                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 07a0161n.06
                               Filed: February 27, 2007

                                               No. 05-5287

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


ERNST C. ZUNDEL and                                      )
INGRID A. ZUNDEL,                                        )
                                                         )
            Petitioners,                                 )
                                                         )
                                                         )
             v.                                          )      ON APPEAL FROM DENIAL OF
                                                         )      PETITION FOR WRIT OF HABEAS
                                                         )      CORPUS
ALBERTO GONZALES,                                        )
Attorney General,                                        )
                                                         )
            Respondent.                                  )
                                                         )
                                                         )


Before: DAUGHTREY, Circuit Judge; COOK, Circuit Judge; and WEBER, Senior District
Judge.*

          PER CURIAM. Mr. Ernst Zundel 1 and Mrs. Ingrid Zundel appeal from the district court’s

denial of their petition for writ of habeas corpus. We have jurisdiction to hear this appeal pursuant

to § 242(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a). For the reasons

discussed below, the petition for writ of habeas corpus is converted to a petition for review and the

petition is DENIED.


  *
   The Honorable Herman J. Weber, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.
   1
       Mr. Zundel hereinafter is referred to as “petitioner.”
                                              I. Background

           Petitioner is a German citizen who, prior to his latest entry into the United States, had lived

in Canada for 42 years.2 There he had been an active proponent of Holocaust-revisionist theories

and a writer of anti-semitic tracts. He entered the United States on March 12, 2000, under the Visa

Waiver Pilot Program (“VWPP”), 8 U.S.C. § 1187. Pursuant to the VWPP, § 1187(b)(2), aliens

from certain countries were authorized to enter the United States as non-immigrant visitors without

a visa for a period not to exceed 90 days if the alien waived “any right . . . to contest, other than on

the basis of an application for asylum, any action for removal of the alien.” Petitioner left the United

States shortly after his March entry, returned to Canada, and subsequently reentered the United States

on May 21, 2000, without presenting any documents, although he was prepared to show the

documentation he had been issued in March. Some time thereafter, petitioner began residing in

Sevier County, Tennessee with his wife, Ingrid Zundel, a naturalized United States citizen whom he

had married on January 19, 2000.

           After taking up residence in Tennessee, petitioner applied for an adjustment of his immigrant

status to permanent resident pursuant to 8 U.S.C. § 1255 based on his marriage to Ingrid. The

Immigration and Naturalization Service (“INS”)3 scheduled a hearing on his application for June 12,

2001. Petitioner received a letter from the INS notifying him of the interview. Petitioner’s attorney

could not attend the hearing and, according to petitioner, sent letters to the INS by regular and

registered mail requesting that the interview be rescheduled.


   2
   Some of the facts set forth herein are taken from an earlier decision issued by this court in the
course of petitioner’s immigration proceedings. See Zundel v. Berrong, 106 F. App’x 331 (6th Cir.
2004).
       3
    The INS has been abolished and its functions transferred to the Department of Homeland
Security pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2142.
       Petitioner heard nothing further from the INS until February 5, 2003. On that date, officers

of the Sevier County Sheriff’s Department, acting in conjunction with the INS, came to the Zundel

home, took petitioner into custody, and transported him to the Blount County, Tennessee, jail. The

officers did not have a warrant at the time of the arrest. They instead presented petitioner with a

letter from the INS dated that same date and entitled “Decision.” The letter indicated the INS had

denied petitioner’s application for permanent residency because he had abandoned his application

by failing to appear for the June 12 interview and had failed to contact the INS during the ensuing

six months to reschedule the interview. The letter also stated that “[t]here is no appeal of this

decision.” A warrant prepared later that day indicated that under § 217 of the INA, 8 U.S.C. § 1187,

petitioner had entered the United States “on or about the day of March 12, 2000 [and] is subject to

deportation.”

       While petitioner was in the Tennessee prison, on February 13, 2003, he and Ingrid Zundel

filed with the district court a “Writ of Habeas Corpus, Petition for Temporary Restraining Order and

Preliminary Injunction, Complaint for Constitutional Violations, Petition to Set Bond.” They sought

to restrain respondents from transferring petitioner out of the jurisdiction pending a hearing; the

issuance of a writ freeing him from unlawful detention; injunctive relief pertaining to the setting of

a bond; a preliminary hearing, inasmuch as petitioner was allegedly being wrongfully imprisoned

and politically persecuted as a result of the exercise of his First Amendment rights; and permanent

relief and an award of damages for violation of their constitutional rights. The district court denied

the request for preliminary relief but did not enter a judgment. This court denied the Zundels’

subsequent request for an emergency stay.

       Petitioner was subsequently deported to Canada on February 17, 2003. At the time of his

deportation, he purportedly received a paper from the INS notifying him that he could not reenter
the United States for 20 years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii). Canadian officials took

petitioner into custody and detained him following his deportation. This court determined that

petitioner’s removal to Canada had rendered his requests for preliminary relief moot and thereby

precluded the court from reviewing the district court’s disposition of his claims for such relief. The

court determined, however, that the requests for a writ of habeas corpus vacating the deportation

order and for damages for alleged constitutional violations were not moot. The court found that, on

remand, petitioner could pursue his habeas petition insofar as he challenged his deportation and

insofar as that order had continuing collateral consequences (e.g., the alleged 20-year bar on reentry),

as well as the apparent Bivens claim. The court identified the following issues raised by the parties

as matters for the district court to take up in the first instance: (1) whether 8 U.S.C. § 1252(a)(2)(B)

or (g), which exempt certain decisions of the Attorney General from judicial review, stripped the

federal courts of jurisdiction to hear the remaining claims; (2) whether petitioner waived his right

to contest removal, which is a condition of entry under the VWPP, 8 U.S.C. § 1187(b), because it

remained unclear whether petitioner most recently entered the country under that program; and (3)

the propriety of Ingrid Zundel’s involvement in the suit.4

          The Zundels subsequently filed first and second amended petitions for a writ of habeas

corpus and complaints for injunctive relief and damages on September 24, 2004, and November 10,

2004. They claimed that petitioner’s First Amendment rights and his rights to liberty and due

process were violated by his arrest, detention and removal. Ingrid Zundel raised a Bivens claim

seeking damages based on her right to have petitioner, as an immediate relative spouse of a United

States citizen, eligible to adjust his status to a lawful permanent resident status. Petitioner sought

a writ of habeas corpus, a writ of mandamus, and injunctive relief under the Administrative

   4
       Neither side has addressed Ingrid Zundel’s standing.
Procedure Act. He requested that all deportation and removal orders against him be voided and

rescinded, that Canadian authorities be notified that he was permitted to return to the United States

immediately, and that he be permitted to interview on the application for adjustment of status.

        Respondents filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.

R. Civ. P. 12(b)(1) and a supporting memorandum. Respondents argued that subject matter

jurisdiction was lacking on the grounds that (1) the decision to not adjudicate the merits of

petitioner’s application for adjustment of status and the execution of his deportation order were

discretionary actions not subject to judicial review pursuant to 8 U.S.C. § 1252(g); (2) the petition

did not present a “pure question of law” as required for habeas review under INS v. St. Cyr, 533 U.S.

289, 298 (2001); and (3) petitioner’s status as a non-immigrant alien present in the United States

pursuant to the VWPP precluded review by the district court of the deportation order.

        Because petitioner was incarcerated in Canada and faced deportation to Germany, the district

court held an expedited hearing on the petition for writ of habeas corpus and on the respondents’

motion to dismiss. The district court issued a decision finding that it lacked subject matter

jurisdiction over the petition for a writ of habeas corpus. First, the district court determined that the

INS’s decision to institute removal proceedings against petitioner was a discretionary decision to

“commence proceedings” against an alien that was shielded from judicial review under 8 U.S.C. §

1252(g). The district court also found that petitioner had waived any right he might have had to a

hearing before deportation by signing a waiver of his right to such a hearing in connection with his

entry into the United States on March 12, 2000, under the VWPP, 8 U.S.C. § 1187(b)(2). The

district court addressed petitioner’s argument that his alleged reentry into the country on May 21,

2000, rather than his March 2000 entry, was the critical entry for purposes of the proceedings against

him. The court rejected petitioner’s position that the May admission was not governed by the VWPP
because the pilot program expired in April 2000, prior to his May reentry, and did not take effect

again until several months later, when it was enacted as a permanent program.5 The district court

reasoned that any VWPP “green card” (the I-94W petitioner signed whereby he agreed to waive his

rights every time he renewed his application for entry under the VWPP) that was issued before April

2000 was valid for 90 days, even after expiration of the program, so that presumably any entry within

that 90-day period was necessarily pursuant to the VWPP. Finally, the district court rejected

petitioner’s claim that his deportation was politically motivated because there was no evidence of

this in the record and, even if the deportation was politically motivated, it was not the role of the

judiciary to interfere with the Executive’s political decision.

       On December 10, 2004, the Zundels filed a motion for reconsideration or, in the alternative,

to amend order. The district court denied the motion on January 25, 2005. The court rejected

petitioner’s argument that § 1252(g)’s prohibition against review by the courts of a decision by the

Attorney General to “commence proceedings” only applies to proceedings commenced before an

Immigration Judge (“IJ”) and appealed to the Board of Immigration Appeals (“BIA”). The court also

rejected the argument that § 1252(g) is unconstitutional, finding that petitioner had no constitutional

right to a hearing challenging a discretionary decision of the Attorney General to deport an alien who

has overstayed his admissions period, and if petitioner had such a constitutional right, he waived it

by executing the waiver on March 12, 2000.

                                       II. Grounds for relief

       Petitioner and Ingrid Zundel filed this appeal from the decision of the district court. They



   5
    It was actually the “pilot program period” that expired on April 30, 2000, pursuant to 8 U.S.C.
§ 1187(f). The statute authorizing the pilot program remained in effect until October 29, 2000, when
the VWPP was enacted as a permanent program known as the Visa Waiver Program. See Pub. L.
No. 106-396, 114 Stat. 1637.
describe the acts that they believe warrant habeas relief as “the apprehension of Ernst Zundel based

on an erroneous decision by the INS that he could be treated as a VWPP entrant, including his

unlawful apprehension without any arrest warrant, and (mainly) his subsequent removal based on

the same error . . . also . . . the acts of the AG were motivated by hostility directed at his beliefs.”

They argue that the district court applied the wrong standard of review in considering respondents’

motion to dismiss pursuant to Rule 12(b)(1) and that the district court should have allowed them to

present evidence. They seek an order directing the district court to issue a writ of habeas corpus or

to allow them to conduct discovery on their claims.

          Petitioner argues that § 1252(g) does not bar judicial review of his claims. He alleges that

there is no final order of removal to be reviewed by the court because the INS issued only a “notice”

and a “decision.” Petitioner further contends that the decision to remove him was not a discretionary

decision to “commence proceedings’ that is shielded from judicial review pursuant to 8 U.S.C. §

1252(g) because there were no “proceedings” before an IJ as contemplated by the statute, only a

removal process initiated by the Attorney General.           Petitioner also argues that “[a]cts of

discriminatory hostility” such as those purportedly underlying the decision to remove him are

unconstitutional and cannot be discretionary so as to exempt the removal decision from judicial

review.

          Petitioner further contends that 8 U.S.C. § 1187(b)(2) does not deprive the courts of

jurisdiction over this appeal. He claims that this court retains the authority to determine whether the

VWPP has any applicability to this case.

                                             III. Analysis

A. Conversion of the habeas petition to a petition for review

          During the pendency of this appeal, on May 11, 2005, the REAL ID Act of 2005, Pub. L. No.
109-13, Div. B, 119 Stat. 231, became effective. The Act imposes a judicial review scheme pursuant

to which a petition for review in a federal appellate court is “the sole and exclusive means of judicial

review” for most orders of removal. 8 U.S.C. § 1252(a)(5). Section 106(c) of the Act provides that

all habeas petitions brought by aliens that challenge a final order of removal and that were pending

in the district courts on the date the REAL ID Act became effective are to be transferred to the

appropriate courts of appeals and converted to petitions for review. Thus, district courts no longer

have jurisdiction over habeas petitions challenging “final administrative order[s] of removal,

deportation, or exclusion.” Kellici v. Gonzales, 472 F.3d 416, 419 (6th Cir. 2006). Instead, courts

of appeals can consider in the first instance constitutional claims and questions of law presented in

a petition for review. See 8 U.S.C. § 1252(a)(2)(D).

       Congress did not address in the REAL ID Act how to treat an appeal from a district court

habeas decision that was pending before a court of appeals when the Act was enacted. The appellate

courts that have considered this issue have held that those habeas petitions that were pending before

the appellate courts on the effective date of the Act are properly converted to petitions for review and

retained by the appellate courts. See Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006); Gittens v.

Menifee, 428 F.3d 382 (2d Cir. 2005); Rosales v. Bureau of Immigration & Customs Enforcement,

426 F.3d 733 (5th Cir. 2005), cert. denied, 126 S.Ct. 1055 (2006); Alvarez-Barajas v. Gonzales, 418

F.3d 1050 (9th Cir. 2005); Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir. 2005), cert. denied, 126

S.Ct. 1362 (2006). Petitioner argues that this case is distinguishable from the decisions of these

other circuits because, unlike the petitioners in those cases, he did not have a hearing before a

decision was issued on his habeas petition. Petitioner also contends that it is unlikely Congress

intended the REAL ID Act to apply in a case involving the application of § 1187 because there is no

“order of removal” as that term is used in § 1252(a)(5), i.e., an order issued by an IJ following a
hearing, but rather removal is determined by the district director without referral of the alien to an

IJ for a determination of deportability pursuant to 8 C.F.R. § 217.4(b)(1). Petitioner claims that to

convert the habeas petition to a petition for review and deny him the opportunity to develop through

discovery, and to present at a hearing, the facts underlying his claims would deprive him of an

adequate opportunity for review of his claims and constitute a violation of the Suspension Clause.

        The statutory scheme requires that the petition for writ of habeas corpus before the court be

treated as a petition for review. In providing for the transfer of pending habeas petitions to the courts

of appeals, the REAL ID Act draws no distinction between cases in which a hearing on the merits

of the habeas petition has been held and cases in which there has been no hearing. Thus, the fact that

petitioner has not had a hearing on the merits of his habeas petition does not preclude treating the

habeas petition as a petition for review. Moreover, petitioner’s argument that the INS has not issued

an “order of removal” that could be the subject of a petition for review is not well-taken. Section

1252(a)(5) does not limit the term “order of removal” to an order issued following a hearing before

an IJ. Finally, petitioner has not shown that a petition for review fails to provide an adequate

opportunity for review of his challenge to his removal and is therefore an inadequate substitute for

the writ, such that treating the habeas petition as a petition for review would result in a violation of

the Suspension Clause. See Swain v. Pressley, 430 U.S. 372, 381 (1977) (substitution of collateral

remedy which is neither inadequate nor ineffective to test the legality of person’s detention does not

constitute a suspension of the writ). Accordingly, the habeas petition must be converted to a petition

for review.

B. Title 8 U.S.C. § 1252(g)

        Whether the court has jurisdiction over the petition for review depends on the nature of the

challenged action. Title 8 U.S.C. § 1252(g) strips the courts of jurisdiction to review three discrete
actions that the Attorney General may take “which represent the initiation or prosecution of various

stages in the deportation process.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.

471, 483 (1999). These are the decision or action to “commenc[e] proceedings, adjudicat[e] cases,

[or] execut[e] removal orders.” Id. The Supreme Court has “interpreted narrowly the three actions

listed in § 1252(g) in light of § 1252(g)’s purpose of protecting the Attorney General’s discretionary

decision to not abandon the alien removal endeavor.” Mustata v. U.S. Dep’t of Justice, 179 F.3d

1017, 1020 (6th Cir. 1999) (citing American-Arab Anti-Discrimination Comm., 119 S.Ct. at 943-45).

       The decision to remove petitioner was based on the INS’s determination that he had been

admitted to the United States under the VWPP and he had stayed in the country beyond the period

for which he was authorized to remain in violation of § 237(a)(1)(B) of the INA, 8 U.S.C.

§ 1227(a)(1)(B). On February 5, 2003, the INS issued a “Notice of Intent to Deport for Violating

the Terms of Your Admission under Section 217 of the [INA]” signed by the district director. The

Notice stated that the INS had determined that petitioner entered the United States pursuant to § 217

of the INA; he executed a Form I-791 or Form I-94W, VWPP Information Form, that explained to

him the conditions of admission under the VWPP; and when he signed the form(s), he also waived

his right to contest deportability before an IJ and the BIA and to judicial review of any of the above

decisions. The Notice further stated that the INS had determined that petitioner violated the terms

of his admission under § 217 of the INA on the grounds that he had been admitted to the United

States at Niagara Falls, New York, on or about March 12, 2000, as a non-immigrant visitor for

pleasure with authorization to remain in the United States for a temporary period not to exceed June

11, 2000, and he had remained in the United States beyond that period without authorization from

the INS and in violation of § 237(a)(1)(B) of the INA, as amended. The Notice therefore advised

petitioner that the INS had entered an order that he be deported and removed from the United States.
The INS issued a Warrant of Deportation pursuant to § 217 that same date.

       When he was taken into custody pursuant to the decision of the INS on February 5, 2003,

petitioner was presented with a document issued by the INS captioned “Decision.” The Decision

referenced the fact that on October 4, 2000, petitioner had filled out an I-485 form to have his status

adjusted from that of a B1/B2 temporary visitor with a visa to a lawful permanent resident and that

an interview had been scheduled for which he failed to appear. The Decision advised petitioner that

his failure to appear or to request a rescheduling had resulted in the termination of his petition and

application based on abandonment. The Decision closed by advising petitioner that because he had

not filed a motion to reopen or reconsider as of the date of the decision, his I-130 petition and I-485

Application were being denied, and there was no appeal of the decision.

       Petitioner insists that he does not challenge an exercise of the Attorney General’s discretion

to commence proceedings but instead claims that there was no legal basis for his removal. The gist

of his claim appears to be two-fold. First, he claims that the decision to issue an order of removal

was unconstitutional because it was based on the exercise of his First Amendment rights and hostility

directed at his political beliefs. Second, he argues that the decision was based on the improper

determination that he had entered the country under the VWPP in May 2000 and had waived his right

to contest any action to deport him in connection with that entry, when in fact he had not. Petitioner

does not appear to dispute that he was in the country illegally at the time he was arrested and

removed.

       Petitioner’s claim that the decision to issue an order of removal was based on the exercise

of his First Amendment rights and hostility directed at his political beliefs is properly characterized

as a challenge to a discretionary decision to “commence proceedings” and an exercise of

prosecutorial discretion under the authority of American-Arab Anti-Discrimination Comm., supra.
As such, petitioner’s First Amendment challenge is insulated from judicial review pursuant to §

1252(g).

       Insofar as petitioner claims that the INS erroneously determined that he had entered the

country under the VWPP and thereby waived his right to contest his removal, § 1252(g) does not bar

judicial review of this challenge to the removal proceedings. Petitioner apparently claims that this

determination resulted in a denial of his due process rights in the course of the removal process

because if the erroneous determination had not been made, he would have been entitled to a hearing

before an IJ prior to his removal. This is not properly characterized as a challenge to the decision

to “commence proceedings, adjudicate cases, or execute removal orders.” The court therefore has

jurisdiction to determine whether petitioner waived his right to contest his removal by executing the

I-94W in connection with his entry on March 12, 2000.

C. Waiver of petitioner’s right to contest his removal

       According to the government, petitioner entered the country legally on March 12, 2000, under

the VWPP, pursuant to which he was authorized to remain in the country for no more than 90 days.

The government notes that if he departed the country for a contiguous territory during that 90-day

period, he could be readmitted to the country for the balance of the 90-day period pursuant to 8

C.F.R. § 217.3(b), which provides as follows:

       An alien admitted to the United States under this part may be readmitted to the
       United States after a departure to a foreign contiguous territory for the balance of his
       or her original [VWPP] admission period if he or she is otherwise admissible and
       meets all conditions of this part with the exception of arrival on a signatory carrier.

The government argues that petitioner was simply exercising the privilege of being able to travel

between the United States and Canada afforded under § 217.3(b) when he left the country and

reentered in May, so that the reentry had no effect on the terms and conditions of his March VWPP
admission. The government disputes petitioner’s contention that his May admission was not

governed by the VWPP, and therefore was not subject to the waiver of his right to contest any order

of deportation that he signed in March, because § 217.3(b) expired together with the sunset of the

VWPP “pilot program period” on April 30, 2000.

       The government’s argument is well-taken. Under the VWPP and its accompanying

regulations, and pursuant to the terms of the waiver he executed, petitioner was authorized to remain

in the United States or to depart to a contiguous territory and reenter the country for a 90-day period

beginning March 12, 2000. Accepting petitioner’s version of the facts as true, he exercised his right

to depart and reenter the country during that 90-day period. His argument that the VWPP and its

governing regulations were not in effect at the time of his reentry and therefore did not govern his

admission is unfounded. Title 8 U.S.C. § 1187, which authorized the Attorney General to establish

the VWPP, was effective until October 29, 2000. It allowed for the waiver of a visa for an alien who

applied for admission during the “pilot program period,” which the statute defined as the period

beginning “October 1, 1988 and ending April 30, 2000.” Thus, the statute authorizing the VWPP

remained in effect even after expiration of the “pilot program period.” The regulations governing

the admission and readmission of those aliens who had been provided a visa waiver under the VWPP

prior to expiration of the “pilot program period,” and for whom the 90-day admission period had not

expired by the time the “pilot program period” elapsed, likewise remained in effect. To hold

otherwise would mean that such individuals, though in the country legally, would have been subject

to immediate removal as of April 30, 2000. Similarly, an alien who left the country prior to April

30, 2000, and who sought to return before expiration of the 90-day period, would be subject to being

denied reentry, despite having been granted authorization for reentry pursuant to § 217.3(b) when

he obtained his waiver. These scenarios are inconsistent with the express language of the statute and
the accompanying regulations. Because § 1187 and § 217.3(b) remained in effect at the time of

petitioner’s May entry into the United States, and because petitioner’s entry was within the 90-day

admission period for which he had been provided a visa waiver under the VWPP, petitioner waived

his right to contest his removal pursuant to § 1187(b)(2).

                                         IV. Conclusion

       For all of the reasons set forth above, the petition for writ of habeas corpus is converted to

a petition for review and the petition is DENIED.
