Valdivia v. I.N.S.

80 F.Supp.2d 326

Victorio V. VALDIVIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. CIV. 99-4339.

United States District Court, D. New Jersey.

January 24, 2000.

Victorio Valdivia, Batavia, NY, pro se.

Robert Cleary, United States Attorney, James B. Clark, III, Assistant U.S. Attorney, Newark, NJ, for respondent.

OPINION

DEBEVOISE, Senior District Judge.

Mr. Victorio Valdivia has petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging a final order of removal from the United States. Respondent Immigration and Naturalization Service ("INS"), in its answer, has moved for dismissal of the petition for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth herein, respondents motion to dismiss for lack of subject matter jurisdiction will be denied and the underlying petition will be transferred to the United States District Court for the Western District of New York.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Petitioner Victorio Valdivia is a native and citizen of Chile who was accorded status as a lawful permanent resident of the United States on October 14, 1991. On October 1, 1993, petitioner was convicted in the Superior Court of New Jersey for Union County of the offense of receiving stolen property, see N.J.S.A. 2C:20-7. Petitioner was also convicted of theft, see N.J.S.A. 2C: 20-3, in the same court on February 10, 1995. Petitioner was sentenced to a term of four years imprisonment for each offense.

In 1996, the 104th Congress enacted two items of legislation which altered the federal immigration laws: the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996); and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 100 Stat. 3009 (1996). These laws went into effect after the dates of petitioner's convictions in the New Jersey state court, but prior to the initiation of removal proceedings against him.

On August 18, 1998, the INS issued petitioner a Notice to Appear in Removal Proceedings, charging him with being removable pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA").¹ An Immigration Judge ordered Petitioner's removal from the United States on February 25, 1998. Petitioner appealed to the Board of Immigration Appeals ("BIA"), which remanded the case to the Immigration Judge for further development of the administrative record.

Although his criminal convictions made him subject to removal, petitioner sought a discretionary waiver of the removal order, a practice permitted by section 212(c) of the INA prior to the 1996 amendments. On February 3, 1999, the Immigration Judge again ordered that petitioner be removed. In reaching his decision, the Immigration Judge determined that both of petitioner's convictions met the definition of an "aggravated felony" as defined by the INA, and that "as a lawful permanent resident who has been convicted of an aggravated felony, [petitioner] is statutorily ineligible for the relief of cancellation of removal." Matter of Valdivia, A:91-584-443 at 2 (U.S. Immigration Ct.1999)(slip opinion).

Petitioner appealed this decision to the BIA, which denied his appeal on September 3, 1999. In its decision, the BIA found that as a result of additional restrictions placed on section 212(c) of the INA by AEDPA, petitioner was statutorily ineligible for relief.² In discussing petitioners' claims, the BIA noted that:

[Valdivia] has essentially asserted that recent changes in the law are inapplicable to him... We recognize that the United States Court of Appeals for the Third Circuit, where this case arises, has determined that the restrictions on section 212(c) relief added by AEDPA do not apply retroactively to proceedings commenced on or before April 24, 1996. See Sandoval v. Reno, 166 F.3d 225 (3d Cir.1999). However, [Valdivia's] case does not fall within the scope of Sandoval v. Reno, supra, as his proceedings commenced subsequent to that date.

In re Valdivia, A: 91-584-443 (Board of Immigration App.1999) (slip opinion).

Petitioner's immigration proceedings took place in Newark, New Jersey. He is currently being held at the Buffalo Federal Detention Facility in Batvia, New York. Petitioner filed this petition for a writ of habeas corpus on September 14, 1999, alleging that the BIA's retroactive application of statutory changes to the INA imposed by AEDPA deprived him of his constitutional rights.

JURISDICTIONAL ANALYSIS

Respondent INS contends that this Court has no jurisdiction to entertain petitioner's request for relief because "judicial review [of removal orders] is within the sole purview of the United States Court of Appeals for the Third Circuit," citing Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Respondent's Answer at 3.

As the United States Court of Appeals for the Third Circuit recently observed, the right to judicial review of deportation orders "has largely been eliminated by the recent amendments to the INA in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")". Catney v. INS, 178 F.3d 190, 191 (3d Cir. 1999). Prior to the amendments, aliens facing deportation on the basis of criminal convictions had several options available to them. First, "at least two provisions of the INA [sections 212(c) and 212(h)] formerly provided these aliens with the opportunity to seek discretionary relief from deportation...." 178 F.3d at 192. Direct judicial review of these discretionary administrative decisions was available pursuant to INA § 106, 8 U.S.C. § 1105a, which vested exclusive jurisdiction in the Circuit Courts of Appeal. See American-Arab, 525 U.S. at ___, 119 S.Ct. at 940. Second, § 106(a)(10) of the INA expressly provided for district court review of deportation proceedings by way of a petition for habeas relief. See Sandoval v. Reno, 166 F.3d 225, 227 (3d Cir.1999).

The amendments contained in AEDPA and IIRIRA altered the INA's treatment of criminal aliens in two important respects. First, the amendments were designed to limit the Attorney General's authority to waive deportation for certain felons. Wallace v. Reno, 194 F.3d 279, 281 (1st Cir.1999). Second, "by complementary jurisdictional changes, Congress sought to curtail judicial review, especially for the same class of felons." Id.

Determining the extent to which judicial review of removal orders remains available following the amendments has been nothing less than an interpretive nightmare. Most of the judicial debate thus far, however, has involved the availability of review in "transitional" removal cases which were pending before April 1, 1997, the effective date of IIRIRA. Cases initiated after that date are subject to the permanent jurisdictional provisions imposed by IIRIRA, now codified at 8 U.S.C. § 1252. See Sandoval, 166 F.3d at 229 (discussing the transitional and permanent rules).

The law applied to transitional cases in this Circuit, at least for the time being, is that "habeas jurisdiction survived AEDPA's and IIRIA's limitations on judicial review of certain deportation orders, but direct review did not." See Catney v. INS, 178 F.3d at 195, citing Sandoval, 166 F.3d at 231-38. See also DeSousa v. Reno, 190 F.3d 175 (3d Cir.1999) (reaffirming Sandoval and Catney after the Supreme Court's decision in American-Arab). A majority of the other Circuit Courts of Appeals have reached this same conclusion. See Wallace, 194 F.3d at 285, n. 6 (holding that district courts retain habeas jurisdiction under the transitional rules and noting that the Second, Third, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits have so held); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 304-05 (5th Cir.1999) (remarking that "the Seventh Circuit is the only Circuit arguably maintaining that there is no habeas jurisdiction in cases under the transitional rules").

Whatever may eventually become of the transitional cases, petitioner's case falls within the class of removal cases which were commenced after the effective date of IIRIRA. It is, accordingly, subject to the permanent jurisdictional provisions codified in 8 U.S.C. § 1252, and particularly the so-called "zipper clause" found in 8 U.S.C. § 1252(b)(9). Section 1252(b)(9) 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.

The issue presented is whether this Court retains habeas corpus jurisdiction under § 1252(b)(9).

Respondent relies almost exclusively on the discussion of § 1252(b)(9) found in American-Arab, which characterized § 1252(b)(9) as an "unmistakable zipper clause" that limits judicial review in deportation cases to the "review of a final order" provided for in § 1252(b)(9). 119 S.Ct. at 943. The discussion of § 1252(b)(9) found in American-Arab is, however, dicta; the holding in American-Arab concerned the Supreme Court's interpretation of 8 U.S.C. § 1252(g). Moreover, it is unclear whether Justice Scalia's use of the phrase "no judicial review in deportation cases" refers only to direct review, or also includes habeas corpus review. Section 1252(b)(9) itself is susceptible to either interpretation. It can be read as barring all forms of judicial review other than the "review of a final order" provided for in the section, including habeas corpus; or it can be read as simply eliminating direct review in the form of interlocutory appeals to a federal court at any time prior to the...