209 F.3d 977 (7th Cir. 2000)
Alejandro MORALES-RAMIREZ,    Petitioner-Appellant,v.Janet RENO, Attorney General of the  United States; Doris Meissner, Commissioner  of the Immigration, Naturalization Service;  Brian R. Perryman, Chicago District Director  of the Immigration and Naturalization Service,  and the Immigration and Naturalization Service,    Respondents-Appellees.
No. 99-2065
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 11, 2000Decided April 13, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 C 7067--Blanche M. Manning, Judge.
Before Posner, Chief Judge, and Manion and Kanne,  Circuit Judges.
Kanne, Circuit Judge.


1
In 1997, the INS ordered  Alejandro Morales-Ramirez to be removed to Mexico  as a result of a 1993 conviction for importation  of marijuana. Morales-Ramirez sought habeas  corpus review of his removal in district court,  claiming that he was denied due process as a  result of the INS's failure to institute timely  exclusion proceedings against him. The district  court dismissed his petition on the basis of our  holding in LaGuerre v. Reno, 164 F.3d 1035 (7th  Cir. 1998), which limits review of removal  proceedings to the appellate courts. Morales-  Ramirez appeals this dismissal, but we find that  Morales-Ramirez has not raised a substantial  constitutional claim and dismiss his complaint.

I.  History

2
Alejandro Morales-Ramirez is a native and  citizen of Mexico. Since 1976, he has also been  a lawful permanent resident of the United States.  In February 1993, Morales-Ramirez attempted to  enter the United States with about 350 pounds of  marijuana in his car. He was stopped at the  border and arrested. Following his arrest, the  INS "paroled" Morales-Ramirez into the United  States for criminal prosecution.


3
"Parole" into the United States allows an  individual physically to enter the country, but  it is not equivalent to legal entry into the  United States. Upon his parole into the country,  the INS served Morales-Ramirez with a "Notice of  Exclusion Proceedings," which informed him that  his actions may have rendered him inadmissable to  the United States. Under immigration procedures  at that time, Morales-Ramirez would have been  compelled to enter into "exclusion" proceedings,  in which the immigration court had the discretion  to determine whether his exclusion might be  waived. See 8 U.S.C. sec. 1226(a) (1995). However  the INS never sought officially to commence  proceedings by filing the appropriate charging  document, the "Notice of Exclusion Proceedings,"  with the district court, as required by 8 C.F.R.  sec. 240.30 (1999).


4
In June 1993, Morales-Ramirez pleaded guilty to  importation of a controlled substance and was  sentenced to sixty months imprisonment, followed  by forty-eight months supervised release. In  August 1993, the INS issued a warrant of detainer  on Morales-Ramirez, which ensured that he would  be transferred to INS custody upon his release  from prison. Morales-Ramirez was released after  serving fifty-two months in prison.


5
During the course of Morales-Ramirez's  incarceration, Congress passed the Illegal  Immigration Reform and Immigrant Responsibility  Act of 1996 ("IIRIRA"), Pub. L. 104-208 (1996),  and the Antiterrorism and Effective Death Penalty  Act of 1996 ("AEDPA"), Pub. L. 104-132 (1996),  which changed the nature of proceedings against  immigrants alleged to have violated the  Immigration and Naturalization Act of 1952  ("INA"), 8 U.S.C. sec. 1101 et seq. One among the  many amendments to the INA instituted therein was  the replacement of exclusion and deportation  proceedings with removal proceedings. In removal  proceedings, unlike exclusion proceedings,  aggravated felons such as Morales-Ramirez are no  longer eligible to apply for relief from  deportation, now entitled "cancellation of  removal." See 8 U.S.C. sec. 1229b(a) (1996).These amendments took effect on April 1, 1997,  and apply to all aliens eligible to be removed  after that date. However, all aliens previously  in deportation or exclusion proceedings as of  April 1, 1997, were to remain in deportation or  exclusion proceedings, rather than in removal  proceedings. See IIRIRA sec. 309(c)(1)(A),  enacted as 8 U.S.C. sec. 1101; 8 C.F.R. sec.sec.  240.30, 240.40 (1997).


6
On August 4, 1997, Morales-Ramirez finished his  prison sentence and was taken into INS custody.  Instead of initiating exclusion proceedings  against Morales-Ramirez, the INS initiated  removal proceedings against him. At his removal  hearing, Morales-Ramirez moved to terminate the  removal proceedings, claiming that the INS had  previously commenced exclusion proceedings  against him by serving him with the "Notice of  Exclusion Proceedings." By commencing removal  proceedings, he claimed that the INS had  terminated his exclusion proceedings without  authority. However, the immigration judge found  that proceedings had never commenced because the  "Notice of Exclusion Proceedings" had never been  filed with the immigration court. Therefore the  court denied Morales-Ramirez's motion and ordered  him removed to Mexico. Morales-Ramirez appealed  to the Board of Immigration Appeals ("BIA"), but  in August 1998, the BIA affirmed the decisions of  the immigration court on the grounds that the  charging document had never been filed.


7
On November 4, 1998, Morales-Ramirez filed a  petition for writ of habeas corpus with the  district court, claiming that the INS had  violated his due process rights by impermissibly  terminating the exclusion proceedings that it had  brought against him. On December 22, 1998, we  issued LaGuerre, 164 F.3d at 1039, in which we  held that sec.sec. 440(a) and 401(e) of the AEDPA  precluded district courts from reviewing habeas  corpus petitions presented to receive judicial  review of the removal orders of deportees. On  this basis, the district court dismissed Morales-  Ramirez's petition for lack of subject matter  jurisdiction.

II.  Analysis

8
As a threshold matter, we must determine  whether the district court correctly dismissed  Morales-Ramirez's petition. Morales-Ramirez  originally challenged his order of removal by  habeas corpus petition filed in district court.  However, section 306(f)(1)(g) of IIRIRA, enacted  as 8 U.S.C. sec. 1252(g), restricts review of  "any cause or claim by or on behalf of any alien  arising from the decision or action by the  Attorney General to commence proceedings,  adjudicate cases, or execute removal orders  against any alien." 8 U.S.C. sec. 1252(g). In  LaGuerre, we held that the 1996 amendments to the  INA eliminate habeas corpus jurisdiction in all  cases after the effective date of the statutes.  LaGuerre, 164 F.3d at 1040; see also Singh v.  Reno, 182 F.3d 504, 508 (7th Cir. 1999). However,  in Reno v. American-Arab Anti-Discrimination  Committee, 525 U.S. 471 (1999) (hereinafter  "AADC"), the Supreme Court recognized that sec.  1252(g) only bars district court review of the  explicitly listed discretionary decisions of the  Attorney General: to commence proceedings,  adjudicate cases and execute removal orders,  which potentially limited the scope of LaGuerre.  After AADC, in Singh v. Reno, 182 F.3d at 509, we  relied on the reasoning of LaGuerre to conclude  that sec. 1252(g) applies whenever an alien makes  an adjudicatory challenge to an order of removal,  and for this reason, the district court has no  jurisdiction to hear a petition for writ of  habeas corpus.


9
Several other circuits have interpreted AADC to  preserve an alien's right to petition for habeas  corpus in cases where sec. 1252(g) does not  apply. See Magana-Pizano v. INS, 200 F.3d 603,  608 (9th Cir. 1999); Pak v. Reno, 196 F.3d 666,  671 (6th Cir. 1999); Requena-Rodriguez v.  Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999);  Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1143  (10th Cir. 1999); Shah v. Reno, 184 F.3d 719, 724  (8th Cir. 1999); but see Richardson v. Reno, 180  F.3d 1311, 1315 (11th Cir. 1999). Moreover,  LaGuerre also left open the possibility that the  Suspension Clause, see U.S. Const. art. I, sec.  9, cl. 2, may leave open habeas corpus  jurisdiction for the limited purpose of  determining whether a deportee was detained by a  valid order issued by an authority with  appropriate jurisdiction. See LaGuerre, 164 F.3d  at 1038. However, as in Singh, Morales-Ramirez  does not challenge the validity of his order of  detention or that it was issued by the  appropriate authority, so we need not address the  potential availability of habeas corpus relief in  those circumstances. See Singh, 182 F.3d at 509.  Instead, Morales-Ramirez challenges the  administrative adjudication of his removal order,  which we have found to be governed by sec.  1252(g). See id. Therefore, Singh and LaGuerre  control, and we conclude that the district court  lacked subject matter jurisdiction to hear  Morales-Ramirez's petition for writ of habeas  corpus.


10
Morales-Ramirez concedes that the district court  lacked jurisdiction to entertain his habeas  corpus petition. Nonetheless, he contends that  his due process claim raises substantial  constitutional issues that we should address  directly. In LaGuerre, we proposed that, rather  than seek habeas corpus review, when a deportee  raises constitutional claims "the deportee can  seek review of constitutional issues in the court  of appeals directly." LaGuerre, 164 F.3d at 1040.  This procedure was intended to provide "a safety  valve . . . to enable judicial correction of  bizarre miscarriages of justice." Id. In Singh,  we developed this "safety valve" approach of  direct appellate court review of constitutional  claims, allowing us to consider whether the  deportee in that case raised substantial  constitutional claims. Singh, 182 F.3d at 510.  Morales-Ramirez also seeks to classify his  predicament as a bizarre miscarriage of justice,  which may only be rectified by our direct review.


11
The traditional procedure for review of  constitutional claims under the INA allows a  deportee to seek review by filing a claim with us  "not later than 30 days after the date of the  final order of removal." 8 U.S.C. sec.  1252(b)(1); see Singh, 182 F.3d at 509. By  mistakenly filing its writ of habeas corpus with  the district court instead of appealing directly  to us, Morales-Ramirez has missed this deadline.  The government argues that, for this reason, we  should decline to address the arguments presented  by Morales-Ramirez. However, Morales-Ramirez  filed his petition for habeas corpus with the  district court on November 4, 1998, more than a  month before we issued LaGuerre.


12
At that time, Morales-Ramirez claims that he  followed the directives of two prior cases, which  suggested that the appropriate avenue for review  of removal proceedings was by habeas petition  made to the district court. See Turkhan v. INS,  123 F.3d 487, 490 (7th Cir. 1997) (hereinafter  "Turkhan I"); Chow v. INS, 113 F.3d 659, 668-69  (7th Cir. 1997). In Singh, we faced the issue  whether to review the claims of a petitioner who  filed for relief in the district court before  LaGuerre. We stated that "we think it unfair that  [the deportee] be prejudiced for failing to seek  review in this court within the statutory 30-day  deadline" because our case law seemed to prohibit  it. Singh, 182 F.3d at 511. In Turkhan v.  Perryman, 188 F.3d 814, 824 (7th Cir. 1999)  ("Turkhan II"), we applied the "safety valve"  exception provided in LaGuerre in the "extremely  rare" case of a deportee who had twice sought our  direct review before seeking habeas corpus review  in the district court. As in these prior cases,  Morales-Ramirez filed his habeas corpus petition  with the district court on the basis of our prior  opinions Turkhan I and Chow, instead of seeking  direct review with this court. Morales-Ramirez  did not endure the "homeric odyssey" that beset  Singh, nor did he twice petition this court  successfully to receive direct review, as in  Turkhan I. Nonetheless, because Morales-Ramirez's  decision to file for habeas corpus review was  based on the case law at that time and predated  the release of LaGuerre, we believe that it would  be unfair to prejudice him for relying on our  precedent in seeking habeas corpus relief in the  district court. For this reason, assuming that  Morales-Ramirez raises substantial constitutional  claims, we will assume jurisdiction to hear this  appeal.1 See Turkhan II, 188 F.3d at 824;  Singh, 182 F.3d at 509.


13
To retain jurisdiction under the "safety valve"  exception created in LaGuerre, Morales-Ramirez  must raise substantial constitutional claims. See  LaGuerre, 164 F.3d at 1040; Singh, 182 F.3d at  509. Morales-Ramirez contends that his due  process rights were violated by the INS when it  terminated exclusion proceedings against him to  commence removal proceedings. He claims that  exclusion proceedings originally commenced at the  time the INS served him with its "Notice of  Exclusion Proceedings," in March 1993. At that  time, sec. 212(c) of the INA vested in the  Attorney General, or her delegates, the authority  to grant a waiver of exclusion to certain aliens,  thereby allowing them legally to re-enter and  remain in the country. See 8 U.S.C. sec. 1182(c)  (1995); see also, e.g., Henry v. INS, 8 F.3d 426  (7th Cir. 1993) (reviewing denial of sec. 212(c)  application for waiver of exclusion). In 1996,  however, sec. 304(b) of IIRIRA repealed sec.  212(c), discontinuing the eligibility of criminal  aliens to apply for waiver of exclusion. See 8  U.S.C. sec. 1182(c) (1997). For this reason,  Morales-Ramirez claims that by commencing removal  proceedings, the INS, in effect, terminated  "pending" exclusion proceedings and deprived him  of his substantive right to apply for waiver of  exclusion.


14
The government claims that proceedings did not  commence until it filed a charging document with  the immigration court in August 1997, because its  regulations condition the commencement of  proceedings on the filing--not service. See 8  C.F.R. sec. 240.30 (1999) ("An exclusion  proceeding is commenced by the filing of [the  charging document] with the Immigration Court,  and an alien is considered to be in exclusion  proceedings only upon such filing."). Because the  charging documents were not filed until 1997,  after the effective date of the repeal of sec.  212(c) by IIRIRA sec. 304(b), the government  claims that Morales-Ramirez's case was not  "pending" before the effective date of sec.  304(b), and he was never eligible for waiver of  exclusion. For this reason, at the time that the  INS commenced removal proceedings, Morales-  Ramirez had no substantive right to apply for  waiver of exclusion and cannot raise a  constitutional claim on these grounds.


15
Morales-Ramirez disputes the government's  contention that 8 C.F.R. sec. 240.30 should  control our analysis of when proceedings  commence. He claims that proceedings commenced  when he was served with the "Notice of Exclusion  Proceedings," in March 1993. Had proceedings  against Morales-Ramirez commenced in 1993, his  exclusion proceedings would have been "pending"  in 1997, when IIRIRA came into force. In such  case, Morales-Ramirez's case would fall within  the pending cases exception of IIRIRA sec.  309(c)(1)(A), which applies to "an alien who is  in exclusion or deportation proceedings before  [April 1, 1997]." If his exclusion proceedings  were "pending" as of that date, sec. 212(c) would  still apply to such proceedings, and Morales-  Ramirez would remain eligible to apply for waiver  of exclusion.


16
The question whether to apply 8 C.F.R. sec.  240.30, which pegs the commencement of  proceedings on the filing of a charging document  in immigration court to determine when  proceedings commence is a question of first  impression in this circuit. Morales-Ramirez  places great emphasis on decisions of other  circuits that determined the commencement of  proceedings to have occurred when the charging  document was served on individuals. See Wallace  v. Reno, 194 F.3d 279, 287 (1st Cir. 1999);  Henderson v. INS, 157 F.3d 106, 130 n.30 (2d Cir.  1998). However, the First Circuit's holding in  Wallace v. Reno focused on the commencement of  proceedings for the purpose of determining  whether sec. 440(d) of the AEDPA should be  applied retroactively. Wallace, 194 F.3d at 287.  In that case, the court determined that sec.  440(d) should not be applied retroactively to  "pending" proceedings, and based its  determination whether proceedings were actually  "pending" on the reliance interests of aliens  involved in the process. See id. Thus, in  Wallace, the First Circuit did not directly  confront the question of when to consider  proceedings to have commenced; the court faced  the question whether retroactivity is appropriate  in circumstances where aliens may have relied on  a "Notice of Exclusion Proceedings." In Alanis-  Bustamante v. Reno, the Eleventh Circuit adopted  the First Circuit's determination in the context  of sec. 440(d) retroactivity analysis and also  based its conclusions on the reasonable reliance  of aliens. 201 F.3d 1303, 1309-10 (11th Cir.  2000). In these cases, the courts concluded that  the relevant inquiry lay not in when proceedings  actually commenced, but when the reliance  interests of aliens should be considered for the  purposes of determining whether sec. 440(d)  should be retroactively applied.


17
In LaGuerre and Turkhan II, we acknowledged the  importance of an alien's reliance interests, but  we reached the opposite conclusion on the  question whether sec. 440(d) should be applied  retroactively. We concluded that criminal aliens  rarely relied on sec. 212(c) waivers in such a  way that retroactive application of the statute  would "pull the rug out from under [them]."  LaGuerre, 164 F.3d at 1041; see also Turkhan II,  188 F.3d at 827. We believe that unless criminal  aliens rely on the availability of sec. 212(c)  discretionary waiver to the extent that they  might have "decided not to commit drug crimes, or  . . . resisted convictions more vigorously," see  LaGuerre, 164 F.3d at 1041, sec. 440(d) primarily  affects the jurisdictional or procedural rights  of aliens. For this reason, the provision could  be applied retroactively unless an alien actually  had conceded deportability despite a colorable  defense to deportability. See id. Because we  require actual reliance on sec. 212(c), rather  than a mere reasonable expectation of reliance,  see id., we do not consider whether an alien may  have reasonably relied on proceedings as  "pending" in consideration of when proceedings  have commenced. Moreover, we do not face a  question of retroactivity today. Instead, we must  decide at what point proceedings against a  criminal alien commence. On this limited  question, we receive no guidance from the cases  cited by Morales-Ramirez.


18
The regulations cited by the government, 8  C.F.R. sec.sec. 3.14 and 240.30, indicate that  proceedings have not commenced until a charging  document has been filed in immigration court.  Congress has explicitly restricted our ability to  review the decision by the Attorney General's  delegates to commence proceedings, see 8 U.S.C.  sec. 1252(g), so our review is limited to the  question whether this discretion to commence  proceedings empowered the Attorney General to  issue regulations on when proceedings must be  adjudged to have commenced. Morales-Ramirez does  not question whether the Attorney General had the  appropriate discretion to promulgate these  regulations, and owing to the deference that  courts generally show to regulations of  procedural rules which govern administrative  practice, see, e.g., Chevron U.S.A., Inc. v.  Natural Resources Def. Council, Inc., 467 U.S.  837, 843-44 (1984), we do not seriously entertain  this question either. The purpose of the filing  requirement is to allow immigration courts to  manage the vast number of cases that are  litigated before them each year. Allowing  proceedings to commence at whatever point the INS  decides to serve a charging document on an alien  would frustrate this purpose and further ensnarl  the bureaucratic web of immigration proceedings.  Morales-Ramirez instead attempts to analogize his  case to Singh, in which the alien who sought  waiver from exclusion was prevented from applying  for relief because of the untimely dismissal of  his case, which ultimately was reinstated after  the 1996 amendments to the INA. Singh, 180 F.3d  at 507.


19
Singh presented an unusual case in which the  alien's deportation hearing was clearly "pending"  during the period before the passage of AEDPA and  IIRIRA, even if actual proceedings in that case  had not yet been re-calendared. Morales-Ramirez  presents us with no unusual circumstances that  could lead us to conclude that his claim was  "pending" prior to the commencement of  proceedings as measured by 8 C.F.R. sec. 240.30.  He was served with a "Notice of Exclusion  Proceedings" in 1993, and in the same year, the  INS obtained a warrant of detainer to ensure that  he be returned to INS custody on release from his  period of federal incarceration. However, during  the period of his incarceration, Morales-Ramirez  made no effort, unlike the petitioner in Singh,  to apply for discretionary waiver under sec.  212(c), and the INS made no effort to initiate  proceedings against him. Morales-Ramirez presents  no arguments or evidence that he relied on sec.  212(c); he simply claims that failing to commence  proceedings at the appropriate time cost him the  opportunity to apply for discretionary waiver. We  agree that the failure to commence proceedings  cost him the opportunity to apply for waiver, but  we fail to perceive a protected liberty or  property interest at stake in the INS's  discretionary decision when to commence  proceedings. Lacking any protected liberty or  property interest, Morales-Ramirez cannot meet  the threshold test to establish a due process  violation. See Board of Regents v. Roth, 408 U.S.  564, 569 (1972); Garcia v. INS, 7 F.3d 1320, 1326  (7th Cir. 1993) (finding asylum claimants' due  process claim fails because claimants have no  protected interest in asylum hearing when the  decision to grant asylum is at the discretion of  the Attorney General). We find that proceedings  against Morales-Ramirez did not commence until  the INS filed the appropriate charging document  with the immigration court.


20
The INS did not file the appropriate charging  document with the immigration court until after  April 1, 1997. Therefore, exclusion proceedings  were not "pending" against Morales-Ramirez at the  time that the relevant provisions of IIRIRA came  into force. Because his case was not "pending"  before April 1, 1997, Morales-Ramirez had no  protected interest in retaining the ability  guaranteed by sec. 212(c) to apply for  discretionary waiver of exclusion. For this  reason, the immigration court did not violate  Morales-Ramirez's due process rights by denying  his motion to terminate removal proceedings and  commence exclusion proceedings. Morales-Ramirez  does not raise any substantial constitutional  issues regarding the decision of the Attorney  General to issue an order of removal against him.  Because his claim fails to present any  substantial constitutional claims, we lack  subject matter jurisdiction to review his claim.

III.  Conclusion

21
Under LaGuerre, the district court lacked  subject matter jurisdiction over Morales-  Ramirez's petition for writ of habeas corpus. In  addition, Morales-Ramirez has not stated a claim  that implicates any constitutional rights, so we  also lack subject-matter jurisdiction to review  it. For these reasons, the case is DISMISSED.



Notes:


1
 In considering whether Morales-Ramirez states a  substantial constitutional claim, we need not  assert jurisdiction to hear his claim. Instead,  we merely assert jurisdiction to consider whether  we have jurisdiction to hear his claim. See Xiong  v. INS, 173 F.3d 601, 604 (7th Cir. 1999); Yang  v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997).


