                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 5 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 GREGORY PHILBERT TREVOR
 TYSON,

          Petitioner - Appellant,
 v.                                                     No. 02-2153
                                              (D.C. No. CIV-01-661 MV/DJS)
 GARLAND JEFFERS, Warden, Cibola                    (Dist. New Mexico)
 County Correctional Center, and
 UNITED STATES OF AMERICA,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY , Senior Circuit Judge, and       BRISCOE ,
Circuit Judge.


      Petitioner Gregory Philbert Trevor Tyson was ordered removed from the

United States in 1992 after having been convicted of a drug offense in state court.

He then illegally reentered this country, and was apprehended in 1997. The

following year, Tyson pled guilty to the charge of illegally reentering the United

States, and in 1999 he was again removed from this country under the streamlined



      *
       This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
proceedings for reinstatement of prior removal orders established under the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Tyson

sought a writ of habeas corpus in the district court for the District of New

Mexico, but the district court rejected his petition.

      Tyson now appeals, renewing his challenges to his 1992 removal order and

his 1998 conviction, and asking us to decide whether the government’s use of the

streamlined reinstatement process for illegally reentering aliens violates due

process.

      We agree with the district court that Tyson’s 1998 guilty plea forecloses

any review of his 1992 removal order, and that Tyson’s attempt collaterally to

challenge his 1998 conviction under 28 U.S.C. § 2241 was improper. We

therefore AFFIRM the district court’s ruling on those points. With regard to

Tyson’s challenge to his 1999 reinstatement order, we agree with the government

that Tyson’s failure to exhaust his avenues for direct appellate review of his

reinstatement order deprives the federal courts of habeas corpus jurisdiction over

that issue. The district court’s habeas jurisdiction in immigration cases is

conditioned on the petitioner having exhausted all other available avenues for

judicial review, which he did not do. Tyson has not shown sufficient cause and

prejudice for us to excuse his error because his retroactivity challenge to

IIRIRA’s streamlined reinstatement rules is without merit since his guilty plea


                                          -2-
was entered well after IIRIRA went into effect. Accordingly, we find that the

district court lacked jurisdiction over his § 2241 petition, and we AFFIRM the

district court’s dismissal of that claim as well.



I.    Background

      Petitioner Tyson, a citizen of Trinidad and Tobago, was admitted to the

United States as a permanent resident in 1979. In 1984, Tyson was convicted in

New York state of attempted criminal sale of marijuana. Two years later the

Immigration and Naturalization Service (“INS”) commenced deportation

proceedings against him as an alien convicted of a controlled substance crime,

and his order of removal became final in 1992. After Tyson was deported in

1992, he illegally reentered the United States one year later.

      In 1997, Tyson was apprehended and charged with illegal reentry in

violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and 1326(b)(2). Tyson pleaded guilty,

and was sentenced in November of 1998 to 57 months imprisonment. On June 12,

1999, the INS issued a notice of intent to reinstate Tyson’s 1992 order of

removal, and the reinstatement decision was finalized on June 22, 1999.

      Tyson filed a petition for a writ of habeas corpus in the district court for

the District of New Mexico on June 12, 2001, asserting jurisdiction under 28

U.S.C. § 2241. In that petition Tyson challenged the validity of his 1998


                                          -3-
conviction for illegal reentry, attacked his 1992 removal order as improper, and

challenged the INS’s reinstatement of his 1992 removal order on the grounds that

the streamlined reinstatement procedure violated his due process rights. A

magistrate judge issued a recommendation that Tyson’s petition be dismissed,

which the district court accepted in an order dated May 31, 2002.

      Proceeding pro se, Tyson appeals the district court’s dismissal of his

petition, raising the same arguments presented below. In a prior order, this court

appointed counsel to represent him, and requested supplemental briefing from

counsel on the jurisdictional questions presented in this case.



II.   Discussion

      There are no relevant facts being contested by the parties in this case, and

we review the district court’s legal conclusions supporting its dismissal of

Tyson’s habeas petition de novo.



      A.     Tyson’s 1998 Conviction

      We agree with the district court that Tyson’s challenge to his 1998

conviction could not be brought in a § 2241 habeas action, since Congress has

established 28 U.S.C. § 2255 as the exclusive habeas remedy for challenges to

federal convictions and sentencing decisions. In his pro se opening brief, Tyson


                                        -4-
insists that he is challenging the “execution” of his sentence and claims that he

already filed a § 2255 petition in New York and that it was rejected both by the

district court and by the Second Circuit. Tyson did take a direct appeal of his

sentence to the Second Circuit, see United States v. Tyson, 201 F.3d 433, 1999

WL 1295969 (2d Cir. Dec. 27, 1999) (unpublished) (dismissing Tyson’s direct

appeal because he had waived his appeal rights in his plea agreement), but there is

no record before us of any § 2255 petition.

      A brief look at Tyson’s arguments, however, confirms that he does in fact

seek to attack his conviction in this proceeding. Tyson argues that his guilty plea

was involuntary and that the indictment was flawed, and he now asks us to vacate

his conviction on these grounds. This is a challenge that must be brought under

§ 2255 in the sentencing court (here, the Eastern District of New York), not under

§ 2241 in the district in which the petitioner finds himself confined (here, the

District of New Mexico). Tyson has now forfeited such a § 2255 challenge in any

event, since the one-year statute of limitations on § 2255 petitions has run. 1

Hence, we affirm the district court’s dismissal of this claim.




      1
       In addition, if Tyson really has filed a previous § 2255 petition in the
Eastern District of New York, he would face further obstacles if we were to
construe his present petition as one under § 2255 because his present petition may
be a successive petition.

                                         -5-
      B.     Tyson’s 1992 Removal Order

      Tyson’s 1998 guilty plea, in turn, forecloses his challenge to his 1992

deportation order. A lawful prior removal order, as well as unauthorized reentry

into the United States, are necessary elements for a conviction on illegal reentry.

See 8 U.S.C. § 1326(a). “A plea of guilty and the ensuing conviction comprehend

all of the factual and legal elements necessary to sustain a binding, final judgment

of guilt and a lawful sentence.” United State v. Broce, 488 U.S. 563, 569 (1989).

Thus, unless Tyson can upset his 1998 conviction, he cannot in turn attack the

legitimacy of his 1992 deportation order. As we point out above, the district

court correctly found that Tyson could not challenge his illegal reentry conviction

in this § 2241 action, and we consequently hold that the district court was also

correct in dismissing his attack on the 1992 deportation order.



      C.     Tyson’s 1999 Reinstatement Order

      The government argues that the district court lacked jurisdiction over

Tyson’s challenge to his 1999 reinstatement order because Tyson failed to exhaust

his avenues for direct appeal from that order. We agree.

      Judicial review of the INS’s final removal decisions is governed by

8 U.S.C. § 1252 and provides for direct appeals to the circuit courts as the




                                         -6-
exclusive avenue for reviewing agency decisions. 2 Although the text of

§ 1252(a)(1) speaks of judicial review for “orders of removal,” we have

previously held that this provision also gives us jurisdiction to hear direct appeals

from reinstatement orders entered pursuant to § 1231(a)(5). Duran-Hernandez v.

Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003).

      Two recent cases from this court have pointed out that petitioners err when

they file habeas petitions in district court without first filing for direct appellate

review of removal orders in the courts of appeals. In Duran-Hernandez, we stated

that a petitioner erred in seeking habeas review in district court on claims that

should have been pursued first on direct appeal, noting that the petitioner had

both filed the wrong kind of action and sought relief from the wrong court. Id. at

1162. We nevertheless held that the petitioner’s venue error could be cured by




      2
       “Judicial review of a final order of removal ... is governed only by chapter
158 of Title 28, except as provided in subsection (b) of this section....” 8 U.S.C.
§ 1252(a)(1). Subsection (b) establishes a 30-day time limit for filing direct
appeals and regulates the subject matter and scope of our direct appellate review.

                                          -7-
means of the transfer statute, 28 U.S.C. § 1631, 3 and we accepted the filing as a

direct appeal where it was filed within the time constraints of a direct appeal. Id.

      We most recently discussed the existence of a procedural bar against a

§ 2241 habeas petition raising immigration issues that could have been, but were

not, raised on direct appellate review in Latu v. Ashcroft, 375 F.3d 1012 (10th

Cir. 2004). Although we ultimately excused the petitioner’s failure to file a direct

appeal and approved the district court’s exercise of its habeas jurisdiction because

the petitioner was in fact barred from direct appeal under 8 U.S.C.

§ 1252(a)(2)(C) (barring judicial review of removal orders entered against aliens

convicted of certain crimes), we observed that “[g]enerally, a habeas petition

cannot be used to substitute for direct appeal[,]” citing our previous opinion in

United States v. Warner, 23 F.3d 287 (10th Cir. 1994), for the proposition that

“habeas proceedings ‘are not available to test the legality of matters which should


      3
          28 U.S.C. § 1631 provides:

      Whenever a civil action is filed in a [lower federal] court ... or an
      appeal, including a petition for review of administrative action, is
      noticed for or filed with such a court and that court finds that there is
      a want of jurisdiction, the court shall, if it is in the interest of justice,
      transfer such action or appeal to any other such court in which the
      action or appeal could have been brought at the time it was filed or
      noticed, and the action or appeal shall proceed as if it had been filed
      in or noticed for the court to which it is transferred on the date upon
      which it was actually filed in or noticed for the court from which it is
      transferred.


                                          -8-
have been raised on direct appeal.’” Latu, 375 F.3d at 1017 (quoting Warner, 23

F.3d at 291).

      The clearest statement to date of this exhaustion principle as it relates to

immigration orders can be found in Castro-Cortez v. INS, where the Ninth Circuit

ruled that the petitioner’s failure to take advantage of his ability to seek direct

review under § 1252 ran afoul of the courts’ exhaustion requirement, thus

depriving the district court of jurisdiction to hear a habeas petition challenging

the reinstatement of a final removal order. 239 F.3d 1037, 1046-47 (9th Cir.

2001). “[T]he exhaustion requirement in § 2241 cases is subject to waiver

because it is not a ‘jurisdictional’ prerequisite.... [Nevertheless, p]rudential

limits, like jurisdictional limits and limits on venue, are ordinarily not optional.

The district court was not authorized to hear these petitions under § 2241, because

direct review was available.” Id. at 1047. This requirement that § 2241 habeas

claims must first be advanced, if possible, on direct appeal has also been endorsed

by the First and Seventh Circuits. See Arevalo v. Ashcroft, 344 F.3d 1, 16 (1st

Cir. 2003) (citing Castro-Cortez for the proposition that “federal courts should

exercise habeas jurisdiction only when all other judicial and administrative

avenues have been exhausted.”); Gomez-Chavez v. Perryman, 308 F.3d 796, 799-

800 (7th Cir. 2002) (approving of both the district court’s dismissal, for lack of

jurisdiction, of a habeas petition raising unexhausted challenges to a


                                          -9-
reinstatement decision and of the district court’s instruction to the petitioner that

he must seek direct review of the reinstatement order in the court of appeals).

      Our conclusion in Riley v. INS, 310 F.3d 1253, 1256 (10th Cir. 2002), that

the district courts continue to have some habeas jurisdiction in situations

involving a final order of removal is fully consistent with the requirement that

aliens seeking habeas review first exhaust the direct appellate remedies provided

by Congress. Eliminating that exhaustion requirement, on the other hand, would

drastically undermine Congress’s purpose in passing that law to expedite the

removal of those aliens found by the INS to be removable.

      This exhaustion requirement, and the procedural default rule accompanying

it, are motivated by the same general principles that support the procedural

default rule applied to § 2255 petitions. Just as the need for finality and for

conservation of judicial resources leads us to conclude that a § 2255 habeas

petition may not ordinarily be used to provide a criminal defendant a second bite

at the apple for something that could have been raised on direct appeal, so also a

similar concern for scarce judicial resources and respect for Congress’s clear

intent, in enacting IIRIRA, to streamline removal proceedings directs us to

conclude that litigants should not be permitted to circumvent the available direct

appeal remedy (and its tight filing deadlines) by simply filing a habeas petition

under § 2241 in the district court.


                                         - 10 -
      The House Report explains the purpose behind IIRIRA’s reforms of illegal

alien removal procedures as follows:

      Existing procedures to deny entry to and to remove illegal aliens
      from the United States are cumbersome and duplicative. Removal of
      aliens who enter the United States illegally, even those who are
      ordered deported after a full due process hearing, is an all-too-rare
      event....

      H.R. 2202 streamlines rules and procedures for removing illegal
      aliens, and establishes special procedures for removing alien
      terrorists. Aliens who arrive in the United States with no valid
      documents will be removed on an expedited basis; arriving aliens
      with credible asylum claims will be allowed to pursue those claims.
      For illegal aliens already present in the U.S., there will be a single
      form of removal proceeding, with a streamlined appeal and removal
      process.

H.R. R EP . No. 104-469(I), at 107-108 (1996). See also S. R EP . No. 104-249, at 7,

14 (1996) (discussing congressional purpose of “[s]treamlining judicial review of

orders of exclusion or deportation”).

      Congress has established a 30-day window following the agency’s removal

decision during which an alien may appeal that order to the courts of appeals. 8

U.S.C. § 1252(b)(1). Were we to suspend our prudential requirement that habeas

corpus is available only after other avenues of review have been exhausted, we

would eviscerate Congress’s efforts to streamline the removal process. Purely

legal due process challenges would be exempt from any statutory time limits,

since they could be advanced in a habeas petition filed at any time prior to actual

removal or release from custody, and the 30-day deadline set out in § 1252(b)

                                        - 11 -
would only constrain an alien’s ability to bring fact-based challenges that would

not be cognizable in habeas. Such tinkering at the margins of removal procedures

was not what Congress had in mind when it passed IIRIRA.

      If a petitioner is eligible for direct appeal, failure to exhaust that avenue by

filing for appeal within the 30-day window provided by § 1252(b) forecloses

habeas review for all claims that could have been raised and addressed on such an

appeal. This exhaustion requirement is not in the text of § 2241; it is a prudential

requirement imposed by the courts, and may therefore be waived. Courts are thus

permitted to overlook failures to exhaust and address the merits of a § 2241 claim,

and the government may waive a defense based on the procedural default that

results from such a failure to exhaust available channels for appellate review. As

in the § 2255 context, “[t]he procedural default rule is neither a statutory nor a

constitutional requirement, but it is a doctrine adhered to by the courts to

conserve judicial resources and to respect the law's important interest in the

finality of judgments.” Massaro v. United States, 538 U.S. 500, 504 (2003)

(discussing the judicially created exhaustion requirement for § 2255 petitions).

      The procedural bar resulting from a failure to take a direct appeal under

§ 1252 is issue specific and it is, moreover, curable in the event that a petitioner

shows cause and prejudice for his error. Thus, an alien subject to a removal order

may petition for habeas relief in the district court on any claim that could not


                                         - 12 -
have been heard by the court of appeals in a § 1252 appeal. See Gallo-Alvarez v.

Ashcroft, 266 F.3d 1123, 1130 (9th Cir. 2001) (permitting the district court to

“consider any issues not cognizable on petition for review to this court that [the

alien] raised in his habeas petition.”) See also 8 U.S.C. § 1252(a)(2) (prohibiting

direct judicial review for certain types of decisions and for aliens convicted of

certain crimes). Any claim which could have been, but was not, raised on a direct

appeal may nevertheless be brought in a § 2241 petition only if the alien can show

cause excusing his procedural default and actual prejudice resulting from the

errors of which he complains.

      Tyson argues, in his pro se opening brief, that the immigration officer’s

failure to notify him of his direct appeal rights violated due process. Even

assuming Tyson has such a right of notification, which is not at all obvious,

Tyson fails to establish prejudice because there is no reasonable likelihood that

his retroactivity challenge to the application of the streamlining provision of 8

U.S.C. § 1231 to him would have been successful on appeal. See United States v.

Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc).

      The amendments to section 241 of the Immigration and Nationality Act

(INA), codified at 8 U.S.C. § 1231, provide a streamlined procedure for removing

aliens who illegally reenter the United States after having previously been

removed or deported by reinstating the previous order of removal:


                                        - 13 -
      If the Attorney General finds that an alien has reentered the United
      States illegally after having been removed or having departed
      voluntarily, under an order of removal, the prior order of removal is
      reinstated from its original date and is not subject to being reopened
      or reviewed, the alien is not eligible and may not apply for any relief
      under this chapter, and the alien shall be removed under the prior
      order at any time after the reentry.

8 U.S.C. § 1231(a)(5).

      The regulations implementing this statute provide an alien subject to

reinstatement with no right to a hearing before an immigration judge. The

reinstatement proceeding is a summary process conducted by an immigration

officer, who determines: (1) whether the alien has been subject to a prior order of

removal; (2) whether the alien before the officer is in fact the same person as the

one previously ordered removed; and (3) whether the alien in question unlawfully

reentered the United States. 8 C.F.R. § 241.8(a). If all three elements are met,

the alien is given notice of the officer’s determination and an opportunity to make

a written or oral statement contesting that determination, but the officer is

required only to “consider whether the alien’s statement warrants reconsideration

of the determination.” Id. § 241.8(b).

      Tyson argues that his illegal reentry into the United States in 1993 predated

IIRIRA’s entry into force on April 1, 1997 and that the government’s use of

§ 1231(a)(5)’s revised procedures denies him due process by retroactively

foreclosing avenues of relief to which he was entitled under prior law.


                                         - 14 -
      We apply a three-part test in determining whether a statute may be applied

retroactively:

      First, the court must determine whether Congress has expressly
      prescribed the statute’s proper reach. Second, if Congress has not
      expressly addressed the question, we employ the normal rules of
      statutory construction to ascertain the statute’s temporal scope.
      Finally, if the court cannot ascertain congressional intent, we
      consider whether the statute has a retroactive effect. If a retroactive
      effect exists, it triggers the traditional judicial presumption against
      retroactivity and the new law will not be applied.

      A provision has a retroactive effect if it, for example, would impair rights a
      party possessed when he acted, increase a party's liability for past conduct,
      or impose new duties with respect to transactions already completed.
      However, a statute does not operate retrospectively merely because it is
      applied in a case arising from conduct antedating the statute's enactment or
      upsets expectations. Rather, the court must ask whether the new provision
      attaches new legal consequences to events completed before its enactment.
      The Supreme Court has emphasized that this is a functional test.

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1148-49 (10th Cir. 1999) (citations

omitted).

      In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court considered a

retroactivity claim involving a provision of IIRIRA revoking the possibility of

discretionary relief from deportation for immigrants convicted of an aggravated

felony. After finding that congressional intent as to retroactive application was

unclear, the Court held that the new provision would have an impermissible

retroactive effect if applied to an alien who pled guilty to such an aggravated

felony prior to the enactment of IIRIRA. Id. at 321-26.


                                        - 15 -
      Since St. Cyr was decided, the Third, Fourth, Fifth, and Eighth Circuits

have similarly found congressional intent regarding retroactive application of

§ 1231(a)(5)'s streamlined reinstatement procedures to be unclear, before

analyzing the functional effects of applying the new restrictions and concluding

they would not have impermissibly retroactive effects. See Avila-Macias v.

Ashcroft, 328 F.3d 108 (3d Cir. 2003); Velasquez-Gabriel v. Crocetti, 263 F.3d

102 (4th Cir. 2001); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002);

Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002). The Sixth and Ninth

Circuits, however, have interpreted § 1231(a)(5) to find that Congress intended

that provision to apply only prospectively to aliens that illegally reenter the

United States after IIRIRA entered into force on April 1, 1997. See Castro-

Cortez, 239 F.3d at 1051-53 (decided before St. Cyr and concluding that Congress

had expressly prescribed that § 1231(a)(5) was only to be applied to aliens

illegally reentering after IIRIRA’s entry into force); Bejjani v. INS., 271 F.3d

670, 687 (6th Cir. 2001).

      We do not need to resolve the nuances of the various retroactivity

arguments in this case, however, because Tyson could not in any event present a

successful retroactive effect challenge to any aspect of § 1231(a)(5), since he pled

guilty to the criminal charge of illegal reentry in 1998, after IIRIRA’s

amendments to the reinstatement process were in force.


                                         - 16 -
      By pleading guilty, Tyson effectively admitted that he was subject to a

lawful prior removal order and that he reentered the United States illegally. Thus

all the elements necessary for finding him eligible for reinstatement and expedited

removal were conceded by Tyson in his guilty plea. Cf. Broce, 488 U.S. at 569

(“A plea of guilty and the ensuing conviction comprehend all of the factual and

legal elements necessary to sustain a binding, final judgment of guilt and a lawful

sentence.”). This concession, moreover, was made in November of 1998, well

after the new provisions of IIRIRA had gone into force. Tyson cannot now feign

surprise when § 1231(a)(5)’s streamlined reinstatement procedures are applied to

him, and we therefore reject his retroactivity claim.

      Tyson did not take a direct appeal from the INS’s decision in 1999 to

reinstate his prior removal order. He does not raise in this habeas action any

arguments that could not have been presented on such an appeal; he does not

establish cause and prejudice; and his habeas petition is therefore now

procedurally barred. We therefore conclude that the district court lacked

jurisdiction over Tyson’s habeas petition and AFFIRM the dismissal of his appeal

insofar as it attacks his 1999 reinstatement order.




                                        - 17 -
III.   Conclusion

       For the reasons stated above, we AFFIRM the district court order

dismissing Tyson’s petition. 4

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




       We grant Tyson’s two outstanding motions, one to amend his reply brief
       4

with a transcript and the other to judicially notice a Second Circuit ruling on his
1992 appeal.

                                        - 18 -
No. 02-2153, Tyson v. Jeffers

BRISCOE, Circuit Judge, concurring:

      While I agree with the outcome here, I differ in the analysis of Tyson’s

challenge to his 1999 reinstatement order.

      Tyson contends the notice to reinstate the 1992 deportation order was

invalid because it constituted an impermissibly retroactive application of a 1996

amendment to the INA (brought about by enactment of the IIRIRA), § 245(a)(1),

to an act that occurred in 1993, i.e., his illegal reentry into the United States. The

majority concludes the district court lacked habeas jurisdiction to review Tyson’s

claim because he failed to exhaust his avenues for direct appeal of that order. I

would not conclude that failure to exhaust is a bar here, but would conclude

instead that the district court had jurisdiction pursuant to 28 U.S.C. § 2241 to

entertain that portion of Tyson’s petition that sought to challenge the INS’ notice

of intent to reinstate the prior deportation order, but only to the extent that Tyson

sought to challenge the INS’ legal determinations. On the merits of that

challenge, however, Tyson fails.

      Tyson argues that, under INS v. St. Cyr, 533 U.S. 289 (2001), and Riley v.

INS, 310 F.3d 1253 (10th Cir. 2002), habeas jurisdiction remains available to him

because he raises questions of law and he would otherwise have no available

judicial forum for raising those questions. In St. Cyr, the Supreme Court held

that “habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA
[both of which made significant changes to the INA],” and thus a criminal alien

could use § 2241 to collaterally challenge a final order of removal. 533 U.S. at

314. In Riley, this court, agreeing with the Second and Third Circuits, concluded

that federal courts also retain § 2241 habeas jurisdiction over petitions from non-

criminal aliens. 310 F.3d at 1255-56.

      The government argues that “St. Cyr does not control” because “Tyson

could have sought review directly in this Court.” Aplee. Br. at 26. 1 While it is

true Tyson could have sought direct “judicial review” in this court of the INS’

decision to reinstate, the availability of such a proceeding does not mean that

Tyson was deprived of the opportunity to seek federal habeas review of that same

decision. Indeed, St. Cyr expressly rejected this very argument. Tyson’s failure

to seek direct “judicial review” in this court is not, however, without

consequence. Direct “judicial review” in this court would have allowed Tyson to

raise a larger range of issues than are available to him in a habeas corpus



      1
         The government offers other arguments as to why habeas jurisdiction is
unavailable to Tyson, but virtually all of those arguments have been foreclosed by
St. Cyr. For example, the government argues 8 U.S.C. § 1252(b)(9), which
indicates there is “no judicial review in deportation cases unless this section
provides judicial review,” strengthens its argument that § 1252(a)(1) is the
exclusive procedure by which Tyson can seek federal court review of the notice to
reinstate the prior deportation order. In St. Cyr, however, the Supreme Court
stated “that § 1252(b)(9) does not clearly apply to actions brought pursuant to the
general habeas statute, and thus cannot repeal that statute either in part or in
whole.” 533 U.S. at 314.

                                        -2-
proceeding. In contrast, habeas jurisdiction is generally limited to reviewing the

INS’ “legal determinations,” and its underlying “factual determinations” are

generally unreviewable. St. Cyr, 533 U.S. at 306. Therefore, the district court

had jurisdiction pursuant to § 2241 to address Tyson’s legal challenges of the

INS’ notice of intent to reinstate the prior deportation order.

      Tyson contends the notice to reinstate the 1992 deportation order was

invalid because it constituted an impermissibly retroactive application of a 1996

amendment to the INA (brought about by enactment of the IIRIRA), § 245(a)(1),

to an act that occurred in 1993, i.e., his illegal reentry into the United States. In

support of this contention, Tyson argued in his pro se appellate brief that

retroactive application of INA § 245(a)(1) deprived him of various procedural

rights that existed at the time he illegally reentered the United States. In

particular, Tyson alleged he was denied the right to a hearing before an

immigration judge, a right to appeal to the Board of Immigration Appeals, a right

to develop a record or place any information in the administrative record, and a

right to assistance of counsel. In the supplemental appellate brief, Tyson’s

appointed counsel asserts, for the first time, that the notice of reinstatement

(because of application of the amended provisions of the INA to Tyson) denied

Tyson “at least three substantive defenses to removal that could have been

asserted in a reinstatement of deportation order proceeding under former section


                                          -3-
242(f): 1) discretionary relief under former section 212(c); 2) discretionary relief

under section 212(h); and 3) collateral challenges to the 1992 deportation order.”

Aplt. Supp. Br. at 24.

      The key question is whether the new procedures implemented by §

241(a)(5) can permissibly be applied to Tyson, even though he reentered the

United States prior to enactment of § 241(a)(5). The answer to this question

requires application of Landgraf v. USI Film Products, 511 U.S. 244 (1994). In

Landgraf, the Supreme Court set forth a two-step test for determining whether a

federal statute applies retroactively to conduct occurring before its enactment.

Under the first step, a court must “determine whether Congress has expressly

prescribed the statute’s proper reach.” Id. at 280. In doing so, a court may look

to the express language of the statute, but may also use traditional tools of

statutory construction. See Lindh v. Murphy, 521 U.S. 320, 325-26 (1997). If it

is determined that Congress clearly expressed its intent as to the statute’s

retroactivity, the inquiry ends. Landgraf, 511 U.S. at 280. If the court is unable

to discern Congress’ intent, however, the court must proceed to the second step,

which requires it to determine whether application of the statute to past conduct

“would have retroactive effect.” Id. A statute has an impermissible retroactive

effect when “it would impair rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties with respect to


                                         -4-
transactions already completed.” Id. If the court determines the statute would

have an impermissible retroactive effect if applied to past conduct, the statute

must be applied prospectively only. Id.

      I have found at least seven circuits that have addressed the very question

raised by Tyson, i.e., whether INA § 241(a)(5) can be applied retroactively to

illegal reentries that occurred prior to its effective date. Although all have

applied the Landgraf analysis, the outcomes are split. The Sixth and Ninth

Circuits have concluded that INA § 241(a)(5) cannot be applied retroactively to

such illegal reentries, i.e., the INS cannot file a notice of intent to reinstate an

order of deportation if the illegal reentry occurred prior to the effective date of §

241(a)(5). See Bejjani v. INS, 271 F.3d 670, 677-78 (6th Cir. 2001); Castro-

Cortez v. INS, 239 F.3d 1037, 1040 (9th Cir. 2001). In contrast, the First, Fourth,

Fifth, Eighth, and Eleventh Circuits have concluded that INA § 241(a)(5) can be

applied retroactively to illegal reentries occurring before its effective date. See

Sarmiento Cisneros v. United States Attorney Gen., 381 F.3d 1277, 1284-85 (11th

Cir. 2004); Arevalo v. Ashcroft, 344 F.3d 1, 13-14 (1st Cir. 2003); Ojeda-

Terrazas v. Ashcroft, 290 F.3d 292, 299-300 (5th Cir. 2002); Alvarez-Portillo v.

Ashcroft, 280 F.3d 858, 864 (8th Cir. 2002); Velasquez-Gabriel v. Crocetti, 263

F.3d 102, 103 (4th Cir. 2001). However, the Eighth Circuit has also held that §

241(a)(5) cannot be applied in a manner that would eliminate a substantive


                                           -5-
defense otherwise available to an alien who illegally reentered before the statute’s

effective date. Alvarez-Portillo, 280 F.3d at 867. Further, the First and Eleventh

Circuits have held that § 241(a)(5) cannot be applied to an illegal reentrant who

requested discretionary relief before § 241(a)(5) took effect. Sarmiento Cisneros,

381 F.3d at 1284; Arevalo, 344 F.3d at 4. Together, these cases outline, in

exhaustive detail, the arguments for and against retroactive application of

§ 241(a)(5) under the Landgraf framework. With respect to the first step of the

Landgraf analysis, none of these courts have concluded that Congress clearly

intended that § 241(a)(5) be applied retroactively. Instead, they have either

concluded that (1) Congress clearly intended that § 241(a)(5) would not be

applied retroactively, or (2) that Congress’ intent was unclear. Although it is

perhaps a close question, I would side with the latter conclusion, i.e., there is no

sufficiently clear expression of congressional intent regarding the retroactivity of

§ 241(a)(5).

      The courts that have reached and decided the second step of the Landgraf

analysis have generally agreed that the basic procedural aspects of § 241(a)(5) do

not have an impermissible “retroactive effect.” Most notably, in Alvarez-Portillo,

the Eighth Circuit concluded that § 241(a)(5)’s denial of a hearing before an

immigration judge did not have a retroactive effect because “[i]llegal reentrants

have no entitlement to such delays and no reasonable expectation that prior


                                         -6-
inefficiencies in the administration of our immigration laws would continue

indefinitely.” 280 F.3d at 866. Likewise, the Eighth Circuit concluded that

“[w]hether a removal proceeding commenced after IIRIRA’s effective date results

in a new deportation order, or the reinstatement of the prior order, is a change that

is entirely procedural and prospective” because “[n]o illegally reentering alien has

a reasonable expectation that his prior deportation order will not be reinstated for

purposes of effecting a second removal.” Id. at 865. Lastly, the Eighth Circuit

concluded that § 241(a)(5)’s prohibition on reopening or reviewing a prior order

of removal was “entirely procedural and prospective” because “[i]llegally

reentering aliens have no reasonable expectation that they will be entitled to

collaterally attack their prior, final deportation orders in a subsequent removal

proceeding.” Id. at 866.

      That leaves only the question of whether § 241(a)(5) can be applied to

eliminate substantive defenses that an illegally reentering alien had prior to the

effective date of § 241(a)(5). Section 241(a)(5) provides, in pertinent part, that

an alien subject to reinstatement “may not apply for any relief under this chapter.”

Here, it is uncontroverted that Tyson made no attempt, following his illegal

reentry in 1993, to seek discretionary relief from the INS (thus distinguishing this

case from Arevalo). Nevertheless, Tyson argues § 241(a)(5) had an impermissible

retroactive effect when applied to him because (1) it deprived him of various


                                         -7-
procedural rights otherwise available under the prior law; and (2) it denied “at

least three substantive defenses to removal that could have been asserted in a

reinstatement of deportation order proceeding under former section 242(f).” Aplt.

Supp. Br. at 24.

      In light of the decisions of the First, Fourth, Fifth, Eighth, and Eleventh

Circuits, there appears to be no merit to Tyson’s arguments regarding deprivation

of procedural rights. His argument that he was deprived of substantive defenses

requires a closer examination of each defense he allegedly could have asserted.

Although Tyson argues he was deprived of the opportunity to collaterally

challenge the 1992 deportation order, that precise argument was rejected in

Alvarez-Portillo, 280 F.3d at 866 (“Illegally reentering aliens have no reasonable

expectation that they will be entitled to collaterally attack their prior, final

deportation orders in a subsequent removal proceeding.”). That leaves Tyson’s

assertion that he could have sought and obtained discretionary relief under former

sections 212(c) (permitting the Attorney General to waive deportation for

excludable aliens) and 212(h) (permitting the Attorney General to waive

deportation for certain aliens otherwise excludable on the basis of criminal

conviction). With respect to his § 212(c) argument, it is important to note that

Tyson previously sought and was denied relief under § 212(c) during his 1992

deportation proceedings. In light of that fact, he has failed to convincingly


                                          -8-
explain why he would have had a reasonable expectation of obtaining

discretionary relief under that same section at the time he illegally reentered the

United States in 1993. As for his argument that he could have sought and

obtained relief under former § 212(h), the record indicates that Tyson had at least

five controlled substance convictions on his record, two of which involved the

sale or attempted sale of controlled substances. Conviction of a drug offense

rendered an alien statutorily ineligible for relief under former § 212(h) unless it

was “a single offense of simple possession of 30 grams or less of marijuana.” 8

U.S.C. § 1182(h). Tyson was clearly ineligible for discretionary relief under

former § 212(h).




                                         -9-
