Richardson v. INS

Ralph RICHARDSON, Plaintiff-Appellee,

v.

Janet RENO, Attorney General of the United States; Doris Meissner, Commission, Immigration and
Naturalization Service; Robert Wallis, Acting District Director, Immigration and Naturalization Service;
United States Immigration and Naturalization Service; United States Department of Justice; and Executive
Office of Immigration Review, Defendants-Appellants.

No. 98-4230.

United States Court of Appeals,

Eleventh Circuit.

July 14, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 97-3799-CIV-EBD),
Edward B. Davis, Chief Judge.

ON REMAND FROM THE UNITED STATES SUPREME COURT.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.*.

HULL, Circuit Judge:

This case is before us on remand from the Supreme Court.1 On June 1, 1999, the Court granted

certiorari in this case, vacated our judgment, and remanded the case for further consideration in light of Reno

v. American-Arab Anti-Discrimination Committee, --- U.S. ----, 119 S.Ct. 936, 142 L.Ed.2d 940, pet. for reh'g

denied, --- U.S. ----, 119 S.Ct. 1498, --- L.Ed.2d ---- (1999). Richardson v. Reno, --- U.S. ----, 119 S.Ct.

2016, --- L.Ed.2d ---- (1999).

I. PROCEDURAL UPDATE

After we issued Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998) ("Richardson I "), the Supreme

Court decided American-Arab. Following American-Arab, Richardson asked us to recall our mandate. On

May 4, 1999, citing Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), we noted

that the Supreme Court has restricted the circumstances under which a court of appeals can recall its own

*
This decision is rendered by a quorum, due to Judge Henderson's death on May 11, 1999. 28 U.S.C.
§ 46(d).
1
We commend counsel for all parties for the excellent briefs filed promptly on remand.
mandate. However, recognizing the effect of American-Arab on our opinion in Richardson, we noted in a

published order dated May 4, 1999, that "we would welcome ... an opportunity to revisit our decision in

Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998), in light of the Supreme Court's decision in" American-

Arab. Richardson v. Reno, 175 F.3d 898 (11th Cir.1999).

On June 1, 1999, the Supreme Court granted certiorari in this case, vacated our judgment, and

remanded the case for further consideration in light of American-Arab. Richardson v. Reno, --- U.S. ----, 119

S.Ct. 2016, --- L.Ed.2d ---- (1999). After review, we reaffirm the holding in Richardson I that IIRIRA's

amendments to the INA preclude § 2241 habeas jurisdiction over Richardson's petition challenging his

removal proceedings, which commenced after IIRIRA's effective date and his denial of bond and parole by

the INS District Director without an individualized hearing before the immigration judge. In support of this

holding, we readopt and reaffirm the reasoning in Richardson I except to the extent it relied on INA § 242(g)

to support its holding. As discussed below, we find that IIRIRA's amendments to the INA, independently

of § 242(g), channel judicial review of the INS' detention of Richardson and other issues in his removal

proceedings exclusively into the judicial review provided under the INA. See American-Arab, --- U.S. at ----,

119 S.Ct. at 943.

II. DISCUSSION

In Richardson I, we held that IIRIRA repeals district-court jurisdiction to issue writs of habeas corpus

under § 2241 to aliens challenging their removal from the United States or their detention while awaiting

2
removal. 162 F.3d at 1378-79.2 In reaching this conclusion, we emphasized INA § 242(g), which provides

that,

Except as provided in this section 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 Act.

8 U.S.C. § 1252(g) (Supp.1998). We reasoned in Richardson I that this "sweeping language" illustrated

congressional intent to consolidate the judicial review of removal proceedings into the INA's judicial-review

scheme, and that INA § 242(g) "expressly repeals any and all jurisdiction except that conferred by INA §

242" including § 2241 habeas jurisdiction. 162 F.3d 1358-59.

The Supreme Court's decision in American-Arab holds that INA § 242(g) does not apply to the

"universe of deportation [or removal] claims." 119 S.Ct. 943. The Court in American-Arab narrowly

construed INA § 242(g) as applying only to these three discrete actions described in INA § 242(g): the

"decision or action" to (1) "commence proceedings," (2) "adjudicate cases," or (3) "execute removal orders."

--- U.S. at ----, 119 S.Ct. at 943. Richardson's § 2241 petition does not involve any of these three discrete

actions. Therefore, in light of American-Arab, we find that INA § 242(g) does not apply in this case.

Importantly, however, our holding in Richardson I did not rest exclusively on INA § 242(g). Instead,

we concluded that the extensive revisions to the judicial review of removal proceedings enacted by IIRIRA

and the AEDPA, viewed together, repealed § 2241 jurisdiction over petitions challenging removal

2
At the outset, we note that Richardson remains one of the few circuit court decisions where only
post-IIRIRA law, as opposed to the transition rules, applies. This is so because Richardson's removal
proceedings began in October 1997 after IIRIRA's effective date. Most of the circuit decisions addressing
the issue whether IIRIRA's amendments to the INA repeal § 2241 jurisdiction over deportation or
exclusion proceedings involve immigration proceedings initiated before IIRIRA, and thus only IIRIRA's
transitional provisions apply, and they do not involve the full, and extensive, revisions to the INA's
judicial review scheme enacted by INA § 242. See, e.g. Mayers v. INS, 175 F.3d 1289 (11th Cir.1999);
Mustata v. United States Dept. of Justice, --- F.3d ---- (6th Cir.1999); Sandoval v. Reno, 166 F.3d 225,
228 (3d Cir.1999); Goncalves v. Reno, 144 F.3d 110, 122 (1st Cir.1998), cert. denied, --- U.S. ----, 119
S.Ct. 1140, 143 L.Ed.2d 208 (1999); Henderson v. INS, 157 F.3d 106, 109 (2d Cir.1998), cert. denied, ---
U.S. ----, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999); Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d
Cir.1998).

3
proceedings. In particular, we relied on the overall judicial review scheme enacted in INA § 242(b). We did

cite INA § 242(g) as an expression of congressional intent to streamline and consolidate the judicial review

of immigration matters. However, in addition to INA § 242(g), we relied on such provisions as the AEDPA's

repeal of habeas under former INA § 106(a)(10) and the express provision for limited habeas jurisdiction

created by INA § 242(e)(2). Richardson, 162 F.3d at 1358 ("[T]he elimination of INA § 106(a)(10)'s habeas

corpus review by the AEDPA further evidences congressional intent to preclude statutory habeas corpus

review over immigration decisions."); Id. at 1357 (noting that "INA § 242(e)(2) provides for statutory habeas

review under the INA in this narrowly limited situation. This evidences Congress' ability to create statutory

habeas review under the INA when it so desires."). Furthermore, we noted that "INA § 242(b)(2) provides

that the venue for judicial review is only in the court of appeals." Id. at 1354.

More specifically, in Richardson, we also relied on INA § 242(b)(9) in support of our conclusion.

We noted that INA § 242(b)(9) consolidates the time and manner of judicial review of "all questions of law

and fact" in removal proceedings:

Judicial review of all questions of law and 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 chapter shall be available only in judicial review
of a final order under this section.

Richardson, 162 F.3d at 1354 (quoting 8 U.S.C. § 1252(b)(9)(Supp.1998)). INA § 242(b)(9) instructs that

"all questions of law and fact" includes all "interpretations and application of constitutional and statutory

provisions." Id. In Richardson I, we also recognized that INA § 242(b)(9) provides clear evidence of

Congress' desire to "abbreviat[e] judicial review to one place and one time: only in the court of appeals and

only after a final removal order and exhaustion of all administrative remedies." 162 F.3d at 1354; see also

162 F.3d at 1373 ("In addition to retaining a mandatory exhaustion provision, IIRIRA added INA § 242(b)(9)

which now expressly provides that judicial review is available of only 'a final order.' ").3 In Richardson I,

3
INA § 242(d)(1) mandates exhaustion and states:

(d) REVIEW OF FINAL ORDERS.—A court may review a final order of removal only

4
we also reasoned that INA § 242(b)(9), and not just INA § 242(g), clarified the restriction on the judicial

review of immigration decisions:

INA § 242(g), along with INA § 242(b)(9), should be properly understood not as an attempt to divest
the courts of jurisdiction they previously possessed, but as Congress' effort to make absolutely clear
what should have been apparent under the INA and AEDPA all along: that review of INS' conduct
of deportation proceedings is available only after the entry of a final order of deportation, and only
under the INA provisions specifically provided for that purpose.

162 F.3d at 1358.

Similarly, the Supreme Court in American-Arab, albeit in dicta, described the text of § 242(b)(9) as

a "general jurisdictional limitation."

We are aware of no other instance in the United States Code in which language such as this [§ 242(g)
] has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA
were familiar with the normal manner of imposing such a limitation is demonstrated by the text of
§ 1252(b)(9) [INA § 242(b)(9) ], which stands in stark contrast to § 1252(g) [INA § 242(g) ].

--- U.S. at ----, 119 S.Ct. at 943. The Court then characterized INA § 242(b)(9) as an "unmistakable 'zipper

clause' " that "channels judicial review" of INS "decisions and actions" exclusively into the judicial review

provided under the INA. Id.

The Supreme Court defined the effect of the "zipper clause:" "[I]t is a sort of 'zipper' clause that says

'no judicial review in deportation cases unless this section provides judicial review.' " Id. at 943. As the

Supreme Court stated, INA § 242 was intended to assure that issues of law and fact are not subject to

"separate rounds of litigation." Id. at 944.

Thus, after review of American-Arab and the parties' supplemental briefs on remand, we reaffirm

our holding that IIRIRA precludes § 2241 habeas jurisdiction over an alien's petition challenging his removal

proceedings and detention pending removal proceedings. Judicial review of the issues raised in Richardson's

if—

(1) the alien has exhausted all administrative remedies available to the alien as of
right, ...

8 U.S.C. § 1252(d).

5
§ 2241 petition must await a final BIA removal order and can occur in the court of appeals through a petition

to review that final order. We reach this conclusion for reasons similar to those outlined in Richardson I

except that we rely on INA § 242(b)(9), rather than INA § 242(g), as the expression of congressional intent

to preclude § 2241 jurisdiction in this situation. Thus, we find 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, removal proceedings, and detention pending removal. See American-Arab,

--- U.S. at ----, 119 S.Ct. at 943; Richardson I, 162 F.3d at 1358 (reasoning that a broad jurisdictional

limitation can satisfy the requirements of Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827

(1996)).

Furthermore, for all the reasons discussed in Richardson I, we conclude that IIRIRA's limitation on

§ 2241 habeas jurisdiction is not unconstitutional on its face or as applied to Richardson in this case.

Richardson, 162 F.3d at 1378-79 ("This repeal also does not violate the Suspension Clause. INA §

242(a)(2)(C) does not remove all judicial review. At a minimum, judicial review remains available to

Richardson under INA § 242(a)(2)(C) to determine if the specific conditions exist that bar jurisdiction in the

court of appeals. If the bar applies, jurisdiction remains to consider whether the level of judicial review

remaining in INA § 242(a)(2)(C) in a particular case satisfies the Suspension Clause. If not, Richardson can

pursue adequate and effective judicial review of statutory and constitutional issues under INA §§ 242(b)(2)

and 242(b)(9).").4

4
Developments in Richardson's ongoing removal proceedings that occurred after Richardson I
illustrate why Congress in IIRIRA precluded this collateral § 2241 proceeding and channeled judicial
review exclusively to the review provided under the INA and why courts should not intervene until the
administrative process is completed. Concurrent with this proceeding, Richardson appealed the
immigration judge's removal order to the BIA and on May 5, 1999, the BIA sustained certain findings of
the immigration judge but remanded Richardson's case for further proceedings regarding the nature of
Richardson's state criminal conviction, whether it constituted an aggravated felony, and its effect on
Richardson's immigration status. These developments also exemplify that the exhaustion of remedies
requirement is an appropriate method of conserving judicial resources and permitting the agency to
correct any mistakes along the way.

6
 Our earlier conclusion in Richardson I—that IIRIRA's limitation on § 2241 jurisdiction is

constitutional—is fortified by this Court's subsequent decision in Lettman v. Reno, 168 F.3d 463, 465-66

(11th Cir.1999). Citing with approval cases that we relied on in our original opinion in Richardson I, this

Court, in Lettman, held that when the government invokes IIRIRA § 309(c)(4)(G), which limits

judicial-review very much like INA § 242(a)(2)(C), this Court exercises jurisdiction to determine whether

the alien is actually deportable. Lettman, 168 F.3d at 465 (citing with approval Yang v. INS, 109 F.3d 1185

(7th Cir.1997), and Okoro v. INS, 125 F.3d 920 (5th Cir.1997)). Thus, Lettman establishes that, even when

an alien faces a putative bar to judicial review like IIRIRA § 309(c)(4)(G), the alien still receives substantial

judicial review. Lettman 's holding is consistent with and buttresses our observation in Richardson I that if

the government invokes INA § 242(a)(2)(C), this Court will determine whether Richardson is actually an

alien, is deportable, and deportable for a reason covered by INA § 242(a)(2)(C). Richardson, 162 F.3d at

1376 ("Thus, we find that the INA still assures Richardson a significant degree of judicial review in the court

of appeals after a final removal order, despite INA § 242(a)(2)(C).... Any constitutional infirmities

Richardson perceives in that INA-proscribed judicial review must be raised in an attack on the

constitutionality of INA § 242(a)(2)(C) only in the court of appeals and only after a final removal order.")5

Indeed, the fact that in Lettman this Court extensively analyzed the statute invoked by the INS in charging

the alien with deportability, concluded that the alien was not deportable, and vacated the alien's deportation

order, illustrates the extent, and effectiveness, of the judicial review available even when the government

invokes INA § 242(a)(2)(C) or IIRIRA § 309(c)(4)(G).

The constitutional adequacy of the judicial review available when INA § 242(a)(2)(c) applies will

not be decided unless or until Richardson attempts to pursue a petition for judicial review under INA §

5
Additionally, we note that INA § 242(a)(2)(C) deals with operational decisions by the INS and does
not foreclose constitutional challenges to the statute itself or other substantial constitutional issues from
being raised in the court of appeals. Such challenges might include any potential constitutional issues
regarding Richardson's detention pending his removal proceedings. See Webster v. Doe, 486 U.S. 592,
108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998).

7
242(b). However, at this interim stage, Richardson clearly has not shown that he is unable to secure full

adequate and effective judicial review, especially in light of the judicial review recognized by this Court in

Lettman.6

Lastly, we address Richardson's contention that § 2241 jurisdiction remains to challenge his

detention, even if post-IIRIRA he can seek judicial review of the other issues in his removal proceedings only

under the INA.7 Richardson's § 2241 petition raised several substantive challenges to his removal

proceedings, such as whether the INS properly considered him as an "arriving alien." According to

Richardson, even if INA § 242 precludes § 2241 jurisdiction over those issues, INA § 242 does not apply to

6
We recognize that this Court recently held that the AEDPA's repeal of habeas under former INA §
106(a)(10), as amended by IIRIRA § 309(c)(4)(G), did not repeal § 2241 jurisdiction over challenges to
deportation proceedings. Mayers v. INS, 175 F.3d 1289, 1298 (11th Cir.1999). However, Mayers was
decided under IIRIRA's transitional rules. Id. at 1293. Therefore, most of IIRIRA's revisions to the INA,
particularly INA § 242(b)(9), did not apply in Mayers. Indeed, this Court in Mayers emphatically noted
several times that the holding in Mayers did not conflict with Richardson I because IIRIRA's permanent
provisions applied in Richardson I. Id. at 1297.

This Court in Mayers further stressed that the aliens facing deportation in Mayers were
subject to a final deportation order, whereas Richardson is challenging his detention while his
removal proceedings remain pending. Before seeking habeas relief, the aliens in Mayers had
exhausted all available administrative remedies and had sought, but been denied, all judicial
review in the court of appeals in a two-sentence unpublished order issued prior to this Court's
decision in Lettman v. Reno, 168 F.3d 463 (11th Cir.1999). Thus, three elements were crucial in
Mayers: (1) the aliens were subject to a final deportation order after BIA review; (2) the aliens
first had filed a petition for judicial review under the INA in the court of appeals before filing a §
2241 petition; and (3) the aliens had been unable to obtain any judicial review whatsoever in the
court of appeals. Additionally, while the criminal aliens in Mayers had been unable to obtain any
judicial review in the court of appeals, it is now clear in this Circuit that criminal aliens,
post-Lettman, will be able to obtain judicial review of whether they are aliens and deportable.
For these reasons, the holding in Mayers does not affect our holding in this case; indeed, Mayers
actually illustrates why the appropriate avenue for judicial review here lies not under § 2241 but
in the review provided under the INA.
7
Richardson stresses that his detention has lasted twenty months. However, the time that Richardson
was detained before his plenary removal hearing before the immigration judge was only two and one-half
months. Richardson was arrested on October 26, 1997; the INS initiated removal proceedings against
him on October 26, 1997, and the immigration judge conducted the plenary removal hearing and issued a
removal order on January 8, 1998. Moreover, Richardson's detention is not entirely beyond his control;
he is detained only because of the removal proceedings, and he may obtain his release any time he
chooses by withdrawing his application for admission and leaving the United States.

8
the INS' detention decisions in his case because detention always has been considered a separate and distinct

matter from a removal proceeding. Richardson concedes that his § 2241 petition does not seek review of the

INS District Director's discretionary decision regarding bond or parole.8 Instead, the detention and parole

issues in Richardson's § 2241 petition involve mainly whether the INS properly detained Richardson as an

"arriving alien" and whether the denial of bond and parole by the INS District Director, without a subsequent

individualized hearing before an immigration judge, violated Richardson's constitutional rights.9

8
As outlined in detail in Richardson I, Richardson's attorney initially requested bond and parole for
Richardson by filing affidavits and supporting information with the INS District Director. After review,
the District Director denied the bond request finding that Richardson would have no incentive to appear
for immigration hearings. The District Director also denied parole on the basis that Richardson had not
established a significant public benefit or urgent humanitarian reasons. See Richardson I at 1349.
9
On appeal, Richardson also asserts that the mandatory detention rules in INA § 236(c)(1) are
unconstitutional. Those rules did not become effective until October 1998 during the pendency of this
appeal, and thus Richardson necessarily has been unable to amend his § 2241 petition to include those
claims. More importantly, there is no evidence in this record to date that the INS has sought to apply
those mandatory detention rules retroactively to Richardson. A question arises whether the INS would
need to apply those rules to Richardson who already is being detained, has had an opportunity to seek
bond and parole, and was denied both bond and parole. Indeed, Richardson does not contend that the INS
District Director abused his discretion in denying him bond and parole, but only that Richardson should
not be considered an "arriving alien" and should have received a subsequent hearing before an
immigration judge.

If the INS subsequently did seek to apply the mandatory detention rules to him,
Richardson argues strenuously that INA § 236(c)(1) does not apply to him because it applies only
to persons released to the INS before completion of their criminal sentence and not to aliens, like
Richardson, who completed their criminal sentence many years before. In short, at this juncture,
we find that the statutory issue of whether the mandatory detention rules apply to Richardson and,
if so, the issue of whether the mandatory detention rules are constitutional are not properly before
this Court. Thus, we need not decide whether jurisdiction exists over any claims regarding the
mandatory detention rules in § 236(c)(1). We do note that the only circuit to address the issue has
upheld the constitutionality of the mandatory detention rules in INA § 236(c)(1). Parra v.
Perryman, 172 F.3d 954 (7th Cir.1999); see also Richardson I, 162 F.3d at 1358 n. 100. The
Seventh Circuit made this observation in the context of a § 2241 petition, but the INS in Parra
did not raise INA § 242(b)(9) to support its position that the district court lacked jurisdiction. 172
F.3d at 957. In addition, the Seventh Circuit in Parra did not discuss the effect of INA §
242(b)(9) on the district court's § 2241 jurisdiction. Compare LaGuerre v. Reno, 164 F.3d 1035,
1040 (7th Cir.1998) (holding that district-court jurisdiction "did not survive the enactment" of the
AEDPA).

9
 We find that Richardson's statutory and constitutional claims regarding his detention are clearly

encompassed within INA § 242(b)(9).10 That provision is not limited to any particular form of proceeding;

rather it applies to "any action taken or proceeding brought to remove an alien." 8 U.S.C. § 242(b)(9).11

"Any action taken" in INA § 242(b)(9) encompasses detention as the first step in the removal process. 8

U.S.C. 1252(b)(9). Indeed, the Supreme Court previously has found that detention is "necessary to give effect

to the provisions for the exclusion or expulsion of aliens...." Wong Wing v. United States, 163 U.S. 228, 235,

16 S.Ct. 977, 41 L.Ed. 140 (1896); see Carlson v. Landon, 342 U.S. 524, 538, 72 S.Ct. 525, 96 L.Ed. 547

(1952). The relationship of detention to removal proceedings is underscored by congressional findings that

criminal aliens, with great regularity, fail to show for their immigration proceedings. See e.g., S.Rep. No.

104-48 (Apr. 7, 1995). Thus, the plain language of INA § 242(b)(9) applies to detention proceedings insofar

as they arise from the removal proceedings. Accordingly, Richardson's careful attempt to cast his § 2241

10
Richardson argues that INA § 236(e) is the sole post-IIRIRA INA provision applicable to judicial
review of his detention and that INA § 242 does not apply at all in this case. However, we find that both
INA §§ 236(e) and 242 apply to INS detention decisions in Richardson's ongoing removal proceedings.
The two sections are not inconsistent but complement each other. Section 242 channels judicial review to
the court of appeals under the INA, and within that judicial review § 236(c) prescribes that discretionary
bond decisions are not reviewable.

The INS argues that even though Richardson does not contend the INS District Director
abused his discretion in denying him bond, Richardson's claim that the Attorney General
impermissibly delegated bond decisions for "arriving aliens" to the District Director and not an
immigration judge constitutes a challenge to a discretionary decision of the Attorney General not
subject to judicial review under § 236(e). Since we hold that there is no subject matter
jurisdiction over Richardson's § 2241 petition as a result of INA § 242, et seq., and particularly §
242(b)(9), we do not address this § 236(e) issue but note that the scope of the judicial review bar
in § 236(e), similar to the judicial review limitations in § 242(a)(2)(C), are matters to be
addressed only in a petition for judicial review in the court of appeals and only after a final
removal order.
11
By contrast, former INA § 106(a) was limited to final orders based on proceedings under former 8
U.S.C. § 1252(b) (1994). 8 U.S.C. § 1105a(a) (1994). Under that scheme, "final orders" included "all
matters on which the validity of the final order is contingent, rather than only those determinations
actually made at the hearing." INS v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).
Detention determinations, on which deportation proceedings were not contingent, fell outside of "final
orders of deportation" and were held under INA § 242(a), not INA § 242(b). Cheng Fan Kwok v. INS,
392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). New INA § 242, however, omits any limitation to
a particular form of proceeding. 8 U.S.C. § 1252(a).

10
petition as a challenge to detention while alleging that he is not in fact removable on the charged grounds does

not take that challenge outside of the scope of INA § 242(b)(9).12

Accordingly, we reaffirm and reinstate our opinion in Richardson I except for the aspects of the

opinion that relied on INA § 242(g). We REVERSE the decision of the district court, VACATE the stay of

Richardson's removal order, and direct the district court to dismiss Richardson's § 2241 petition for lack of

subject matter jurisdiction.

12
Richardson also stresses that § 2241 jurisdiction must exist over bond claims or otherwise they will
be always mooted. That is not so. If Richardson becomes subject to a final BIA removal order and then
files a petition for judicial review in this Court, he will remain detained until he is actually removed from
the United States. Thus, Richardson will be detained during his petition for judicial review in this Court
and any subsequent review by the Supreme Court, and his bond claim will not be mooted. There is no
reason why a bond claim cannot or will not be decided before any other issues in the case. Although not
required to do so, a court of appeals could address any bond issue early in the appeal before the issues
relating to the removal order itself are decided or even briefed.

11