United States Court of Appeals
For the First Circuit
No. 00-2365
EDOVIDIO R. CARRANZA,
Petitioner, Appellee,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert M. Loeb, Attorney, Appellate Staff, Civil Division,
U.S. Dep't of Justice, with whom Stuart E. Schiffer, Acting
Assistant Attorney General, Donald K. Stern, United States
Attorney, and Daniel L. Kaplan, Attorney, Appellate Staff, were
on brief, for appellant.
Andrew Nathanson, with whom Mintz, Levin, Cohn, Ferris,
Glovsky & Popeo, P.C. was on brief, for appellee.
January 17, 2002
SELYA, Circuit Judge. This appeal presents the issue
of whether an alien who was convicted of an aggravated felony
after the effective date of the Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. No. 104-208 (1996)
(codified in scattered sections of 8 U.S.C.) (IIRIRA), may
obtain habeas relief on the ground that the Immigration and
Naturalization Service (INS) failed to exercise discretion when
it initiated deportation proceedings against him. The district
court found this issue lurking in the penumbra of the case;
deemed it a sufficient basis to grant relief in favor of
petitioner-appellee Edovidio R. Carranza; and therefore ordered
further consideration of the petitioner's situation by the Board
of Immigration Appeals (BIA). See Carranza v. INS, 89 F. Supp.
2d 91, 95-97 (D. Mass. 2000) (Carranza I); see also Carranza v.
INS, 111 F. Supp. 2d 60, 64 (D. Mass. 2000) (Carranza II)
(denying Rule 59(e) motion). We reverse.
I. BACKGROUND
The petitioner is a Guatemalan national who entered
this country over two decades ago. He lived in Maine with his
common-law wife and children, but worked in Boston. On March
23, 1996, police officers in that city arrested him after he
engaged in a violent dispute with his mistress. On October 1,
1997, the petitioner entered a guilty plea in state court to
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reduced charges (assault with a dangerous weapon and unlawful
possession of a firearm). The court imposed a three-year
incarcerative sentence.
Roughly ten weeks later, the INS commenced deportation
proceedings by issuing a notice to appear before an immigration
judge (IJ). The IJ held a removal hearing on March 5, 1998.
The petitioner appeared pro se. The hearing was not completed
on that date, and the petitioner filed an application for
suspension of deportation, citing family and economic concerns.
When the hearing resumed (June 2, 1998), the petitioner admitted
to the assault conviction. He would not take responsibility for
the firearms conviction, however, adamantly asserting that the
weapon was not his.
The IJ found that the INS had sustained its burden of
showing removability pursuant to 8 U.S.C. § 1227(a)(2)(C); took
the firearms conviction at face value; and held that the
petitioner, as a firearms offender who had committed an
aggravated felony, see id. § 1101(a)(43)(F), was ineligible for
cancellation of removal (the IIRIRA's equivalent of suspension
of deportation). The petitioner appealed, and the BIA upheld
the decision.
The petitioner essayed a court challenge to the BIA's
decision. He filed papers in this court in which he effectively
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conceded both his aggravated felon status and his ineligibility
for the cancellation of removal process established under 28
U.S.C. § 1229b. Citing the bar to direct review contained in 8
U.S.C. § 1252(a)(2)(C), we determined that we lacked
jurisdiction to scrutinize the BIA's decision. Carranza v. INS,
No. 99-1428 (1st Cir. May 3, 1999) (unpublished order). Withal,
we noted that the petitioner's papers could be read as
requesting relief in the nature of habeas corpus and transferred
the matter to the district court for consideration of that
claim. Id. at 1-2 (referencing 28 U.S.C. § 2241).
In the district court, the petitioner claimed that he
had not been properly advised of the consequences of pleading
guilty to the firearms charge and asserted that he would have
contested that charge had he known the ramifications. To show
that he had a viable defense, he tendered a statement from his
landlord maintaining that the landlord (rather than the
petitioner) owned the gun. He also proffered evidence of his
good character and his son's delicate medical condition.
The district court held a non-evidentiary hearing on
January 20, 2000. The petitioner again appeared pro se.
Although the petitioner had not raised the question, the court
expressed concern as to whether the Attorney General had
exercised discretion before initiating removal proceedings.
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Counsel for the INS stubbornly refused to address this concern,
but, rather, (1) questioned the district court's jurisdiction to
hear the matter, and (2) asserted that when an alien had been
convicted of an aggravated felony, the IIRIRA left the Attorney
General no choice but to proceed with deportation.
On February 29, 2000, the district court issued an
opinion in which it rejected the INS's contention that the court
lacked habeas jurisdiction. Carranza I, 89 F. Supp. 2d at 94-
95. The court then concluded that "[a]lthough this district
court cannot review the decision that the INS reaches after
exercising its discretion, this court can require that the INS
exercise discretion rather than deciding that [it] has no
discretion." Id. at 95. The court emphasized the very short
time that had elapsed between the petitioner's conviction and
the INS's issuance of the notice to appear — roughly ten weeks
— and ruled that the INS had brought removal proceedings against
the petitioner without any antecedent exercise of discretion.
Id. On that basis, the court remanded the case to the BIA "for
a discretionary determination of the propriety of having
commenced proceedings against Carranza," and appointed counsel
for him. Id. at 97. At the same time, the court dismissed the
petitioner's ineffective assistance of counsel claim vis-à-vis
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the firearms conviction on the ground that the petitioner had
failed to exhaust available state remedies.1 Id. at 96.
The INS promptly moved to alter or amend the judgment.
See Fed. R. Civ. P. 59(e). It asserted that the district court
had misunderstood its position and argued that the decision to
institute removal proceedings against the petitioner itself
represented the required exercise of discretion. The district
court rejected this entreaty, stating that the INS had
"conflat[ed] an act of discretion with an act (unmodified)."
Carranza II, 111 F. Supp. 2d at 63. The court concluded:
Available evidence strongly supports
the inference . . . that employees of the
INS do not recognize the scope of their
discretionary power in assessing the merits
of individual cases before proceeding, and
during proceedings, and that in the case of
[petitioner] they did not make a
discretionary determination as to the
propriety of instituting proceedings against
him.
Id. at 64. This timely appeal followed.
II. ANALYSIS
We think it useful to begin by attempting to distill
some semblance of clarity from the Byzantine realm of
immigration law. We then mull the particulars of the case at
hand.
1
The petitioner has not appealed from this portion of the
district court's ukase.
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A. Historical Overview.
The Immigration and Nationality Act of 1952, ch. 2, §
212, 66 Stat. 187 (1952) (repealed 1996) (INA), gave the
Attorney General discretion to permit aliens lawfully admitted
for permanent residence to return after a temporary absence.2
This seemingly innocuous provision was later interpreted to
permit the Attorney General, as a matter of discretion, to waive
deportation for removable aliens already within the United
States. Wallace v. Reno, 194 F.3d 279, 281 (1st Cir. 1999).
Such waivers came to be known as "212(c) waivers" or "212(c)
relief."
In United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260 (1954), the Supreme Court encountered a claim based on
a substantively similar provision embodied in an earlier version
of the immigration laws. There, an alien filed a habeas
petition in which he charged the Attorney General with
improperly influencing the BIA and thus precluding meaningful
review of his application for 212(c) relief. Id. at 263-65.
The Court found this claim colorable under the district court's
habeas jurisdiction, reasoning that the regulations granted the
2
The Attorney General's discretion in this field has from
time to time been delegated to the BIA and/or the INS. See
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-
66 & n.6 (1954) (discussing this phenomenon).
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BIA discretion in passing upon applications for equitable relief
from deportation, and that the BIA's failure to exercise this
discretion was actionable. Id. at 268. The Court concluded:
If petitioner can prove the
allegation, he should receive a new hearing
before the Board without the burden of
previous proscription by the [Attorney
General's bias]. . . . [I]n arriving at
its decision [the Board must] exercise its
own independent discretion, after a fair
hearing, which is nothing more than what the
regulations accord petitioner as a right.
Id.
Critical to this analysis was the admonition that a
court reviewing a habeas claim could not pass upon the merits of
the BIA's final decision on the appropriateness of discretionary
relief. See id. (warning that the petitioner "may still fail to
convince the Board or the Attorney General, in the exercise of
their discretion, that he is entitled to suspension"). The
Court reiterated this point two years later, declaring that
"[a]lthough . . . aliens have been given a right to a
discretionary determination on an application for suspension, a
grant thereof is manifestly not a matter of right under any
circumstances, but rather is in all cases a matter of grace."
Jay v. Boyd, 351 U.S. 345, 354 (1956) (citation omitted).
This, then, was the state of the law while the INA
remained in force. Because section 212(c) afforded a deportable
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alien an opportunity to apply for discretionary relief, an
eligible alien could seek habeas review if and when the INS
refused to entertain such an application at all. This is not an
especially radical view of the law, but, rather, a
particularized application of the precept that as long as a
regulation is properly promulgated and stays in force, "the
Executive Branch is bound by it, and indeed the United States as
the sovereign composed of the three branches is bound to respect
and to enforce it." United States v. Nixon, 418 U.S. 683, 696
(1974) (citing Accardi).
In 1996, Congress enacted the IIRIRA,3 and the tectonic
plates shifted. One section of the IIRIRA provides that
"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." 8 U.S.C.
§ 1252(g). Another section prohibits judicial review of any
appeal challenging a final order of removal if initiated by an
alien convicted of an aggravated felony. Id. § 1252(a)(2)(C).
3Some of the provisions cited herein are, in fact,
amendments to the Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (1996). See Goncalves v.
Reno, 144 F.3d 110, 112-13 (1st Cir. 1998).
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The IIRIRA also changed the form and method by which
the Attorney General (and through him or her the INS, see supra
note 2) may grant discretionary relief. Congress abolished
212(c) waivers entirely and substituted a process called
"cancellation of removal." Id. § 1229b. The new procedure is
considerably more restrictive. Of particular interest here, it
prohibits the Attorney General from exercising his or her
discretion to halt the removal of any alien convicted of an
aggravated felony. Id. § 1229b(a)(3).
The import of these statutes was not immediately
apparent. In Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998),
we faced a situation in which the petitioner, having been
convicted of non-aggravated felonies, applied for 212(c) relief
before the passage of the IIRIRA. Id. at 114. The INS
thereafter refused to process his application, and the
petitioner sought habeas review. Id. at 112. We ruled that the
federal courts' habeas jurisdiction survived the enactment of
the IIRIRA. Id. at 122-23. We then held that the petitioner
was still eligible to pursue 212(c) relief because Congress did
not intend the IIRIRA to apply retroactively to invalidate
212(c) applications that had been placed on record before the
IIRIRA's effective date. Id. at 133.
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A year later, the Supreme Court decided Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)
(AADC). There, a group of aliens sought to contest the
initiation of removal proceedings on the ground that the INS had
targeted them in retaliation for their political beliefs. Id.
at 473-74. The case came before the Court on direct review, and
the Court read 8 U.S.C. § 1252(g) as barring the exercise of
jurisdiction over the aliens' claims. Id. at 492. The Court
added that, in all events, "an alien unlawfully in this country
has no constitutional right to assert selective enforcement as
a defense against his deportation." Id. at 488.
We addressed the impact of AADC in Mahadeo v. Reno, 226
F.3d 3 (1st Cir. 2000). There, an alien whose prior convictions
disqualified him for discretionary relief under the IIRIRA — but
not under the INA — claimed eligibility for a 212(c) waiver on
the ground that the convictions predated the IIRIRA. Id. at 6.
We rejected the Attorney General's argument that AADC overruled
Goncalves, or, alternatively, that the petitioner no longer was
eligible for discretionary relief because deportation
proceedings had not commenced until after the expiration of the
so-called transitional rules.4 See id. at 10 (holding that
4Congress established certain transitional rules to apply to
cases pending at the time that the IIRIRA was enacted. See
IIRIRA § 309(c). Under these rules, Congress delayed the
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"IIRIRA's permanent rules lack the clear statement of the
congressional intent necessary to eliminate habeas review").
Noting that AADC applied only to cases on direct review, id. at
12, we remanded Mahadeo's case to the district court for further
proceedings, id. at 15.
The Supreme Court reentered the fray last term in two
companion cases. See INS v. St. Cyr, 121 S. Ct. 2271 (2001);
Calcano-Martinez v. INS, 121 S. Ct. 2268 (2001). Those
decisions closely tracked the line we had drawn in Goncalves and
Mahadeo:
If it were clear that the question of
law could be answered in another judicial
forum, it might be permissible to accept the
INS' reading of § 1252. But the absence of
such a forum, coupled with the lack of a
clear, unambiguous, and express statement of
congressional intent to preclude judicial
consideration on habeas of such an important
question of law, strongly counsels against
adopting a construction that would raise
serious constitutional questions.
Accordingly, we conclude that habeas
enforcement of section 1252(b)(9) (removing jurisdiction for
judicial review of INS decisions to commence removal) until
April 1, 1997, but made section 1252(g) (eliminating judicial
review of appeals launched by aggravated felons) effective
immediately. Id. § 309(a). The parties quarrel about whether
section 1252(g) or section 1252(b)(9) applies after the
expiration of the transitional rules. There is a simple
solution to this quandary: both sections apply. From and after
April 1, 1997, Congress eliminated judicial review not only over
decisions to initiate removal but also over attempts by aliens
thereafter convicted of aggravated felonies to appeal removal
orders. See AADC, 525 U.S. at 483.
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jurisdiction under [28 U.S.C.] § 2241 was
not repealed by AEDPA and IIRIRA.
St. Cyr, 121 S. Ct. at 2287 (citation omitted). Federal courts
therefore retain subject matter jurisdiction over habeas
petitions brought by aliens facing removal to the extent that
those petitions are based on colorable claims of legal error,
that is, colorable claims that an alien's statutory or
constitutional rights have been violated.
B. The Case at Hand.
In light of St. Cyr, INS's principal argument — that
section 1252(g) forecloses the exercise of habeas jurisdiction
over cases in which an alien challenges his imminent deportation
— is a dead letter. Here, however, the habeas petition is filed
by an aggravated felon who was convicted of the predicate crime
after the effective date of the IIRIRA. Under 8 U.S.C. §
1229b(a)(3), such an alien has no statutory right to any
particular process for withholding deportation. The question,
then, is whether a claim grounded solely in the INS's failure to
exercise its prosecutorial discretion is colorable under 28 §
U.S.C. 2241. We think not.
In each of the cases that we have discussed — Accardi
and Goncalves are prime examples — an alien was afforded a
statutory right to have an application for discretionary relief
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considered. See Accardi, 347 U.S. at 268; Goncalves, 144 F.3d
at 125. We elaborated upon this point in Goncalves:
Analytically, the decision whether an alien
is eligible to be considered for a
particular discretionary form of relief is a
statutory question separate from the
discretionary component of the
administrative decision whether to grant
relief.
. . . . The Court has determined that the
refusal of the BIA to consider an alien's
request for discretionary relief, in
violation of statute or regulations, is a
valid claim on habeas corpus. In making
certain aliens eligible for discretionary
relief, Congress intended the Attorney
General or her designated subordinates to
make a judgment. A refusal to make that
judgment would frustrate Congress' intent. .
. . Thus it is no answer to [the
petitioner's] argument to emphasize the
broad discretion of the political branches
in immigration matters. It was the intent
of Congress that such discretion be
exercised.
144 F.3d at 125 (citations omitted). As this discussion makes
pellucid, under earlier legal regimes an alien could bring a
habeas claim if he was not afforded access to the process
through which the INS could exercise its discretion to withhold
deportation. The alien could not, however, challenge the INS's
decision (i.e., its exercise or non-exercise of discretion) on
its merits. Jay, 351 U.S. at 353. Put another way, the alien
had a right to the process, enforceable by habeas if need be,
but no right to a particular result.
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The question, then, reduces to whether, in the
circumstances of this case, the petitioner has shown an
established right to a particular process. Such an established
right may inure by statute or by constitutional command. See 28
U.S.C. § 2241(c)(3) (extending the writ of habeas corpus to
persons held "in violation of the Constitution or laws or
treaties of the United States"). Without such an established
right, however, an alien's claim simply is not cognizable under
the habeas statute.
No such right exists here. The petitioner, following
the district court's lead, questions whether the INS exercised
its discretion at all. In the habeas context, we may conduct an
inquiry into the exercise vel non of discretion only when
Congress has afforded the alien a statutory right to be
considered for discretionary relief. While the INS retains
inherent prosecutorial discretion as to whether to bring removal
proceedings, see AADC, 525 U.S. at 489, there is no provision of
law which gives an alien aggravated felon, convicted after
September 30, 1996 (the effective date of the IIRIRA), a
statutory right to be considered for such a discretionary
determination. And once the removal determination has been
made, Congress has eliminated any right for such an individual
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to be considered by the Attorney General for cancellation of
removal. See 8 U.S.C. § 1229b(a)(3).
The only remaining issue is whether the petitioner
maintains some residual constitutional right, presumably
emanating from the Due Process Clause, to have the INS weigh the
equities of his appeal — or as the district court phrased it, to
have the INS perform "an act of discretion" rather than "an act
(unmodified)." Carranza II, 111 F. Supp. 2d at 63. The text of
the Constitution does not confer such a right, and the case law
does not support its existence. That leaves only the
possibility of creating such an entitlement out of whole cloth
— but doing so would fly in the teeth of the general
proscription against judicial review of any aspect of such
prosecutorial deliberations.5 See Wayte v. United States, 470
U.S. 598, 607-08 (1985). That proscription has undeniable
5
We exempt from this general proscription, of course,
government misconduct that violates the Equal Protection Clause.
See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[T]he
conscious exercise of some selectivity in enforcement is not in
itself a federal constitutional violation so long as the
selection was not deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary
classification.") (citation and internal quotation marks
omitted). In much the same vein, the AADC Court, in dictum,
left room for "the possibility of a rare case in which the
alleged basis of discrimination is so outrageous" that an
exception might lie. 525 U.S. at 491. Because nothing remotely
resembling egregious government misconduct is alleged here, we
need not pursue this point.
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relevance here. See AADC, 525 U.S. at 491 ("The contention that
a[n immigration] violation must be allowed to continue because
it has been improperly selected [for prosecution] is not
powerfully appealing."). Indeed, the Court has made it plain
that no general constitutional right exists for an alien in the
petitioner's circumstances to review prosecutorial deliberations
in order to forfend removal. See id. at 487-92. We see no
founded basis for applying a different constitutional principle
to the absence of such deliberations.
This construct comports with the way in which writs of
habeas corpus historically have been employed in the immigration
context. As a general rule, the type of claims that are
available to aliens on habeas are restricted, see Bowrin v. INS,
194 F.3d 483, 490 (4th Cir. 1999) (limiting habeas review in
immigration cases to "questions of pure law"),6 and here, habeas
cannot lie without the linchpin of a right granted by statute.7
Whether or not the INS exercised its discretion is therefore
beside any relevant point. Because the petitioner did not have
6
Purely legal questions are suitable for habeas review
because answering them does not necessitate second-guessing "the
agency's factual findings or the Attorney General's exercise of
her discretion." Henderson v. INS, 157 F.3d 106, 120 n.10 (2d
Cir. 1998) (citing Goncalves, 144 F.3d at 125).
7
This holding does not in any way implicate the Suspension
Clause. See Delaney v. Matesanz, 264 F.3d 7, 13 (1st Cir. 2001)
("The Suspension Clause applies (if at all) only when Congress
totally bars an individual or a group from access to habeas
relief.").
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a right to demand the exercise of this discretion in the first
place, it follows inexorably that he cannot challenge its non-
exercise by means of an application for habeas review.
That ends the matter. Unlike the alien in St. Cyr, 121
S. Ct. at 2275, the petitioner pleaded guilty to an aggravated
felony after the IIRIRA's effective date. Thus, the process
that gave rise to habeas jurisdiction in earlier cases — the
right to be considered for 212(c) relief — is unavailable to
him. As an aggravated felon, the petitioner is ineligible to
apply for cancellation of removal (and, thus, has no statutory
right on which to base a claim that the Attorney General refused
to exercise discretion in respect to his removal). This is
completely congruent with the absence of any colorable
constitutional claim in that respect. See supra.
III. CONCLUSION
We need go no further. Barring a colorable statutory
or constitutional claim, the failure of the INS to exercise
individualized discretion in its decision to initiate
deportation proceedings against an alien convicted of an
aggravated felony after the effective date of the IIRIRA does
not fall within the purview of the residual federal habeas
statute, 28 U.S.C. § 2241. Thus, we hold that the petitioner —
an alien convicted of an aggravated felony after the IIRIRA's
effective date — lacks any entitlement to pursue habeas relief
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on the ground that the INS refused to exercise discretion in
instituting deportation proceedings. On this basis, we reverse
the judgment below and remand the matter to the district court
with instructions to dismiss the petitioner's habeas application
for want of subject matter jurisdiction.
Reversed.
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