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December 17, 1999


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


Petitioner Said Bouayad is detained by the Immigration and Naturalization Service (INS) pending resolution of removal proceedings against him. Now before the court is Mr. Bouayad's petition for a writ of habeas corpus under 28 U.S.C. § 2241(c)(3).


Mr. Bouayad is a citizen of Morocco and a lawful permanent resident of the United States. In either August 1995 or June 1996,*fn2 Mr. Bouayad received a state court sentence of four years probation in connection with a six-count charge of arson, burglary, theft, and receiving stolen property. In August 1999, Mr. Bouayad was resentenced for a violation of probation to not less than time served and not more than twenty-three months. Following this resentencing, Mr. Bouayad was apparently taken into detention by the INS which commenced removal*fn3 proceedings against him. The INS alleges that Mr. Bouayad is an aggravated felon*fn4 and subject to removal under 8 U.S.C. § 1227(a)(2)(iii), which provides for deportation of aliens who have committed certain offenses. The INS originally alleged that Mr. Bouayad was removable as an aggravated felon for committing a crime of violence under 8 U.S.C. § 1101(a)(43)(F) and for committing a theft or burglary offense under 8 U.S.C. § 1101(a)(43)(G). See Notice of Removal (Pet.Attach). At Mr. Bouayad's master calender hearing before the Immigration Judge (IJ) on December 1, 1999, the INS orally amended its charging document to encompass only a conviction for one count of arson. See Pet. Reply at 2.

Mr. Bouayad is detained under 8 U.S.C. § 1226(c)(1)(B) which mandates that the Attorney General take into custody any alien who is deportable for having committed specific crimes, including aggravated felonies and certain controlled substance offenses.*fn5 Mr. Bouayad requested and received a bond redetermination hearing before the IJ on November 17, 1999. However, the IJ ruled that 8 U.S.C. § 1226(c) deprived him of jurisdiction to set bond while removal proceedings against Mr. Bouayad are pending.

Mr. Bouayad argues that he is detained in violation of the Constitution and laws of the United States and seeks habeas relief under 28 U.S.C. § 2241(c)(3). Specifically, he argues that the mandatory detention provisions of 8 U.S.C. § 1226(c) violate his right to substantive and procedural due process. Mr. Bouayad also challenges the applicability of both the mandatory detention and the removal provisions to him. Essentially, Mr. Bouayad argues that 8 U.S.C. § 1227 should not be applied retroactively because his convictions were not aggravated felonies when he was originally sentenced. Mr. Bouayad is pressing his statutory claims before the IJ and this court does not rule on them. See Pet. Reply at 3-4.


I. Jurisdiction

The government concedes that the court has habeas jurisdiction regarding the issue of the constitutionality of the mandatory detention provisions. See Gov't Mem. at 3. The court will address the question of jurisdiction, however, given the uncertainty of a district court's jurisdiction in light of the sweeping changes to the immigration laws undertaken by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-32, 110 Stat. 1214 (codified as amended in scattered sections of 8 U.S.C.) (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.) (1996). See generally Sandoval v. Reno, 166 F.3d 225, 229 (3d Cir. 1999) (discussing the effect of AEDPA and IIRIRA on judicial review of immigration matters).

The Third Circuit has held that the transitional rules*fn6 governing judicial review of immigration matters did not divest the district courts of jurisdiction to entertain habeas petitions because Congress did not explicitly remove habeas jurisdiction. See Sandoval, 166 F.3d at 237-38; see also DeSousa v. Reno, 190 F.3d 175, 182-83 (3d Cir. 1999) (holding that Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), did not overrule Sandoval). The Sandoval court noted that in the immigration context, the Supreme Court "has historically drawn a sharp distinction between `judicial review' — meaning [Administrative Procedures Act] review — and the courts' power to entertain petitions for writs of habeas corpus." Sandoval, 166 F.3d at 235. Therefore, the court found that language in the transitional immigration rules foreclosing "judicial review" should not be construed also to foreclose jurisdiction to entertain writs of habeas corpus. See id.

The Third Circuit has not explicitly addressed the effect of the jurisdiction-stripping clause of 8 U.S.C. § 1252(b)(9). That clause, which has been termed "the unmistakable zipper clause," see American-Arab, 525 U.S. at ___, 119 S.Ct. at 943, states that:

  Judicial review of all questions of law and fact,
  including interpretation and application of
  constitutional and statutory provisions, arising from
  any action taken or proceeding brought to remove an
  alien from the United States under this subchapter
  shall be available only in judicial review of a final
  order under this section.

8 U.S.C. § 1252(b)(9). Courts are divided regarding the reach of the "zipper clause" to habeas suits challenging an alien's mandatory detention while removal proceedings are pending. Compare Richardson v. Reno, 180 F.3d 1311, 1315 (11th Cir. 1999) (holding 8 U.S.C. § 1252(b)(9) precludes section 2241 review of challenges to removal orders, removal proceedings, and detention pending removal), with Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (holding district court had habeas jurisdiction to consider a constitutional challenge to mandatory detention without explicitly addressing 8 U.S.C. § 1252(b)(9)); Sierra Tapia v. Reno, No. Civ. 99-986 TW(RBB), 1999 WL 803898, at *3 (S.D.Cal. Sept.30, 1999) (suggesting that, despite the restrictions of 8 U.S.C. § 1252(b)(9), district courts may retain some limited constitutional habeas jurisdiction to review the validity of INS detention). In this circuit, however, the clear rule set forth in Sandoval requiring an explicit statement from Congress foreclosing ...

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