with the Supreme Court's ratio decidendi. Cf. Guy v. Reno, 1999
WL 718554, at *4-*5 (E.D.Pa. Sept.2, 1999) (finding that district
courts are divested of habeas corpus jurisdiction under IIRIRA
but reconciling conclusion with Catney and DeSousa).
III. OTHER DECISIONS
In Edwards II, we addressed an argument relating to the
number of courts which have found jurisdiction under § 2241.
Certainly, the undersigned judge is in the minority on this
issue, and there is disagreement within this judicial district.
See United States v. Ayeni, 66 F. Supp.2d 617, 619-21 (M.D.Pa.
1999) (Caldwell, J.; finding jurisdiction over a claim, raised in
the context of criminal prosecution for failing to comply with a
final order of removal, that order was invalid); Hypolite v.
Blackman, 57 F. Supp.2d 128, 130-132 (M.D.Pa. 1999) (Caldwell,
J.; finding jurisdiction over an administrative order of
removal). In Edwards II, we addressed some of the arguments and
opinions contrary to our own, but did so in a summary fashion. We
therefore will do so again, with more explanation.
In Hypolite, Judge Caldwell indicated that the Supreme Court
was not addressing habeas jurisdiction in American-Arab, but
that its analysis was limited to consideration of whether a civil
suit invoking federal question jurisdiction was viable.
Hypolite at 131. But see Guy, 1999 WL 718554, at *4 (apparent
from straightforward reading of statutory provisions that
Congress has vested exclusive jurisdiction over final removal
order in courts of appeals, thus barring action in district court
under § 2241). Actually, the Court noted that § 1252(g) was
intended to protect discretionary determinations from judicial
review, and included in this part of its analysis several cases
in which courts "relied on other jurisdictional statutes [i.e.
other than 8 U.S.C. former § 1105a] to permit review." 119 S.Ct.
at 944. Included in those cases was Ramallo v. Reno,
114 F.3d 1210 (D.C.Cir. 1997), cert. denied, ___ U.S. ___, 119 S.Ct.
1139, 143 L.Ed.2d 207 (1999), in which the court determined that
no constitutional problem (i.e. suspension of the writ of habeas
corpus) was presented in the case because habeas review was
available. The Court then added, "Section 1252(g) seems clearly
designed to give some measure of protection to `no deferred
action' decisions and similar discretionary determinations,
providing that if they are reviewable at all, they at least will
not be made the bases for separate rounds of judicial
intervention outside the streamlined process that Congress has
designed." American-Arab at 944 (footnote omitted). See also
Guy, 1999 WL 718554, at *4 (to same effect). In other words, §
2241 was one of the "other jurisdictional statutes" against which
Congress protected INS decisions when it enacted a comprehensive
statutory scheme which itself provides the only avenues of
judicial relief available, if at all.
We recognize that the case before the Court in American-Arab
was an appeal of a civil action, not a petition for a writ of
habeas corpus. However, the governing rule of law was that
judicial review in all its forms is barred under IIRIRA unless
some provision of IIRIRA (or subsequent amendment thereto)
provides a form of review. Thus, there was no jurisdiction over
the civil case, because it fit into the category of decisions or
actions over which review was barred. In the same way, if an
action is brought under another statutory source of jurisdiction,
including § 2241, but fits into a category of actions or
decisions over which review is barred, there is no principled way
to distinguish American-Arab. See generally Planned Parenthood
at 691-692 (courts must adhere both to results of Supreme Court
cases as well as explications of governing rules of law; further
The most common theme running through the cases finding that
IIRIRA did not revoke jurisdiction under § 2241 is that finding
no habeas jurisdiction would be tantamount to a "suspension of
the writ" in violation of the Suspension Clause,
U.S. CONST. art. I, § 9, cl. 2. We addressed this question in
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.
Edwards II at 512-513. See also Guy, 1999 WL 718554, at *4
(habeas review in Supreme Court presumably still available; also
Given (1) plain statutory language (2) as interpreted by the
Supreme Court, (3) with further guidelines provided by the Court,
and (4) the lack of a problem of constitutional dimensions, we
fail to see how, within the dictates of logic and rationality, we
can conclude otherwise than to find that we lack jurisdiction to
entertain petitions under § 2241 for claims arising from the
Immigration and Nationality Act, as recently amended.
V. APPLICATION TO JACQUES' PETITION
The petition in this case may be read in two ways. First,
Jacques alleges that he is being held indefinitely and without
due process. This allegation makes no sense, however, as Jacques
also alleges that his case is before the INS. The holding of an
alien during deportation proceedings simply does not amount to
indefinite detention. Moreover, such detention does not violate
an alien's due process rights absent a failure to provide the
form of review described in Chi Thon Ngo v. INS, 192 F.3d 390
(3d Cir. 1999). Jacques does not, and at this point cannot,
allege such a failure.
The only other plausible reading of the petition is as a
challenge to the denial of release on bond during the deportation
proceedings. As we held in Edwards, and have explicated above,
we lack jurisdiction to entertain such a claim due to the
enactment of § 1226(e). The only exception is an allegation of a
due process violation, an issue which also was resolved in
Edwards I, 48 F. Supp.2d at 480-481 (quoting Parra v.
Perryman, 172 F.3d 954, 957 (7th Cir. 1999)).
The report and recommendation of the magistrate judge will not
be adopted as the holding of the court. We lack jurisdiction over
Jacques' claim in the only reasonable manner in which the
petition can be read, and the petition will be dismissed on that
An order consistent with this memorandum will issue.
For the reasons stated in the accompanying memorandum, IT IS
1. The report and recommendation (record document no. 6) of the
magistrate judge is not adopted as the holding of the court.
2. The petition (record document no. 1) for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 is dismissed for lack of
subject matter jurisdiction.
3. Based on the widespread disagreement among the courts
concerning jurisdiction under IIRIRA, we certify pursuant to
28 U.S.C. § 2253(c); Fed.R.App.P. 22(b), the appealability of the
Does a U.S. district court have jurisdiction under
28 U.S.C. § 2241 to entertain a petition for a writ
of habeas corpus by an alien relating to the denial
of release on bond or parole during deportation
4. Jacques' objections (record document no. 7) to the report
and recommendation are overruled as moot.
5. The clerk is directed to close the file.
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