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CRUZ v. RENO

April 27, 1998

JOSE MARTIN AVELAR CRUZ, Petitioner,
v.
JANET RENO, as Attorney General of the United States; DORIS MEISSNER, as Commissioner of the Immigration and Naturalization Servicce; BRIAN PERRYMAN, as Chicago District Director of the Immigration and Naturalization Service; and the IMMIGRATION AND NATURALIZATION SERVICE, Defendants.



The opinion of the court was delivered by: CONLON

MEMORANDUM OPINION AND ORDER

 Jose Martin Avelar-Cruz ("Avelar-Cruz") petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Art. I, § 9, cl. 2 of the Constitution, and 28 U.S.C. § 1331. He seeks review of a final order of deportation. Avelar-Cruz names Janet Reno, Attorney General of the United States; Doris Meissner, Commissioner of the Immigration and Naturalization Service ("the INS"); Brian Perryman, Chicago District Director of the INS; and the INS, as respondents.

 BACKGROUND

 Avelar-Cruz is a twenty-five year old citizen of Mexico who entered the United States in 1975 without inspection. Avelar-Cruz became a temporary resident under the amnesty provisions of 8 U.S.C. § 1255a on September 25, 1987. On May 10, 1989, Avelar-Cruz became a lawful permanent resident alien.

 On September 7, 1993, Avelar-Cruz was convicted of possession with intent to deliver and delivery of a controlled substance (each offense involving less than one gram of cocaine). He was sentenced to consecutive terms of three and four years in state prison. The INS subsequently issued an order to show cause alleging that Avelar-Cruz was deportable pursuant to 8 U.S.C. § 1251(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and 8 U.S.C. § 1251(a)(2)(B)(i) as an alien convicted of a controlled substance violation.

 In a deportation hearing before an immigration judge, Avelar-Cruz contested his deportability. The INS introduced certified copies of Avelar-Cruz' narcotics convictions. On June 20, 1994, the immigration judge found Avelar-Cruz deportable on both charges contained in the order to show cause. The immigration judge found Avelar-Cruz statutorily ineligible for a waiver under 8 U.S.C. § 1182(c) because Avelar-Cruz had not accumulated seven years of domicile in the United States following his lawful admission. *fn1" Consequently, Avelar-Cruz was ordered deported to Mexico. On November 14, 1994, the Board of Immigration Appeals ("BIA") affirmed this decision.

 Avelar-Cruz challenged this decision in the United States Court of Appeals for the Seventh Circuit. On June 27, 1995, the Seventh Circuit held that for purposes of a waiver under 8 U.S.C. § 1182(c), Avelar-Cruz' lawful domicile in the United States began on September 25, 1987 when he became a temporary resident. Therefore, the court granted Avelar-Cruz' petition for review and remanded the case to the BIA. See Avelar-Cruz v. INS, 58 F.3d 338, 341 (7th Cir. 1995). On February 7, 1996, the BIA remanded the proceedings to the immigration judge to adjudicate Avelar-Cruz' application for a waiver.

 On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"). Section 440(d) of the AEDPA amended 8 U.S.C. § 1182(c) in part by making aliens who are "deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D)" ineligible for a waiver.

 On November 18, 1996, the immigration judge held that because of Avelar-Cruz' prior narcotics convictions, he was statutorily ineligible for a waiver under 8 U.S.C. § 1182(c) (as amended by AEDPA § 440(d)). The immigration judge ordered Avelar-Cruz deported to Mexico. On January 8, 1998, the BIA dismissed Avelar-Cruz' appeal, relying on the Attorney General's decision in Matter of Soriano, Interim Decision No. 3289, 1996 WL 426888 (BIA 1996; A.G. 1997). Based on this final order of deportation, the INS ordered Avelar-Cruz to report for deportation on February 26, 1998. On February 25, 1998, Avelar-Cruz filed this petition for writ of habeas corpus.

 Avelar-Cruz is presently in the custody of the Immigration and Naturalization Service; he contends the immigration judge's retroactive application of § 440(d) of the AEDPA during his deportation hearing denied him due process and denied him his statutory right to apply for a waiver of deportation under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. Avelar-Cruz also contends he has been denied equal protection as a result of the decision in Matter of Fuentes-Campos, Int. Dec. No. 3318, 1997 WL 269368 (BIA 1997) (§ 440(d) applies to deportation proceedings but not exclusion proceedings).

 DISCUSSION

 With the exception of the equal protection claim, this court recently addressed all the issues raised by Avelar-Cruz' petition in a similar case. See Laguerre v. Reno, 1998 U.S. Dist. LEXIS 2456, 1998 WL 100238 (N.D. Ill. Feb. 17, 1998). Where the issues overlap, the court finds no reason to depart from its opinion in Laguerre.

 I. JURISDICTION

 The court must first address whether the jurisdictional restrictions enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), P.L. 104-208, Div. C, 110 Stat. 3009 (1996), deprive it of subject matter jurisdiction over Avelar-Cruz' petition for writ of habeas corpus. Avelar-Cruz alleges jurisdiction under 28 U.S.C. § 2241, Art. I, § 9, cl. 2 of the Constitution, and 28 U.S.C. § 1331. 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. Avelar-Cruz asserts, in essence, that despite IIRIRA's significance for judicial review of final orders of deportation, the court retains jurisdiction to consider the merits of habeas petitions pursuant to § 2241 because Congress did not affirmatively repeal habeas review under that statute. Alternatively, Avelar-Cruz invokes jurisdiction under the Suspension Clause of Article 1, section 9, clause 2 of the Constitution.

 A. LEGISLATIVE BACKGROUND

 The jurisdictional provisions of the INA have undergone a rapid succession of legislative amendments, all aimed at curtailment of federal court jurisdiction over INS administrative decisions and adjudications. In particular, Congress has taken steps apparently intended to limit federal court jurisdiction over petitions for habeas corpus involving INS matters. First, Congress enacted the AEDPA on April 24, 1996. Section 404(e) of the AEDPA eliminated the 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). Section 404(a) of the AEDPA replaced § 106(a)(10) with the following 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.

 Second, on September 30, 1996, Congress enacted IIRIRA. Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (1996). IIRIRA repealed § 106 of the INA and replaced it with a new § 242 entitled "Judicial Review of Orders of Removal." IIRIRA § 306, codified at 8 U.S.C. § 1252. *fn2" Specifically, IIRIRA § 306(a)(2)(C) replaced AEDPA § 404(a). The new provision reads: "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 ...." INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

 B. APPLICABLE JURISDICTIONAL PROVISION

 Instead of relying on IIRIRA § 306(a)(2)(C), respondents premise their subject matter jurisdiction argument on the effect of IIRIRA's broad jurisdictional provision found in § 306(a). Section 306(a) creates a new section 242(g) of the INA, entitled "Exclusive Jurisdiction." 8 U.S.C. § 1252(g). The new section provides:

 
Except as provided in this section and notwithstanding any other provisions 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 Act.

 8 U.S.C. § 1252(g). Avelar-Cruz does not directly challenge respondents' argument that the language of this section encompasses his claims. Rather, Avelar-Cruz raises the issue whether his petition is governed by § 242(g), as opposed to IIRIRA's transitional rules, which the statute makes applicable to persons in deportation proceedings commenced before April 1, 1997. See IIRIRA § 309.

 Avelar-Cruz' argument raises a question of statutory construction: whether IIRIRA § 242(g) or IIRIRA's transition provisions, specifically § 309(c)(4)(G), govern the court's subject matter jurisdiction over the petition. A resolution of this question depends on both the relative effective dates of IIRIRA's statutory provisions and on their substantive scope. In general, the effective date of IIRIRA's amendments is "the first day of the first month beginning more than 180 days after the date of enactment [September 30, 1996]" or April 1, 1997. § 309(a). Yet, § 309(c) creates transitional rules delaying implementation of its amendments for aliens in exclusion or deportation proceedings before April 1, 1997. In addition, § 309(a) excepts §§ 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) from the general effective date. The effective date for § 242(g) is found in § 306(c)(1). The section, as amended by technical corrections on October 11, 1996, Pub. L. 104-302, 110 Stat. 3656, 3657, provides:

 
(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.

 IIRIRA § 306(c)(1). Although manifesting a clear intent that the provision be applied retroactively, Congress failed to provide a date for § 242(g). Thus, the question arises whether § 242(g) was meant to take effect on the date of IIRIRA's enactment, as opposed to April 1, 1997.

 The Seventh Circuit resolved this issue in Lalani v. Perryman, 105 F.3d 334 (7th Cir. 1997) (per curiam). In Lalani, the government argued that § 242(g) took effect on the date of enactment and thus deprived the court of jurisdiction. The Seventh Circuit rejected this construction of the statute. The court recognized that to interpret the statute in this manner would render meaningless "the provisions of the IIRIRA [the transition rules] deferring application of its procedures for six months ... because [the court] would have no jurisdiction in all cases immediately." Id. at 336. Noting that § 306(c) refers back to § 309, the Seventh Circuit held that § 242(g) would not take effect until April 1, 1997 - the general effective date. Finally, unlike the other subsections, § 242(g) applies retroactively to past and pending deportation proceedings.

 IIRIRA's transition provisions delay the implementation of IIRIRA's amendments governing judicial review, including § 306(a)(2)(C). See Turkhan v. INS, 123 F.3d 487, 489 (7th Cir. 1997) ("Section 309 of the II[RI]RA . . . makes these new judicial review provisions inapplicable to aliens who are in deportation proceedings [before] April 1, 1997"); see also Yang v. INS, 109 F.3d 1185, 1191 (7th Cir. 1997) ("the II[RI]RA covers ...


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