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, the
district court lacked jurisdiction. Id.
Judge Whelan also analyzed the purposes and objectives underlying the
amendments to the INA, and concluded that this holding was consistent
with Congress' intent, Id. at *5-*6. In addition, since the amendments
are in irreconcilable conflict with prior provisions granting habeas
corpus jurisdiction under the INA, the prior provisions were repealed by
implication. Id. at *6. Finally, Judge Whelan pointed out that any
constitutional challenge to the amendments was without merit, since
Congress can curtail the jurisdiction of lesser Article III courts
(i.e., district courts and the courts of appeals, but not the Supreme
Court) at any time without offending the Constitution. Id.
Thus, rather than standing alone, our holding is consistent with Judge
Whelan's opinion and, by implication, the holding of the Eleventh
Circuit. Most importantly (like Judge Whelan's opinion in Maldonado), our
holding is a straightforward application of the Supreme Court's opinion
in American-Arab Anti-Discrimination Committee. Whether other courts
choose to adopt this approach, which we believe comports with the law, is
not a matter which affects our holding,
Edwards next argues that the court should have considered his
"statutory merits claim." Since we lack subject matter jurisdiction,
review of that claim is barred.
Edwards argues that the court ignored his constitutional claim.
Actually, we addressed the due process claim and resolved it against
Edwards. Beyond that issue, Edwards raised no claim over which we have
jurisdiction, and Edwards' argument that § 236(c) does not apply to
him does not alter that conclusion. The INA now provides that such
questions are subject to judicial scrutiny only, if at all, in the
petition for review in a court of appeals. The same principle applies to
Edwards' argument that he was entitled to an individualized bond
proceeding, based on a recent decision of the Board of Immigration
Appeals. That argument must be presented in the administrative proceedings
and, potentially, to a court of appeals; this court does not have
jurisdiction to entertain the claim.
Finally, Edwards raises a rather bizarre argument concerning a
purported factual error in our memorandum of May 27, 1999, when we stated
that the immigration judge found him ineligible for release on bond on
January 14, 1999. Actually, Edwards was ordered detained on January 14,
1999, a bond hearing was conducted on February 2, 1999, and it was then
that the determination was made that Edwards was ineligible for release
on bond. We fail to see how the date of the hearing affects our
In short, we find the grounds raised by Edwards to be completely devoid
of merit. Rather than being grounds for reconsideration, they at best
reflect disagreement with our prior holding.
Turning to the letter brief submitted by the ACLU-IRP, we find no basis
there for reconsideration, either. First, it points out that other courts
have held that § 236(e) applies only to discretionary actions by the
Attorney General. See Aguilar v. Lewis, 1999 WL 404688 (E.D.Va. June 11,
1999); Baltazar v. Fasano, No. 99-CV-380 BTM (JAH) (S.D.Calif. Mar. 25,
1999). We disagree with these holdings.
While the first sentence of § 236(e) refers to discretionary
judgment, the second sentence states, "No court may set aside any action
or decision by the Attorney General . . ." (emphasis added). The plain
meaning of this language is that the jurisdictional bar is not limited as
the ACLU-IRP argues, and as other courts have held. To this we would add
that holding otherwise, i.e. that the emphasized language refers to
discretionary actions by the Attorney General, would mean that the second
sentence of § 236(e) simply repeats the first and is mere
surplusage. See generally Bailey v. United States, 516 U.S. 137, 145, 116
S.Ct. 501, 133 L.Ed.2d 472 (1995); Ratzlaf v. United States, 510 U.S. 135,
140-141, 114 S.Ct. 655, 126 L.Ed.2d
615 (1994) (judges should hesitate to treat statutory terms as
In the same context, the ACLU-IRP argues that § 236(e) does not
contain an express repeal of jurisdiction under § 2241. Congress'
statement that no court may set aside any decision or action by the
Attorney General is a plain statement of its intent. Moreover, as
discussed by Judge Whelan in Maldonado, there is a repeal by implication
because the statute simply is inconsistent, with any assertion of
jurisdiction under § 2241. Any constitutional concerns also are
addressed in Maldonado.
Since the court does not have jurisdiction, we reject the ACLU-IRP's
argumeats concerning the applicability of § 236 to Edwards, and the
due process arguments.*fn4
We recognize that an analysis of this subject could fill volumes.
However, we will attempt to condense some of the points raised contrary
to our holding, both by Edwards and courts considering these issues, and
demonstrate why those points are faulty.
1. Every court considering the question has found habeas jurisdiction
in the distict courts. The most important court, the Supreme Court of the
United States, has established a means for analyzing the amendments to
the INA. See American-Arab Anti-Discrimination Committee. Application of
that means of analysis leads to the conclusion that district courts do
not have habeas jurisdiction. Most of the opinions cited by Edwards and
the ACLU-IRP predate, do not cite, or do not reflect consideration of the
Supreme Court's opinion in American-Arab Anti-Discrimination Committee.*fn5
2. Section 236(e) does not contain an express statement that habeas
jurisdiction has been revoked. In American-Arab Anti-Discrimination
Committee, the Supreme Court, interpreting similar language, found that
habeas jurisdiction had been revoked except for the areas specified in
§ 242(g). Given the similarity of language, there is no reasonable
basis for concluding that the same principle would not apply to the
revocation of habeas jurisdiction under § 236(e).
3. The Third Circuit's opinion in Sandoval requires a finding of
jurisdiction. The Supreme Court's opinion in American-Arab
Anti-Discrimination Committee was issued subsequent to Sandoval and
To all of this, we add two final points. First, Edwards' argument is
actually rather self-defeating. If § 236(c) does not apply to him,
then § 236(a) must apply. The latter subsection confers
discretionary authority on the Attorney General to arrest and detain an
alien after a warrant issues. This decision is plainly within the scope
of § 236(e)'s bar to jurisdiction. Thus, the holding that Edwards
seeks and which we have no jurisdiction to make, i.e. that § 236(c)
is inapplicable, leads to a conclusion that we do not have jurisdiction
to order Edwards released.
Last, the courts considering these issues seem to have a great
reluctance to conclude that habeas jurisdiction has been revoked because
of a potential problem of constitutional dimension, violation of the
Suspension Clause. U.S. CONST. art. I, § 9, cl. 2. These courts do
not address the larger question of just when it is that the writ of
habeas corpus is "suspended" by a jurisdictional limit applicable to the
lower federal courts. As discussed above, the
district courts and the courts of appeals are statutory, not
constitutional, creations, subject to the whim of Congress regarding
jurisdiction and, for that matter, their existence. If those courts did
not exist, it would be left solely to the Supreme Court of the United
States to exercise judicial authority and fulfill judicial
responsibility. The Supreme Court has the authority to issue the writ of
habeas corpus in its own right. See 28 U.S.C. § 1651 (a) (vesting
authority to issue extraordinary writs, including habeas corpus, in
Supreme Court); S.Ct.R. 20.4 (relating to procedure for obtaining
original writ of habeas corpus in Supreme Court); Felker v. Turpin,
518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (Title I of AEDPA
did not preclude Supreme Court from entertaining application for habeas
relief). It would be when the Supreme Court is divested of its authority
to issue the Great Writ that the Suspension Clause is violated, Felker at
838, 116 S.Ct. 2333, not the lower federal courts.
We see no sufficient basis for reconsideration of our prior memorandum
and order, and no reason to permit additional briefs on matters already
decided adversely to Edwards. The motion will be denied both as to
reconsideration and as to an extension of time in which to file a
Edwards also has filed a motion seeking discovery. The material sought
is a memorandum by the Office of Immigration Litigation concerning the
issue before this court.*fn6 First, we see no reason to order
discovery: the position of that office does not affect our legal
analysis. Moreover, an internal governmental policy does not confer
rights on a party adverse to the government in litigation. Cf. United
States v. Pungitore, 910 F.2d 1084, 1120 (3d Cir. 1990) (government's
"Petite policy" does not confer substantive rights on defendant relating
to double jeopardy and dual sovereigns doctrine); United States v.
Bifield, 42 F. Supp.2d 477, 490 (M.D.Pa. 1999) (no substantive right on
part of defendant to have U.S. Attorney's Office follow guidelines for
prosecuting money laundering cases). The motion for court-ordered
discovery will be denied.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Edwards' motion (record document no. 11), construed as both a motion
for reconsideration and for an extension of time in which to move for
reconsideration, is denied.
2. The request (record document no. 12) of the ACLU-IRP for
consideration of its brief is granted, but consideration of the merits of
the brief do not alter the disposition of Edwards' motion.
3. Edwards' motion (record document no. 13) for court-ordered discovery