Mahadeo v. Reno

United States Court of Appeals
For the First Circuit

No. 99-1687

SOONDAR MAHADEO,

Petitioner, Appellant,

v.

JANET RENO, STEVE FARQUHARSON, AND DORIS MEISSNER,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

Lee Gelernt, with whom Allan M. Tow was on brief, for
appellant.

Christine A. Bither, Attorney, Office of Immigration
Litigation, Civil Division, with whom David W. Ogden, Acting
Assistant Attorney General, Civil Division, and Mark A. Walters,
Assistant Director, Office of Immigration Litigation, were on
brief, for appellees.
 September 11, 2000

LIPEZ, Circuit Judge. This case requires us to decide

whether the permanent rules of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.

104-208, 110 Stat. 3009-546 (1996), repeal the jurisdiction of

the federal district courts pursuant to 28 U.S.C. § 2241 to

review statutory interpretation and constitutional claims

asserted by aliens convicted of one or more crimes specified in

the Immigration and Nationality Act ("INA") on a petition for a

writ of habeas corpus. We have previously held that the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), and IIRIRA's

transition rules eliminated our jurisdiction to review on direct

appeal a deportation order entered against an alien convicted of

certain crimes, see Goncalves v. Reno, 144 F.3d 110, 117 (1st

Cir. 1998) (construing IIRIRA transition rules); Kolster v. INS,

101 F.3d 785, 786 (1st Cir. 1996) (construing AEDPA), but that

neither AEDPA nor IIRIRA's transition rules revoked the district

courts' historical power pursuant to the general federal habeas

corpus statute to review statutory or constitutional challenges

to immigration decisions, see Mattis v. Reno, 212 F.3d 31, 35

-2-
n.6 (1st Cir. 2000); Wallace v. Reno, 194 F.3d 279, 285 (1st

Cir. 1999); Goncalves, 144 F.3d at 113. We hold today that

IIRIRA's permanent rules likewise do not divest the federal

courts of their traditional jurisdiction to grant writs of

habeas corpus pursuant to § 2241.

I.

A native of Trinidad and Tobago, Soondar Mahadeo

immigrated to the United States with his family twenty-six years

ago. In 1984, and again in 1991, Mahadeo was convicted of

possession of marijuana with intent to distribute; each

conviction constitutes an "aggravated felony" as defined by the

INA. See INA § 101(a)(43)(B); 8 U.S.C. § 1101 (a)(43)(B).1 On

May 30, 1997, the INS commenced removal proceedings against

Mahadeo. The immigration judge found him removable and ordered

him deported.

Mahadeo appealed to the Board of Immigration Appeals

("BIA"), arguing that he was entitled to apply for a

discretionary waiver of the removal order pursuant to former INA

§ 212(c), as it stood before it was amended by AEDPA and

1 An "aggravated felony" falls in the category of crimes
that precludes judicial review under INA § 242(a)(2)(C), AEDPA
§ 440(a), IIRIRA transition rule § 309(c)(4)(G), and IIRIRA
permanent rule § 304(a), which adds new INA § 240A. We refer to
the aliens whose convictions place them within this category,
see infra note 4, variously as "criminal aliens," or "aliens
with a criminal conviction."

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repealed by IIRIRA.2 In particular, he argued that denying him

access to former INA § 212(c) would violate the presumption

against retroactivity in statutory interpretation because his

convictions pre-dated the enactment of AEDPA and IIRIRA. In the

alternative, Mahadeo asserted that retroactive application of

IIRIRA's repeal of § 212(c) relief would be unconstitutional.

The BIA rejected Mahadeo's arguments.

Mahadeo then petitioned the district court for habeas

corpus relief pursuant to 28 U.S.C. § 2241, contending that the

2 Before AEDPA amended § 212(c) in 1996, it provided in
relevant part:

Aliens lawfully admitted for permanent residence . .
. who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted
in the discretion of the Attorney General. . . . The
first sentence of this subsection shall not apply to
an alien who has been convicted of one or more
aggravated felonies and has served for such felony or
felonies a term of imprisonment of at least 5 years.

Codified at 8 U.S.C. § 1182(c) (1995). The second sentence does
not apply to Mahadeo because he did not serve five years for
either of his felony convictions. Despite the literal language
of § 212(c), which speaks only of aliens "returning," it had
been construed to apply not only to aliens seeking discretionary
relief from exclusion, but also to aliens, like Mahadeo, seeking
discretionary relief from deportation. See Joseph v. INS, 909
F.2d 605, 606 n.1 (1st Cir. 1990); Francis v. INS, 532 F.2d 268,
273 (2d Cir. 1976). IIRIRA's permanent rules repeal § 212(c)
entirely, replacing it with a new discretionary relief
provision, see IIRIRA § 304(a) (adding INA § 240A, codified at
8 U.S.C. § 1229b (authorizing the INS to "cancel" removal in
certain circumstances, but not when an alien has been convicted
of an "aggravated felony")).

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BIA erred in concluding that it lacked the authority to consider

his request for discretionary relief pursuant to former INA §

212(c). He reiterated both his constitutional arguments and his

statutory interpretation challenge premised on the presumption

against retroactivity. The district court did not address the

merits of Mahadeo's petition because it concluded that IIRIRA's

permanent rules revoked the subject matter jurisdiction of

federal district courts to entertain § 2241 petitions brought by

aliens seeking review of immigration proceedings. Mahadeo now

appeals.

II.

Although the parties agree that IIRIRA's permanent

rules govern Mahadeo's removal proceedings, we think it is

useful for the analysis that follows to explain why that is so.

Congress enacted AEPDA in April 1996. Among other things, AEDPA

expanded the category of criminal convictions that would render

an alien ineligible to apply for § 212(c) discretionary relief.3

3 AEDPA § 440 replaced the prohibition on discretionary
relief for aliens "convicted of one or more aggravated
felonies," with a prohibition on such relief for aliens
"deportable by reason of having committed any criminal offense
covered in section 241(a)(2)(A)(iii) [aggravated felony],
(B)[controlled substance], (C)[certain firearm offenses], or (D)
[miscellaneous national security or defense crimes], or any
offense covered by section 241(a)(2)(A)(ii) [multiple criminal
convictions] for which both predicate offenses are covered by
section 241(a)(2)(A)(i) [crimes of moral turpitide]." In Almon
v. Reno, 192 F.3d 28, 30-31 (1st Cir. 1999), we concluded that

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Significantly, for criminal aliens like Mahadeo, AEDPA § 440(d)

made all "aggravated felons" ineligible for relief, even if the

alien had not been required to serve a "term of imprisonment of

at least 5 years." Compare INA § 212(c) (1995) (pre-AEDPA) with

INA § 212(c), 8 U.S.C. § 1182(c) (1997) (post-AEDPA). Just a

few months after Congress enacted AEDPA, it enacted IIRIRA,

altering the immigration laws yet again. IIRIRA's permanent

rules repealed former INA § 212(c) and created a new form of

discretionary relief, "cancellation of removal." See IIRIRA §

304 (adding new INA § 240A, codified at 8 U.S.C.A. § 1229b (West

Supp. 1998)). "Cancellation," like § 212(c) relief both before

and after AEDPA's amendments, is not available to aliens whose

criminal convictions qualify as "aggravated felonies." See

IIRIRA § 304(a). Like the AEDPA amendments, the "cancellation"

provision continues to make all aggravated felons ineligible for

discretionary relief, irrespective of whether the alien was

required to serve five years in prison.4 Having been convicted

of an aggravated felony, Mahadeo is ineligible for cancellation

of removal.

§ 440(d)'s limitation on access to discretionary relief for
"deportable," but not "excludable," aliens did not violate equal
protection.
4 In addition, both AEDPA and IIRIRA expanded the
definition of "aggravated felony" to encompass more crimes. See
AEDPA § 440(e); IIRIRA § 321.

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 IIRIRA provided for a phase-in period during which

deportation proceedings would be governed by transition rules.

See IIRIRA § 309(c)(4). The transition rules treat aliens as

subject to the judicial review provisions contained in former

INA § 106, 8 U.S.C. § 1105a (1994), as modified by AEDPA, but

not as further modified by IIRIRA except for certain

transitional changes, see IIRIRA §§ 309(a), 309(c)(1),

309(c)(4); see also Wallace, 194 F.3d at 283; Prado v. Reno, 198

F.3d 286, 288 n.2 (1st Cir. 1999). One IIRIRA rule included in

the transition regime was new INA § 242(g), see IIRIRA § 306(c),

which strips courts of jurisdiction to review certain

immigration actions except as provided in INA § 242, 8 U.S.C. §

1252. See Reno v. American Arab Anti-Discrimination Comm., 525

U.S. 471, 482 (1999). Significantly for the jurisdictional

issue in this case, IIRIRA's permanent rules add to INA § 242(g)

several new jurisdiction-stripping provisions. See INA §

242(a)(1) (providing that "review of a final order of removal .

. . is governed only by [the Administrative Procedures Act

("APA")]"); INA § 242(b)(9) (consolidating judicial review of

immigration decisions in INA § 242); INA § 242(a)(2)(C)

(limiting the availability of judicial review for aliens ordered

removed for specified categories of criminal convictions).

IIRIRA's transition rules apply to deportation

-7-
proceedings commenced before April 1, 1997; proceedings

commenced on or after that date are governed by IIRIRA's

permanent rules. See Prado, 198 F.3d at 288 n.2; IIRIRA §

309(a). Although Mahadeo’s convictions occurred in 1984 and

1996, prior to the enactment of AEDPA and IIRIRA, the INS did

not commence removal proceedings against him until May 30, 1997.

Consequently, IIRIRA's permanent rules govern his removal

proceeding.

III.

In Goncalves v. Reno, we held that, although AEDPA and

IIRIRA's transition rules "divested the United States Courts of

Appeals of their former statutory jurisdiction" to hear claims

brought by aliens seeking discretionary relief from deportation,

"Congress neither explicitly nor by implication repealed the

grant of jurisdiction in 28 U.S.C. § 2241 to issue writs of

habeas corpus to persons in federal custody which the federal

district courts have had since 1789 and which has always been

available in immigration cases." 144 F.3d at 113 (emphasis

added). 5 After carefully analyzing the provisions of the

5 Since we decided Goncalves, nine other circuits have
agreed that IIRIRA's transition rules do not repeal access to §
2241 habeas relief for aliens seeking review of legal or
constitutional questions raised by immigration proceedings. See
Wallace, 194 F.3d at 285 n.6 (collecting cases from the Second,
Third, Fifth, Sixth, Eight, Tenth, and Eleventh Circuits);
Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999); Bowrin v.

-8-
permanent rules relied upon by the Attorney General, we conclude

that our holding in Goncalves controls here. As a criminal

alien, Mahadeo was precluded by IIRIRA from obtaining judicial

review in the court of appeals of the BIA's determination that

he was ineligible for a discretionary waiver pursuant to former

INA § 212(c). See INA § 242(a)(2)(C). Mahadeo's only avenue

for relief, therefore, was to petition for a writ of habeas

corpus. Although the jurisdiction-stripping provisions in the

permanent rules are more numerous than those contained in the

transition rules, IIRIRA's permanent rules--like the transition

rules--lack the kind of explicit language Congress must use if

it wants to repeal the availability of § 2241.6

A. Availability of Review Under INA § 242

INS, 194 F.3d 483 (4th Cir. 1999). But see La Guerre v. Reno,
164 F.3d 1035 (7th Cir. 1998).
6 Because Mahadeo's petition asserts purely statutory
interpretation and constitutional questions, it falls squarely
within with ambit of § 2241's jurisdictional grant. As the
plain language makes clear, § 2241 "contemplates challenges
based on the 'Constitution or laws or treaties of the United
States,'" See Goncalves, 144 F.3d at 123-24 (quoting 28 U.S.C.
§ 2241(c)(3)); see also Wallace, 194 F.3d at 284 (observing that
§ 2241 provides "a general grant of authority to issue habeas
writs for persons held in violation of the Constitution or laws,
unless such jurisdiction has been limited or withdrawn by
Congress"). Although Goncalves left for future cases "the task
of defining the precise limit of the jurisdiction under 28
U.S.C. § 2241 in immigration cases," we held that the scope of
§ 2241 review extends to both constitutional and statutory
interpretation questions. Id. at 125.

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 The Attorney General argues that Mahadeo's sole avenue

for review of his statutory and constitutional challenges to the

BIA decision is new INA § 242, the judicial review provisions

enacted as part of IIRIRA's permanent rules. For criminal

aliens like Mahadeo, however, judicial review by the courts of

appeal pursuant to INA § 242 is unavailable. INA §

242(a)(2)(C), enacted as part of IIRIRA's permanent rules,

provides:

Notwithstanding any other provision of law,
no court shall have jurisdiction to review
any final order of removal against an alien
who is removable by reason of having
committed a criminal offense covered in
section . . . 1227(a)(2)(A)(iii) [aggravated
felony] of this title . . . .

We found similar provisions included in AEDPA7 and IIRIRA's

transition rules 8 to preclude access to appellate review for

7 Section 440(a) of AEDPA provides:

(a) JUDICIAL REVIEW.--Section 106 of the Immigration
and Nationality Act (8 U.S.C. 1105a(a)(10)) is amended
to read as follows: "(10) Any final order of
deportation against an alien who is deportable by
reason of having committed a criminal offense covered
in section 241(a)(2) (A)(iii), (B), (C), or (D), or
any offense covered by section 241(a)(2)(A)(ii) for
which both predicate offenses are covered by section
241(a)(2)(A)(i), shall not be subject to review by any
court.".

8 IIRIRA § 309(c)(4)(G) provides:

[N]otwithstanding any provision of section

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criminal aliens. See Goncalves, 144 F.3d at 117 (construing

IIRIRA transition rule § 309(c)(4)(G)); Kolster v. INS, 101 F.3d

785, 786 (1st Cir. 1996) (construing AEDPA § 440(a)). A plain

reading of § 242(a)(2)(C) suggests the same result. The phrase,

"no court shall have jurisdiction to review," is functionally

indistinguishable from "shall not be subject to review by any

court," the language in AEDPA § 440(a) that we previously found

to preclude direct appeal to the circuit courts, see Kolster,

101 F.3d at 786, and not unlike, "no appeal permitted," the

language in § 309(c)(4)(G) of IIRIRA's transition rules that we

also found preclusive, see Goncalves, 144 F.3d at 117-18.

Because IIRIRA's permanent rules prevent Mahadeo from bringing

a direct appeal to this court, therefore, his only remaining

alternative is to file for a writ of habeas corpus in the

district court.9

106 of the Immigration an Nationality Act .
. . to the contrary--

* * *
There shall be no appeal permitted in the
case of an alien who is inadmissible or
deportable by reason of having committed a
criminal offense covered in . . . section
241(a)(2)(A)(iii) [aggravated felony] . . .
of the Immigration and Nationality Act [as
codified at 8 U.S.C. § 1227(a)(2)(A)(iii)] .
. . .
9 In Goncalves, the Attorney General claimed that
notwithstanding the plain language of INA § 242(a)(2)(C),

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 The Attorney General responds that, notwithstanding

§ 242(a)(2)(C)'s jurisdictional bar, several types of judicial

review remain available to Mahadeo. According to the Attorney

General, "[t]he court of appeals can review the petition of a

criminal alien subject to § 242(a)(2)(C) who raises a

substantial constitutional claim." She also urges that "the

Court has jurisdiction to determine its own jurisdiction"--that

is, "a court of appeals has jurisdiction to determine (i) if the

petitioner is an alien, (ii) if he is removable; and (iii) if he

is removable because of a conviction for a qualifying crime."

She clarifies, however, that "[o]nce the Court has determined

that a petitioner is an alien who has been ordered removed for

a qualifying criminal conviction[,] it lacks jurisdiction to

review any other challenge that the petitioner might raise to

his removal proceedings."

The Attorney General's position is similar to the

position she took in Goncalves. There, she suggested that this

court could review substantial constitutional claims and

determine whether the alien had, in fact, been convicted of the

type of crime that invokes the statutory bar to judicial review.

judicial review by the court of appeals was required by INA §
242(g). See 144 F.3d at 117-18. We rejected the notion there
that § 242(g) provides an affirmative grant of jurisdiction for
the courts of appeals to hear appeals of criminal aliens that
are otherwise precluded. See id.

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See Goncalves, 144 F.3d at 118-19. Because we concluded that

Congress had not repealed access to habeas relief under § 2241,

we took no position on whether or to what extent the

Constitution might require IIRIRA to preserve jurisdiction over

some types of questions absent the ability to raise such

questions in a habeas petition. See id. at 118 n.8. We did

observe, however, that "IIRIRA itself makes no provisions for .

. . review as to [criminal] aliens." Id. at 119. Other courts

are divided on whether and to what extent to read IIRIRA's

jurisdictional bar on judicial review as containing inherent

exceptions for certain types of claims. Compare Liang v. INS,

206 F.3d 308, 322 (3d Cir. 2000) (declining to find exceptions);

with Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.

2000) (concluding that § 242(a)(2)(C) permits review over only

the narrow question of whether the alien is removable by reason

of having been convicted of one of the enumerated offenses); and

with Richardson v. Reno, 180 F.3d 1311, 1316 n.5 (11th Cir.

1999) (construing § 242(a)(2)(C) as allowing judicial review

over not only the statutory predicates to removal, but also

statutory interpretation and constitutional questions).

We agree that § 242(a)(2)(C) would not preclude us from

reviewing that provision's applicability to Mahadeo--i.e.,

whether Mahadeo is an alien, removable, and removable because of

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a conviction for a qualifying crime. See Fierro v. Reno, 217

F.3d 1, 3 (1st Cir. 2000) ("This court's authority to review

removal orders based on an aliens's commission of an aggravated

felony has recently been restricted, 8 U.S.C. § 1252(a)(2)(C) .

. . , but this does not bar Fierro's claim on review that he is

a citizen rather than an alien . . . ."); see also Maghsoudi v.

INS, 181 F.3d 8, 13 (1st Cir. 1999) (asserting jurisdiction to

determine whether alien's criminal convictions precluded review

of his immigration proceedings under IIRIRA transition rule §

309(c)(4)(G)). The availability of review on these limited

threshold issues is of little moment to Mahadeo, however,

because the crux of his petition is a challenge to the BIA's

interpretation of IIRIRA as precluding discretionary relief, not

a challenge to the applicability of § 242(a)(2)(C).

We need not address many of the other issues that the

parties attempt to raise because we conclude that habeas

jurisdiction remains available to Mahadeo, in conformity with

our preference stated in Goncalves for grounding jurisdiction

"directly on [the] statutory authority" found in § 2241. See

Goncalves, 144 F.3d at 119. Our conclusion that IIRIRA does not

repeal the availability of § 2241 relief in immigration cases

also avoids the "serious, novel, and complex" constitutional

concerns raised by the elimination of aliens' historic access to

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general federal habeas corpus jurisdiction when no other

judicial review remains.10 See Henderson v. INS, 157 F.3d 106,

119 (2d Cir. 1998); Goncalves, 144 F.3d at 122; see also

Kolster, 101 F.3d at 786 (emphasizing that AEDPA's restrictions

on judicial review "do[] not offend the Constitution," because

"at least the habeas corpus review provided by the Constitution

remains available to aliens"). But see Richardson v. Reno, 180

F.3d 1311, 1315 (11th Cir. 1999) (holding that IIRIRA limits

habeas review and that such limitations are constitutional). As

we demonstrate below, we are able to avoid these serious

constitutional concerns because we conclude that IIRIRA's

permanent rules lack the clear statement of the congressional

intent necessary to eliminate habeas review. Cf. Edward J.

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568, 575 (1988) (court must adopt reasonable

interpretation of statute when necessary to avoid serious

constitutional problems).

B. Congress's Intent to Repeal Habeas Jurisdiction

Relying on the Supreme Court's decisions in Felker v.

10 We gratefully acknowledge briefing from amicus curiae,
professors from a number of law schools, on the
constitutionality of construing IIRIRA to repeal the
availability of § 2241 habeas jurisdiction for aliens
petitioning for review of statutory and constitutional
challenges to their removal proceedings.

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Turpin, 518 U.S. 651 (1996), and Ex Parte Yerger, 75 U.S. (8

Wall.) 85 (1869), we held in Goncalves that "any repeal of the

federal courts' historic habeas jurisdiction . . . must be

explicit and make express reference specifically to the statute

granting jurisdiction." 144 F.3d at 120. That is, we will not

conclude that Congress intended to repeal the availability of §

2241 "merely by implication." Id. at 119. Our task in the

instant case, therefore, is to discern whether Congress has

legislated in IIRIRA with the explicitness necessary to divest

the federal courts of § 2241 habeas jurisdiction.

The Attorney General relies upon several specific

provisions in INA § 242. She insists that these provisions

individually, and viewed in their "entirety," make clear

Congress's intent that, under IIRIRA's permanent rules, judicial

review for aliens like Mahadeo is available, if at all, only

pursuant to INA § 242.

First, the Attorney General directs our attention to

§ 242(g), a provision that was effective under IIRIRA's

transition rules, and which we determined previously did not

repeal the availability of habeas jurisdiction. See Goncalves,

144 F.3d at 122.11 Section 242(g) provides:

11 Although the scope of § 242(g) was narrowed by a
subsequent Supreme Court decision, see Reno v. American Arab
Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (holding

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 EXCLUSIVE JURISDICTION. Except as provided
in this section [INA § 242] and
notwithstanding any other provision of law,
no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien
arising from the decision or action by the
Attorney General to commence proceedings,
adjudicate cases, or execute removal orders
against any alien under this chapter.

Although we characterized the "notwithstanding" clause as

"sweeping," we concluded that it does not contain an express

intent to repeal the availability of § 2241. See Goncalves, 144

F.3d at 122. We find no warrant for a different conclusion now.

As we noted in Goncalves, to read § 242(g) as prohibiting all

review of immigration cases except as available under § 242

would lead to the "enormous consequence[]" of precluding review

under the judicial review provisions contained in old INA § 106,

a result that would "clearly conflict" with Congress's intent to

preserve review in the transition period under old INA § 106.

See id. (noting that without access to old INA § 106, aliens

whose proceedings were governed by IIRIRA's transition rules

would be entirely without access to judicial review since the

judicial review prescribed by INA § 242 only took effect with

IIRIRA's permanent rules). If § 242(g)'s "sweeping" language

that by its own terms § 242(g) applied only to "three discrete
actions"--a decision or action to (i) commence proceedings, (ii)
adjudicate cases, or (iii) execute removal orders), we had
assumed in Goncalves that it governed judicial review of the
claim asserted in that case.

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does not repeal judicial review under old INA § 106, it is

difficult to see how it repeals the availability of "so

significant a provision as the general habeas statute." Flores-

Miramontes, 212 F.3d at 1138.

Second, the Attorney General draws our attention to INA

§ 242(a)(1), which provides that "[j]udicial review of a final

order of removal . . . is governed only by [the APA]." The APA,

in turn, vests courts of appeals with "exclusive jurisdiction"

to review certain agency orders. See 28 U.S.C. §§ 2341-2351.

She also points to INA § 242(b)(9):

Judicial review of all questions of law or
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.

She urges that these provisions read in conjunction channel

"judicial review" of all questions relating to immigration

proceedings into the APA. Neither § 242(a)(1) nor § 242(b)(9),

however, contains an express reference to § 2241. Indeed, both

provisions speak only of "judicial review." "'Judicial review'

and 'habeas corpus' have important and distinct technical

meanings in the immigration context." Flores-Miramontes, 212

F.3d at 1140 (citing Sandoval v. Reno, 166 F.3d 225, 235 (3d

Cir. 1999)). "[I]n the immigration context, the Court has

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historically drawn a sharp distinction between 'judicial

review'--meaning APA review--and the courts' power to entertain

petitions for writs of habeas corpus." Sandoval, 166 F.3d at

235; see also Heikkila v. Barber, 345 U.S. 229, 235 (1953)

(noting that a statute that eliminated judicial review over

immigration proceedings to the maximum extent permissible under

the Constitution did not eliminate habeas corpus); Liang, 206

F.3d at 320; Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1146

(10th Cir. 1999). We read "judicial review" to mean access to

review under the APA, rather than access to a petition for

habeas corpus pursuant to 28 U.S.C. § 2241.

The Attorney General contends that in Reno v. American

Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), the Supreme

Court construed INA § 242--and especially § 242(b)(9)--to

require that all review of immigration proceedings be channeled

through § 242 and the APA, precluding habeas relief. In

American-Arab, the Court held that INA § 242(g) deprived the

federal courts of subject matter jurisdiction to entertain a

direct appeal brought by an alien claiming that he had been

selectively chosen for deportation in violation of the

Constitution. See id. at 482-83. Although the principal focus

was on § 242(g), the Court also stated that § 242(b)(9) is an

"unmistakable 'zipper' clause" that "channels judicial review of

-19-
all [decisions and actions.]" See id. Relying on American-

Arab, the district court ruled that it was "compelled" to

dismiss Mahadeo's habeas petition for lack of jurisdiction

because, to the extent he sought to declare the removal order

contrary to the law, his claim was barred by the INA's "zipper

clause," § 242(b)(9). See Mahadeo v. Reno, 52 F. Supp. 2d 203,

204 (D. Mass. 1999).

Both the district court and the Attorney General read

American-Arab too broadly. As we stated recently: "nothing in

American-Arab directly precludes deportees governed by the

IIRIRA's transition rules from challenging their final

deportation orders through habeas where they have no other way

to assert in court that their deportation is contrary to the

Constitution or laws of the United States." Wallace v. Reno,

194 F.3d 279, 286 (1st Cir. 1999). Our reason for declining to

find that American-Arab disturbed habeas jurisdiction was

simple: American-Arab "was concerned with a different issue"--

namely, whether the court had the subject matter jurisdiction

pursuant to 28 U.S.C. § 1331 to hear the case on direct appeal.

Wallace, 194 F.3d at 283. Nothing in American-Arab, therefore,

alters the rule announced in Felker and followed in Goncalves

that repeal of § 2241 habeas jurisdiction can be achieved only

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by an express reference to that statute. See id.12

Our conclusion that § 242(b)(9) does not affect

jurisdiction under § 2241 is consistent with the Supreme Court's

description of § 242(b)(9) as a "zipper clause." Section

242(b)(9) is entitled "Consolidation of questions for judicial

review." It is a "zipper clause" in the sense that it

consolidates or "zips" "judicial review" of immigration

proceedings into one action in the court of appeals. See

Flores-Miramontes, 212 F.3d at 1140 (clarifying that before §

242(b)(9), some direct appeals from immigration proceedings were

in the courts of appeals, while others were in the district

courts). Section 242(b)(9) applies only "with respect to review

of an order of removal under subsection (a)(1)," and review

under subsection (a)(1), in turn, occurs only under "chapter 158

of Title 28, [the APA]." Id. Although the APA governs judicial

review of certain agency actions, it does not govern habeas

proceedings brought under § 2241. See id. It follows that §

242(b)(9) "does not apply to actions brought in habeas corpus,

and certainly does not serve to repeal in whole or in part the

12 Indeed, American-Arab noted that the habeas issue was
before the circuit courts and, a few days after issuing
American-Arab, the Supreme Court denied certiorari in Goncalves,
see Reno v. Pereira Goncalves, 526 U.S. 1004 (1999), and the
Second Circuit's decision in Henderson, see Navas v. Reno, 526
U.S. 1004 (1999).

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general habeas statute." Id. But see Richardson v. Reno, 180

F.3d 1311, 1315 (11th Cir. 1999) (holding that "the

'unmistakable zipper clause' of INA § 242(b)(9), along with the

overall revisions to the judicial review scheme enacted by INA

§ 242 et seq., constitute a sufficiently broad and general

limitation on federal jurisdiction to preclude § 2241

jurisdiction over challenges to removal orders").

Third, the Attorney General also contends that the

aforementioned bar on judicial review for criminal aliens,

§ 242(a)(2)(C), repeals habeas jurisdiction--and indeed all

judicial review for criminal aliens like Mahadeo (except for the

narrow categories discussed above). We disagree.

Section 242(a)(2)(C) provides that:

[n]otwithstanding any other provision of
law, no court shall have jurisdiction to
review any final order of removal against an
alien who is removable by reason of having
committed a criminal offense covered in . .
. 1227(a)(2)(A)(iii) [aggravated felony] of
this title.

This provision is similar to its predecessor under IIRIRA's

transition rules, which stated:

[N]otwithstanding any provision of section
106 of the Immigration and Nationality Act .
. . to the contrary--

* * *

there shall be no appeal permitted in the
case of an alien who is . . . deportable by

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 reason of having committed [certain]
criminal offense[s] . . . .

IIRIRA § 309(c)(4). Neither § 309(c)(4) nor § 242(a)(2)(C)

contain an express reference to § 2241. In Goncalves, we found

the phrase, "shall be no appeal permitted," indistinguishable

from the limiting language in AEDPA, "shall not be appealable,"

which the Supreme Court held in Felker to lack the explicitness

necessary to repeal habeas jurisdiction. See 144 F.3d at 120-

21.13 We concluded, therefore, that § 309(c)(4) merely restricts

one avenue of relief--an appeal under the APA--but does not

abrogate habeas jurisdiction. See id. We fail to see how INA

§ 242(a)(2)(C)'s limitation, "no court shall have jurisdiction

to review," is significantly more explicit with respect to the

elimination of habeas relief than the analogous bar on judicial

review for criminal aliens in IIRIRA § 309(c)(4). The

prohibition contained in § 242(a)(2)(C) on "review" of "any

final order" is, in one sense, not even as broad as the

prohibition in § 242(g) on "jurisdiction to hear any cause or

claim" that we previously held to be inadequate to repeal habeas

jurisdiction. See Goncalves, 144 F.3d at 122; see also Flores-

13The AEDPA provision addressed in Felker provided that
"[t]he grant or denial of an authorization by a court of appeals
to file a second or successive application shall not be
appealable." AEDPA § 106(b), codified at 28 U.S.C. §
2244(b)(3)(E).

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Miramontes, 212 F.3d at 1137. But see Max-George v. Reno, 205

F.3d 194, 199 (5th Cir. 2000) (holding that § 242(a)(2)(C)

eliminates § 2241 habeas jurisdiction for those cases that fall

within its scope).

Finally, the Attorney General attempts to distinguish

this case from Goncalves by insisting that § 242, viewed in its

entirety, conveys an intent to make its provisions the exclusive

avenue for judicial review of immigration proceedings. That

reasoning, however, would turn Felker on its head by

"requir[ing] a specific reference to § 2241 to preserve such

jurisdiction, rather than a specific reference to abolish it."

Goncalves, 144 F.3d at 122. In Goncalves, we explicitly

declined the Attorney General's invitation to find that in

applying the APA to immigration decisions, Congress intended to

create an exclusive forum for immigration appeals, thereby

eliminating habeas jurisdiction. See id. (explaining that former

INA § 106 made immigration decisions appealable under the APA).

We emphasized that to infer an intent to repeal the availability

of § 2241 from "Congress' decision to make available another

avenue for judicial review" was "precisely what Felker and Ex

parte Yerger do not permit." Id. at 120. The existence of

"another available avenue for judicial review" is simply

insufficient to communicate an intent to repeal habeas

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jurisdiction. See id. at 120.

Most decisively, none of the provisions relied upon by

the Attorney General contain the kind of "express reference" to

§ 2241 habeas jurisdiction required by Goncalves and Felker.

Absent explicit language repealing the availability of § 2241,

we are not at liberty to reach a result different than

Goncalves. It is axiomatic that a panel of this court cannot

overrule a prior panel, see Wallace, 194 F.3d at 283. Moreover,

Congress has shown in enacting IRRIRA that it knows how to use

explicit language when it intends to place limitations on

judicial review under particular statutes. See Goncalves, 144

F.3d at 121 ("IIRIRA contains numerous provisions restricting or

altering various avenues for judicial review, but in none of

these provisions does IIRIRA mention § 2241."). For example,

IIRIRA § 306, which enacts new INA § 242, contains provisions

that refer specifically to the judicial review provision of the

APA and the Declaratory Judgment Act. See id. Yet, IIRIRA's

permanent rules do not mention habeas corpus jurisdiction under

§ 2241. The lack of any express reference to § 2241 is

particularly revealing because the Supreme Court decided Felker

just three months before IIRIRA was enacted, placing Congress on

notice that any repeal of § 2241 jurisdiction requires an

express reference to that statute.

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 To be sure, the permanent rules do not affirmatively

authorize habeas review under § 2241. But an affirmative

authorization has never been deemed necessary. Even when

limited habeas review was available pursuant to old INA §

106(a)(10), it was well-recognized that this alternative basis

for seeking a writ of habeas corpus did not "supplant[] the

general federal habeas statute." Flores-Miramontes, 212 F.3d at

1138-39 (citing Foti v. INS, 375 U.S. 217, 231 (1963)); see

Goncalves, 144 F.3d at 121 (noting that in AEDPA § 401(e),

Congress expressly repealed former INA § 106(a)(10)'s

authorization that "any alien held in custody pursuant to an

order of deportation may obtain judicial review thereof by

habeas corpus proceedings"). Although § 2241 and § 106(a)(10)

were independent bases for habeas review, Congress repealed only

§ 106(a)(10), creating the basis for an inference that Congress

intended § 2241 to remain available.14

In short, IIRIRA's permanent rules--like the

transitional rules before them--lack a clear statement of intent

to repeal § 2241 jurisdiction. The district court, therefore,

14 Because jurisdiction under § 2241 for aliens does not
depend on any statutory provision of the INA, we do not read
IIRIRA's express authorization of certain limited habeas corpus
review for determinations made under INA § 235(b)(1) (dealing
with screening aliens for admission and claims for asylum) as
evidence of an intent to repeal the availability of § 2241.

-26-
erred in dismissing Mahadeo's habeas corpus petition for want of

subject matter jurisdiction.

IV.

In his habeas petition, Mahadeo asserts his right to

apply to the BIA for a discretionary waiver of the removal order

pursuant to the pre-AEDPA version of INA § 212(c). In

particular, he asserts that the presumption against

retroactivity in statutory interpretation requires IIRIRA to be

construed as preserving the availability of pre-AEDPA INA §

212(c) relief for aliens whose criminal convictions pre-dated

the enactment of AEDPA and IIRIRA. Alternatively, he asserts

that denying him access to relief under pre-AEDPA INA § 212(c)

would be unconstitutional. The district court did not reach

these issues because it concluded that it lacked jurisdiction to

entertain the habeas petition.

On appeal, Mahadeo argued in his initial brief only

constitutional grounds for his entitlement to the availability

of section 212(c) relief. Not surprisingly, the Attorney

General responded in her brief only to these constitutional

claims. In his reply brief, however, Mahadeo took a different

approach, stating that his principal claim to the continuing

availability of section 212(c) relief is "a statutory

retroactivity challenge--that the repeal of section 212(c) does

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not apply to cases where, as here, the criminal conduct and

conviction (by plea) occurred before passage of the 1996

amendments." Not surprisingly, the government insisted at oral

argument that this statutory retroactivity challenge cannot be

raised for the first time in a reply brief.

We agree. So, apparently, does Mahadeo, who focuses

in his reply brief on the availability of § 2241 jurisdiction in

the district court and asks for the opportunity to develop there

his statutory and constitutional arguments about the continuing

availability of § 212(c) relief. Specifically, he requests the

following:

If this court concludes that the district
court had habeas jurisdiction to review Mr.
Mahadeo's statutory and constitutional
claims, Mr. Mahadeo respectfully requests
that the court remand his case to allow him
to develop those claims in the district
court in the first instance and to brief
them fully in light of this court's
intervening retroactivity decision in Mattis
v. Reno, 2000 WL 554957 (1st Cir. May 8,
2000).

In the peculiar circumstances of this case, this approach makes

sense. Given the district court's decision to dismiss Mahadeo's

habeas petition for lack of subject matter jurisdiction, it

never addressed his claim on the merits about the continuing

availability of section 212(c) relief. We have concluded that

this opinion was wrong, and that the district court should have

-28-
addressed the statutory and constitutional claims raised in

Mahadeo's petition. We now remand for that purpose.

Judgment vacated. Remanded to the district court for

further proceedings consistent with this decision.

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