The opinion of the court was delivered by: Debevoise, Senior District Judge.
Mr. Victorio Valdivia has petitioned this Court for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241, challenging a final
order of removal from the United States. Respondent Immigration
and Naturalization Service ("INS"), in its answer, has moved for
dismissal of the petition for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set
forth herein, respondents motion to dismiss for lack of subject
matter jurisdiction will be denied and the underlying petition
will be transferred to the United States District Court for the
Western District of New York.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Petitioner Victorio Valdivia is a native and citizen of Chile
who was accorded status as a lawful permanent resident of the
United States on October 14, 1991. On October 1, 1993, petitioner
was convicted in the Superior Court of New Jersey for Union
County of the offense of receiving stolen property, see
N.J.S.A. 2C:20-7. Petitioner was also convicted of theft, see
N.J.S.A. 2C: 20-3, in the same court on February 10, 1995.
Petitioner was sentenced to a term of four years imprisonment for
In 1996, the 104th Congress enacted two items of legislation
which altered the federal immigration laws: the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No.
104-132, 110 Stat. 1214 (1996); and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),
Pub.L. No. 104-208, 100 Stat. 3009 (1996). These laws went into
effect after the dates of petitioner's convictions in the New
Jersey state court, but prior to the initiation of removal
proceedings against him.
On August 18, 1998, the INS issued petitioner a Notice to
Appear in Removal Proceedings, charging him with being removable
pursuant to section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act ("INA").*fn1 An Immigration Judge ordered
Petitioner's removal from the United States on February 25, 1998.
Petitioner appealed to the Board of Immigration Appeals ("BIA"),
which remanded the case to the Immigration Judge for further
development of the administrative record.
Although his criminal convictions made him subject to removal,
petitioner sought a discretionary waiver of the removal order, a
practice permitted by section 212(c) of the INA prior to the 1996
amendments. On February 3, 1999, the Immigration Judge again
ordered that petitioner be removed. In reaching his decision, the
Immigration Judge determined that both of petitioner's
convictions met the definition of an "aggravated felony" as
defined by the INA, and that "as a lawful permanent resident who
has been convicted of an aggravated felony, [petitioner] is
statutorily ineligible for the relief of cancellation of
removal." Matter of Valdivia, A:91-584-443 at 2 (U.S.
Immigration Ct. 1999) (slip opinion).
[Valdivia] has essentially asserted that recent
changes in the law are inapplicable to him . . . We
recognize that the United States Court of Appeals for
the Third Circuit, where this case arises, has
determined that the restrictions on section 212(c)
relief added by AEDPA do not apply retroactively to
proceedings commenced on or before April 24, 1996.
See Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999).
However, [Valdivia's] case does not fall within the
scope of Sandoval v. Reno, supra, as his
proceedings commenced subsequent to that date.
In re Valdivia, A: 91-584-443 (Board of Immigration App. 1999)
Petitioner's immigration proceedings took place in Newark, New
Jersey. He is currently being held at the Buffalo Federal
Detention Facility in Batvia, New York. Petitioner filed this
petition for a writ of habeas corpus on September 14, 1999,
alleging that the BIA's retroactive application of statutory
changes to the INA imposed by AEDPA deprived him of his
Respondent INS contends that this Court has no jurisdiction to
entertain petitioner's request for relief because "judicial
review [of removal orders] is within the sole purview of the
United States Court of Appeals for the Third Circuit," citing
Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Respondent's Answer
As the United States Court of Appeals for the Third Circuit
recently observed, the right to judicial review of deportation
orders "has largely been eliminated by the recent amendments to
the INA in the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA")". Catney v. INS,
178 F.3d 190, 191 (3d Cir. 1999). Prior to the amendments, aliens facing
deportation on the basis of criminal convictions had several
options available to them. First, "at least two provisions of the
INA [sections 212(c) and 212(h)] formerly provided these aliens
with the opportunity to seek discretionary relief from
deportation. . . ." 178 F.3d at 192. Direct judicial review of
these discretionary administrative decisions was available
pursuant to INA § 106, 8 U.S.C. § 1105a, which vested exclusive
jurisdiction in the Circuit Courts of Appeal. See