of the determination that he is deportable under the INA, it appears that his claim may possibly be procedurally barred in a § 2241 petition, as the Government contends. Akinwale appealed the denial of § 212(c) relief to the BIA, but failed to appeal the IJ's second deportability determination to the BIA, and thus failed to exhaust his administrative remedies. See GalindoDel Valle v. Attorney General, 213 F.3d 594, ---- slip op. at 6 (11th Cir.2000); Mullen-Cofee v. INS, 976 F.2d 1375, 1380 (11th Cir.1992), as amended, 986 F.2d 1364 (11th Cir.1993). The district court is in the best position to resolve this issue in the first instance. Thus , we leave for the district court on remand to determine whether Akinwale is challenging the deportability determin ation, and if so, whether that challenge is barred by his failure to appeal to the BIA. 

## 10 Finally, Akinwale raises the same issue as the petitioners in Mayers, Alanis-Bustamante, and Innab: the BIA's retroactive application of AEDPA § 440(d) infinding him statutorily ineligible for discretionary relief under § 212(c). See Mayers, 175 F.3d at 1301; Innab, 204 F.3d at 1321; Alanis-Bustamante, 201 F.3d at 1308. Thus, we conclude that the district c ourt had subject matter jurisdiction under § 2241 to review Akinwale's challenge to the BIA's retroactive appli cation of AEDPA § 440(d) to his § 212(c) request. Like the Court in Mayers, in allowing Akinwale to seek habeas revi ew under § 2241, "we do not decide whether every statutory claim raised by an alien is cognizable on habeas." Mayers, 175 F.3d at 1301. We decide only that habeas review is appropriate here because the ci rcumstances in Akinwale's case are virtually identical to those in Mayers, Innab, and Alanis-Bustamante. 11 Now that we have answered the juri sdictional question, we point out that Mayers also held that AEDPA § 440(d) does not apply retroactively. See Mayers, 175 F.3d at 1304. Thus, for Akinwale, the next issue is whether, even under pre-AEDPA § 212(c), the BIA erred in finding Akinwale statutorily ineligible for this type of relief. There is some indication in the record that the length of time Akinwale has served on his drug-trafficking sentence or the nature of his o ffense may make him ineligible for § 212(c) relief even under pre-AEDPA law. However, we do not decide this issue. The district court is in the best position to answer this question in the first instance as the case proceeds.
III. CONCLUSION

## 11 Accordingly, we reverse and vacate the district court's April 13, 1999 order dismissing Akinwale's § 2241 petition for lack of subject matter jurisdiction. We remand the case to the district court for further proceedings consistent with this opinion. REVERSED, VACATED, AND REMANDED.