The opinion of the court was delivered by: Caldwell, District Judge.
Petitioner Franklyn Hypolite is a citizen of Trinidad. He has
resided in the United States since 1984, but has never attained
permanent resident status. The Immigration and Naturalization
Service (INS) has issued an order of removal against him on the
ground that he is an alien convicted of an aggravated felony.
Currently detained at York County Prison preparatory to his
deportation from the United States, he filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241. He accompanied the
petition with a motion for temporary restraining order (TRO) and
stay of deportation.
On April 7, 1999, we granted the TRO and enjoined the
Respondent, J. Scott Blackman, the INS's District Director for
the Philadelphia Region, from deporting the Petitioner until we
could consider the merits of the habeas petition.
In the petition, the only claim Hypolite made was that the INS
had not granted him his statutory right to seek a waiver of his
deportation based on hardship to his family. The Respondent filed
a motion to dismiss, arguing that we lack jurisdiction to
consider the petition or to enjoin Petitioner's removal, that
Hypolite cannot satisfy the statutory requirements to obtain an
injunction against his deportation, and that as an alien
convicted of an aggravated felony he is ineligible to be
considered for a hardship waiver.
In opposition to the motion to dismiss, Petitioner raised four
new claims. He made a second argument based on the INS's
purported failure to follow proper statutory procedure. The new
statutory argument is that the INS failed to follow the procedure
required by 8 U.S.C. § 1228(a), Immigration and Nationalization
Act (INA) § 238(a), rather than the procedure actually used, the
one set forth in 8 U.S.C. § 1228(b), INA § 238(b). Next, he
argued that Congress had not authorized the section 1228(b)
He made two constitutional arguments. First, he contended that
the section 1228(b) procedure violates procedural due process by
not providing an impartial or competent adjudicator and by not
allowing the alien to testify in person. Second, he contended
that the procedure violates equal protection because some aliens,
deportable on the same basis as the Petitioner, may be placed in
proceedings allowing them to seek discretionary relief while the
procedure applied to Petitioner precluded him from doing so.
The Respondent filed no reply brief. Because the matter is
obviously of great importance to the Petitioner, we will consider
all arguments he raises.
The Petitioner was born in Trinidad in 1963 and entered the
United States on a tourist visa in 1984. He married a United
States citizen in 1996, (Pet'r Ex. 4; Resp't Ex. 6), and now has
a child who is also a United States citizen.
Hypolite is not a permanent resident alien although he did take
steps toward that status after his marriage. In or about May
1997, he obtained an immigrant visa, (Pet'r Ex. 3; Resp't Ex. 3,
¶ 2), apparently a step toward obtaining permanent resident
status, but the process stopped there, evidently because he
failed to submit the appropriate application.
Petitioner pleaded guilty in the Eastern District of New York
to conspiracy to import heroin and possess heroin with the intent
to distribute in violation of 21 U.S.C. § 841(a)(1) and 952(a).
In September 1998, he was sentenced to a term of imprisonment for
six months and of home confinement for six months.
On February 2, 1999, while Petitioner was incarcerated at
FCI-Loretto, Pennsylvania, the INS served him with a Notice of
Intent to Issue a Final Administrative Removal Order ("Notice").
(Resp't Ex. 5.) The Notice informed Hypolite of the following.
First, he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), INA
§ 237(a)(2)(A)(iii), because he was not a permanent resident
alien and because his conviction constituted an aggravated
felony, as defined in 8 U.S.C. § 1101(a)(43)(B) (defining
"aggravated felony" to include trafficking in controlled
substances). Second, the INS intended to enter a removal order
under the procedure authorized by 8 U.S.C. § 1228(b), INS §
238(b). The Notice identified this as the "expedited
administrative removal proceedings," one of the 1996 changes to
the INA. Third, in accord with this procedure, Hypolite's case
would not be decided by a hearing before an immigration judge.
However, Hypolite could retain counsel to represent him and file
written opposition to removal. Hypolite could also request an
opportunity to examine the government's evidence and seek
judicial relief from any final decision within 14 days.
Hypolite responded by submitting an affidavit in which he
acknowledged his criminal conviction and stated that his wife had
applied for his permanent residency in December 1996. (Resp't Ex.
6.) He also requested a hearing before an immigration judge.
On March 16, 1999, the INS issued a Final Administrative
Removal Order ("Order"). (Resp't Ex. 7.) In accord with section
1228(b) procedure, the Order was issued by a "deciding service
officer," not an immigration judge. In his Order, the officer set
forth the following factual findings and conclusions of law.
Hypolite was neither a citizen of the United State nor a
permanent resident alien. He was convicted of an aggravated
felony. Therefore, by "clear, convincing and unequivocal
evidence," Hypolite was a deportable alien pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii) and his removal from the United States to
Trinidad or some other appropriate country was ordered.
Additionally, the officer decided Hypolite was ineligible for any
discretionary relief from the Attorney General.
Hypolite had fourteen days to apply to the Third Circuit for
judicial review of the March 16, 1999 Order,
8 U.S.C. § 1228(b)(3), but did not do so. Instead, he pursued this 2241
At the threshold, we address the Respondent's jurisdictional
argument. The Respondent contends that the Supreme Court's recent
decision in Reno v. American-Arab Anti-Discrimination
Committee, ___ U.S. ___, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999),
makes clear that judicial review of the removal order is
precluded by 8 U.S.C. § 1252(g), INA § 242(g). Section 1252(g)
provides that: "Except as provided in this section and
notwithstanding any other provision 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 by the Attorney General
to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter."
In American-Arab, eight aliens filed a civil suit against the
Attorney General, seeking an injunction against deportation
proceedings initiated against them by asserting that the
proceedings were politically motivated. The Supreme Court held
that section 1252(g) precluded the suit since the section
specifically prohibited judicial relief against the Attorney
General's decision to commence proceedings, except such judicial
relief authorized by the INA.
The Respondent thus maintains that American-Arab precludes us
from exercising jurisdiction over Hypolite's habeas petition
since the petition seeks review of the INS's removal order, one
of the other two discrete INS actions mentioned in section
We reject the Respondent's argument. As the petitioner points
out, in Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir. 1999), the
Third Circuit held that after the 1996 amendments to the INA
district courts retained the jurisdiction they previously had
under 28 U.S.C. § 2241 to entertain the type of statutory and
constitutional challenges Hypolite makes to his deportation.
In Sandoval, the INS had ordered the alien to be deported
because of a drug offense and had not exercised its authority
under 8 U.S.C. § 1182(c) to grant discretionary relief because
the 1996 amendments to the INA had precluded it. The alien filed
a habeas petition in district court, contending that the
elimination of section 1182(c) discretionary review did not apply
to cases like his, pending at the time of the 1996 amendments,
and that the elimination of discretionary review violated equal
The government argued that section 1252(g), INA § 242(g),
eliminated habeas jurisdiction in deportation cases. The Third
Circuit rejected the argument, reasoning that removal of habeas
jurisdiction requires an express statement by Congress, and the
1996 amendments did not contain such an express denial of habeas
jurisdiction. Id. at 231-32 (citing Felker v. Turpin,
518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Ex parte
Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1868)). The court
noted the long tradition of allowing habeas petitions in
immigration cases and concluded that the expansive language of
section 1252(g) that "no court shall have jurisdiction to hear
[certain immigration cases]" was not explicit enough to amount to
a repeal of habeas jurisdiction under section 2241, and a repeal
could not be achieved by implication. Id. at 237-38.
Acknowledging Sandoval, the Respondent argues that it is no
longer valid because it was decided before American-Arab (about
one month before) and in the latter case, the Supreme Court made
clear that section 1252(g) does preclude other forms of judicial
relief. We are not persuaded by this argument. First, in
American-Arab the Court was not addressing the continued
vitality of section 2241 habeas jurisdiction in deportation
cases, but whether a civil suit invoking the district court's
federal-question jurisdiction was viable in light of section
1252(g). As Sandoval makes clear, the analysis is materially
different and leads to different conclusions. In fact, in
American-Arab the Court noted in passing that the Circuit
courts were split as to whether habeas remained available, see
525 U.S. 471, 119 S.Ct. 936, 942 n. 7, 142 L.Ed.2d at 951 n. 7,
but did not consider it a factor in its analysis.
Second, in Catney v. INS, 178 F.3d 190, 1999 WL 330421 (3d
Cir. May 25, 1999), decided after American-Arab, the Third
Circuit reaffirmed its holding in Sandoval that habeas relief
is available in the instant circumstances. In Catney, the court
ruled it lacked jurisdiction to entertain the alien's claims in a
petition for review under the INA and held that he must assert
them in a habeas corpus petition. Id. at 194.
Third, in Singh v. Reno, 182 F.3d 504 (7th Cir. 1999), the
Seventh Circuit reaffirmed LaGuerre v.. Reno, 164 F.3d 1035
(7th Cir. 1998), which, contrary to Sandoval, held that section
1252(g) deprives a district court of habeas jurisdiction. The
court noted its disagreement with Sandoval, at 229 n. 2, and at
the same time, acknowledged the Supreme Court's decision in
American-Arab, but never used it to bolster its position
contrary to Sandoval. We thus conclude that American-Arab has
no impact on Sandoval.
Accordingly, we conclude that we have jurisdiction to consider
Hypolite's habeas petition. Furthermore, since section 2241
extends to violations of federal law as well as the federal
constitution, our scope of review includes Hypolite's statutory
claims as well as his constitutional ones. Sandoval, 166 F.3d
We also note that section 1252(g) does not preclude us from
enjoining Petitioner's deportation so long as he can prove that a
stay should be entered. Section 1252(f)(2) permits injunctions
against final removal orders if a petitioner can establish "by
clear and convincing evidence" that carrying out the removal
order is "prohibited as a matter of law." 8 U.S.C. § 1252(f)(2).
But see Maldonado de Leon v. INS, No. 4:CV-99-0479 (M.D.Pa.
Apr. 1, 1999) (holding that section 1252(g) deprives court of
authority to grant a stay of deportation). If Petitioner ...