IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20338
Summary Calendar
WINSTON FITZGERALD CLARKE
Plaintiff-Appellant
versus
DISTRICT DIRECTOR UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE; JANET RENO, US Attorney General
Defendants-Appellees
Appeal from the United States District Court
For the Southern District of Texas
USDC H-98-CV-2840
March 9,2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
The INS began deportation proceedings against Clarke March 14,
1996, and Clarke was ordered deported from the United States as a
result of his criminal convictions, which occurred in 1995 and
1990. Clarke sought a waiver from deportation under the INA, 8
U.S.C. § 1182(c)(repealed September 30, 1996). That provision was
repealed after the INS began Clarke's deportation proceedings and
Clarke sought a waiver. On May 7, 1997, an immigration judge
determined that the AEDPA § 440(d), 8 U.S.C. 1105a(d)(repealed
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
September 30, 1996), rendered Clarke ineligible for waiver, because
that provision excluded aliens convicted of certain offenses from
waiver. The immigration judge issued a final order of deportation.
Clarke sought habeas relief. The magistrate judge determined
that the INA, § 242(g), 8 U.S.C. § 1252(g), deprived the court of
jurisdiction to hear Clarke's claims because he had been convicted
of a specified offense. This provision applies to cases brought
under the transitional rules of the IIRIRA. See Requena-Rodriguez
v. Pasquarell, 190 F.3d 299, 303 (5th Cir. 1999). The IIRIRA was
enacted after Clarke's deportation proceedings commenced. The
magistrate judge determined that the IIRIRA's transitional rules
applied retroactively to Clarke, and that the court therefore
lacked jurisdiction to consider his claim for discretionary relief.
The magistrate judge further determined that the court lacked
subject matter jurisdiction under 28 U.S.C. § 2241 to consider
Clarke's claim for habeas relief, because the AEDPA § 440(a), 8
U.S.C. 1105a(a)(10)(repealed September 30, 1996), deprived federal
courts of jurisdiction to review deportation orders of criminal
aliens.
Since the magistrate judge decided this case, we have issued
Requena-Rodriguez v. Pasquarell, 109 F.3d 299 (5th Cir. 1999),
which controls this issue presented on appeal. The IIRIRA's
transitional rules apply to persons whose deportation proceedings
began before April 1, 1997, and ended more than 30 days after
September 30, 1996. See Lerma de Garcia v. INS, 141 F.3d 215, 216
(5th Cir. 1998). Clarke's deportation proceedings began March 14,
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1996, and ended May 7, 1997, so his case is governed by the
transitional rules. 8 U.S.C. § 1252(g), which deprives courts of
jurisdiction to hear claims by aliens over an order of the Attorney
General to "commence proceedings, adjudicate cases, or execute
removal orders against any alien under this Act," is a permanent
rule that applies to transitional cases. The provision applies
only to the actions specified in the statute. See Reno v.
American-Arab Anti-Discrimination Comm., 119 S.Ct. 936, 941 (1999).
Section 1252(g) does not apply to Clarke's case, since his is not
one of the specified actions. In Requena-Rodriguez, we joined the
majority of Circuits and held that under the transitional rules of
the IIRIRA, in a case in which § 1252(g) does not apply and direct
review is unavailable, federal courts retain habeas jurisdiction
under 28 U.S.C. § 2241. The IIRIRA's transitional rule §
309(c)(4)(G) precludes appeals of deportation orders for aliens
convicted of aggravated felonies, such as Clarke, so direct review
was unavailable to him. Under Requena-Rodriguez, we must vacate
the magistrate judge's decision that the IIRIRA deprived the court
of subject matter jurisdiction to review Clarke's claims. On
remand, the court may consider constitutional and statutory
challenges to the deportation order under its 28 U.S.C. § 2241
jurisdiction.
Clarke argues that the magistrate judge lacked
jurisdiction to enter judgment. Clarke's attorney signed a consent
form that included consent to entry of judgment by the magistrate
judge. A party's attorney may consent to the entry of judgment by
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a magistrate judge. United States v. Muhammad, 165 F.3d 327, 330
(5th Cir. 1999). A magistrate may exercise jurisdiction over a
case by consent of the parties and by virtue of that consent may
direct the entry of judgment. See 28 U.S.C. 636(c). The
magistrate judge had jurisdiction to enter judgment.
VACATED and REMANDED; MOTION to expedite appeal MOOT.
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