United States District Court, Middle District of Pennsylvania
May 27, 1999
MICHAEL EDWARDS, PETITIONER,
J. SCOTT BLACKMAN, INS DISTRICT DIRECTOR, RESPONDENT.
The opinion of the court was delivered by: McCLURE, District Judge.
On April 12, 1999, petitioner Michael Edwards commenced this
action with the filing of a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Edwards is a permanent resident
alien whose deportation was ordered on January 14, 1999. On the
same date, he was taken into custody by the Immigration and
Naturalization Service (INS). At a hearing on February 2, 1999,
an immigration judge denied release on bond during administrative
review of the deportation order. The immigration judge determined
was subject to mandatory detention pursuant to § 236(c) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1226(c).
Edwards seeks habeas relief as it relates only to his continued
Before the court are the petition and a motion by Edwards for a
temporary restraining order and stay of deportation, which we
have construed as a motion for a preliminary injunction and stay
of deportation. See Order of Court dated April 20, 1999.
I. STATEMENT OF FACTS
According to the petition, Edwards is a 29-year-old citizen of
Jamaica who has resided in the United States for approximately 19
years. He is married to a U.S. citizen and is the father of two
children who are U.S. citizens.
On July 9, 1991, in Hudson County, New Jersey, Edwards entered
a plea of guilty to charges of possession of a controlled
dangerous substance (cocaine) and possession of a controlled
dangerous substance (cocaine) within 1,000 feet of school
property. He was sentenced to concurrent terms of five years'
incarceration, with 18 months' parole ineligibility.*fn1
Based on the conviction, the INS issued an "Order to Show Cause
and Notice of Hearing" charging that Edwards was deportable
pursuant to INA § 241(a)(2)(A)(iii) (conviction of an aggravated
felony) and (B)(i) (conviction of a controlled substance
violation), 8 U.S.C. § 1251(a)(2)(A)(iii), (B)(i).*fn2 The
deportation was not pursued during Edwards' incarceration, and he
apparently was released by the State of New Jersey either on
parole or at the expiration of his sentence. The release from
criminal custody occurred apparently before October 9, 1998 (see
Edwards' reply brief at 13).
At a bond hearing in 1998, Edwards was released on bond by an
immigration judge. However, at the deportation hearing on January
14, 1999, an immigration judge determined that Edwards was not
eligible for release on bond because the new provisions of the
INA made detention mandatory for removable aliens convicted of
offenses such as Edwards had been. The immigration judge denied
relief based on Matter of Noble, Int. Dec. 3301, 1997 WL 61453
(BIA 1997), a determination Edwards appealed to the Board of
II. RELEVANT STATUTORY PROVISIONS
The government argues that the court lacks jurisdiction to hear
Edwards' petition. The statutory provisions supporting this
(c) Detention of criminal aliens
The Attorney General shall take into custody any
alien who —
(A) is inadmissible by reason of having
committed any offense covered in section 1182(a)(2)
of this title,
(B) is deportable by reason of having committed
any offense covered in section 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section
1227(a)(2)(A)(i) of this title on the basis of an
offense for which the alien has been sentence[d] to
a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B)
of this title or deportable
under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether
the alien is released on parole, supervised release,
or probation, and without regard to whether the alien
may be arrested or imprisoned again for the same
(e) Judicial review
The Attorney General's discretionary judgment
regarding the application of this section shall not
be subject to review. No court may set aside any
action or decision by the Attorney General under this
section regarding the detention or release of any
alien or the grant, revocation, or denial of bond or
INA § 236(c)(1), (e), codified at 8 U.S.C. § 1226(c)(1),
Edwards contends, however, that § 236(c) does not apply. To
comprehend this argument fully, it is necessary to examine the
interplay of a number of other provisions, specifically the
"Transition Period Custody Rules" (TPCR) enacted by § 303(b)(3)
of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), enacted as Division C of the Departments of
Commerce, Justice, and State, and the Judiciary Appropriations
Act for 1997, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30,
1996).*fn4 The TPCR were temporary rules which could be invoked
at the discretion of the Attorney General to defer the effective
date of amendments to the INA under IIRIRA and the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No.
104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996). The Attorney
General invoked the TPCR for both of the 1-year periods for which
they were available. The current provisions, quoted above,
therefore did not become effective until October 9, 1998.
Under IIRIRA § 303(b)(3)(A), the Attorney General was required
to take into custody certain classes of aliens, including aliens
convicted of aggravated felonies and controlled substances
offenses. Under IIRIRA § 303(b)(3)(B), such an alien could be
released only if the alien (1) was lawfully admitted, or was not
lawfully admitted but could not be removed because the country of
removal would not accept the alien, (2) would not pose a danger,
and (3) was not a flight risk.
III. NARROWING THE ISSUES
Although captioned a motion for temporary restraining order and
stay of deportation, Edwards does not request such relief in the
motion, nor is a basis for such recited. In his petition and
other papers, Edwards refers to purported deficiencies in the
deportation hearing. However, in seeking relief, he confines his
demands and arguments to the fact of his detention. We note that
such is necessary, as this court plainly lacks jurisdiction to
review the deportation order. Reno v. American-Arab
Anti-Discrimination Committee, ___ U.S. ___, ___, 119 S.Ct. 936,
943, 142 L.Ed.2d 940 (1999) (8 U.S.C. § 1252(g) bars, on
jurisdictional grounds, judicial review of decision or action by
Attorney General to commence deportation proceedings, adjudicate
cases, or execute removal orders).
Having excluded so much of the action taken by INS from
consideration, we are left with the much narrower question of
which provision applies, the interim provision of the TPCR or the
current version of § 236 [§ 1226]. The government argues that §
236(e) prevents this court (actually, any court) from exercising
habeas jurisdiction. Edwards argues that the TPCR applies because
that was the law in effect when he originally was released from
incarceration and when he was granted release on bond.
The general principle underlying the government's argument is
the presumption that current law governs an action unless there
has been a change in the law such that the application of current
law would have an impermissible "retroactive" or "retrospective"
In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct.
1483, 128 L.Ed.2d 229 (1994), the Supreme Court discussed at
length the applicability of statutes with retroactive or
retrospective effect. See esp. 511 U.S. at 263-280, 114 S.Ct.
1483. The Court noted that deciding when a statute operates
retroactively is not always a simple or mechanical task. Id. at
268, 114 S.Ct. 1483 (citing Society for Propagation of the
Gospel v. Wheeler, 22 F.Cas. 756 (1814) (Story, J.)).
Fortunately, this difficult task is not required here, because
there is no retroactivity concern when the newly enacted statute
is jurisdictional in nature:
We have regularly applied intervening statutes
conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred
or when the suit was filed. . . . Application of a
new jurisdictional rule usually "takes away no
substantive right but simply changes the tribunal
that is to hear the case." [Hallowell v. Commons,
239 U.S. 506, 508, 36 S.Ct. 202, 60 L.Ed. 409
(1916).] Present law normally governs in such
situations because jurisdictional statutes "speak to
the power of the court rather than to the rights or
obligations of the parties," [Republic Nat. Bank of
Miami v. United States, 506 U.S. 80, 100, 113 S.Ct.
554, 121 L.Ed.2d 474 (1992)] (Thomas, J.,
Landgraf, at 274, 114 S.Ct. 1483.
Plainly, § 236(e) divests this court of the authority to review
the decision of the immigration judge to deny release on bond
once there was an order to deport Edwards. The section does not
take away a substantive right, but vests sole authority to hear
the matter in the Attorney General, acting through the INS. That
a prior release on bond had been permitted does not affect this
conclusion. Cf. LaFontant v. INS, 135 F.3d 158, 163-164
(D.C.Cir. 1998) (AEDPA § 440(a), amended by IIRIRA § 306(d),
which barred review by any court of deportation order for alien
convicted of specified offenses, applicable to pending cases;
citing, inter alia, Salazar-Haro v. INS, 95 F.3d 309, 311 (3d
Cir. 1996), cert. denied, 520 U.S. 1239, 117 S.Ct. 1842, 137
L.Ed.2d 1046 (1997)).
Of course, it is also true that judicial review of
constitutional challenges to a statute may not be withdrawn.
Salazar-Haro at 311; Parra v. Perryman, 172 F.3d 954, 955
(7th Cir. 1999). However, such a challenge is completely devoid
of merit in this instance because the statute "plainly is within
the power of Congress":
Persons subject to § 1226(c) have forfeited any legal
entitlement to remain in the United States and have
little hope of clemency. . . . Before the IIRIRA bail
was available to persons in Parra's position as a
corollary to the possibility of discretionary relief
from deportation; now that this possibility is so
remote, so too is any reason for release pending
removal. Parra's legal right to remain in the United
States has come to an end. An alien in Parra's
position can withdraw his defense of the removal
proceeding and return to his native land, thus ending
his detention immediately. He has the keys in his
pocket. A criminal alien who insists on postponing
the inevitable has no constitutional right to remain
at large during the ensuing delay, and the United
States has a powerful
interest in maintaining the detention in order to
ensure that removal actually occurs.
Id. at 957.
Therefore, based on the availability of relief, there is no
suspension of the writ of habeas corpus, id. at 957, and
because the governmental interests outweigh the private interests
(as well as Congress' broad powers in immigration matters), there
is no due process violation, id. at 957-58. But see Van Eeton v.
Beebe, ___ F. Supp.2d ___, No. CV 99-16-PA, 1999 WL 312130 (D.Or.
Apr. 13, 1999) (finding due process violation where alien did not
concede deportability but, to the contrary, claimed to be a
naturalized U.S. citizen).
Based on the foregoing, the petition will be dismissed in part
and denied in part. The petition will be denied insofar as it
raises a constitutional challenge to § 236(c), and dismissed for
lack of jurisdiction otherwise. The motion for a temporary
injunction will be denied.
Because Edwards is not detained due to process issued by a
state court and the petition is not brought pursuant to
28 U.S.C. § 2255, no action by this court with respect to a certificate of
appealability is necessary. See Fed.F.R.A.P. 22(b)(1);
28 U.S.C. § 2253(c)(1).