United States District Court, District of New Jersey, D.
February 23, 2000
ANTON CURRI, PETITIONER,
JANET RENO, ET AL., RESPONDENT. 2000
The opinion of the court was delivered by: Lechner, District Judge.
This is an action brought by petitioner, Anton Curri ("Curri"), a
detainee of the
Immigration and Naturalization Service (the "INS") in Elizabeth, New
Jersey, against respondents, Attorney General Janet Reno, INS
Commissioner Doris Meissner, INS District Director Andrea Quarantillo,
Officer in charge of the United States Immigration & Naturalization
Service Detention Center Lorelei Valverde, the INS, and the Department of
Justice (collectively, the "Respondents"). Presently pending is a
petition (the "Petition") of Curri for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2241 ("Section 2241"), seeking parole from INS
For the reasons set, forth below, the Petition is dismissed for lack of
subject matter jurisdiction.
On or about 7 August 1999, Curri, a native and citizen of Albania,
arrived at John F. Kennedy International Airport ("JFK Airport") and
attempted to gain admission into the United States with a fraudulent
passport. See Petition at 1, Opp. Brief at 4. It appears Curri sought
admission into the United States under the visa waiver pilot program,
pursuant to 8 U.S.C. § 1187. The Petition alleges Curri "came to the
United States because of credible fear of persecution and because of
dangerous war time conditions." Petition at 1. Specifically, the
Petition alleges: "The credible fear of persecution was due to political
problems between the communist and democrats where his father and him
[sic] were democrats looking to advance social and political goals of the
people of Albania . . ." Id.
The Petition further alleges that in or about July 1999, Curri left
Albania without any travel documentation, much more a valid passport and
attempted to gain "refugee status" in a neighboring European country.
Id. at 2. The Petition, moreover, alleges Curri sought "refugee status"
in Italy and Belgium. Id. It appears, however, neither country would
grant Curri "refugee status.*fn2" Id. As a result, the Petition alleges
Curri "determined that the only place that he could seek refuge was the
United States which [he] believed was accepting refugees from both Kosovo
and Albania." Id.
The Petition further alleges that in preparation for the journey to the
United States, the parents of Curri purchased a fraudulent Slovenian
passport so Curri would have a "travel document."*fn3 See id. It appears
Curri used the fraudulent passport to travel from Belgium to Paris,
France where he proceeded to board a United States commercial airline
route to JFK Airport.*fn4 Id.
As mentioned, on or about 7 August 1999, Curri arrived at JFK Airport.
See id. at 2 & Opp. Brief at 4. It appears, upon the arrival of Curri at
JFK Airport, an immigration inspector determined Curri was in possession
of a fraudulent passport. See Opp. Brief at 4. Curri subsequently
indicated he desired to file political asylum in the United States and to
that end, he declared he was a native citizen of Albania. See Petition at
2 & Opp. Brief at 4. It appears Curri was detained by the INS upon the
determination by an INS officer that Curri did not have a valid
passport. See Opp. Brief at 4.
It appears that Curri, through an interpreter, indicated in a sworn
statement before an INS officer that he intended to reside in the
United States "forever," he left Albania because he did not have a
job, and that he obtained the fraudulent passport from an
individual named Mon Ejlli.
Q: How long do you plan to stay in the U.S.?
A: I would like to stay here forever.
Q: Why did you leave Albania to come to the U.S.?
A: I have problems, the economy is bad
I don't have a job. I was only able to live on my mother's
Q: What countries have you been to since you left Albania, and how
long did you stay in each one?
A: I went from Albania to Italy by boat I didn't stop in Italy,
then to France for a half a day then to U.S.A [sic] Guy named
Mon Ejlli helped me with everything.
Q: I show you Slovenian passport # AA907644 in the name of Kozek,
Toni is this your legally issued passport?
A: No someone gave it to me.
Q: Where did you get it and how much did you pay for it?
A: I paid $10, 000 for the whole trip including the passport.
Q: Did you present this Slovenian passport # AA907644 to a
primary immigration inspector in an attempt to illegally enter
A: Yes I gave it to them and the officer noticed it wasn't legal.
Q: Did you say anything to the Primary Officer upon inspection?
A: Yes I pretended I was who was on the passport.
Record of Sworn Statement, attached as Exhibit A to the Opp. Brief.
The Petition further alleges no removal proceedings have been commenced
against Curri: "No NTA [notice to appear] has been issued, therefore INS
has no charges pending." See Petition at 3*fn5
Finally, it appears the Petition alternatively alleges because Curri
was a minor at the time he arrived in the United States, it is "unlawful
for the Immigration Service to hold him in detention." See id. at 2. In
this regard, the Petition alleges Curri was born on 28 October 1981. See
Facsimile copy of Birth Certificate, attached as Exhibit B to the
Petition. It is undisputed, however, that Curri is no longer a minor.
A. Subject Matter Jurisdiction
As a threshold matter, it must be determined whether subject matter
jurisdiction exists over the Petition. Curri alleges he is entitled to
review of a discretionary denial of his request for release and parole as
a matter of statutory and constitutional right. See generally Petition at
3-8, Reply Brief at 1-6.*fn6
It appears the instant Petition is focused solely on the recent
congressional enactments pertaining to the apparent narrowing of subject
matter jurisdiction as it relates to the federal immigration laws. In
1996, Congress enacted legislation which altered the federal immigration
laws: the Antiterrorism and Effective Death Penalty Act of 1996 (the
"AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996); and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (the
"IIRIRA"), Pub.L. No. 104-208, 100 Stat. 3009 (1996) (collectively, the
"Acts"). It is undisputed the AEDPA and the IIRIRA went into effect
before the detention of Curri.*fn7 See Petition.
A review of recent case law indicates that most of the judicial debate
surrounding the Acts thus far has involved the extent to which judicial
review of final orders of removal remains available following the AEDPA
and the IIRIRA. In particular, courts have focused on the availability of
review in the context of "transitional" removal cases. See eg. Sandoval
v. Reno, 166 F.3d 225, 229 (3d Cir. 1999). Transitional removal cases are
those case that were pending before 1 April 1997, the effective date of
the IIEIRA. By contrast, all removal proceedings initiated by the INS
after that date, such as the underlying action in the instant Petition,
are subject to the permanent jurisdictional provisions imposed by the
IIRIRA, now codified at 8 U.S.C. § 1252 et seq. ("Section 1252"). See
Sandoval, 166 F.3d at 229 (discussing the transitional and permanent
rules). See also DeSousa v. Reno, 190 F.3d 175, 180-81 (3d Cir. 1999l)
As mentioned, the instant Petition is governed by the permanent
jurisdictional rules of the IIRIRA. While the Petition does implicate the
jurisdictional provisions of Section 1252, it does not concern a final
order of removal. Rather, the Petition seeks review of a purely
discretionary decision by the INS regarding the temporary
parole of Curri, and therefore, appears to be a matter of first impression
in this court.
1. The Governing Statutory Framework
As mentioned, at issue in the instant action is whether a District
Court has jurisdiction, pursuant to 28 U.S.C. § 2241, to review a
discretionary decision by the INS to deny an alien parole. Specifically,
the statutory provision at issue is Section 1252, the jurisdictional
counter part to 8 U.S.C. § 1182 ("Section 1182"), among other sec|
tions.*fn9 Section 1182, inter alia grants the Attorney General the
discretion to temporarily parole any alien applying for admission into
the United States. See 8 U.S.C. § 1182 (d)(5)(A) & (B). Section
1252, in turn, delineates the jurisdictional limits of review of the
discretionary powers granted under Section 1182.
Section 1182 provides in relevant part: (5)(A) The Attorney General may
. . . in [her] discretion parole into the United States temporarily under
such conditions as [she] may prescribe only on a case-by-case basis for
urgent humanitarian reasons or siguificant public benefit any alien
applying for admission to the United States, but such parole of such alien
shall not be regarded as an admission of the alien and when the purposes
of such parole shall, in the opinion of the Attorney General, have been
served the alien shall forthwith return or be returned to the custody
from which he [/she] was paroled and thereafter his/her case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.
(B) The Attorney General may not parole into the United States an alien
who is a refuge unless the Attorney General determines that compelling
reasons in the public interest with respect to that particular alien
require that the alien be paroled into the United States rather than be
admitted as a refugee. . . .
8 U.S.C. § 1182 (d)(5)(A) & (B).
Section 1252, entitled "Judicial Review of Orders of Removal,"
however, provides inter alia:
(B) Denials of Discretionary Relief: Notwithstanding any other
provision of law, no court shall have jurisdiction to review: "(ii) any
other decision or action of the Attorney General the authority for
which is specified under this subchapter to be in the discretion of the
Attorney General. . .
8 U.S.C. § 1252 (a)(2)(B)(ii).
As explained, Section 1252, while headed "Judicial Review of Orders of
Removal, "appears to have a broader scope than simply setting forth the
jurisdictional limits of review of orders of removal. A title of a
statute typically cannot limit the plain meaning of the text. See
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212, 118
S.Ct. 1952, 141 L.Ed.2d 215 (1998); Almendarez—Torres v. United
States, 523 U.S. 224, 118 S.Ct. 1219, 1225, 140 L.Ed.2d 350 (1998). As
a general rule of construction [w]here the text is complicated and
prolific, headings and titles can do no more than indicate the
provisions in a most
general manner; to attempt to refer to each specific provision would
often be ungainly as well as useless. . . . [T]he heading of a section
cannot limit the plain meaning of the text. For interpretative purposes,
they are of use only when they shed light on some ambiguous word or
phrase. They are but tools available for the resolution of a doubt. But
they cannot undo or limit that which the text makes plain. Brotherhood of
R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 528-29, 67 S.Ct.
1387, 91 L.Ed. 1646 (1947). See Yeskey, 524 U.S. at 212, 118 S.Ct. 1952
(citing Baltimore & O.R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646
(1947)); Almendarez—Torres, 118 S.Ct. at 1225 (same). Upon review
of Section 1252, it appears this section addresses several jurisdictional
issues, including ones that are collateral to the review of a final order
of deportation. See eg., Section 1252(a)(2)(B)(i) (providing that "no
court" may review certain of the Attorney General's discretionary grants
of relief in, inter alia, requests for voluntary departure, cancellation
of removal, and adjustment of status); Section 1252(e) (limiting
jurisdiction to review exclusion orders, including habeas review and
collateral constitutional challenges to the validity of the system);
Section 1252(f) (providing limitations on injunctive relief available in
any court other than the Supreme Court); Section 1252(g) (barring review
in transitional cases of certain discretionary decisions of the Attorney
General in any court and in any type of action). It appears, therefore,
Section 1252(a)(2)(B)(ii) is not limited in application only to review
by the circuit courts of final orders of removal, and is applicable in
the instant action. See Reno v. American— Arab
Anti—Discrimination Committee, et al., 525 U.S. 471, 119 S.Ct.
936, 945, 142 L.Ed.2d 940 ("AAADC ") (observing that Section
1252(a)(2)(B) bars review of denials of discretionary relief authorized by
various statutory provisions); Van Dinh, 197 F.3d at 430-33. 2. Relevant
The Supreme Court reviewed Section 1252(g), a similar jurisdictional
provision found in the IIRIRA, and determined that Section 1252(g)
precluded all jurisdictional review of the areas specifically addressed in
that section. See AAADC, 119 S.Ct. at 94045. Importantly, the Court held
that Section 1252(g) completely eliminated the statutory jurisdiction of
courts regarding the decisions of the INS pertaming to its authority to
commence proceedings, adjudicate cases, and execute removal orders. See
id. at 945. In so holding, the Court stated:
There was good reason for Congress to focus special
attention upon, and make special provision for,
judicial review of the Attorney General's discrete
acts of "commenc[ing] proceedings, adjudicatiling]
cases, and executing removal or| ders&mdashiwhich
represents the initiation or prosecution of various
stages in the deportation process. At each stage the
Executive has discretion to abandon the endeavor, and
at the time the IIRIRA was enacted the INS had been
engaging in a regular practice (which had come to be
known as "deferred action") of exercising that
discretion for humanitarian reasons or simply for its
Id. at 943.
In addition, the Court observed:
Section 1252(g) seems clearly desigued to give some
measure of protection to "no deferred action"
decisions and similar discretionary determinations,
providing that if they are reviewable at all, they at
least will not be made the bases of separate rounds of
judicial intervention outside the streamlined process
that Congress has desigued.
Significantly, the Court also stated: Of course many
provisions of [the] IIRIRA are aimed at protecting the
Executive's discretion from the courts — indeed,
that can fairly be said to be the theme of the
legislation.See eg. Section 1252(a)(2)(A) (limiting
review of any claim arising from the inspection of
aliens arriving in the United States); Section
1252(a)(2)(B) (barring review of denials of
discretionary relief authorized by various statutory
provisions); Section 1252(a)(2)(C) (barring review of
final orders against criminal aliens); Section
1252(b)(4)(D) (limiting review of asylum determinations
for resident aliens).
Id. at 945 (emphasis added). It appears the Court determined that the
jurisdiction of the lower courts, including habeas review pursuant to
Section 2241, was repealed by the plain language of Section 1252(g)
(albeit in the narrowly proscribed enumerated area of INS discretion).
See id. at 943. See also Richardson v. Reno, 180 F.3d 1311
, 1313-14 (11th
Cir. 1999) (interpreting AAADC as only barring judicial review of
challenges to a decision to commence proceedings, adjudicate cases or
execute removal proceedings); Botezatu v. INS, et al., 195 F.3d 311
(7th Cir. 1999); Jacques v. Reno, 73 F. Supp.2d 477, 479 (M.D.Pa. 1999);
Alikhani v. Fasano, et al., 70 F. Supp.2d 1124, 1126 (S.D.Cal. 1999)
Similarly, the unambiguous language of Section 1252(a)(2)(B)(ii)
provides: Notwithstanding any other provision of law, no court shall have
jurisdiction to review: "(ii) any other decision or action of the
Attorney General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General. . . ."
8 U.S.C. § 1252 (a)(2)(B)(ii). Because the Court in AAADC determined
that Section 1252(g) eliminated judicial review, including habeas review
pursuant to Section 2241, of certain discretionary decisions of the INS,
it appears the unambiguous language of Section 1252(a)(2)(B)(ii)
requires a similar conclusion. See Chavez v. INS, 55 F. Supp.2d 555, 557
(W.D.La. 1999) (holding court lacked subject matter jurisdiction over
challenges to discretionary decisions of the Attorney General); Edoo v.
Kaplinger, 47 F. Supp.2d 769, 773 (W.D.La. 1999) (holding that because
"review of discretionary claims has not historically been guaranteed,
Congress can, and did, with the passage of AEDPA and IIRIRA, remove such
claims from our review under [Section] 2241.").
Indeed, the Supreme Court cautioned that "if [deferred action and
similar discretionary determinations] are reviewable at all, they at
least will not be made the bases for separate rounds of judicial
intervention. . . ." AAADC, 119 S.Ct. at 943. By contrast, in the
Petition, the discretionary decision not to grant Curri temporary parole
is the sole basis for the requested judicial intervention&mdashihabeas
review. See Petition at 1, 3, 5, & 7; Reply Brief at 5-7.
Prior to the decision in AAADC, this Circuit addressed various
jurisdictional components of the IIRIRA and their effect upon habeas
review. See Sandoval, 166 F.3d 225 (3d Cir. 1999) (analyzing a
"transitional rules" case). In Sandoval the Circuit held that the absence
of specific language repealing habeas jurisdiction under Section 2241
necessarily means District Courts retain jurisdiction to entertain habeas
petitions. "In sum, because neither the AEDPA nor [the] IIRIRA contains a
clear statement that Congress sought to eliminate habeas jurisdiction
under [Section 2241], we conclude that [Section] 2241 survives the 1996
amendments." Id. at 236.
The decision in Sandoval, however, does not appear to be controlling
on the issue of jurisdiction over the Petition for three reasons.
Significantly, Sandoval was decided prior to AAADC, in which the Supreme
Court held Section 1252(g), while not explicitly repealing habeas
review, effectively barred all jurisdiction in three distinct areas of
INS discretion. AAADC, 119 S.Ct. at 943. The broad statement that neither
the AEDPA nor the IIRIRA contains a
clear statement as to the intent of Congress to bar habeas review,
therefore, appears to be in conflict with AAADC. In addition, because
removal proceedings were instituted prior to the 1996 enactment of the
IIRIRA, Sandoval is a "transitional rules" case. See Sandoval, 166 F.3d
Finally, at issue in Sandoval was whether a District Court retained
habeas jurisdiction over a final order of deportation pursuant to AEDPA
§ 440(d) (Section 440(d)). Importantly, Section 440(d) essentially
eliminated the discretion of the Attorney General to admit an otherwise
deportable alien, if that alien was convicted of an enumerated crime.
See AEDPA § 440(d). At issue in the instant Petition, however, is
the unambiguous language of Section 1252(a)(2)(B)(ii), which excludes
from judicial review certain discretionary decisions of the INS. See
8 U.S.C. § 1252 (a)(2)(B)(ii). See also AAADC, 119 S.Ct. at 945.
In Catney v. INS, 178 F.3d 190 (3d Cir. 1999), despite holding that
jurisdiction did not exist over a petition from a criminal alien for
review of an order of deportation, the Circuit acknowledged its earlier
holding in Sandoval. See Catney, 178 F.3d at 195 (observing that in light
of Sandoval habeas review remains available to criminal aliens facing
deportation). While noting Sandoval held "that habeas jurisdiction
survived AEDPA's and IIRIRA's limitations on judicial review of certain
deportation orders," the Circuit failed to cite to, much more address,
AAADC which was decided one month after Sandoval and just three months
prior to the decision in Catney.*fn10 See Jacques v. Reno, et al.,
73 F. Supp.2d 477, 480 (M.D.Pa. 1999); Edwards v. Blackman,
56 F. Supp.2d 508, 512 n. 5 (M.D.Pa. 1999) (noting the lack of discussion
of AAADC in Catney).
Later that same year, the Circuit similarly determined, in light of
Sandoval that District Courts in this Circuit retain jurisdiction to
review a habeas petition from deportable resident criminal aliens. See
DeSousa v. Reno, et al., 190 F.3d 175, 182- 83 (3d Cir. 1999). In
DeSousa, however, the Circuit noted that the petition for habeas relief
was not predicated on a governmental discretionary decision. See id. at
181 n. 5. Indeed, the habeas petition focused on the relevant statutory
language barring the availability of a discretionary waiver of
inadmissibility for certain criminal aliens. See id. Thus, the petitioner
in DeSousa was challenging, inter alia, the constitutionality of a
statute, not the exercise of governmental discretion.*fn11 See id.
It appears DeSousa, like Sandova4 does to address whether a District
Court retains habeas jurisdiction to review a purely discretionary
determination by the INS. However, it appears in light of AAADC,
jurisdiction over such decisions is expressly precluded by Section
1252(a)(2)(B)(ii). See AAADC, 119 S.Ct. at 944-45 (observing
that "rio deferred action decisions and similar discretionary
determinations, . . . if . . . reviewable at all, they at least will
not be made the bases for separate rounds of judicial intervention outside
the streamlined process that Congress has designed.") (internal quotations
omitted). See also Richardson, 180 F.3d at 1314 (stating that
"the extensive revisions to the judicial review of removal proceedings
enacted by IIRIRA and the AEDPA, viewed together, repealed [Section] 2241
jurisdiction over petitions challenging removal proceedings.");
Alikhani, 70 F. Supp.2d at 1129 (observing that certain
sections of the IIRIRA deprive courts of jurisdiction to review
the exercise of discretion by the Attorney General). Finally,
it appears most courts which determined that the IIRIRA did not
revoke jurisdiction under Section 2241, also posit that a
repeal of habeas jurisdiction under the IIRIRA would be synonymous with a
"suspension of a writ," in violation of the Suspension Clause. See e.g.
Sandoval, 166 F.3d at 237 (citing U.S. Const. art. I, § 9, cl. 2).
This argument misses the mark. Rather, a "constitutional dilemma" would
only be implicated in the context of a suspension of a writ if the
authority of the Supreme Court to issue a writ of habeas corpus, pursuant
to 28 U.S.C. § 1651, ("Section 1651") was
divested by the IIRIRA.*fn12 See Felker v. Turpin,
518 U.S. 651, 663, 116 S.Ct. 2333, 135 L.Ed.2d 827
(1996) (stating that "we have likewise recognized that judgments about
the proper scope of the writ [of habeas corpus] are normally for Congress
to make.") (internal quotations omitted). See also
Richardson, 180 F.3d at 1315 (noting that the limitation
on Section 2241 habeas jurisdiction by the IIRIRA is not
unconstitutional); Jacques, 73 F. Supp.2d at 483
(observing that the Suspension Clause is only violated when the power to
grant a writ of habeas corpus is divested form the Supreme Court);
Edwards, 56 F. Supp.2d at 512-513; Guy v. Reno,
1999 WL 718554 at 4 (E.D.Pa. Sept. 2, 1999) (habeas review in
Supreme Court presumably still available).
Because it appears Section 1252(a)(2)(B)(ii) repeals habeas
jurisdiction, pursuant to Section 2241, for review of purely
discretionary determinations made by the Attorney General, the
Petition.is dismissed for lack of subject matter jurisdiction.
Conclusion For the reasons discussed, the Petition is dismissed for lack
of subject matter jurisdiction. There is no probable cause to appeal.