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July 13, 1999


The opinion of the court was delivered by: Caldwell, District Judge.


I. Introduction.

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) procedure.

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.

II. Background.

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 petition.

III. Discussion.

A. Jurisdiction.

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 1252(g).

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 protection.

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 at 238.

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. ยง 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 ...

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