                                 Dominick AKINWALE, Plaintiff-Appellant,

                                                      v.

 Janet RENO, Honorable, U.S. Attorney General; Paul W. Schmidt, Chairman (BIA), et al., Defendants-
Appellees.

                                               No. 99-10823

                                         Non-Argument Calendar.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               June 30, 2000.

Appeal from the United States District Court for the Northern District of Georgia.(No. 99-00324-CV-A-JEC-
1), Julie E. Carnes, Judge.

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

          HULL, Circuit Judge:

          Dominick Akinwale appeals from the district court's order dismissing for lack of subject matter

jurisdiction his § 2241 habeas petition challenging a final deportation order. 28 U.S.C. § 2241. After review,

we conclude that the district court had subject matter jurisdiction and thus reverse.

                                            I. BACKGROUND

A.        Immigration Proceedings

          Akinwale is a native and citizen of Nigeria. In September 1984, Akinwale lawfully entered the

United States on an F-1, nonimmigrant visa. In May 1987, Akinwale was granted permanent resident status.

In March 1993, Akinwale was convicted in state court of trafficking heroin and sentenced to twenty-five

years' imprisonment. In January 1995, the Immigration and Naturalization Service ("INS") ordered Akinwale

to show cause why he should not be deported based on his drug-trafficking conviction, which the INS

characterized as an "aggravated felony" under § 101(a)(43) of the Immigration and Nationality Act (the

"INA").
        At his deportation hearing on June 25, 1996, Akinwale, with counsel, conceded his deportability due

to his conviction, but requested a waiver of deportation under INA § 212(c) (1994). The problem for

Akinwale was that § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-

132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"), had amended INA § 212(c) to expand the types of felonies

that rendered an alien ineligible for a waiver of deportation.1 At the June 25, 1996 hearing, the Immigration

Judge ("IJ") found Akinwale deportable as charged. Due to his drug-trafficking conviction, the IJ also

concluded that Akinwale was statutorily ineligible for a waiver of deportation under INA § 212(c), as

amended by AEDPA § 440(d). Thus, the IJ denied Akinwale's § 212(c) request. Akinwale appealed.

        On March 10, 1997, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision that

Akinwale was statutorily ineligible for waiver of deportation under INA § 212(c), as amended by AEDPA

§ 440(d). The BIA also noted that Akinwale could move to have his proceedings reopened for the limited

purpose of challenging the IJ's deportability determination under Matter of Soriano, Int. Dec. 3289 (A.G.,

Feb. 21, 1997). In Soriano, the Attorney General ruled that AEDPA § 440(d) should be applied to INA §

212(c) cases pending on AEDPA's effective date. Int. Dec. 3289 (A.G., Feb. 21, 1997). However, the

Attorney General recognized "the remote possibility that an alien who had a colorable defense to deportability

may have conceded deportability in reliance on the availability of section 212(c) relief." Id. To eliminate that

possibility, the Attorney General directed that, upon petition by an alien who had conceded deportability

before AEDPA's April 24, 1996 effective date, that alien's case should be reopened for the limited purpose

of permitting that alien to contest deportability. Id.

        Accordingly, on March 26, 1997, Akinwale requested the BIA to reopen his deportation proceedings.

On April 11, 1997, the BIA granted Akinwale's request and remanded the proceedings to the IJ. On October

3, 1997, the IJ again found Akinwale deportable and ordered Akinwale deported to Nigeria. Akinwale did



    1
    The pre- and post-AEDPA versions of INA § 212(c) are discussed at length in Alanis-Bustamante v.
Reno, 201 F.3d 1303, 1305 n. 6 (11th Cir.2000).

                                                         2
not appeal the IJ's second deportability determination to the BIA, and the time for such an appeal has expired.

Thus, Akinwale's administrative proceedings are concluded, and Akinwale remains subject to a final

deportation order.2

B.          Section 2241 Habeas Petition

            On February 1, 1999, Akinwale filed his § 2241 habeas petition asserting that the BIA erred in

applying AEDPA § 440(d) retroactively to his § 212(c) request. Akinwale asked the district court to issue

a writ requiring the BIA to reopen his deportation proceedings and reconsider his § 212(c) request. In April

1999, the district court dismissed his § 2241 petition for lack of subject matter jurisdiction, but later granted

a certificate of appealability on the jurisdictional issue. Thus, we now review whether the district court had

jurisdiction over Akinwale's § 2241 petition.3

                                               II. DISCUSSION

            To answer this jurisdictional issue, we first outline the provisions of the AEDPA and the Illegal

Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept.

30, 1996) ("IIRIRA"), relevant to review of final deportation or removal orders.4 We then examine this

circuit's decisions addressing § 2241 habeas jurisdiction in the post-AEDPA and IIRIRA era. Finally, we

outline why the district court had subject matter jurisdiction over Akinwale's § 2241 petition under the

particular circumstances of this case.

A.          AEDPA and IIRIRA

            Prior to the enactment of AEDPA and IIRIRA, INA § 106(a)(10) provided that aliens held "in

custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus


      2
     We note that Akinwale's § 2241 petition states that he requested the BIA to reopen his deportation
proceedings a second time on November 27, 1998, but that request was denied.

     3
     We review issues of subject matter jurisdiction de novo. See Tefel v. Reno, 180 F.3d 1286, 1295 (11th
Cir.1999); Mayers v. INS, 175 F.3d 1289, 1295 (11th Cir.1999).

     4
         Under IIRIRA, deportation orders are now called removal orders. See 8 U.S.C. § 1229a.

                                                       3
proceedings." 8 U.S.C. § 1105a(a)(10) (repealed 1996). In addition, this Court had recognized that aliens

could challenge deportation proceedings through a petition for habeas relief under 28 U.S.C. § 2241. See

Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990). In 1996, however, both AEDPA and IIRIRA restricted

certain judicial review in immigration cases.

        Specifically, AEDPA § 401(e) repealed former INA § 106(a)(10), which had permitted in-custody

aliens to obtain judicial review of a deportation order through habeas corpus proceedings. In lieu thereof,

Congress enacted AEDPA § 440(a), which restricted judicial review as follows: "Any final order of

deportation against an alien who is deportable by reason of having committed [certain crimes that carry a

deportation consequence under the INA] shall not be subject to review by any court." 8 U.S.C. §

1105a(a)(10) (repealed by IIRIRA). AEDPA § 440(a) became effective on April 24, 1996.

        Subsequently, IIRIRA replaced AEDPA § 440(a) with a new structure for judicial review. See

IIRIRA § 306. IIRIRA, which became effective on April 1, 1997, contains two sets of provisions relating

to review of final deportation orders: the transitional rules and the permanent rules. See IIRIRA § 309(c)(4);

Alanis-Bustamante v. Reno, 201 F.3d 1303, 1306 (11th Cir.2000); Richardson v. Reno, 180 F.3d 1311, 1313

n. 2 (11th Cir.1999). As summarized in Alanis-Bustamante, Congress has now divided deportation or

removal cases into these three categories:

             (1) Proceedings that culminated in a final order before October 31, 1996 are governed by
        AEDPA § 440(a);

                 (2) Proceedings that culminated in a final order after October 31, 1996, but that commenced
        before April 1, 1997 (the effective date of IIRIRA) are governed by the INA as amended by the
        special transitional rules of IIRIRA;

               (3) Proceedings that commenced after April 1, 1997 are governed by the provisions of the
        INA as permanently amended by IIRIRA.

Alanis-Bustamante, 201 F.3d at 1306-07. Furthermore, four recent cases in this circuit address the

availability of § 2241 jurisdiction post-AEDPA and IIRIRA: Innab v. Reno, 204 F.3d 1318 (11th Cir.2000);

Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th Cir.2000); Mayers v. INS, 175 F.3d 1289 (11th Cir.1999);



                                                      4
Richardson v. Reno, 162 F.3d 1338 (11th Cir.1998) ("Richardson I "), vacated, 526 U.S. 1142, 119 S.Ct.

2016, 143 L.Ed.2d 1029 (June 1, 1999) (mem.), on remand, 180 F.3d 1311 (11th Cir.1999) ("Richardson II

"), cert. denied, --- U.S. ----, 120 S.Ct. 1529, 146 L.Ed.2d 345 (2000).5

         Mayers, Innab, and Alanis-Bustamante are transitional rule cases, and Richardson is a permanent rule

case. As outlined later, we conclude Akinwale's § 2241 petition is governed by the transitional rules. Thus,

we discuss Richardson only briefly and then focus more on Mayers, Innab, and Alanis-Bustamante.

B.       Richardson

         The removal proceedings in Richardson did not commence until October 1997—after IIRIRA's

effective date of April 1, 1997. Section 306(a)(2) of IIRIRA contains IIRIRA's permanent rules and enacts

INA § 242. 8 U.S.C. § 1252. In Richardson I, this Court held that INA § 242 allows for judicial review in

only the federal court of appeals and only after entry of a final order of deportation. Richardson I, 162 F.3d

at 1378-79. In Richardson I, this Court further held that IIRIRA thus eliminated the district courts' § 2241

habeas jurisdiction to review immigration decisions in permanent rule cases. Id. In reaching this decision,

Richardson I relies on several IIRIRA provisions, such as INA §§ 242(g), 242(b)(2), and 242(b)(9). Id. at

1356-79. After Richardson I, the Supreme Court decided Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("American-Arab "), and held that INA §

242(g) applies to only three discrete immigration decisions of the Attorney General—decisions to "commence

proceedings, adjudicate cases, or execute removal orders." American-Arab, 119 S.Ct. at 943. On June 1,

1999, the Supreme Court issued a one-paragraph order remanding Richardson I for reconsideration in light

of American-Arab. Richardson v. Reno, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (1999).

         On remand, this Court in Richardson II reaffirmed its prior conclusion that in permanent rule cases,

IIRIRA allows judicial review in only the court of appeals after a final deportation order and eliminates


     5
     Innab, Alanis-Bustamante, Mayers, and Richardson were all decided after the district court's order
dismissing Akinwale's § 2241 petition for lack of subject matter jurisdiction. Therefore, the district court was
without the benefit of these decisions.

                                                       5
district courts' § 2241 habeas jurisdiction "over challenges to removal orders, removal proceedings, and

detention pending removal." Richardson II, 180 F.3d at 1315. This time we relied on INA §§ 242(b)(9) and

242(b)(2), along with the overall revisions throughout INA § 242. Id. On March 27, 2000, the Supreme Court

denied certiorari in Richardson II. See Richardson v. Reno, --- U.S. ----, 120 S.Ct. 1529, 146 L.Ed.2d 345

(2000).

C.        Mayers, Innab, and Alanis-Bustamante

          The availability of § 2241 jurisdiction in transitional rule cases, however, was addressed by this Court

in Mayers, Innab, and Alanis-Bustamante. Mayers stresses that whereas Richardson I involved IIRIRA's

permanent rules, Mayers concerns the different transitional rules. 175 F.3d at 1297-98 & nn. 9 & 11.6

Mayers then addresses whether § 2241 habeas jurisdiction survives the enactment of AEDPA, as modified

by IIRIRA's transitional rules. Id. at 1297.

          The Mayers Court held "that for aliens whose petitions fall within the purview of IIRIRA's

transitional rules and who seek review of a final order of deportation, AEDPA's elimination of § 106(a)(10)'s

grant of habeas jurisdiction does not extend to eliminate the federal habeas jurisdiction previously available

under 28 U.S.C. § 2241." Id. at 1301. The Mayers Court stated that "[i]t is important to emphasize ... that

in exercising habeas corpus jurisdiction in this case, we do not decide whether every statutory claim raised

by an alien is cognizable on habeas." Id. at 1301. Instead, the Mayers Court addressed its holding only to

the exercise of habeas corpus jurisdiction "over the claims of petitioners here on the question of whether

AEDPA § 440(d) applies to pending cases to deprive petitioners of the ability to apply for a waiver of

deportation under § 212(c)." Id. at 1300-01. The Mayers Court "decline[d] to make a broad statement about

the scope of habeas corpus relief available to criminal aliens in IIRIRA transitional cases." Id. at 1301 n. 17.



     6
      Similarly, Richardson II, which was decided after Mayers, also emphasizes that Mayers was decided
under IIRIRA's transitional rules rather than the permanent rules applicable in Richardson. See Richardson
II, 180 F.3d at 1315 n. 6. Therefore, most of IIRIRA's revisions to the INA, including INA § 242(b)(9), relied
on in Richardson I and II, did not apply in Mayers. See id.

                                                        6
The Mayers Court "further note[d] again that our exercise of habeas corpus jurisdiction in this case is

informed by the facts that [the petitioners] were unable to obtain any judicial review and are challenging final

orders of deportation, not interim discretionary decisions by the INS." Id. at 1301.7

        After Mayers, this Court addressed the availability of § 2241 jurisdiction in two more transitional rule

cases. See Innab v. Reno, 204 F.3d 1318 (11th Cir.2000); Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th

Cir.2000). In both cases, the BIA had affirmed the IJ's determination that the alien was statutorily ineligible

for waiver of deportation under INA § 212(c) as amended by AEDPA § 440(d), the administrative

proceedings were concluded, the alien was subject to a final deportation order, and the alien's § 2241 petition

challenged the retroactive application of AEDPA § 440(d) to a § 212(c) request.

        There is one feature in Mayers and Innab that is arguably different from Alanis-Bustamante. Before

filing their § 2241 petitions, the aliens in both Mayers and Innab had filed a petition for direct review of the

BIA's decision which this Court dismissed for lack of jurisdiction. As noted above, Mayers expressly states

that the exercise of § 2241 jurisdiction there was informed by the fact that the aliens had sought but been

denied judicial review in this Court. 175 F.3d at 1301. The Alanis-Bustamante decision does not indicate

that the alien ever filed a petition for direct review of the BIA's decision in this Court or had such a petition

dismissed for lack of jurisdiction. However, even if the alien in Alanis-Bustamante had filed a petition for

direct review of the BIA's § 212(c) decision, his petition would have faced the same obstacle as the petitions

for direct review in Mayers and Innab. Section 309(c)(4)(G) of IIRIRA's transitional rules provides that

"there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of


   7
     Similar to Mayers, Richardson II observes that certain factors were crucial to Mayers 's decision about
the availability of § 2241 habeas relief:

                 (1) the aliens [in Mayers ] were subject to a final deportation order after BIA review; (2) the
                 aliens first had filed a petition for judicial review under the INA in the court of appeals
                 before filing a § 2241 petition; and (3) the aliens had been unable to obtain any judicial
                 review whatsoever in the court of appeals.

        Richardson II, 180 F.3d at 1316 n. 6.

                                                       7
having committed [an aggravated felony]." See 8 U.S.C. § 1101, Historical and Statutory Notes (1999). At

the time the alien in Alanis-Bustamante would have filed a petition for direct judicial review in this Court,

we had not yet decided Lettman v. Reno, 168 F.3d 463 (11th Cir.1999), vacated in part, 185 F.3d 1216 (11th

Cir.1999).8 In Lettman, we held for the first time that this restriction in § 309(c)(4)(G) does not bar judicial

review in this Court regarding whether the petitioner is an alien or deportable. Id. at 465. Lettman explains

that "we have jurisdiction to decide whether we have jurisdiction; but our jurisdiction disappears if [the alien]

is deportable." Id. However, prior to Lettman, this Court was dismissing for lack of subject matter

jurisdiction such petitions for direct review by aliens deportable due to aggravated felonies in transitional rule

cases. For example, in Mayers, we expressly pointed out that this Court had dismissed that alien's petition

for direct review of the BIA order in an unpublished, two-sentence decision prior to the published decision

in Lettman v. Reno, 168 F.3d 463 (11th Cir.1999). See Mayers, 175 F.3d at 1294 n. 6.9




   8
    The dismissal of the petition for direct review for lack of subject matter jurisdiction in Innab was on July
16, 1998, prior to Lettman. See Innab, 204 F.3d at 1320. The time period when Alanis-Bustamante would
have filed his petition for direct review in this Court was also 1998. See Alanis-Bustamante, 201 F.3d at
1306. The BIA's affirming the denial of § 212(c) relief to Akinwale was in 1997, also well prior to Lettman.


    9
       For post-Lettman cases, we point out that in Lettman, this Court had to:

                  decide whether Section 309(c)(4)(G) prevents appeal (thereby depriving us of jurisdiction)
                  when the BIA decides an alien is deportable or whether we have jurisdiction to decide if an
                  alien is deportable. If the BIA's determination is binding on us, then we must dismiss this
                  appeal. If we can decide whether [the alien] is deportable, then we retain jurisdiction until
                  we conclude he is deportable.

          168 F.3d at 464-65. Whether an alien is deportable and whether he should be granted discretionary
          § 212(c) relief from such deportability are two separate issues. Thus, even post-Lettman aliens may
          still face a § 309(c)(4)(G) obstacle in seeking review of certain issues regarding the BIA's denial of
          § 212(c) relief through a petition for direct review in this Court in transitional rule cases. Cf.
          Galindo-Del Valle v. Attorney General, 213 F.3d 594 (11th Cir.2000) (involving the judicial review
          restriction in INA § 242(a)(2)(C), which is similar to § 309(c)(4)(G)). However, that question is not
          directly before the Court in this appeal, and nothing in this opinion should be construed as suggesting
          any answer to that question.

                                                        8
          In summary, the common threads in Mayers, Alanis-Bustamante, and Innab supporting the exercise

of § 2241 jurisdiction are: (1) that IIRIRA's transitional rules apply; (2) that before filing the § 2241

petitions, the alien's administrative proceedings were concluded and the alien was subject to a final

deportation order; (3) that the alien's petition for direct review of the BIA's decision was dismissed by this

Court for lack of subject matter jurisdiction in the pre-Lettman time period or the alien would likely have

faced that same obstacle in filing a petition for direct review in this Court during that same time period before

Lettman; and (4) that the alien raised the same statutory issue about the retroactive application of AEDPA

§ 440(d). Innab, 204 F.3d at 1320-21; Alanis-Bustamante, 201 F.3d at 1308 n. 10 & 1311 n. 16; Mayers,

175 F.3d at 1301.10

D.        Jurisdiction over Akinwale's § 2241 Petition

          We now apply the principles of these recent decisions to Akinwale's § 2241 petition. Akinwale's

deportation proceedings began in January 1995, and his final deportation order was not entered until 1997.

Thus, IIRIRA's transitional rules apply because Akinwale was in deportation proceedings before April 1,

1997, and received a final order of deportation on or after October 31, 1996. See IIRIRA § 309(c)(4); Alanis-

Bustamante v. Reno, 201 F.3d 1303, 1306-1307 (11th Cir.2000); Lettman v. Reno, 168 F.3d 463, 464,

vacated in part, 185 F.3d 1216 (11th Cir.1999). Akinwale's administrative proceedings are also concluded,

and Akinwale is subject to a final deportation order. Because the BIA affirmed the denial of § 212(c) relief

to Akinwale in 1997, and that denial was well prior to our 1999 Lettman opinion, Akinwale would likely have

faced the same obstacle as the petitioner-aliens in Mayers, Innab, and Alanis-Bustamante in filing a petition

in this Court for direct review of the BIA's § 212(c) decision.


     10
      Now that Lettman provides for at least some amount of direct judicial review of certain issues in this
Court regarding the BIA's decision about an alien's deportability, we note that this Court has not addressed
whether a petitioner-alien is required to exhaust his administrative remedies by appealing those issues to the
BIA and then petitioning for direct review in this Court before filing a § 2241 petition in transitional rule
cases. However, we do not have to answer that question here because we find that the particular
circumstances of this case are more similar to, and thus controlled by, Mayers, Innab, and Alanis-Bustamante.


                                                       9
         Finally, Akinwale raises the same issue as the petitioners in Mayers, Alanis-Bustamante, and Innab:

the BIA's retroactive application of AEDPA § 440(d) in finding him statutorily ineligible for discretionary

relief under § 212(c). See Mayers, 175 F.3d at 1301; Innab, 204 F.3d at 1321; Alanis-Bustamante, 201 F.3d

at 1308. Thus, we conclude that the district court had subject matter jurisdiction under § 2241 to review

Akinwale's challenge to the BIA's retroactive application of AEDPA § 440(d) to his § 212(c) request. Like

the Court in Mayers, in allowing Akinwale to seek habeas review under § 2241, "we do not decide whether

every statutory claim raised by an alien is cognizable on habeas." Mayers, 175 F.3d at 1301. We decide only

that habeas review is appropriate here because the circumstances in Akinwale's case are virtually identical

to those in Mayers, Innab, and Alanis-Bustamante.11

         Now that we have answered the jurisdictional question, we point out that Mayers also held that

AEDPA § 440(d) does not apply retroactively. See Mayers, 175 F.3d at 1304. Thus, for Akinwale, the next

issue is whether, even under pre-AEDPA § 212(c), the BIA erred in finding Akinwale statutorily ineligible

for this type of relief. There is some indication in the record that the length of time Akinwale has served on

his drug-trafficking sentence or the nature of his offense may make him ineligible for § 212(c) relief even

under pre-AEDPA law. However, we do not decide this issue. The district court is in the best position to

answer this question in the first instance as the case proceeds.

                                              III. CONCLUSION




    11
      Akinwale's § 2241 petition appears to challenge only the denial of § 212(c) relief from deportation.
However, to the extent that Akinwale seeks review of the determination that he is deportable under the INA,
it appears that his claim may possibly be procedurally barred in a § 2241 petition, as the Government
contends. Akinwale appealed the denial of § 212(c) relief to the BIA, but failed to appeal the IJ's second
deportability determination to the BIA, and thus failed to exhaust his administrative remedies. See Galindo-
Del Valle v. Attorney General, 213 F.3d 594, ---- slip op. at 6 (11th Cir.2000); Mullen-Cofee v. INS, 976 F.2d
1375, 1380 (11th Cir.1992), as amended, 986 F.2d 1364 (11th Cir.1993). The district court is in the best
position to resolve this issue in the first instance. Thus, we leave for the district court on remand to determine
whether Akinwale is challenging the deportability determination, and if so, whether that challenge is barred
by his failure to appeal to the BIA.

                                                       10
        Accordingly, we reverse and vacate the district court's April 13, 1999 order dismissing Akinwale's

§ 2241 petition for lack of subject matter jurisdiction. We remand the case to the district court for further

proceedings consistent with this opinion.

        REVERSED, VACATED, AND REMANDED.




                                                    11
