The opinion of the court was delivered by: CONLON
Ioan Rusu ("Rusu") petitions for a writ of habeas corpus pursuant to 28 U.S.C. §§ 1651 and 2241 and Art. I, § 9, cl. 2 of the Constitution. Rusu is in custody of the Immigration and Naturalization Service ("INS") pursuant to a final order of deportation. He contends he is being held in INS custody in violation of his rights to due process and equal protection of the law. The petition names Janet Reno, Attorney General of the United States, Doris Meisner, Commissioner of the INS, and Brian Perryman, Chicago District Director of the INS, as respondents. Respondents move to dismiss the petition for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. Rusu responds to the motion to dismiss and cross-moves for summary judgment and for release on bond.
Rusu is a native and citizen of Romania. Pet. P 11; Resp. Ex. 1. He entered the United States as a "visitor for pleasure" on November 15, 1991, at Chicago, Illinois. Resp. Ex. 1; Pet. Ex. 6. On October 7, 1993, the INS instituted deportation proceedings against Rusu pursuant to 8 U.S.C. § 1251(a)(1)(B) of the Immigration and Nationality Act ("INA"). Resp. Ex. 1. The INS order to show cause and notice of deportation hearing stated that Rusu had overstayed his permitted time in the United States. Pet. Ex. 6.
Rusu appealed the decision of the immigration judge to the Board of Immigration Appeals ("BIA"). Resp. Ex. 2. In a per curiam decision dated October 11, 1996, the BIA affirmed the immigration judge's denial of Rusu's applications for asylum and withholding of deportation. Id. In brief, the BIA found that Rusu's allegations of past persecution, including a brief period of confinement for his political opposition, did not rise to the level of persecution required to justify a grant of asylum. Id. As to Rusu's claimed fear of future persecution, the BIA held Rusu had not shown a reasonable person in his circumstances would fear persecution on account of his political opinion, religion or social group. Id. Accordingly, the BIA dismissed Rusu's appeal. However, the BIA granted a thirty-day extension of Rusu's voluntary departure period. Id.
Next, Rusu appealed the BIA decision to the Court of Appeals for the Seventh Circuit. In an unpublished order issued August 7, 1997, the Seventh Circuit affirmed the BIA's decision. Resp. Ex. 3; Rusu v. INS, 1997 U.S. App. LEXIS 21539, No. 96-3832 (7th Cir. Aug. 7, 1997). Rusu filed the present petition for a writ of habeas corpus on January 6, 1998. Rusu's petition contains two substantive constitutional claims. Rusu first asserts a due process claim. He alleges he is in the process of seeking landed immigrant status in Canada and hopes to be approved in the next several months. Pet. P 5. He fears his chances of immigrating to Canada will be jeopardized if the INS executes his deportation. Id. In light of these circumstances, Rusu's counsel is allegedly in the process of preparing a request for an extension nunc pro tunc of Rusu's voluntary departure period and alternatively, for a stay of deportation pending Rusu's achievement of landed immigrant status in Canada. Pet. P 6. According to Rusu, it would violate due process of law to deport him prior to INS adjudication of those requests. Id.
Second, Rusu alleges the Nicaraguan Adjustment Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2193-2201, enacted November 19, 1997, violates his right to equal protection. Pet. PP 9-12. The Act provides specified relief in the form of eligibility for adjustment of status to nationals of Nicaragua and Cuba, and suspension of deportation to nationals of former Soviet Bloc countries (including Romania). Id. Rusu asserts the Act deprives him of equal protection in two respects. First, section 202 of the Act renders Nicaraguan and Cubans who have been "physically present in the United States for a continuous period, beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment ... is filed" eligible for an adjustment of status to permanent residence. § 202(b)(1), 111 Stat. 2193, 2194. Rusu contends section 202's extension of eligibility solely to natives of Nicaragua and Cuba is arbitrary and capricious. Pet. P 12. Second, Rusu focuses on the Act's criteria for eligibility for a suspension of deportation, found in section 203. Section 203 amends the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208; div. C, 110 Stat. 3009. In pertinent part, the section confers eligibility for suspension of deportation to Soviet nationals and nationals of the former Soviet Union "who entered the United States on or before December 31, 1990, who filed an application for asylum on or before December 31, 1991 ... ." § 203(5)(C)(V), 111 Stat. 2193, 2197. Although Rusu filed an application for asylum prior to December 31, 1991, he did not enter the country until November 15, 1991. Pet. P 11. Rusu contends that the Act's deadline of December 31, 1990 for entry into the United States is arbitrary and capricious. Id.
The court must first address whether the jurisdictional restrictions enacted by IIRIRA, Pub. L. 104-208, div. C, 110 Stat. 3009 (1996), deprive it of subject matter jurisdiction over Rusu's petition for a writ of habeas corpus. Rusu's petition alleges jurisdiction under 28 U.S.C. §§ 1651 and 2241, and the Suspension Clause, Art. I, § 9, cl. 2 of the Constitution. Respondents contend that section § 242(g) of the INA, 8 U.S.C. § 1252(g), as amended by § 306(a) of IIRIRA, requires dismissal of the petition for lack of subject matter jurisdiction. Rusu asserts, in essence, that this court retains jurisdiction to consider the merits of habeas petitions pursuant to § 2241. Alternatively, Rusu invokes jurisdiction under the Suspension Clause. Art. 1, § 9, cl. 2 of the Constitution.
A. Legislative Background
The jurisdictional provisions of the INA have undergone a rapid succession of legislative amendments in past years, many of them aimed at curtailment of federal court jurisdiction over INS administrative decisions and adjudications. In particular, Congress has taken steps arguably intended to eliminate the federal courts' jurisdiction over petitions for habeas corpus seeking review of INS administrative decisions. First, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") on April 24, 1996. Pub. L. No. 104-132, 110 Stat. 1214. Section § 404(e) of the AEDPA, entitled "Elimination of Custody Review by Habeas Corpus," eliminated the former INA provision governing habeas corpus review of deportation proceedings. Formerly, INA § 106(a)(10) provided: "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105(a)(10) (1994). In addition, § 404(a) of the AEDPA inserted the following restrictive provision governing judicial review in lieu of the former provision : "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), (D) [of the INA] ... shall not be subject to review by any court." 110 Stat. 1214, 1276-77. The text of the AEDPA does not illuminate whether by eliminating the former § 106(a)(10) and replacing it with a provision that strictly limits judicial review in a specific class of deportation cases, Congress intended to deprive aliens of access to federal habeas relief altogether. However, this is one possible interpretation of Congressional intent.
Next, on September 30, 1996, Congress enacted IIRIRA. Pub. L. No. 104-208, div. C, 110 Stat. 3009 (1996). Section 306 of IIRIRA repealed § 106 of the INA and replaced it with a new INA § 242 entitled "Judicial Review of Orders of Removal." IIRIRA § 306 (codified at 8 U.S.C. § 1252).
In general, the revised § 242 vests jurisdiction to review final orders of removal in the appellate courts. 8 U.S.C. § 1252(a)(1). Section 242(b) delineates specific procedural requirements governing petitions for review of orders of removal in the appellate courts.
Most importantly, the revised section § 242(g) of the INA, entitled "Exclusive Jurisdiction." 8 U.S.C. § 1252(g) provides: