F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 18 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
TUONG HUAN VAN DINH; OSCAR
GARCIA-PEREZ; MESERET
ANTANAW WASSIE; BENIGNO
PALAGANAS-SUAREZ; LOI
NGUYEN; JUAN CISNEROS;
CELESTE FERGUSON; JANE DOE
and JOHN DOE as UNNAMED
DETAINEES AT WCC/INS,
individually, and on behalf of all other
persons similarly situated,
Plaintiffs-Appellants,
v. No. 98-1312
JANET RENO, Attorney General,
United States of America, in her
official and individual capacities;
JOSEPH GREENE, District Director,
United States Immigration and
Naturalization Service, Denver,
Colorado, in his official and individual
capacities,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98-K-926)
Submitted on the briefs:
Jim Salvator, Lafayette, Colorado, for Plaintiffs-Appellants.
Linda A. McMahan, United States Attorney, and Michael E. Hegarty, Assistant
U.S. Attorney, Denver, Colorado, and David J. Kline, Deputy Director, and
William J. Howard, Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Washington, D.C., for
Defendants-Appellees.
Before TACHA , McKAY , and MURPHY , Circuit Judges.
McKAY , Circuit Judge.
Plaintiffs-appellants appeal from the district court’s denial of attorney’s
fees and costs for which they applied pursuant to the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d)(1)(A). 1
Our jurisdiction arises under 28 U.S.C.
§ 1291. Because we conclude that the district court lacked subject matter
1
The EAJA is also codified in part at 5 U.S.C. § 504, and provides that
prevailing parties in certain adversarial administrative proceedings may recover
attorney’s fees and costs from the government. The Supreme Court has held,
however, that because deportation proceedings are not subject to the
Administrative Procedures Act, aliens who have prevailed in deportation
proceedings are not entitled to recovery of attorney’s fees under § 504. See
Ardestani v. INS , 502 U.S. 129, 139 (1991). Other courts have held, for the
same reason, that attorney’s fees are not recoverable in immigration cases under
the judicial review provision of § 2412(d)(1)(A). See, e.g., Full Gospel Portland
Church v. Thornburgh , 927 F.2d 628, 631 (D.C. Cir. 1991); Hashim v. INS ,
936 F.2d 711, 715 (2d Cir. 1991).
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jurisdiction over appellants’ underlying Bivens 2 class action suit, we remand for
entry of an order dismissing the case with prejudice. 3
I. Background Facts and Procedures
Plaintiff Tuong Huan Van Dinh 4
is an alien who had permanent resident
alien status until he was convicted of a criminal act and was sentenced to
deportation. See Appellees’ Supp. App. at 11, 13. Tuong apparently did not
appeal the order of deportation to the Board of Immigration Appeals, see id.
at 13-14. Instead he filed a habeas corpus action in federal district court,
individually and on behalf of others similarly situated, challenging the
constitutionality of holding deported aliens for an indeterminate time when their
country of origin refuses to allow them reentry. Cf. Galaviz-Medina v. Wooten ,
27 F.3d 487, 491-94 (10th Cir. 1994) (noting, under former immigration statutes,
that habeas petitions are proper vehicle for constitutional claims when alien does
2
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics ,
403 U.S. 388 (1971).
3
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
4
Although Tuong’s name is spelled “Thong” in the style of the case before
us, we are confident that the proper spelling of his name is “Tuong” and that he is
the same plaintiff as the plaintiff named in the habeas corpus action relevant to
this case.
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not appeal from a final order of deportation but raises constitutional concerns
arising from subsequent decisions). The habeas action was filed in March 1998,
is numbered in the district court as No. 98-CV-652, and is hereinafter referred to
as “the habeas action.”
Tuong was incarcerated in a facility in Aurora, Colorado, pending
deportation. On April 23, 1998, Tuong and other aliens confined at the Aurora
facility were informally notified that “there was a ‘distinct probability’” that all
Immigration and Naturalization Service (INS) prisoners at that facility would be
moved because the INS’s contract with the facility would expire on April 28 and
there was an impasse in extension negotiations. See Appellant’s App. at 111
(Class Action Complaint). On April 24, sixty-five “unknown plaintiffs were
transferred to various unknown locations.” Id.
On April 24, Tuong filed an amended application for habeas corpus.
See id. at 13. He challenged as unconstitutional the possibility of his transfer,
alleging that he would be denied his right to counsel if moved to a remote area,
and requested the court to either issue a writ directing the INS to place him in
another Denver-area facility or order the INS to place him on bail. See id. at 8,
17. The same day, he also filed a motion to maintain a class action for the
amended application, see id. at 22, and a motion for a temporary restraining
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order (TRO) that requested the same remedies as the amended application, see id.
at 32, 37.
On April 24, the court issued a TRO ordering that Tuong and “the class”
not be transferred out of the Denver area before April 27. In the event no
stipulation was reached between the parties, the court set a hearing for April 27
on the matters. See id. at 102. On April 27, in its response to Tuong’s motions,
the INS challenged the court’s subject matter jurisdiction but also asserted that
neither Tuong nor any other alien with matters pending before the federal courts
would be transferred out of the Denver area. See id. at 46-47, 73-74. It also
stated that the INS would “transport back to Colorado as necessary any
individuals currently represented over whom the court has jurisdiction and whose
presence is required by the immigration court or any federal court.” Id. at 74.
The day of the hearing, Tuong and the other named plaintiffs filed a Bivens
class action complaint (numbered in the district court as No. 98-CV-926) which
asserted jurisdiction based on 28 U.S.C. § 1331. The complaint requested
injunctive relief restraining all alien transfers until local counsel had an
opportunity to interview their clients and potential pro bono clients, injunctive
relief restraining transfer outside the Denver area of those aliens with an
established attorney-client relationship (or, in the alternative, ordering that those
aliens be released on bail or on their own recognizance), and costs and attorney
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fees. See id. at 113. Along with the complaint, plaintiffs filed a motion to certify
it as a class action, a motion to consolidate the suit with Tuong’s habeas action,
and another motion for TRO. See id. at 105.
At the April 27 hearing on the TRO motion filed in Tuong’s habeas case ,
the parties stipulated to the district court that a temporary contract extension with
the Aurora facility had been signed, so the TRO issues were moot for the time
being. See Appellees’ Supp. App. at 2. The court denied plaintiffs’ motion filed
in the Bivens class action to consolidate the class action suit with Tuong’s habeas
action. See id. at 3. Plaintiffs then suggested that the court stay everything in the
Bivens class action until the parties filed a status report, and the court agreed.
See id. at 4.
The INS executed a new contract for the Aurora facility on May 19, and on
May 22, the INS moved the court to dismiss as moot the Bivens class action. At a
June 3 hearing, the court continued the motion to dismiss for a week. See id. at 8.
The court then again turned to the motion for TRO filed in Tuong’s habeas case.
See id. at 9. The parties informed the court that they had reached a stipulation
with regard to Tuong’s bail and that the TRO issues were moot. See id.
On June 10, plaintiffs filed their concurrence in the INS’s motion to
dismiss the Bivens class action, along with a motion for attorney fees and costs
brought pursuant to the EAJA. See id. at 17; Appellants’ App. at 105. The court
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denied the motion for attorney fees and costs, concluding that plaintiffs had not
shown that they were the prevailing party in the underlying Bivens class action
or that the position of the INS was not substantially justified. See Appellant’s
App. at 244.
II. Legal Standards
The EAJA requires that a court
award to a prevailing party . . . fees and other expenses . . . incurred
by that party in any civil action . . . including proceedings for
judicial review of agency action, brought by or against the United
States in any court having jurisdiction of that action , unless the court
finds that the position of the United States was substantially justified
or that special circumstances make an award unjust.
28 U.S.C.§ 2412(d)(1)(A) (emphasis added). The statute includes an express
requirement that a court have subject matter jurisdiction over the underlying
action before it may issue an award for fees and costs. See Powder River Basin
Resource Council v. Babbitt , 54 F.3d 1477, 1482 n.2 (10th Cir. 1995). We
review whether a court has subject matter jurisdiction over a Bivens action
de novo . See Maddick v. United States , 978 F.2d 614, 615 (10th Cir. 1992).
A decision regarding whether attorney fees and costs should be awarded under
the EAJA will be reversed only for abuse of discretion. See Kopunec v. Nelson ,
801 F.2d 1226, 1229 (10th Cir. 1986).
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III. Discussion
On appeal, appellants argue that they were the prevailing parties because
the district court issued the April 24 TRO precluding their transfer out of the
Denver area until April 27, and that they therefore should have been awarded
attorney’s fees and costs. See Kopunec , 801 F.2d at 1228-29 (stating that “[a]
plaintiff prevails for attorney fee purposes if success on a significant issue of
litigation achieves some of the benefit the plaintiff sought in bringing the suit”).
The INS asserts, inter alia , that the district court never had subject matter
jurisdiction over the Bivens class action suit under 8 U.S.C. § 1252(a)(2)(B)(ii)
and 8 U.S.C. § 1252(f), and that denial of attorney’s fees was therefore proper.
Section 1252(a)(2)(B)(ii) provides:
Notwithstanding any other provision of law, no court shall have
jurisdiction to review . . . (ii) any other decision or action of the
Attorney General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General, other
than the granting of relief under section 1158(a) of this title.
Appellants argue that this section does not apply because: (1) it does not repeal
habeas review under 28 U.S.C. § 2241; (2) it applies only to review of final
orders of removal; and (3) it is silent regarding constitutional issues.
Section 1252(f) provides, in part, that
no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions of
[§§ 1221-31] of this subchapter . . . other than with respect to the
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application of such provisions to an individual alien against whom
proceedings under such part have been initiated.
Appellants argue that this section does not apply because it is silent as to
habeas jurisdiction and because their statutory right to counsel is not encompassed
in §§ 1221-31, but rather is found in 8 U.S.C. § 1362. We address plaintiffs’
arguments seriatim.
A. Habeas Arguments
Even though the issue before this court centers on whether the Bivens class
action was properly before the district court, appellants focus solely on Tuong’s
amended habeas petition and the rulings in that action, and attempt to bootstrap to
any jurisdiction the district court may have had to entertain the original habeas
petition. They contend that they “prevailed for EAJA purposes on their habeas
claim brought pursuant to § 2241, not on the Bivens claim brought pursuant to
section 1331.” Appellants’ Reply Br. at 5. Appellants’ contention directly
contradicts their motion for attorney fees and costs, which was filed in the Bivens
class action, not in Tuong’s amended habeas action.
Appellants assert that they simply “reformed and re-filed” the habeas claim
as a Bivens action, erroneously claiming that the plaintiffs in the Bivens class
action were “the identical parties as petitioners in the habeas claim.” Appellants’
Reply Br. at 4. The amended habeas petition, however, listed only Tuong,
“individually, and on behalf of all other persons similarly situated,” and did
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not include the six named plaintiffs in the Bivens class action. Appellants’ App.
at 13. Even if the district court had jurisdiction to hear Tuong’s original habeas
claims based on alleged illegal indeterminate detention, an issue we do not decide
here, that jurisdiction did not automatically extend to the Bivens class action
which raised totally different issues. For this reason, appellants’ argument that
the jurisdictional question should hinge on our recent ruling in Jurado-Gutierrez
v. Greene , Nos. 97-1437, 98-1017, 98-1050, 98-1310, 1999 WL 637038, at *7-*8
(10th Cir. Aug. 19, 1999), in which we held that there remains an independent,
alternative right to habeas review in immigration cases under 28 U.S.C. § 2241,
notwithstanding the sweeping changes made by the Illegal Immigration Reform
and Immigration Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009 (1996), is without merit. The resolution of this matter is simply
not governed by habeas law.
B. Final Order Review
Apparently because § 1252 is headed “Judicial review of orders of
removal,” and appellants are not requesting review of their final orders of
deportation, 5
appellants argue that § 1252(a)(2)(B)(ii) is inapplicable. We have
5
In fact, at least one of the plaintiffs named in the class action was not even
yet subject to a final order of deportation, as removal proceedings were still in
process. See Appellants’ App. at 110. This fact further shows why not all
plaintiffs in the Bivens class action were similarly situated to the unnamed
(continued...)
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indicated that the title of a statute may imply a limitation on a statute’s
applicability. See Findlay v. Banks (In re Cascade Energy & Metals Corp.) ,
87 F.3d 1146, 1151 (10th Cir. 1996) (affirming bankruptcy court’s conclusion that
debtor intended to mislead the court by omitting language in the title and text of
statute on which he claimed he relied in good faith). The general rule, however,
is that
[w]here the text is complicated and prolific, headings and titles can
do no more than indicate the provisions in a most general manner; to
attempt to refer to each specific provision would often be ungainly as
well as useless. . . . [T]he heading of a section cannot limit the plain
meaning of the text. For interpretative purposes, they are of use only
when they shed light on some ambiguous word or phrase. They are
but tools available for the resolution of a doubt. But they cannot
undo or limit that which the text makes plain.
Brotherhood of R.R. v. Baltimore & O. R. Co. , 331 U.S. 519, 528-29 (1947)
(citations omitted). Reviewing § 1252, which is both complicated and prolific,
we see that it addresses a multitude of jurisdictional issues, including ones
that are collateral to the review of a final order of deportation. See, e.g.,
§ 1252(a)(2)(B)(i) (providing that “no court” may review certain of the Attorney
General’s discretionary grants of relief in, inter alia , requests for voluntary
departure, cancellation of removal, and adjustment of status); § 1252(e) (limiting
5
(...continued)
plaintiffs in Tuong’s original habeas petition, so that the parties were not
“identical,” as appellants now claim.
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jurisdiction to review exclusion orders, including habeas review and collateral
constitutional challenges to the validity of the system); § 1252(f) (providing
limitations on injunctive relief available in any court other than the Supreme
Court); § 1252(g) (barring review in transitional cases of certain discretionary
decisions of the Attorney General in any court and in any type of action). We
conclude that § 1252(a)(2)(B)(ii) is not limited in application only to review by
the circuit courts of final orders of removal.
C. Bivens Jurisdiction
1. Congressional intent. A Bivens action may be available to remedy a
violation of the Due Process Clause, see, e.g., Davis v. Passman , 442 U.S. 228,
245 (1979), but is available only when “there are no ‘special factors counselling
hesitation in the absence of affirmative action by Congress,’ no explicit statutory
prohibition against the relief sought, and no exclusive statutory alternative
remedy.” Schweiker v. Chilicky , 487 U.S. 412, 421 (1988) (quoting Davis ,
442 U.S. at 245). We must therefore review the immigration statutes to determine
whether a Bivens class action is available in cases like the one at bar.
Section 1252 indicates a legislative intent to limit review of immigration
decisions in federal district courts. Prior to the enactment of IIRIRA, judicial
review of immigration decisions, including final orders, could occur either in
a federal circuit court of appeals or in a federal district court. See Cheng Fan
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Kwok v. INS , 392 U.S. 206, 210, 215-16 (1968) (holding that language found in
8 U.S.C. § 1105a(a) (1961) giving circuit courts of appeal exclusive jurisdiction
to review final orders was expressly limited to orders made in the course of
deportation proceedings or to direct challenges of the deportation order itself, and
stating that in all other cases, an alien’s remedies would lie first in an action
brought in an appropriate district court); Castaneda v. INS , 23 F.3d 1576, 1579-80
(10th Cir. 1994) (noting that district courts had jurisdiction to review certain final
decisions not associated with deportation proceedings and final orders of
deportation under the general jurisdictional grant formerly contained in 8 U.S.C.
§ 1329 (1988)); 8 U.S.C. § 1105a(a)(10) (1988) (providing that any alien held in
custody pursuant to an order of deportation could obtain review by habeas corpus
proceedings). In enacting IIRIRA, Congress drastically reduced the review
available in the district courts with the intent of “protecting the Executive’s
discretion from the courts,” Reno v. American-Arab Anti-Discrimination
Committee , 119 S. Ct. 936, 945 (1999) [hereinafter “ AADC ”], in a “streamlined
process,” in which issues of law and fact “are not subject to separate rounds of
litigation,” id. at 944. IIRIRA repealed § 1105a and replaced it with new § 1252.
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The new judicial review statute significantly limited statutory habeas
jurisdiction in the district courts. See § 1252(e)(2) (1996) (providing for limited
habeas review only of exclusion determinations made pursuant to 8 U.S.C.
§ 1225(b)(1)). Congress also deleted language that limited exclusive jurisdiction
in the circuit courts of appeal to review of only those orders arising pursuant
to deportation proceedings. Cf. § 1105a(a)(1) (1986) (repealed) with § 1252(a)(1)
(1999). It broadened the scope of exclusive review in the circuit courts of appeal
to include all questions of law and fact arising from any action or proceeding
brought to remove an alien. See § 1252(b)(9) (1999). Congress further amended
§ 1329 to provide for district court jurisdiction only in cases brought by the
United States. See Pub. L. No. 104-208, § 381(a). Finally, Congress added
subsections that preclude direct review by any court of certain discretionary
decisions made by the Attorney General. See § 1252(a)(2)(B)(i) & (ii); §1252(g);
§ 1226(e); 8 U.S.C. § 1158(a)(3); § 1158 (b)(2)(D); see also Saccoh v. INS ,
24 F. Supp. 2d 406, 408-09 (E.D. Pa. 1998) (dismissing cause of action for
lack of jurisdiction to review discretionary decisions under § 1252(g) and
§ 1252(a)(2)(B)(ii)).
2. Whether review of the actions taken by the Attorney General is
encompassed within the immigration statutes such that a Bivens action is
precluded by statute. The Attorney General is mandated to “arrange for
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appropriate places of detention for aliens detained pending removal.” 8 U.S.C.
§ 1231(g)(1). The Attorney General’s discretionary power to transfer aliens from
one locale to another, as she deems appropriate, arises from this language. 6
See Rios-Berrios v. INS , 776 F.2d 859, 863 (9th Cir. 1985) (interpreting former
statute now codified as § 1231(g)); Sasso v. Milhollan , 735 F. Supp. 1045, 1048
(S.D. Fla. 1990) (accord) . As mentioned above, § 1252(f) forecloses jurisdiction
to grant class-wide injunctive relief to restrain operation of §§ 1221-31 by any
court other than the Supreme Court. It is therefore apparent that a district court
has no jurisdiction to restrain the Attorney General’s power to transfer aliens to
appropriate facilities by granting injunctive relief in a Bivens class action suit.
See Schweiker , 427 U.S. at 421 ( Bivens action unavailable if there is an explicit
statutory prohibition against the relief sought). Appellants’ argument that
§ 1252(f) is not applicable because the right to counsel is not found in §§ 1221-31
is unavailing.
Further, § 1252(a)(2)(B)(ii) provides that no court has jurisdiction to
review any decision or action the Attorney General has discretion to make
6
We also note that § 1231(i)(4)(B) requires the Attorney General to “ensure
that undocumented criminal aliens incarcerated in Federal facilities are held in
facilities . . . which provide a level of security appropriate to the crimes for which
they were convicted.” This section also gives the Attorney General authority to
transfer aliens to facilities that are, in her discretion, deemed appropriate.
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“under this subchapter” except for “the granting of relief under section 1158(a).”
“[T]his subchapter,” which is subchapter II of Chapter 12 of Title 8, covers
§§ 1151-1378, including § 1231. Unless there is some reason we should not give
literal meaning to this language, it also appears that a Bivens action was not
available to appellants because of this specific statutory bar to district court
review.
3. Redundancy . Although not raised by appellants, we are aware of the
principle that a court should not “adopt an interpretation of a congressional
enactment which renders superfluous another portion of that same law.” Mackey
v. Lanier Collection Agency & Serv., Inc. , 486 U.S. 825, 836 (1988). In
determining the application and scope of § 1252(g), the court in AADC addressed
redundancy, comparing § 1252(g) with § 1252(b)(9), which it found to be a broad
“zipper” clause applying to all immigration decisions. 119 S. Ct. at 943. We
have conducted a similar analysis.
Section 1252(a)(2)(B)(ii) is not redundant of § 1252(g) because that
subsection applies only to bar review of discrete discretionary decisions in
transitional cases. See id. It does not render superfluous § 1226(e) (which bars
judicial review of the Attorney General’s “discretionary judgment regarding the
application of [§ 1226]”) because the bars to review address different types of
discretionary judgment. Even if the two statutes provide some overlap, that
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redundancy may be reasonably explained because, before IIRIRA, the predecessor
statute expressly provided for judicial review of decisions made under that
section. See 8 U.S.C. § 1252(a) (1988) (amended and recodified, in pertinent
part, as § 1226(e)); Gornicka v. INS , 681 F.2d 501, 505-06 (7th Cir. 1982). Thus
it was reasonable for Congress to expressly withdraw jurisdiction to judicial
review in the specific statute rather than to simply delete the provision and rely on
the provisions in new § 1252(a)(2)(B)(ii) to bar review.
Two other provisions in the immigration statutes bar judicial review of
discretionary decisions. Title 8 U.S.C. § 1229c(b)(1) authorizes the Attorney
General, in her discretion, to allow an alien voluntarily to depart the United States
in lieu of undergoing removal proceedings. Section 1229c(f) bars review by any
court of the “denial of a request for an order of voluntary departure under
[§ 1229c(b)],” which at first blush appears to apply to the Attorney General’s
decision to allow departure. We note, however, that the Attorney General’s
discretion to permit voluntary departure under § 1229c(b) is specifically
conditioned upon the entry of a separate order granting voluntary departure by an
immigration judge who must find four conditions to exist before the order may be
granted. See § 1229c(b)(1). Thus, the bar in § 1229c(f) appears to bar review of
the immigration judge’s order and not to bar review of the Attorney General’s
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subsequent decision to allow the alien to depart voluntarily pursuant to that order.
Interpreted in that manner, the two sections are complementary and not redundant.
There are also separate limitations to review of the Attorney General’s
discretionary decisions in 8 U.S.C. § 1158, but these provisions are not
superfluous because § 1252(a)(2)(B)(ii) expressly excepts the granting of relief
under § 1158 from the bar provided in § 1252(a)(2)(B)(ii).
We conclude that § 1252(a)(2)(B)(ii) does not render superfluous other
jurisdictional statutes and limits direct review of discretionary decisions and
actions related to the custody and detention of aliens who have already been
determined to be deportable in a final order. Because the discretionary decision
to transfer aliens from one facility to another and the correlative discretionary
decision to grant or deny relief from such a transfer is a “decision . . . under this
subchapter,” judicial review of that decision is expressly barred by
§ 1252(a)(2)(B)(ii). Cf. Chavez v. United States INS, No. Civ. A. 98-1121,
1999 WL 304539, at *2 (W.D. La. Mar. 31, 1999) (concluding that it lacked
jurisdiction under § 1252(a)(2)(B)(ii) to review challenges to discretionary
decisions in alien’s habeas action absent a challenge to the constitutionality of
INS proceedings); Edoo v. Kaplinger, 47 F. Supp. 2d 769, 773 (W.D. La. 1999)
(accord) (stating that “[i]t seems well established that the Constitution has not
historically required judicial review of merely discretionary decisions,” and citing
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Yang v. INS, 109 F.3d 1185, 1195 (7th Cir. 1997)). Because IIRIRA expressly
precludes both the remedy requested and direct review of the discretionary
decisions at issue, the district court had no jurisdiction to entertain a Bivens class
action requesting such review and remedy.
D. Applicability of this Case to Habeas Analysis
Finally, we respond to appellants’ argument that § 1252(a)(2)(B)(ii) and
§ 1252(f) do not apply to bar review when constitutional due process issues like
those alleged in the complaint have been raised. Initially, we note that the Bivens
class action complaint requests only prospective injunctive relief based on a
hypothetical transfer to a remote area and a totally speculative future violation of
due process that would not arise solely from the transfer itself. Cf. Committee of
Central Am. Refugees v. INS , 682 F. Supp. 1055, 1064-65 (N.D. Ca. 1988)
(holding that a transfer to another INS facility, “standing alone, does not
constitute a violation of plaintiffs’ due process or statutory rights justifying the
issuance of injunctive relief to restrict the Attorney General’s discretion” to
detain aliens in appropriate INS facilities); Committee of Central Am. Refugees v.
INS , 795 F.2d 1434, 1435 (9th Cir. 1986) (affirming district court’s denial of
preliminary injunction that would interfere with Attorney General’s discretionary
power to choose facility where deportable aliens were detained in absence of
proof of actual deprivation of statutory right to counsel or denial of due process).
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Thus, the complaint does not allege that an actual or continuing constitutional
violation had occurred that could be remedied by judicial action.
We emphasize, however, that our holding in this case has no application
to constitutional habeas claims brought pursuant to 28 U.S.C. § 2241. See
Jurado-Gutierrez , 1999 WL 637038, at *7-*8 (holding that review under § 2241
still available notwithstanding express language in IIRIRA barring review “by
any court” of final orders of removal for aliens deportable by reason of having
committed a criminal offense, and distinguishing between direct and collateral
review). While the immigration statutes may not preclude collateral review of
constitutional issues in § 2241 habeas cases, an issue we do not decide here, they
do preclude direct review of the Attorney General’s discretionary decisions in
immigration cases by means of a Bivens class action suit.
IV. Conclusion
Because the district court had no jurisdiction to review the Attorney
General’s discretionary decision to transfer and detain appellants in another INS
facility under § 1252(a)(2)(B)(ii) and because the complaint requested a remedy
the district court had no jurisdiction to grant under § 1252(f), no Bivens class
action was available and the court did not have subject matter jurisdiction under
28 U.S.C. § 1331. Having no subject matter jurisdiction over the underlying suit
under any other statute, the district court was also without authority to entertain
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the request for award of attorney fees and costs under the EAJA. See Powder
River Basin Resource Council, 54 F.3d at 1482 n.2.
The judgment of the United States District Court for the District of
Colorado is VACATED and the case is remanded for entry of an order of
dismissal with prejudice.
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