Auguste v. Attorney General

United States Court of Appeals,

Eleventh Circuit.

No. 95-5555.

Herve AUGUSTE, Plaintiff-Appellee,

Attorney General, United States, Janet RENO, Immigration and Naturalization Service, United
States, District Director for the Immigration and Naturalization Service, Walter Cadman,
Defendants-Appellants.

Sept. 2, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-2001-CIV-
SH), Shelby Highsmith, Judge.

ON PETITION FOR REHEARING

Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge.

TJOFLAT, Circuit Judge:

We withdraw our opinion in 140 F.3d 1373 (11th Cir.1998) and substitute therefor the

following opinion.

Under the Visa Waiver Pilot Program ("VWPP"), see 8 U.S.C. § 1187 (1994); see also 8

U.S.C.A. § 1187 (West supp. 1998), an alien from a qualifying country who meets certain

requirements not relevant here may enter the United States without a visa for no more than ninety

days if the alien waives "any right ... to contest, other than on the basis of an application for asylum,

any action for deportation against the alien." 8 U.S.C. § 1187(b)(2) (1994).1 On October 13, 1994,

*
Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
1
For reasons given in the text, we review Auguste's petition under the INA as it existed prior
to the extensive amendments passed in 1996.
Auguste entered the United States pursuant to the VWPP after signing a waiver form.2 He remained

in the United States beyond the authorized ninety-day period, which expired on January 12, 1995.

While in the country, he obtained a fraudulent work permit and Social Security card and signed a

contract to purchase a hotel in Pompano Beach, Florida, for $7.3 million.

The Border Patrol eventually located Auguste at his Florida residence and took him into

custody on September 4, 1995. That day, Walter Cadman, District Director of the INS, issued an

order of deportation because Auguste had violated the conditions of his admission to the United

States under the VWPP by staying beyond ninety days. No hearing was held, in conformity with

the procedures outlined in the INS regulations that were promulgated pursuant to the VWPP.3

Cadman scheduled Auguste's deportation for September 12, 1995.

2
The waiver provision of that form read as follows:

WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of an
immigration officer's determination as to my admissibility, or to contest, other
than on the basis of an application for asylum, any action in deportation.

CERTIFICATION: I certify that I have read and understood all the questions and
statements on this form. The answers I have furnished are true and correct to the
best of my knowledge and belief.
3
These regulations state, in relevant part:

An alien who has been admitted to the United States under the provisions of [the
VWPP] who is determined by an immigration officer to be deportable from the
United States ... shall be removed from the United States to his or her country of
nationality or last residence. Such removal for deportation shall be determined by
the district director who has jurisdiction over the place where the alien is found,
and shall be effected without referral of the alien to an immigration judge for a
determination of deportability....

8 C.F.R. § 217.4(c) (1997).

2
On September 12, Auguste filed a petition for review of his deportation, pursuant to 8 U.S.C.

§ 1105a (1994),4 in the District Court for the Southern District of Florida. He alleged, inter alia, that

his waiver of any right to a deportation hearing was not "knowing and intelligent." The district court

granted a stay of deportation and, after conducting emergency hearings on September 12 and 15,

found "the record woefully inadequate to support a finding that Herve Auguste made an intelligent

and knowing waiver of his due process right to deportation proceedings." It therefore granted

Auguste's petition and ordered that formal deportation proceedings be conducted and that Auguste

be released on bond pending conclusion of the proceedings.

The Attorney General appealed from this judgment. On appeal we held that the district court

lacked jurisdiction to hear Auguste's petition, and that we lacked jurisdiction to hear the appeal,

because of amendments to the Immigration and Nationality Act (INA) enacted in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Div. C, Omnibus

4
That section provided, in relevant part, that "any alien held in custody pursuant to an order of
deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. §
1105a(a)(10) (1994). As discussed in the text, section 1105a was repealed in 1996 to eliminate
review of orders of removal. See 8 U.S.C.A. § 1105a(a)(West supp. 1998).

Auguste's counsel filled out and filed a standardized form created by the
Administrative Office of the United States Courts for state prisoners seeking a writ of
habeas corpus under 28 U.S.C. § 2254 (1994). On the top of the form, the number 2254
was crossed out and the number 2241 was handwritten above, suggesting that Auguste
sought a writ of habeas corpus under 28 U.S.C. § 2241 (1994).

A review of the district court record reveals, however, that Auguste's petition has
been consistently treated as a petition for relief pursuant to 8 U.S.C. § 1105a(a)(10). The
district court explicitly refers to Auguste's petition as a § 1105a petition in its
memorandum opinion and elsewhere. Moreover, Auguste's petition and the arguments he
presented in the district court, in his appellate brief, and at oral argument on appeal all
indicate that he is seeking judicial review of his deportation under section 106 of the
INA, 8 U.S.C. § 1105a (1995).

3
Appropriations Act, 1997, Pub.L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.) 3009-546 (codified

in scattered sections of 8 U.S.C.), that were passed while Auguste's appeal was pending. Section

306 of the IIRIRA completely restructured judicial review of deportation orders, which were

renamed "orders of removal." That section repealed section 106 of the INA, 8 U.S.C. § 1105a

(1995), in its entirety, see § 306(b), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-612, and replaced it with

a new section 242, see § 306(a), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-607 to -612 (codified at 8

U.S.C. § 1252, see 8 U.S.C.A. § 1252 (West Supp.1998)). Amended section 242(g), titled

"Exclusive Jurisdiction," now states:

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 [the INA].

Pub.L. No. 104-208, § 306(a)(2), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-612 (codified at 8 U.S.C.

§ 1252(g), see 8 U.S.C.A. § 1252 (West Supp.1998)). This provision is made applicable "without

limitation to claims arising from all past, pending, or future exclusion, deportation, or removal

proceedings under" the INA.5 Pub.L. No. 104-208, § 306(c)(1), 1996 U.S.C.C.A.N. (110 Stat.) at

3009-612.

The new section 242(g) went into effect on April 1, 1997. See INS v. Yang, 519 U.S. 26, ----

n. 1, 117 S.Ct. 350, 352 n. 1, 136 L.Ed.2d 288 (1996); Ramirez-Centeno v. Wallis, 957 F.Supp.

1267, 1269 (S.D.Fla.1997). As stated supra, pursuant to the IIRIRA, section 242(g) applies

"without limitation to claims arising from all past, pending, or future exclusion, deportation, or

5
We conclude that the reference to "such Act" at the end of this section is a reference to the
INA and not to the IIRIRA because a "past proceeding," by definition, could not have arisen
under the new act.

4
removal proceedings under [the INA]." § 306(c)(1), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-612.

Auguste's petition is clearly a "claim by [an] alien arising from the decision ... by the Attorney

General to ... execute removal orders against [the] alien under" the INA, as contemplated by section

242(g). We therefore held, in our initial opinion, that since April 1, 1997, no court has had

jurisdiction to review Auguste's deportation order, except as provided by newly amended 8 U.S.C.

§ 1252.

Under section 1252, as amended by the IIRIRA, judicial review of orders of removal may

only be initiated in a court of appeals. See 8 U.S.C. §§ 1252(a)(1), 1252(b)(2) (West supp. 1998).

Auguste did not comply with this procedure,6 as he filed his petition with the district court.7 We

therefore held that the district court lacked jurisdiction to hear Auguste's petition, and that we lacked

jurisdiction over this appeal. See Auguste, 118 F.3d at 725-27.

On petition for rehearing, Auguste points to section 309(c) of the IIRIRA, which provides

as follows:

(1) GENERAL RULE THAT NEW RULES DO NOT APPLY.—

Subject to the succeeding provisions of this subsection, in the case of an alien who is in
exclusion or deportation proceedings as of the title III-A effective date—

6
We presume, without deciding, that the new judicial review scheme applies to orders of
removal issued pursuant to the VWPP; as discussed in the text, however, we review Auguste's
appeal under the pre-IIRIRA statutes. Whether or not judicial review under 8 U.S.C. § 1252 is
available for aliens who are ordered removed pursuant to the VWPP, it is clear that no other
form of judicial review is authorized.
7
This "mistake" was certainly not Auguste's or his counsel's fault: the IIRIRA was not
enacted until September 30, 1996, more than a year after Auguste filed his petition pursuant to
the then-in-force judicial review procedures of the INA.

5
(A) the amendments made by this subtitle shall not apply, and

(B) the proceedings (including judicial review thereof ) shall continue to be
conducted without regard to such amendments.

Pub.L. No. 104-208 § 309(c), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-625 (emphasis added).

Auguste was clearly "in exclusion or deportation proceedings as of the title III-A effective date,"

April 1, 1997. He argues, therefore, that this section carves out an exception to section 242(g)'s

general abrogation of the federal courts' jurisdiction over deportation proceedings not conducted

pursuant to 8 U.S.C. § 1252. We disagree.

Although section 309(c) does provide that the IIRIRA amendments do not apply to

proceedings that are pending as of April 1, 1997, it is section 242(g) that is an exception to 309(c),

not the opposite as Auguste claims. This conclusion follows from the plain language of section

306(c)(1), which states that the judicial review structure created by section 242 "shall apply as

provided under section 309, except that subsection (g) of section 242 ... shall apply without

limitation to claims arising from all past, pending, or future exclusion, deportation, or removal

proceedings under such Act." IIRIRA § 306(c)(1) (emphasis added). Thus, although section

309(c)'s transition rules govern most of IIRIRA's judicial review system for deportation orders,

242(g) is explicitly excluded, and therefore applies retroactively even to those aliens, like Auguste,

who were in deportation proceedings as of April 1, 1997.

Section 309(a)'s language also supports this conclusion. That section provides that IIRIRA's

general effective date is April 1, 1997. Section 309(a) specifically notes, however, that section

6
306(c) creates an exception to the applicability of that date.8 This exception is 306(c)'s provision

of retroactivity for 242(g).

Other circuits have already concluded that 242(g) divests the courts of jurisdiction over

proceedings pending as of IIRIRA's effective date. The Seventh Circuit stated that "the reference

to subsection (g) in section 306(c) is meant only to provide an exception to section 309(c)'s general

principle of non-retroactivity, so that when [IIRIRA] comes into effect on April 1, 1997, subsection

(g) will apply retroactively, unlike the other subsections." Lalani v. Perryman, 105 F.3d 334, 336

(7th Cir.1997) (deciding that section 242(g) applied retroactively but did not become effective until

April 1, 1997). Similarly, while deciding a challenge against execution of a deportation order, the

D.C. Circuit stated that "IIRIRA now undisputably deprives both courts of appeals and district courts

of jurisdiction to decide the instant action." Ramallo v. Reno, 114 F.3d 1210, 1213 (D.C.Cir.1997);

see also Hose v. INS, 141 F.3d 932, 935 (9th Cir.1998). We join these circuits and conclude that

242(g) applies retroactively, divesting the courts of jurisdiction to decide Auguste's petition.9

8
Section 309(a) states: "IN GENERAL.—Except as provided in ... section ... 306(c), ... this
subtitle and the amendments made by this subtitle shall take effect on the first day of the first
month beginning more than 180 days after the date of the enactment of this Act." Pub.L. No.
104-208, § 309(a), 1996 U.S.C.C.A.N., (110 Stat.) 3009, 3009-635.
9
We note that we would lack jurisdiction to hear Auguste's claim even if we concluded that
242(g) did not apply retroactively. As noted previously, both Auguste and the district court have
treated Auguste's challenge as a petition for a writ of habeas corpus pursuant to INA §
106(a)(10), 8 U.S.C. § 1105a(a)(10) (1994). See supra note 4. Even before IIRIRA was
enacted, however, § 106(a)(10) was amended, and its grant of habeas corpus jurisdiction was
repealed. See Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No.
104-132, § 401(e), 110 Stat. 1214, 1268 (1996). Thus, AEDPA § 401(e) deprives this court of
jurisdiction to hear a petition for habeas corpus under INA § 106.

AEDPA § 401(e) applies to Auguste's petition even though Auguste filed his
petition before April 24, 1996, the date on which AEDPA became effective. As this
court stated in Boston-Bollers v. INS, 106 F.3d 352 (11th Cir.1997), in which we

7
Accordingly, we VACATE the district court's judgment and REMAND the case with the

instruction that the district court dismiss Auguste's petition for lack of subject matter jurisdiction.

considered § 440, another jurisdiction-revoking provision of the AEDPA, "[a]pplying
section 440 to petitions for review of deportation orders pending on the date of the
passage of the AEDPA is not retroactive application affecting substantive rights, but is a
prospective application of a jurisdiction-eliminating statute." Id. at 354. By the same
rationale, AEDPA § 401(e) applies to Auguste's petition and abrogates our jurisdiction.