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.
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
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
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
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 ...