Saint Fort v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 02-2451

KELLY SAINT FORT,

Petitioner, Appellant,

v.

JOHN ASHCROFT, Attorney General,

Respondent, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge, and
Howard, Circuit Judge.

Allan M. Tow for appellant.

Christopher C. Fuller, Senior Litigation Counsel, with whom
Robert D. McCallum, Jr., Assistant Attorney General, Michael P.
Lindemann, Assistant Director, and Janice R. Redfern, Attorney,
Office of Immigration Litigation, were on brief for appellee.

May 9, 2003
 LYNCH, Circuit Judge. Kelly Saint Fort, a Haitian and a

legal permanent resident of the United States, committed an

aggravated felony and so the Immigration and Naturalization Service

initiated removal proceedings to deport him. Saint Fort claimed

protection from deportation, "deferral of removal," under the

United Nations Convention Against Torture ("CAT"), arguing he would

be jailed and tortured if returned to Haiti. An Immigration Judge

("IJ") agreed; the Board of Immigration Appeals ("BIA"), on review,

did not. Saint Fort seeks to have judicial review of his case; as

a matter of statutory law, he may not petition for review in the

court of appeals, given the nature of his claims. This left only

habeas corpus jurisdiction, which he invoked in the district court.

The district court dismissed the habeas petition for lack of

jurisdiction, accepting the government's argument. The case is

before us on appeal from that dismissal.

The respondent Attorney General argues that no court has

jurisdiction, even under habeas, to review any aspect of the BIA's

determination. The issue is one of first impression for this

court. We reject that argument and hold that habeas jurisdiction

remains available here. Reviewing Saint Fort's claims about the

BIA's determination under the CAT, we reject his claim of denial of

due process and so affirm, on that ground, the dismissal of his

habeas petition.

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 I.

Saint Fort, now 27 years old, entered the United States

in 1988, at the age of 12, and settled in the Dorchester area of

Boston as a lawful permanent resident. In 1999, Saint Fort was

convicted in New Hampshire of second-degree assault and receiving

stolen property, and was sentenced to concurrent prison terms of

two to four years. Saint Fort v. Ashcroft, 223 F. Supp. 2d 343,

343-44 (D. Mass. 2002). Subsequently, removal proceedings were

instituted against him as an aggravated felon. See Immigration and

Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227

(a)(2)(A)(iii) (2000) ("Any alien who is convicted of an aggravated

felony at any time after admission is deportable."); INA §

101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (aggravated felonies

include "a theft offense (including receipt of stolen property) or

burglary offense for which the term of imprisonment [is] at least

one year").

Saint Fort responded by requesting asylum, withholding of

deportation, and non-refoulement (non-return) under the CAT.

Because of his status as an aggravated felon, he was ineligible for

asylum and withholding of deportation. In a November 6, 2001

hearing before an IJ on his CAT claim, Saint Fort presented little

evidence to substantiate his fear of torture. He informed the IJ

that he had no family in Haiti, and that if he returned his life

would be "over." He asserted that deportees were routinely

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tortured in Haiti. When cross-examined as to the basis for his

belief, he said that at least a year earlier he had read an article

in a newspaper he thought was called "U.S. Today" which said that

deportees were being killed in Haiti. Saint Fort did not have a

copy of this article at the hearing. Saint Fort also said that he

had friends from the Dominican Republic who advised him to pray

that he not be deported because, if he were, he would certainly be

tortured. Saint Fort did not offer any testimony relating to

himself or his family to explain why he might be targeted for

mistreatment.1

In addition to his testimony, Saint Fort also submitted

supporting documentation, including country reports on Haiti and a

BIA decision on conditions in Haiti. That unpublished decision, In

re Perez, was issued on October 22, 2001.2 In Perez, the BIA

relied on the State Department's country report on Haiti, which

noted in pertinent part that deportees are now being held

indefinitely in Haitian prisons. Conditions in those prisons, the

BIA stated, were "extremely poor, to the point that the health of

1
In his initial claim for asylum, Saint Fort wrote that his
grandfather had been active in the Tonton Macoutes, and that he
would be tortured as a result. The Tonton Macoutes were the
personal police force of Haitian dictator Francois (Papa Doc)
Duvalier, and served his son Jean-Claude (Baby Doc) Duvalier until
Jean-Claude's overthrow in 1986. At the IJ hearing on his CAT
claim, Saint Fort did not return to this argument.
2
As an unpublished decision, it does not "serve as
precedent[] in all proceedings involving the same issue or issues."
8 C.F.R. § 3.1(g) (2002).

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detainees is severely compromised by lack of adequate food and

medical attention. Moreover, . . . police forces beat, torture,

and otherwise mistreat detainees. As a direct result of these

conditions, multiple detainees have died while in custody." The

BIA concluded that it was "more likely than not" that the

petitioner in Perez would "be subjected to torture by or with the

acquiescence of a public official in Haiti." As a result, Perez

was found to have met his burden of proof under the CAT, and he was

granted deferral of removal to Haiti.

The IJ issued an oral decision in Saint Fort's case on

the same day as the hearing. He found that, as an aggravated

felon, Saint Fort was statutorily ineligible for asylum or

withholding of removal, but eligible for deferred removal under the

CAT. The IJ reviewed country reports on Haiti, the BIA's decision

in Perez, and Saint Fort's hearing testimony. He noted Saint

Fort's testimony that "he has no family in Haiti, and that he will

be tortured if he returns to Haiti and [is] put in jail." The IJ

concluded that it was more likely than not that Saint Fort would be

imprisoned and tortured if returned to Haiti. The IJ reasoned,

The reports concerning the conditions of Haitian jails
lead[] only to one conclusion, that the respondent's
return to Haiti and being detained and placed in jail in
Haiti, would subject him to torture, based on the
conditions of jails in Haiti as stated in the
documentation submitted . . . and what is contained in
[Perez].

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The IJ granted Saint Fort's application for deferred removal under

the CAT.

The INS appealed the IJ's decision to the BIA. The BIA

reversed the IJ's decision, in reliance on an intervening published

BIA decision and the absence of other evidence from Saint Fort.

That published decision, In re J-E-, 23 I. & N. Dec. 291 (BIA),

available at 2002 WL 481156 (Mar. 22, 2002), reversed course and

found that conditions in Haiti's jails did not constitute torture

under the CAT. In J-E-, the BIA reviewed a case, similar to Perez,

in which the petitioner argued -- based on country condition

reports, newspaper articles, and a letter from an official at the

State Department -- that prison conditions in Haiti amounted to

torture. Id. at 293. In a reversal from Perez -- but without

citing Perez -- the BIA concluded in J-E- that the indefinite

detention of criminal deportees by Haitian authorities did not

constitute torture within the meaning of the relevant regulations,

8 C.F.R. § 208.18(a) (2002), because there was no evidence that the

authorities intentionally and deliberately detain deportees in

order to inflict torture. 23 I. & N. Dec. at 299-302. Citing the

decision in J-E-, the BIA dismissed Saint Fort's appeal and ordered

him removed to Haiti.

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 Saint Fort did not timely apply for reconsideration by

the BIA.3 He filed a petition for review of the BIA's decision in

the court of appeals under 8 U.S.C. § 1252(b). This court

questioned whether it had jurisdiction in the case because Saint

Fort had been convicted of an aggravated felony, and there was no

question as to that fact or the fact that he was not a U.S.

citizen. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ("[N]o

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 . . . ."). Saint Fort then voluntarily dismissed

the petition for review in the court of appeals and turned to the

district court.

On June 27, 2002, Saint Fort filed a petition for habeas

corpus with the district court. He alleged that the BIA's decision

violated his statutory and regulatory rights under the INA and the

Administrative Procedure Act, and his constitutional rights under

the Due Process and Equal Protection Clauses, because (1) it denied

him the opportunity to present evidence of the possibility he will

be tortured in Haiti, (2) it upset settled expectations established

by In re Perez, (3) the decision-making was arbitrary and

inconsistent, and (4) the application of In re J-E- was

impermissibly retroactive. The government responded that the

3
Saint Fort did submit a motion to reconsider, but it was
filed one day after the 30-day deadline. The BIA accordingly
rejected the motion as untimely.

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district court lacked jurisdiction because Saint Fort had failed to

exhaust his administrative remedies. Saint Fort, 223 F. Supp. 2d

at 343.

The district court expressed skepticism about Saint

Fort's petition, noting that a motion to reopen on the basis of new

evidence would be futile because Saint Fort had conceded that he

had no new evidence, and also commenting that the debate over

retroactivity was "somewhat besides the point" given that In re J-

E did not announce a new rule. Id. at 345. Still, on September

30, 2002, the district court remanded the case to the BIA for

clarification of the grounds of its denial and continued Saint

Fort's stay of removal during that period. Id. at 346. The

district court said it was troubled by the BIA's holding that Saint

Fort had offered no evidence to the IJ that he would be tortured

when, in fact, the IJ had both Saint Fort's documentary evidence

and his testimony, and when the IJ had found Saint Fort credible.

Id. at 345-46.

The government then filed a motion to reconsider, arguing

(1) that the district court had erred in its reading of the BIA's

decision, and (2) that the district court lacked subject matter

jurisdiction to hear Saint Fort's claim because the CAT is not

self-executing. It raised the lack of jurisdiction argument for

the first time. Specifically, the government argued that Congress

had authorized the Attorney General to promulgate regulations for

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implementing the CAT when it passed the Foreign Affairs Reform and

Restructuring Act ("FARRA"), Pub. L. No. 105-227, Div. G., §

2242(b), 112 Stat. 2681-761, 2681-822 (1998). Congress also

explicitly limited federal court jurisdiction to review any

decision on a claim for protection under the CAT, by limiting

jurisdiction "except as part of the review of a final order of

removal pursuant to section 242 of the [INA]." Id. § 2242(d), 116

Stat. at 2681-822. Here, there was no review of a final order of

removal because of Saint Fort's uncontested status as an aggravated

felon; as a result, the government contended, there could be no

jurisdiction over his claim under the CAT. The government

attempted to distinguish INS v. St. Cyr, 533 U.S. 289 (2001), by

arguing that, because the CAT is not a self-executing treaty,

Congress never affirmatively granted such jurisdiction in the first

place. On October 29, 2002, the district court allowed the motion

to reconsider and dismissed Saint Fort's habeas petition. Saint

Fort now appeals this ruling.

II. Background

A. Convention Against Torture

The United Nations Convention Against Torture and Other,

Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,

G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at 197, U.N.

Doc. A/RES/39/708 (1984), 23 I.L.M. 1027 (1984), provides that

"[n]o State Party shall expel, return ("refouler") or extradite a

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person to another State where there are substantial grounds for

believing that he would be in danger of being subjected to

torture." Id. Art. 3, § 1.

The CAT was ratified by the United States Senate in 1990

and entered into force for the United States in November 1994. See

Regulations Concerning the Convention Against Torture, 64 Fed. Reg.

8478, 8478 (Feb. 19, 1999) (background). In October 1998, Congress

passed FARRA, which states:

It shall be the policy of the United States not to expel,
extradite, or otherwise effect the involuntary return of
any person to a country in which there are substantial
grounds for believing the person would be in danger of
being subjected to torture . . . .

FARRA § 2242(a), 112 Stat. at 2681-822. FARRA also delegates the

responsibility for "prescrib[ing] regulations to implement the

obligations of the United States" under the CAT to "heads of the

appropriate agencies." Id. § 2242(b).

FARRA also, under the title "Review and Construction,"

contains a jurisdiction-limiting provision and a "zipper clause."4

[N]o court shall have jurisdiction to review the
regulations adopted to implement this section, and
nothing in this section shall be construed as providing
any court jurisdiction to consider or review claims
raised under the Convention or this section, or any other
determination made with respect to the application of the
policy set forth in subsection (a), except as part of the
review of a final order of removal pursuant to section

4
A zipper clause "consolidates or 'zips' 'judicial review'
of immigration proceedings into one action in the court of
appeals." Mahadeo v. Reno, 226 F.3d 3, 12 (1st Cir. 2000).

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 242 of the Immigration and Nationality Act (8 U.S.C. [§]
1252).

Id. § 2242(d). The jurisdiction-limiting provision denies

jurisdiction over review of the regulations, and the zipper clause

purports to confine review of claims to the specific context of a

review of a final order of deportation. Thus, for aliens like

Saint Fort who have been convicted of aggravated felonies, the

court of appeals' jurisdiction to engage in direct review is

foreclosed because § 242 review is unavailable to such aliens. See

Calcano-Martinez v. INS, 533 U.S. 348, 349-50 (2001).

The Justice Department has promulgated a set of

regulations implementing FARRA, in accordance with Congressional

direction. See 64 Fed. Reg. 8478, codified at scattered sections

of 8 C.F.R. Specifically, these regulations define torture as "any

act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person . . . when such pain or

suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity." 8 C.F.R. § 208.18(a)(1). The burden of

proof is on the applicant to show that he or she is more likely

than not to be tortured if removed. Id. § 208.16(c)(2); see id. §

208.17(a) (application of standard to deferral of removal). The

regulations instruct immigration officials to consider inter alia

evidence of past torture inflicted on the applicant and evidence of

"gross, flagrant or mass violations of human rights within the

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country of removal." Id. § 208.16(c)(3); see id. § 208.17(a)

(application to deferral of removal).

B. Habeas Corpus Jurisdiction in Immigration Cases

The writ of habeas corpus has been employed by non-

citizens for centuries in both the United States and Britain. See

J.L. Hafetz, Note, The Untold Story of Noncriminal Habeas Corpus

and the 1996 Immigration Acts, 107 Yale L.J. 2509, 2524 & n.115

(1998) (citing eighteenth-century cases and noting that "aliens in

the United States have . . . been able to challenge their

confinement through habeas corpus since the nation's founding").

"Even before the federal government took on the task of regulating

immigration, federal courts employed the writ of habeas corpus to

inquire into the lawfulness of the return of foreign sailors who

had allegedly deserted their ships, extradition of aliens accused

of crime, and detention of enemy aliens during the War of 1812."

G.L. Neuman, Jurisdiction and the Rule of Law After the 1996

Immigration Act, 113 Harv. L. Rev. 1963, 1966 (2000).

Before 1996, aliens had a broad right to judicial review

in the courts of appeal. Aliens facing deportation possessed a

general right of appeal from final orders of the BIA to the court

of appeals under the "old" INA.5 8 U.S.C. § 1105a(a)(7) (1994)

5
"Old" INA refers to the Immigration and Nationality Act as
of March 1996, before the changes promulgated by the Antiterrorism
and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (Apr. 24, 1996), and the Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. No. 104-208, Div. C, 110

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(repealed 1996). Aliens also had two routes to challenge a final

order of deportation through employing the writ of habeas corpus.

First, "old" INA itself provided for specific habeas corpus review.

8 U.S.C. § 1105a(a)(10) (1994) (repealed 1996). Second, aliens

could challenge a deportation order under the general habeas corpus

statute, 28 U.S.C. § 2241 (2000), which provides habeas review for

individuals "in custody in violation of the Constitution or laws or

treaties of the United States." Id. § 2241(c)(3).

In 1996, Congress passed two laws that dramatically

changed judicial review of immigration decisions. See generally

Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), cert. denied 526

U.S. 1004 (1999). The first of these was the Antiterrorism and

Effective Death Penalty Act ("AEDPA"), enacted on April 24, 1996.

Pub. L. No. 104-132, 110 Stat. 1214 (1996). AEDPA repealed "old"

INA's habeas provision. Id. § 401(e), 110 Stat. at 1268. In its

stead, AEDPA added a new provision reading, "Any final order of

deportation against an alien who is deportable by reason of having

committed [an enumerated crime] shall not be subject to review by

any court." Id. § 440(a), 110 Stat. at 1276 (now codified at 8

U.S.C. § 1252(a)(2)(C)). As in the present case, aliens who had

been convicted of a wide range of crimes were thereby barred from

petitioning courts of appeal for direct judicial review of their

final orders of deportation.

Stat. 3009-546 (Sept. 30, 1996).

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 Then, on September 30, 1996, Congress enacted the Illegal

Immigration Reform and Immigrant Responsibility Act ("IIRIRA").

Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996). Under

IIRIRA, deportation proceedings were restyled removal proceedings.

IIRIRA provided for two sets of rules: "transitional" rules

applicable to aliens whose deportation proceedings had commenced

prior to April 1, 1997, but who had not received a final order

until after October 30, 1996, and "permanent" rules applying to

aliens whose deportation or removal proceeding commenced on or

after April 1, 1997. Id. § 306(c), 110 Stat. at 3009-612; id. §

309, 110 Stat. at 3009-625. We have discussed IIRIRA's

transitional rules elsewhere. See Goncalves, 144 F.3d at 116-18.

The permanent rules govern this case.

Under the permanent rules, IIRIRA perpetuated AEDPA's

jurisdictional ban prohibiting review "by any court" of an order of

removal against an alien aggravated felon. IIRIRA § 306(a)(2), 110

Stat. at 3009-607 (relocating AEDPA's jurisdiction-limiting

language to 8 U.S.C. § 1252). It provides, in 8 U.S.C. §

1252(a)(1), that "judicial review of a final order of removal . .

. is governed only by" the procedures for review of agency orders

in the court of appeals under 28 U.S.C. §§ 2341-2351. A section

entitled "Consolidation of questions for judicial review" provides

that "[j]udicial review of all questions of law and fact . . .

arising from any action taken or proceeding brought to remove an

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alien from the United States under this subchapter shall be

available only in judicial review of a final order under this

section." 8 U.S.C. § 1252(b)(9).

IIRIRA also added a new subsection, entitled "Exclusive

Jurisdiction," which removed jurisdiction from all courts to hear

claims arising from the Attorney General's decision or action to

commence proceedings, adjudicate cases, or execute removal orders.

IIRIRA § 306(a)(2), 110 Stat. at 3009-612, (codified at 8 U.S.C. §

1252(g)). This provision had the effect of shielding certain of

the Attorney General's exercises of discretion from judicial

scrutiny. The Supreme Court has since been explicit that this

limit on judicial scrutiny applies only to the three discrete

actions described in § 1252(g). See Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S. 471, 482-83 (1999).

In the wake of AEDPA and IIRIRA, federal courts have

recognized the redrawn contours of their jurisdiction. Because the

principles developed in these cases control our interpretation of

FARRA's jurisdiction-limiting provision and zipper clause, we

review them briefly. In Goncalves, as here, there was no direct

appeal to appellate courts for individuals like Goncalves (who had

been convicted of crimes of moral turpitude). 144 F.3d at 117 &

n.6. We then turned to the question of habeas jurisdiction in the

district courts. Relying on Felker v. Turpin, 518 U.S. 651 (1996),

we found it "clear that if Congress intends to repeal or restrict

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habeas jurisdiction under § 2241, it must say so explicitly. Thus,

we will not find a repeal of § 2241 merely by implication, but only

by express congressional command." Goncalves, 144 F.3d at 119. We

concluded that there had been no express repeal of § 2241 under

either AEDPA or IIRIRA, id. at 120, and that there was no implicit

repeal in conjunction with AEDPA's repeal of habeas corpus

jurisdiction under old INA, id. at 120-22. This holding avoided

questions about the outer limits of Congress's power under Article

III to control the jurisdiction of the federal courts. It also

obviated the need to address possible Suspension Clause issues

raised by Congress's actions. Id. at 122-23.

In Mahadeo v. Reno, 226 F.3d 3 (1st Cir. 2000), this

court extended Goncalves to the permanent rules under IIRIRA, and

held that the jurisdiction-limiting provisions of IIRIRA precluded

direct review in the court of appeals but did not divest district

courts of their § 2241 habeas corpus jurisdiction.6 Without an

6
We have previously held that the court of appeals maintains
a very limited jurisdiction to determine its own jurisdiction in
cases where direct review is precluded because of the alien's
status as an aggravated felon. Mahadeo, 225 F.3d at 9-10 ("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 a conviction for a
qualifying crime."); see, e.g., Emile v. INS, 244 F.3d 183 (1st
Cir. 2001) (examining whether an alien's crimes met the definition
of an aggravated felony despite statutory ineligibility for direct
review); see also Sousa v. INS, 226 F.3d 28, 31 (1st Cir. 2000).
See generally 8 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration
Law and Procedure § 104.13[3][c], at 104-181 to 104-182 (2003)
("Courts have jurisdiction to determine if they have
jurisdiction.").

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express reference to § 2241, we held, there could be no repeal, id.

at 12, particularly because Congress had been placed on notice by

the decision in Felker, three months before IIRIRA was enacted, id.

at 14. "Congress has shown in enacting IIRIRA that it knows how to

use explicit language when it intends to place limitations on

judicial review under particular statutes." Id. at 13-14. Mahadeo

also rejected the argument that a zipper clause was meant to repeal

habeas jurisdiction. Id. at 12.

Most importantly, the Supreme Court decided two cases in

2001 addressing the question of habeas corpus review after the 1996

legislation. In St. Cyr, 533 U.S. 289, the Court considered the

impact of AEDPA's jurisdiction-limiting provision, AEDPA § 401(e),

as well as three provisions under the permanent rules in IIRIRA,

including a zipper clause, 8 U.S.C. §§ 1252(a)(1), 1252(a)(2)(C),

1252(b)(9). The Court began with the "strong presumption in favor

of judicial review of administrative action and the longstanding

rule requiring a clear statement of congressional intent to repeal

habeas jurisdiction," 533 U.S. at 298, and canons obligating

avoidance of serious constitutional questions by an alternative

construction, id. at 299-300. It concluded that "a construction

of the amendments at issue that would entirely preclude review of

a pure question of law by any court would give rise to substantial

constitutional questions." Id. at 300.

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 Noting that "at the absolute minimum, the Suspension

Clause protects the writ 'as it existed in 1789,'" the St. Cyr

Court then turned to historical evidence. Id. at 301 (quoting

Felker, 518 U.S. at 663-64). It found that the "historical core"

of the writ of habeas corpus has been review of the legality of

executive detention, and "it is in that context that its

protections have been strongest." Id. It also noted that "to

conclude that the writ is no longer available in this context would

represent a departure from historical practice in immigration law."

Id. at 305.

Examining the statutory provisions, the Court drew a

distinction between "judicial review" and "habeas corpus." The

term "judicial review" is the focus of each of the three IIRIRA

jurisdiction-limiting provisions. In the immigration context, the

Court reasoned, "judicial review" and "habeas corpus" "have

historically distinct meanings." Id. at 311 (citing Heikkila v.

Barber, 345 U.S. 229 (1953)). In Heikkila, the Court noted,

preclusion of judicial review did not entail cessation of habeas

review. Id. at 311-12. As to the zipper clause, the Court held

that it was an attempt to consolidate judicial review of

immigration proceedings into one action, and did not bar habeas

jurisdiction of orders not subject to judicial review. Id. at 313.

The absence of an alternative judicial forum also troubled the

Court:

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 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 jurisdiction under § 2241 was not
repealed by AEDPA and IIRIRA.

Id. at 314(citation omitted).

In a companion case issued the same day, the Court

affirmed that criminal aliens were precluded from seeking direct

review on questions of law in the court of appeals, and must

therefore be able to proceed with their habeas petitions:

We agree with petitioners that leaving aliens without a
forum for adjudicating claims such as those raised in
this case would raise serious constitutional questions.
We also agree . . . that these concerns can best be
alleviated by construing the jurisdiction-stripping
provision of [IIRIRA] not to preclude aliens such as the
petitioners from pursuing habeas relief pursuant to §
2241.

Calcano-Martinez, 533 U.S. at 351; see also Zadvydas v. Davis, 533

U.S. 678, 687-88 (2001) (§ 2241 habeas corpus jurisdiction not

repealed by provisions of AEDPA and IIRIRA).

More recently, in Demore v. Kim, No. 01-1491, 2003 WL

1960607 (U.S. Apr. 29, 2003), the Court rejected the argument that

jurisdiction-limiting provisions of 8 U.S.C. § 1226(e) deprived

federal courts of jurisdiction to entertain a habeas petition from

a legal permanent resident detained without bail pending his

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removal proceeding. The Court examined the language of § 1226(e),

which provides:

(e) Judicial review
The Attorney General's discretionary judgment regarding
the application of this section shall not be subject to
review. No court may set aside any action or decision by
the Attorney General under this section regarding the
detention or release of any alien or the grant,
revocation, or denial of bond or parole.

It then found that the respondent's challenge to the statutory

scheme was not an attack on a discretionary judgment by the

Attorney General or on a decision made by the Attorney General

regarding detention, and that habeas review was not barred under §

1226(e). The Court made three rulings significant for our

purposes: (1) it emphasized that, where review of constitutional

issues is said to be precluded, Congress must be clear in its

intent, see Webster v. Doe, 486 U.S. 592, 603 (1988); (2) it

reiterated its requirement in St. Cyr that any repeal of habeas

review requires a particularly clear statement that such is

Congress's intent; and (3) it read the jurisdiction-limiting

provision in § 1226(e) as applying only to review of the Attorney

General's discretionary judgment. Demore, 2003 WL 1960607, at *5

(Rehnquist, C.J.).

III. Existence of Habeas Jurisdiction

The initial question presented is whether federal courts

possess § 2241 habeas jurisdiction over claims that arise under the

implementing legislation and regulations of the CAT, and that are

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asserted by aliens who are statutorily ineligible for judicial

review of their final orders of removal because they have been

convicted of aggravated felonies. This is a question of first

impression for this circuit. The Supreme Court's decisions in St.

Cyr and Demore mandate the conclusion that habeas jurisdiction has

not been repealed in such cases, as do the controlling precedents

in this circuit: Goncalves and Mahadeo. Here, there is no

statement of congressional intent to preclude review of

constitutional claims. There is the absence of explicit language

by Congress repealing § 2241 jurisdiction. There is also implied

congressional knowledge of judicial precedents interpreting similar

provisions; the distinction between "judicial review" and "habeas

corpus" in the immigration context; the weight of historical

precedent supporting continued habeas review in immigration cases;

the problem of lack of an alternative forum; and the importance of

avoiding a construction of FARRA that would give rise to grave

constitutional concerns. The Second Circuit has also concluded

that habeas jurisdiction exists in these circumstances. Wang v.

Ashcroft, 320 F.3d 130, 142 (2d Cir. 2003).

FARRA's jurisdiction-limiting provision refers only to

review of regulations; its zipper clause provides only that

"nothing in this section shall be construed as providing any court

jurisdiction to consider or review claims raised under the

Convention or this section, or any other determination made with

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respect to the application of the policy set forth" concerning the

CAT. FARRA, § 2242(d), 112 Stat. at 2681-822. We read this

section in terms of its language and no more broadly. See Demore,

2003 WL 1960607, at *5. FARRA does not expressly refer to 28

U.S.C. § 2241 or to habeas review and we would not imply an intent

to repeal habeas jurisdiction from silence. See Demore, 2003 WL

1960607, at *5; Mahadeo, 226 F.3d at 11; Goncalves, 144 F.3d at

119.

Since no challenge is made in this case to the FARRA

regulations, we assume the government is relying on the zipper

clause. There are a number of problems with that reliance. First,

it ignores the teaching set forth in St. Cyr and reinforced in

Demore that "judicial review" and "habeas" are distinct processes.

St. Cyr, 533 U.S. at 311; see Demore 2003 WL 1960607, at *14

(O'Connor, J., concurring in part). Second, the zipper clause is

a consolidation of statutory jurisdiction, not a repeal of habeas

jurisdiction. Third, by its literal terms, the clause says it

"does not provide" jurisdiction, not that it repeals jurisdiction.

In addition, the government's reading would leave no

forum available to hear any CAT-based claims, a disfavored

situation. See St. Cyr, 533 U.S. at 314. The government

apparently finds nothing troubling about this prospect. But it is

easy to imagine a scenario in which problems in the BIA's review

amounted to a constitutional violation -- or, indeed, a scenario in

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which the BIA provided no review at all. Instead, by finding the

existence of habeas review for claims arising under the

implementing legislation of the CAT, we are able once again to

avoid the pitfalls of a construction of the statute that would

entirely preclude judicial review, giving rise to substantial

constitutional questions.

Moreover, the consequences of finding that there was no

habeas review available in Saint Fort's case would run contrary to

a long history of use of habeas by aliens to challenge confinement

in violation of treaty obligations. See, e.g., Mali v. Keeper of

the Common Jail (Wildenhus's Case), 120 U.S. 1 (1887) (petition for

habeas pursuant to consular agreement between the United States and

Belgium). American courts have exercised habeas review over claims

of aliens based on treaty obligations since the earliest days of

the republic. See W.F. Duker, A Constitutional History of Habeas

Corpus 200-01 (1980); Brief Amici Curiae of Legal Historians in INS

v. St. Cyr, 533 U.S. 289, 16 Geo. Immigr. L.J. 465, 482 (2002)

(listing cases considering habeas petitions from deserting sailors

pursuant to treaty and federal legislation). History is important

here because the Suspension Clause's protections are at their

greatest height when guarding usages of the writ that date to the

founding. See St. Cyr, 533 U.S. at 300-02.

The Attorney General argues that the issue presented here

is qualitatively different. He contends that St. Cyr and the other

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earlier cases are distinguishable because the CAT is not a self-

executing treaty, and so it does not create in any individual a

right to bring a cause of action in federal court unless and until

Congress expressly grants jurisdiction for the courts to hear such

a claim. This argument misses the point in several ways. As

framed by the Attorney General, the real question is not one of a

grant of jurisdiction (habeas jurisdiction exists), but whether

there is some sort of right actionable under existing grants of

jurisdiction. The CAT -- considered in isolation -- clearly is not

a self-executing treaty. See Wang, 320 F.3d at 140. And it is

also true that treaties that are not self-executing "could not

therefore give rise to privately enforceable rights under United

States law." Igartua de la Rosa v. United States, 32 F.3d 8, 10

n.1 (1st Cir. 1994) (per curiam).

But this case is not a question of a claim simply arising

under treaty that is not non self-executing. The CAT has been

implemented in the United States through FARRA and the subsequent

regulations. FARRA gives the CAT domestic effect. FARRA and the

regulations are now the positive law of the United States, and, as

such, are cognizable under habeas. "When the stipulations [of a

treaty] are not self-executing they can only be enforced pursuant

to legislation to carry them into effect, and such legislation is

as much subject to modification and repeal by Congress as

legislation upon any other subject." Whitney v. Robertson, 124

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U.S. 190, 194 (1888); see also Tel-Oren v. Libyan Arab Republic,

726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring) ("Absent

authorizing legislation, an individual has access to courts for

enforcement of a treaty's provisions only when the treaty is self-

executing, that is, when it expressly or impliedly provides a

private right of action.") (citing Head Money Cases, 112 U.S. 580

(1884)).

Here, authorizing legislation and implementing

regulations have been enacted. Saint Fort's claims do not rest

solely on a treaty that is not self-executing; they rest on the CAT

through the FARRA and the regulations, and on a claim of violation

of constitutional rights. See Cornejo-Barreto v. Seifert, 218 F.3d

1004, 1011 n.6 (9th Cir. 2000) ("Because Congress passed

legislation implementing Article 3 of the Torture Convention in the

extradition context, we need not reach the issue of whether that

portion of the treaty is self-executing."); see also Wang, 320 F.3d

at 141 n.17 ("Once Congress created rights under CAT by enacting

FARRA, § 2241 necessarily became a proper avenue of relief for

individuals in custody in violation of FARRA and its implementing

regulations.").

For these reasons, we find that the district court had

jurisdiction over Saint Fort's habeas petition, and that we have

jurisdiction to review the denial of that petition.

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 IV.

Our review of the district court's denial of a habeas

petition is de novo. Nadeau v. Matesanz, 289 F.3d 13, 15 (1st Cir.

2002). As petitioner says, "the claim that Mr. Saint Fort is

making [is] a legal claim that the BIA deprived him of due process

by retroactively applying Matter of J-E-."7

The scope of habeas review is not the same as the scope

of statutory judicial review in the courts of appeal. Heikkila,

345 U.S. at 236. At a minimum, habeas review encompasses

constitutional claims that are at least colorable. United States

ex rel Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). This

includes an assessment of whether a particular set of facts amounts

to a constitutional violation. E.g., Zadvydas, 533 U.S. at 699.

Habeas also encompasses colorable claims that an alien's statutory

rights have been violated. Id. at 688; Carranza, 277 F.3d at 71.

Included in this category are issues of the proper construction of

a statute, which is an issue of law. Goncalves, 144 F.3d at 124-

25. As a result, if a statute makes an alien eligible to be

considered for a certain form of relief, he may raise on habeas the

refusal of the agency to even consider him. But he may not

challenge the agency's decision to exercise or not exercise its

discretion to grant relief. Carranza, 277 F.3d at 71 (citing

Goncalves, 144 F.3d at 125).

7
There is no colorable equal protection claim here.

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 We have also said generally that "pure issue[s] of law"

may be raised in habeas. Goncalves, 144 F.3d at 113; see also

Ruckbi v. INS, 285 F.3d 120, 124 n.6 (1st Cir. 2002); Carranza, 277

F.3d at 72. The entire content of that phrase has not been worked

out. In St. Cyr, the Supreme Court referred to the use of habeas

to correct "errors of law, including the erroneous application . .

. of statutes." 533 U.S. at 302. In Demore, the Court upheld the

use of habeas to challenge on constitutional grounds "the statutory

framework" permitting detention without bail. 2003 WL 1960607, at

*5. The Second Circuit in Wang has suggested that habeas

jurisdiction encompasses at least the situation in which what is at

stake is the BIA's application of legal principles to undisputed

facts. 320 F.3d at 143. See also 8 C. Gordon, S. Mailman & S.

Yale-Loehr, Immigration Law and Procedure § 104.04[4][b], at 104-

48.9 to 48.10 (2003) (collecting variety of situations in which

courts have found jurisdiction under § 2241). We need not reach

that issue because it is not presented by the claim here, which is

a constitutional one.

Saint Fort's claims boil down to an argument that his

constitutional rights to due process have been violated by the

retroactive application of In re J-E-. This retroactive

application, Saint Fort argues, disrupted his settled expectations,

was arbitrary, and denied him the opportunity to be heard, all in

violation of due process.

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 This is not a question of whether, as in St. Cyr, a

statute is to be given retroactive effect. It is quite clear that

decisions of the Supreme Court apply to all cases then pending

before the courts on direct appeal, see Harper v. Va. Dep't of

Taxation, 509 U.S. 86, 97 (1993), and the same rule is permissible

for administrative agencies.8

We understand Saint Fort's due process argument to have

two prongs. The first is that an agency may not simply reverse

course and depart from its prior precedent; such an action may be

arbitrary and may violate due process. That is true up to a point.

"Agencies do have leeway to change their interpretations of laws,

as well as of their own regulations, provided they explain the

reasons for such change and provided that those reasons meet the

applicable standard of review." Harrington v. Chao, 280 F.3d 50,

59 (1st Cir. 2002). We have applied this rule to the BIA. See,

e.g., Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir. 1994).9 Here,

8
Saint Fort relies heavily on Chevron Oil Co. v. Huson, 404
U.S. 97 (1971), a case which "the Supreme Court has largely
rejected." Herman v. Hector I. Nieves Transport, Inc., 244 F.3d
32, 37 (1st Cir. 2001).
9
In this circuit, the fact that the prior BIA precedent was
unpublished does not remove it from review for arbitrariness when
the agency changes course. In Davila-Bardales, we noted that "we
see no earthly reason why the mere fact of nonpublication should
permit an agency to take a view of the law in one case that is
flatly contrary to the view it set out in the earlier . . . cases,
without explaining why it is doing so." 27 F.3d at 5-6.

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there is an ample explanation for the position taken in In re J-E-.

There is no claim that the new position violates the statute.

It is true that In re J-E- does not reference Perez, but

J-E- contains a full explanation for the rule it adopts. Had the

Perez approach been embodied in a formal rule of the BIA, the

burden of explaining that the BIA was making an "avowed alteration"

of the Perez approach might be greater, in order to avoid a finding

that the shift in direction was arbitrary. See INS v. Yang, 519

U.S. 26, 32 (1996); Johnson v. Ashcroft, 286 F.3d 696, 705 (3d Cir.

2002). But here, the fact that the overruling of an unpublished

opinion was done sub silentio does not make the change in approach

arbitrary where there is a full explanation of the reasons for the

new approach. See generally 8 C.F.R. § 3.1(g).

Alternatively, there might be an argument that Saint Fort

relied on the rule as set forth in Perez and did not produce

evidence he would otherwise have produced. Cf. Landgraf v. USI

Film Prods., 511 U.S. 244, 270 (1994) ("[R]etroactivity is a matter

on which judges tend to have 'sound instincts' and familiar

considerations of fair notice, reasonable reliance, and settled

expectations offer sound guidance.") (citation omitted). Whether

failure to put on evidence in reliance on an unpublished opinion,

said by the agency to have no precedential value, could ever raise

an independent due process claim is doubtful. Still, the BIA has

itself recognized on occasion that a change in its approach may

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cause unfairness and has allowed reopening of proceedings to pursue

asylum claims. In re G-C-L-, 23 I. & N. Dec. 359, 362 (BIA), 2002

WL 1001051 (Apr. 10, 2002); In re X-G-W-, 22 I. & N. Dec. 71 (BIA),

1998 WL 378104 (June 25, 1998). But the BIA has chosen not to do

so here of its own accord. The facts here do not present the

question of whether the due process clause requires a court to

order the BIA to reopen here. Saint Fort admits that he has no

further evidence to put in, and he did not rely on Perez in that

sense.

There being no due process violation, we affirm the

denial of the writ of habeas corpus.

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