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 can
prevail on his section 2241 claims under this burden of proof,
then we can enjoin the deportation while his removal is processed
We turn now to the merits of the petition.
B. The Availability of Discretionary Review.
The Petitioner's first argument is that the INS improperly
refused to consider him for a discretionary review that might
have allowed him to remain in the United States despite his
conviction of an aggravated felony. We reject this contention.
Hypolite relies on 8 U.S.C. § 1182(h), INA § 212(h). With
certain exceptions, section 1182(h) grants discretion to the
Attorney General to waive deportation for aliens deportable due
to their commission of certain crimes in the following
in the case of an immigrant who is the spouse,
parent, son, or daughter of a citizen of the United
States or an alien lawfully admitted for permanent
residence if it is established to the satisfaction of
the Attorney General that the alien's denial of
admission would result in extreme hardship to the
United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien; . . . .
8 U.S.C. § 1182(h)(1)(B).
As stated in the opening language of section 1182(h), the
Attorney General is authorized to grant this waiver for a
controlled-substances crime specified in section 1182(a)(2)(A)
(i)(II) but only "insofar as it relates to a single offense of
simple possession of 30 grams or less of marijuana. . . ."
Thus, the 1182(h) waiver provision does not apply to Hypolite
because while his crime is covered by section
1182(a)(2)(A)(i)(II), it did not involve simple possession of
marijuana but conspiracy to import heroin into the United States
and to distribute it.
Moreover, section 1228(b)(5) specifically excludes aliens who
have committed aggravated felonies and who are not permanent
residents from discretionary relief. Hence, the service officer
correctly refused to consider him for such relief.
C. The Applicability of the Removal Procedure Under
8 U.S.C. § 1228(a), INA § 238(a) and Congressional Authorization For the
Section 1228(b) Procedure.
The Petitioner's next argument is that the INS failed to follow
the procedure required by 8 U.S.C. § 1228(a), INA § 238(a),
rather than the procedure actually used, the one under section
1228(b), INA § 238(b).
The Petitioner is mistaken. Section 1228(a), INA § 238(a),
provides for the removal of "criminal aliens" using the procedure
outlined in 8 U.S.C. § 1229a, INA § 240, "except as otherwise
provided in this section." In turn, 8 U.S.C. § 1228(b), INA §
238(b), does provide otherwise, by designating a procedure for
the removal of aliens, like the Petitioner, "who are not
permanent residents." The proper statutory procedure was used.
Nor is the Petitioner correct in asserting that Congress did
not authorize the section 1228(b) procedure the INS used in his
case, found at 8 C.F.R. § 238.1. Section 1228(b)(4) imposes
certain minimal procedural requirements on section 1228(b)
proceedings but also authorizes the Attorney General to prescribe
regulations for those proceedings as well. We need not go onto
detail, but the regulations implementing section 1228(b) mirror
the statutory language in material part and are not unauthorized.
D. The Due Process Claim.
The Petitioner contends that the section 1228(b) procedure
violates procedural due process in two ways. First, by relying on
an adjudicator who may be an ordinary employee of the INS it may
not provide an impartial, competent or knowledgeable adjudicator.
Second, it risks erroneous deportations by not allowing the alien
to testify in person.
We reject this due process claim because the Petitioner has
suffered no injury from these purported defects. Injury is an
essential element of a due process claim, see Stehney v. Perry,
101 F.3d 925, 930-31 (3d Cir. 1996), as it is of any claim. The
Petitioner has pointed to no error in his adjudication, and there
does not appear to be any; the Petitioner admits he committed the
aggravated felony, and the INA plainly requires his removal.
In any event, his concerns appear to be unfounded. Petitioner
contends that section 1228(b) proceedings violate his due process
rights because they may be conducted by untrained INS employees
and because the alien has no right to personally appear.
Petitioner argues that legal training is necessary for an officer
to determine whether an alien has committed an aggravated felony
and whether his or her deportability has been established by
clear and convincing evidence. See 8 U.S.C. § 1228(b),
8 C.F.R. § 238.1. The risk of error by the officer is quite low, however.
The statute provides a detailed list of offenses that constitute
an aggravated felony, see 8 U.S.C. § 1101(a)(43), and the
regulations indicate the documents required to establish the
conviction, see 8 C.F.R. § 3.41, 238.1(b)(iii). Once the
aggravated felony conviction is proved, the alien is
"conclusively presumed to be deportable." 8 U.S.C. § 1228(c).
Thus, there appears to be little room for error on the part of
the INS officer or little need for a personal appearance by the
Moreover, the regulations list persons who can be deciding
service officers. Those persons can be "a district director,
chief patrol agent, or another immigration officer designated by
a district director or chief patrol agent, who is not the same
person as the issuing officer." 8 C.F.R. § 238.1(a). We can
presume that any of these persons are familiar with the INA
and have the basic competence to decide a case like Hypolite's.
Accordingly, we conclude that use of the section 238(b)
expedited removal procedure did not violate Petitioner's due
E. The Equal Protection Claim.
The Petitioner also maintains that he was denied equal
protection because some criminal 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.
This claim arises from the option granted to the Attorney
General by section 1228(b), INA § 238(b), to proceed with the
section 1228(b) procedure or to use the procedure in
8 U.S.C. § 1229a, INA § 240, to effectuate the removal of an alien who is
not a permanent resident. Parenthetically, the section 1229a
procedure, in contrast to the section 1228(b) procedure, provides
more protection. Under section 1229a, an alien has a hearing
before an immigration judge where he may appear, be represented
by counsel, present evidence on his own behalf and cross examine
The Petitioner has failed to be precise about the basis of this
claim. He appears to argue that because section 1228(b)(5)
specifically excludes an alien from eligibility for discretionary
relief in section 1228(b) proceedings while section 1228a does
not specifically foreclose such relief to a similarly situated
criminal alien, his right to equal protection has been violated.
We reject this contention. As we noted above, no criminal alien
convicted of Petitioner's aggravated felony, regardless of the
procedural avenues open to him, is entitled to a waiver under
section 1182(h), INA § 212(h). Hence, because the substantive
standard applicable to such aliens remains the same, there is no
equal protection violation.
Finally, we note that Petitioner claimed in his habeas petition
that he should be allowed to remain in the United States because
he is a witness in a criminal trial. In his brief, he has not
elaborated on this contention and appears to have dropped it as a
basis for his habeas petition. In any event, he relies on a
regulation, 8 C.F.R. § 235.3(b)(2)(iii), that confers discretion
on the Attorney General, not a right on the alien, to parole the
alien subject to a removal order if the Attorney General
determines that parole is "necessary for a legitimate law
Respondent's motion to dismiss will be granted, and Hypolite's
habeas petition will be denied. Hypolite's motion for a stay of
deportation will also be denied, and the TRO granted April 7,
1999, will be vacated.
We are considering the timely motion of Petitioner, Franklyn
Hypolite, to alter or amend our order of July 13, 1999, styled as
an emergency motion to reconsider, denying his petition for a
writ of habeas corpus and allowing the INS to deport him to his
native Trinidad or some other appropriate country. The memorandum
explaining the order, Hypolite v. Blackman, 57 F. Supp.2d 128
(M.D.Pa. 1999), provides sufficient factual and legal background
except for a few facts we will add in the course of our
discussion. We will proceed directly to the Respondent's renewed
jurisdictional argument and the errors the Petitioner asserts we
In opposing the reconsideration motion, the Respondent renews
his argument that we lack jurisdiction to entertain the habeas
petition, citing in support Richardson v.
Reno, 180 F.3d 1311 (11th Cir. 1999), and Edwards v.
Blackman, 56 F. Supp.2d 508 (M.D.Pa. 1999).
The circuits are split as to whether the 1996 amendments to
federal immigration law divested district courts of habeas
jurisdiction over challenges to deportation orders. In Sandoval
v. Reno, 166 F.3d 225, 231 (3d Cir. 1999), the Third Circuit
held that habeas survived those amendments, under its view that
any statutory deprivation of habeas relief had to specifically
mention habeas. The court of appeals followed Sandoval in
Catney v. INS, 178 F.3d 190 (3d Cir. 1999). We followed both of
these cases in deciding that we had jurisdiction.
After Sandoval but before Catney, the Supreme Court issued
Reno v. American-Arab Anti-Discrimination Committee, ___ U.S.
___, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), holding that
8 U.S.C. § 1252(g), INA § 242(g), precluded a civil action seeking an
injunction against the commencement of deportation proceedings.
As part of our decision that we had jurisdiction, we had noted
that in Catney the Third Circuit had not altered its ruling
that habeas survived the 1996 amendments even though it had been
decided after American-Arab. We also noted that in Singh v.
Reno, 182 F.3d 504 (7th Cir. 1999), the Seventh Circuit, while
reaffirming a previous jurisdictional ruling contrary to
Sandoval, mentioned Arab-American but never used it to
bolster its position contrary to Sandoval.
The Respondent's citation to Richardson and Edwards is an
attempt to meet this reasoning because in both cases the courts
relied on American-Arab to buttress their conclusion that
aliens could no longer invoke habeas. Edwards cited it
specifically as a reason not to follow Sandoval.
We suppose the issue of whether an immigrant can still seek
habeas relief after the 1996 changes to immigration law will be
settled at some point. However, we already considered the effect
of American-Arab on Sandoval in our previous memorandum, and
we adhere to our original ruling.
The Respondent has also argued that Sandoval and Catney are
distinguishable because they dealt with the so-called
transitional rules and Hypolite's case was decided under the
so-called permanent rules. See Sandoval, 166 F.3d at 229
(noting the existence of the two sets of rules). In Richardson,
supra, the court did consider this distinction significant.
However, in deciding Sandoval, the Third Circuit did not. See
also Abdel-Fatah v. Reno, No. 3:99-CV-0947, slip op. at 4 n. 3
(M.D. Pa. June 28, 1999) (Vanaskie, J.) (rejecting transitional
nature of rules at issue in Sandoval as relevant to
Sandoval's application to cases involving the permanent rules).
Finally, because Petitioner is seeking a waiver under
8 U.S.C. § 1182(h), INA § 212(h), the Respondent relies on the last
sentence of subsection 1182(h) which provides: "[N]o court shall
have jurisdiction to review a decision of the Attorney General to
grant or deny a waiver under this subsection." (Brackets added).
The problem with relying on this provision is that the INS did
not exercise its authority to deny a waiver. Indeed, as the
Petitioner repeatedly points out, it took the position that the
waiver provision simply did not apply to Hypolite. The Petitioner
is claiming that this interpretation of the statute is erroneous
and wants the agency to exercise its decision-making power under
the waiver provision. Hence, since no section 1182(h) decision to
grant or deny a waiver is being contested here, only whether the
INS should make such a decision in the first place, the last
sentence of that section does not operate to preclude our
B. The Availability of Discretionary Review Under
8 U.S.C. § 1182(h), INA § 212(h).
In our original memorandum, we decided that the Petitioner was
not eligible for a
section 1182(h) waiver. Petitioner argues that we erred,
characterizing our position as one in which he "could only obtain
a discretionary waiver under INA 212(h) [section 1182(h)] upon a
showing that he was convicted for a single offense of simple
possession of 30 grams of marijuana. . . ." (Petitioner's
supplemental brief at p. 3) (brackets added). Hypolite points out
that a waiver is available for other offenses as well and cites
In re Michel, Interim Decision 3335, 1998 WL 40407 (BIA Jan.
30, 1998), as a case where the Board of Immigration Appeals (BIA)
held that an immigrant, like Hypolite, who was not a permanent
resident alien, could seek a waiver under section 1182(h) after
having committed an aggravated felony. We reject this contention.
Petitioner mischaracterizes our position and our understanding
of section 1182(h). We were well aware, as section 1182(h)
specifies, that a hardship waiver is available for a spouse or
parent of a citizen for crimes other than "a single offense of
simple possession of 30 grams or less of marijuana." That
possibility is made clear by the caption and the first sentence
of section 1182(h), which read as follows:
(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B),
(D), and (E)
The Attorney General may, in his discretion, waive
the application of subparagraphs (A)(i)(I), (II),
(B), (D), and (E) of this subsection (a)(2) and
subparagraph (A)(i)(II) of such subsection insofar as
it relates to a single offense of simple possession
of 30 grams of marijuana. . . .
The difficulty for the Petitioner is that, as the Respondent
points out, only subparagraph (A)(i)(II) would apply to his crime
since that subparagraph deals with a violation of the drug laws
of any country (including a conspiracy) for a controlled
substance as defined in 21 U.S.C. § 802. However, as subparagraph
1182(h) provides, a waiver is available only for a drug offense
involving "a single offense of simple possession of 30 grams of
marijuana." In contrast, the Petitioner's crime, to which he pled
guilty, was a conspiracy to import heroin and possess heroin with
the intent to distribute in violation of 21 U.S.C. § 841(a)(1)
The other subparagraphs of section 1182(a)(2) do not apply.
Subparagraph (A)(i)(I) deals with crimes of moral turpitude,
subparagraph (B) deals with multiple criminal convictions with an
aggregate sentence of five years or more, subparagraph (D) deals
with prostitution and commercialized vice, and subparagraph (E)
with certain crimes in which the alien invoked immunity from
Petitioner cites In re Michel, supra, in his support, but
that case is easily distinguishable. In In re Michel, the BIA
did rule that an immigrant lawfully in the country, but not a
permanent resident alien, who had committed an aggravated felony
subjecting him to deportation was entitled to seek a hardship
waiver under section 1182(h). However, his crimes were classified
as ones of moral turpitude under subsection (A)(i)(I). As noted
above, this type of crime does not disqualify an immigrant from
seeking a hardship waiver.
Moreover, although Petitioner insists that his aggravated
felony does not bar him from seeking such a waiver, he does not
assert what subparagraph his crime does come under and why it
would not be covered by subparagraph (A)(i)(II).
C. Whether Petitioner's Case Should Have Proceeded Under
8 U.S.C. § 1228(b), INA § 238(b), or Under 8 U.S.C. § 1229a,
INA § 240.
The Petitioner next argues that we decided that the INS could
only adjudicate his case under the "expedited administrative
removal proceedings" of 8 U.S.C. § 1228(b), INA § 238(b), rather
than use proceedings authorized by 8 U.S.C. § 1229a, INA § 240.
As we noted in our original memorandum, section 1228(b)
proceedings are decided on written submissions by a "deciding
service officer" and