*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-20338

Summary Calendar

 

WINSTON FITZGERALD CLARKE

Plaintiff-Appellant

versus

DISTRICT DIRECTOR UNITED STATES IMMIGRATION AND NATURALIZATION

SERVICE; JANET RENO, US Attorney General

Defendants-Appellees

 

Appeal from the United States District Court

For the Southern District of Texas

USDC H-98-CV-2840

 

March 9,2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

The INS began deportation proceedings against Clarke March 14,

1996, and Clarke was ordered deported from the United States as a

result of his criminal convictions, which occurred in 1995 and

1990. Clarke sought a waiver from deportation under the INA, 8

U.S.C. § 1182(c)(repealed September 30, 1996). That provision was

repealed after the INS began Clarke's deportation proceedings and

Clarke sought a waiver. On May 7, 1997, an immigration judge

determined that the AEDPA § 440(d), 8 U.S.C. 1105a(d)(repealed
2

September 30, 1996), rendered Clarke ineligible for waiver, because

that provision excluded aliens convicted of certain offenses from

waiver. The immigration judge issued a final order of deportation.

Clarke sought habeas relief. The magistrate judge determined

that the INA, § 242(g), 8 U.S.C. § 1252(g), deprived the court of

jurisdiction to hear Clarke's claims because he had been convicted

of a specified offense. This provision applies to cases brought

under the transitional rules of the IIRIRA. See Requena-Rodriguez

v. Pasquarell, 190 F.3d 299, 303 (5th Cir. 1999). The IIRIRA was

enacted after Clarke's deportation proceedings commenced. The

magistrate judge determined that the IIRIRA's transitional rules

applied retroactively to Clarke, and that the court therefore

lacked jurisdiction to consider his claim for discretionary relief.

The magistrate judge further determined that the court lacked

subject matter jurisdiction under 28 U.S.C. § 2241 to consider

Clarke's claim for habeas relief, because the AEDPA § 440(a), 8

U.S.C. 1105a(a)(10)(repealed September 30, 1996), deprived federal

courts of jurisdiction to review deportation orders of criminal

aliens. 

Since the magistrate judge decided this case, we have issued

Requena-Rodriguez v. Pasquarell, 109 F.3d 299 (5th Cir. 1999),

which controls this issue presented on appeal. The IIRIRA's

transitional rules apply to persons whose deportation proceedings

began before April 1, 1997, and ended more than 30 days after

September 30, 1996. See Lerma de Garcia v. INS, 141 F.3d 215, 216

(5th Cir. 1998). Clarke's deportation proceedings began March 14,
3

1996, and ended May 7, 1997, so his case is governed by the

transitional rules. 8 U.S.C. § 1252(g), which deprives courts of

jurisdiction to hear claims by aliens over an order of the Attorney

General to "commence proceedings, adjudicate cases, or execute

removal orders against any alien under this Act," is a permanent

rule that applies to transitional cases. The provision applies

only to the actions specified in the statute. See Reno v.

American-Arab Anti-Discrimination Comm., 119 S.Ct. 936, 941 (1999).

Section 1252(g) does not apply to Clarke's case, since his is not

one of the specified actions. In Requena-Rodriguez, we joined the

majority of Circuits and held that under the transitional rules of

the IIRIRA, in a case in which § 1252(g) does not apply and direct

review is unavailable, federal courts retain habeas jurisdiction

under 28 U.S.C. § 2241. The IIRIRA's transitional rule §

309(c)(4)(G) precludes appeals of deportation orders for aliens

convicted of aggravated felonies, such as Clarke, so direct review

was unavailable to him. Under Requena-Rodriguez, we must vacate

the magistrate judge's decision that the IIRIRA deprived the court

of subject matter jurisdiction to review Clarke's claims. On

remand, the court may consider constitutional and statutory

challenges to the deportation order under its 28 U.S.C. § 2241

jurisdiction.

Clarke argues that the magistrate judge lacked

jurisdiction to enter judgment. Clarke's attorney signed a consent

form that included consent to entry of judgment by the magistrate

judge. A party's attorney may consent to the entry of judgment by
4

a magistrate judge. United States v. Muhammad, 165 F.3d 327, 330

(5th Cir. 1999). A magistrate may exercise jurisdiction over a

case by consent of the parties and by virtue of that consent may

direct the entry of judgment. See 28 U.S.C. 636(c). The

magistrate judge had jurisdiction to enter judgment.

VACATED and REMANDED; MOTION to expedite appeal MOOT.