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July 22, 1999


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 alleged that he was subject to a deportation order entered on January 14, 1999. He was detained thereafter, and a bond was denied on February 2, 1999, when an immigration judge determined that Edwards was subject to mandatory detention under "INA Section 236(c)." Edwards argued that this determination is in error and that be therefore is entitled to relief under § 2241.

Previously, the court issued a memorandum and order denying Edwards' constitutional challenge to § 236(c) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1226 (c), and dismissing the petition otherwise for lack of jurisdiction under § 236(e), 8 U.S.C. § 1226 (e). Edwards v. Blackman, 1999 WL 350122 (M.D.Pa. May 27, 1999).

Before the court is Edwards' motion for an extension of time in which to move for reconsideration of that memorandum and order. Also, the American Civil Liberties Union Immigrants' Rights Project (ACLU-IRP) has requested the court's consideration of a letter brief in support of Edwards' motion.


"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (citations omitted), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). "Therefore, a court may properly grant a party's motion for reconsideration in any of the following circumstances: `(1) the development of an intervening change in the law, (2) the emergence of new evidence not previously available, or (3) the need to correct a clear error of law or prevent a manifest injustice.'" In re TMI Litigation Cases Consolidated II, 922 F. Supp. 997, 1008 (M.D.Pa. 1996) (Rambo, C.J.; quoting Cohen v. Austin, 869 F. Supp. 320, 321 (E.D.Pa. 1994); citations omitted in In re TMI). The granting of a motion to reconsider is an extraordinary remedy and a court should not do so when the motion is merely a re-styling or rehash of issues previously presented. McConocha v. Blue Cross and Blue Shield Mutual of Ohio, 930 F. Supp. 1182, 1184 (N.D.Ohio 1996). A court should consider neither new evidence nor a new legal theory which could have been presented on the original motion, taking into account due diligence. Id. Mere disagreement with the court is a ground for an appeal, not a motion for reconsideration. Id.

With this standard in mind, we examine separate but related questions: (1) whether Edwards has set forth a sufficient basis for reconsideration; and (2) whether that basis warrants additional time for a motion and brief. Alternatively, Edwards asks the court to consider his motion for an extension of time as a motion for reconsideration.*fn1

Edwards first points out, in rather rude language, that this court is alone in concluding that it lacks habeas jurisdiction to entertain a claim under § 236. We are unaware of any legal requirement that we join a majority of courts when making a decision.

In the same context, Edwards points out that our holding is contrary to Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), in which the Third Circuit held that district courts retain jurisdiction under § 2241 to entertain constitutional and statutory challenges to final orders of deportation. The Sandoval decision was issued before the Supreme Court opinion in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. ___, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999)*fn2 Since the holding and the rationale of the latter opinion are contrary to Sandoval, we adhere to the Supreme Court's view. That is, the plain language of § 242(g) of the INA, 8 U.S.C. § 1252 (g), bars judicial review in federal district courts of decisions by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.

In arguing that this is the only court that has ruled that it is without jurisdiction to entertain a challenge to a decision to detain an alien pursuant to § 236(c), Edwards ignores Maldonaclo v. Fasano, 1999 WL 343423 (S.D.Cal. May 21, 1999). In that case, the Board of Immigration Appeals denied the petitioner's appeal, after which he filed a petition for a writ of habeas corpus.*fn3 Judge Whelan applied the Supreme Court's rationale in American-Arab Anti-Discrimination Committee, 525 U.S. at ___, 119 S.Ct. at 943, that the extent of any assertion of subject matter jurisdiction is subject to "the unmistakable zipper clause" of INA § 242(b)(9), 8 U.S.C. § 1252 (b)(9). Maldonado at *3 That provision consolidates "[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, . . ." arising in any proceeding under the INA within judicial review of a final order under the INA. Maldonado at *4 (quoting § 242(b)(9)). Thus, any factual, legal, and constitutional questions, no matter how they are raised (including by habeas corpus) are included. Id.

Although dicta, we note that Judge Whelan added:

      The statute also reflects the timing of judicial
    review. By stating that judicial review is available
    "only . . . of a final order," the statute
    "postpones judicial review of removal proceedings
    until the entry of a final order." American-Arab,
    [525 U.S. at ___, 119 S.Ct. at 951] (Stevens, J.,
    concurring). Significantly, this clause may divest
    federal courts of jurisdiction to review interim
    administrative determinations, such as agency
    actions concerning bail and parole. The Eleventh
    Circuit has reached this conclusion, holding that
    INA § 242(b)(9) strips federal courts of
    jurisdiction to review claims of aliens against whom
    removal proceedings have been instituted until the
    conclusion of administrative proceedings. Richardson
    v. Reno, 162 F.3d 1338, 1373 (11th Cir. 1998). . . .

Maldonado at *4 (emphasis added). Since review of a final order is subject to review only by petition for review in a Court of Appeals, ...

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