                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2004

Bakhtriger v. Elwood
Precedential or Non-Precedential: Precedential

Docket No. 02-4134P




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Recommended Citation
"Bakhtriger v. Elwood" (2004). 2004 Decisions. Paper 893.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/893


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                         PRECEDENTIAL                Before: SLOVITER, ROTH and
                                                      CHERTOFF, Circuit Judges
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT                            (Filed: March 10, 2004 )


              No. 02-4134                        Steven A. Morley, Esq. (Argued)
                                                 Morley, Surin & Griffin
                                                 325 Chestnut Street
     MICHAEL BAKHTRIGER,                         Suite 1305
                 Appellant                       Philadelphia, PA 19106

                                                        Counsel for Appellant
                    v.
                                                 Sonya F. Lawrence, Esq. (Argued)
KENNETH JOHN ELWOOD, ACTING                      Office of United States Attorney
   DISTRICT DIRECTOR OF THE                      615 Chestnut Street
  PHILADELPHIA OFFICE OF THE                     Philadelphia, PA 19106
       IMMIGRATION AND
   NATURALIZATION SERVICE;                              Counsel for Appellees
     THEODORE NORDMARK,
 ASSISTANT DISTRICT DIRECTOR
             FOR
 DEPORTATION AND DETENTION;                                      OPINION
  AND THE IMMIGRATION AND
   NATURALIZATION SERVICE
                                                 CHERTOFF, Circuit Judge.
                                                        Appellant Michael Bakhtriger, a
                                                 lawful permanent resident in the United
                                                 States, was convicted of a felony and
  On Appeal from the United States               subjected to immigration removal
District Court for the Eastern District of       proceedings. Bakhtriger challenged the
              Pennsylvania                       removal proceedings by petition for habeas
     (Dist. Court No. 02-cv-00535)               corpus. The District Court determined that
 District Judge: Hon. Herbert J. Hutton          Bakhtriger was essentially seeking review
                                                 of a discretionary determination of the
                                                 Immigration and Naturalization Service
                                                 (INS). The District Court held, however,
       Argued: October 14, 2003                  that there is no jurisdiction under the
                                                 habeas statute, 28 U.S.C. § 2241, to review

                                             1
discretionary determinations or factual                   (B) Controlled substances
findings of the INS.
       This question of the scope of
                                                                 (i) Conviction
habeas jurisdiction is one of first
impression in this Circuit. We agree with
the District Court’s reading of the law and
                                                          Any alien who at any time
we will affirm.
                                                          after admission has been
                     I.                                   convicted of a violation of
                                                          (or a conspiracy or attempt
        Bakhtriger entered the United
                                                          to violate) any law or
States in February 1993, from the former
                                                          regulation of a State, the
Soviet Republic of Moldova, his native
                                                          United States, or a foreign
country. He was granted the protection of
                                                          country relating to a
the United States as a refugee and became
                                                          controlled substance (as
a lawful permanent resident in April 1994.
                                                          defined in section 802 of
In April 1998, Bakhtriger was convicted of
                                                          Title 21), other than a single
possession of both cocaine base and heroin
                                                          offense        involving
in the Court of Common Pleas in
                                                          possession for one’s own
Montgomery County, Pennsylvania. Less
                                                          use of 30 grams or less of
than a year later, in January and February
                                                          marijuana, is [removable].
of 1999, Bakhtriger was arrested for
violating his probation, and sentenced to 2-
12 months imprisonment.
                                                   8 U.S.C. § 1227(a)(2)(B). The INS
      Bakhtriger’s controlled substance            initiated removal proceedings against
conviction rendered him removable 1 under          Bakhtriger on April 17, 2000. Before the
8 U.S.C. § 1227(a)(2)(B)(i), which                 Immigration Judge (IJ), Bakhtriger did not
provides:                                          contest that he was an alien or that he had
                                                   committed a removable offense. Rather,
                                                   Bakhtriger applied for asylum and
                                                   withholding of removal under 8 U.S.C. §
       1 Under recent amendments to the
                                                   1158, and relief from removal under the
Immigration and Nationality Act, the term
                                                   Convention Against Torture, 8 U.S.C. §
“removal” embraces concepts of both
                                                   1231.
“deportation” and “exclusion.” See Illegal
Immigration Reform and Immigrant                          Bakhtriger, through his own
Responsibility Act, Pub. L. No. 104-208,           testimony and that of his mother,
Div. C, § 308, 110 Stat 3009-619. Saying           attempted to show that he had a reasonable
that Bakhtriger was “removable” is                 fear of persecution should he return to
equivalent to saying that he was                   Moldova. The evidence presented by
“deportable.”

                                               2
Bakhtriger focused on his history of past         “marking” the apartment as one in which
religious persecution as a member of the          Jews lived. Bakhtriger recounted that
Jewish faith in Moldova, and his fears of         during a recent trip back to Moldova he
what might befall him if he should return.        was attacked in public and a necklace
                                                  bearing the Star of David was ripped from
        Bakhtriger’s mother recounted that
                                                  his neck.
her husband had been an officer in the
Soviet army, but had been hampered in his                The IJ credited the testimony of
advancement as a result of his religion.          both witnesses and found that Bakhtriger
She also explained that Jews in Moldova           had suffered past persecution. But the IJ
were prevented from publicly practicing           found that the INS had presented sufficient
their religion. Both witnesses emphasized         proof of “changed country conditions” in
that anti-semitism was pervasive under the        Moldova to rebut the presumption that
old Soviet regime, and that the post-Soviet       Bakhtriger had a well-founded fear of
Moldovan government took no action to             persecution. Even so, the IJ exercised his
curb the open hostility emanating from            discretion to grant asylum where the
large segments of the public.                     applicant has “demonstrated compelling
                                                  reasons for being unwilling or unable to
        Other testimony indicated that,
                                                  return to the country arising out of the
while living in Moldova, Bakhtriger was
                                                  severity of the past persecution.” 8 CFR §
routinely harassed, called derogatory
                                                  208.13(b)(1)(iii)(A).
names, and physically beaten as a result of
his religion. According to his mother,                   The INS appealed the IJ’s decision
Bakhtriger was prevented from attending           to the Board of Immigration Appeals
any prestigious colleges or universities.         (BIA). The BIA deferred to the IJ’s
Instead, he was directed to a trade school        determination that Bakhtriger and his
to learn television repair. At this school,       mother were credible witnesses, and
too, Bakhtriger was beaten by fellow              accepted the IJ’s summary of the evidence.
students. Later, mirroring the experience         However, the BIA overturned the IJ’s
of his father, Bakhtriger lost two                grant of asylum and ordered that
successive jobs in factories as a result of       Bakhtriger be removed to Moldova. The
his religion.                                     BIA decided that even if the IJ accurately
                                                  described the level of persecution,
        Both Bakhtriger and his mother
                                                  Bakhtriger’s experience did not rise to the
recounted that anti-semitic signs and
                                                  level found in previous cases where the
graffiti regularly marred fences and
                                                  Board determined to exercise its authority
buildings. In the spring of 1992, the door
                                                  to grant asylum for compelling reasons.
of the apartment in which the Bakhtrigers
lived was etched with a Star of David,                   Bakhtriger filed a petition for a writ
something the Bakhtrigers took as a               of habeas corpus in the Eastern District of
threat—that anti-semitic elements were            Pennsylvania. Before the District Court,


                                              3
Bakhtriger did not claim a denial of a                     This timely appeal followed.
constitutional right or an error in
                                                           A district court’s determination that
application of the statutory standards.
                                                    it lacks subject matter jurisdiction is a
Rather, he argued that the factual record
                                                    determination of law over which we
did not support the finding by both the IJ
                                                    exercise plenary review. See Gould Elecs.
and the BIA that there was no well-
                                                    Inc. v. United States, 220 F.3d 169, 176
founded fear of future persecution because
                                                    (3d Cir. 2000). Moreover, we exercise
conditions in Moldova have changed. As
                                                    plenary review where a district court
he put it, “the IJ and BIA ignored evidence
                                                    dismisses a habeas corpus petition based
in the record of centuries of anti-semitism
                                                    on a legal conclusion without holding an
and persecution of Jews.” J.A. 7.
                                                    evidentiary hearing. See Zettlemoyer v.
       Bakhtriger also urged that even if           Fulcomer, 923 F.2d 284, 291 (3d Cir.
there was no well-founded fear of                   1991).
persecution, the BIA wrongly reversed
                                                                        II.
what was concededly the IJ’s “broadly
define[d]” discretion to grant asylum based                 In 1996, Congress overhauled the
on past persecution. J.A. 20. Again, in the         Immigration and Nationality Act (INA),
habeas petition’s own words, Bakhtriger             see 8 U.S.C. § 1101 et seq., by enacting
contended that the BIA wrongly                      two statutes in rapid succession, the
determined that he “was not entitled to             Antiterrorism and Effective Death Penalty
asylum on a discretionary basis.” J.A. 7.           Act (AEDPA), Pub L. No. 104-132, 110
                                                    Stat. 1214, and the Illegal Immigrant
       Based on the petition, the District
                                                    Reform and Immigrant Responsibility Act
Court reasoned that Bakhtriger sought
                                                    (IIRIRA), Pub. L. No. 104-208, Div. C,
review of a discretionary determination,
                                                    110 Stat. 3009-546. Under the amended
and therefore dismissed the petition for
                                                    INA, asylum remains a discretionary
want of subject matter jurisdiction. The
                                                    determination on the part of the INS. But
District Court noted that habeas review of
                                                    AEDPA and IIRIRA enacted two changes
criminal alien removal proceedings falls
                                                    curtailing court review of removal
under the general habeas statute, 28 U.S.C.
                                                    proceedings.2     To understand these
§ 2241. The District Court held, however,
that the scope of review of immigration
proceedings under section 2241 is limited
                                                            2 In addition to imposing a new set
to constitutional claims or errors of law.
                                                    of permanent rules, IIRIRA provided for a
The District Court reasoned that factual
                                                    set of “transitional” rules. All removal
and discretionary determinations are not
                                                    cases commenced before April 1, 1997, in
cognizable under section 2241, and the
                                                    which a final order of deportation was
federal courts therefore lack jurisdiction to
                                                    filed after October 30, 1996 are subject to
entertain such claims in habeas challenges
                                                    the transitional rules.        See Illegal
to removal proceedings.
                                                    Immigrant Reform and Imm igrant

                                                4
changes, we must briefly review the               “except insofar as it was required by the
development of judicial review of                 Constitution.” Heikkila, 345 U.S. at 235.
immigration determinations.
                                                         In 1952, while the Heikkila case
       Until 1952, judicial jurisdiction to       was pending, Congress reconfigured the
review executive decisions relating to            immigration laws. Heikkila itself declined
immigration was founded exclusively on            to rule on the amended act, 345 U.S. at
the writ of habeas corpus. See United             232 n.4, but the Supreme Court soon had
States v. Jung Ah Lung, 124 U.S. 621              the opportunity to address the new law. In
(1888).    During that period, “habeas            Shaughnessy v. Pedreiro, the Court held
corpus was the only remedy by which               that the amended INA was subject to the
deportation orders could be challenged in         APA’s expanded review because the 1952
the courts.” Heikkila v. Barber, 345 U.S.         revisions, passed after the APA became
229, 230 (1953). A challenge to the               effective, did not “expressly” supersede or
exclusivity of the habeas remedy was              modify the expanded right of review
briefly mounted after the 1946 passage of         granted by the APA. 349 U.S. 48, 51-52
the Administrative Procedure Act (APA),           (1955).
which overhauled administrative law.
                                                         In 1961, Congress changed the
Some aliens sought to appeal executive
                                                  immigration statutes again. Under the
immigration decisions under the APA’s
                                                  1961 amendments, aliens f acin g
general mandate that courts set aside any
                                                  deportation were funneled into the courts
administrative agency action that was an
                                                  of appeals for direct review under a
abuse of discretion or unsupported by
                                                  standard similar to the APA standard. See
substantial evidence. The Supreme Court
                                                  8 U.S.C. § 1105a(a) (1994); see also H.R.
held the APA inapplicable, however,
                                                  Rep. No. 87-1086 (1961), reprinted in
reasoning that the then-existing specific
                                                  1961 U.S.C.C.A.N. 2950, 2967-76. Aliens
immigration statute was meant to preclude
                                                  subject to exclusion were not provided a
judicial review of immigration decisions
                                                  means of direct review. See H.R. Rep. No.
                                                  87-1086 (1961), reprinted in 1961
                                                  U.S.C.C.A.N. 2950, 2967-76. The 1961
Responsibility Act of 1996, Pub. L. No.
                                                  amendments, however, clarified that all
104-208, Div. C, § 309, 110 Stat. 3009-
                                                  aliens, whether facing deportation or
625. All cases commenced after April 1,
                                                  subject to exclusion, were entitled to
1997 are subject to the permanent rules.
                                                  review by habeas corpus. See id.; see also
See Illegal Immigrant Reform and
                                                  8 U.S.C. §§ 1105a(a)(10) & 1105a(b)
Immigrant Responsibility Act of 1996,
                                                  (1994).3 It is unclear—though irrelevant
Pub. L. No. 104-208, Div. C, § 306(c), 110
Stat. 3009-612. Because Bakhtriger’s
removal proceedings were commenced on
April 17, 2000, we will restrict our                     3 Section 1105a(a)(10) was
discussion to the permanent rules.                originally codified as section 1105a(a)(9).

                                              5
to our analysis—whether the provision for                 In addition to seeking to “zipper”
habeas corpus review contained in new              jurisdiction to review in the courts of
INA sections 1105a(a)(10) and 1105a(b)             appeals, AEDPA and IIRIRA excluded
actually created independent bases for             certain categories of INS decisionmaking
habeas corpus jurisdiction or merely               from this appellate judicial review
reserved the availability of habeas corpus         altogether. See 8 U.S.C. § 1252(a)(2)(C).
pursuant to 28 U.S.C. § 2241. See INS v.           Among the determinations deemed
St. Cyr, 533 U.S. 289, 310 (2001).                 unreviewable were so-called “criminal
                                                   alien removal cases”—final orders of
       In 1996, Congress enacted AEDPA
                                                   removal where the alien was removable
and IIRIRA to reorder and curtail court
                                                   for having committed controlled substance
review of deportation and exclusion
                                                   offenses, aggravated felonies, certain
decisions.      AEDP A re pealed the
                                                   firearm offenses, miscellaneous national
immigration habeas provision contained in
                                                   security or defense-related crimes, or for
8 U.S.C. § 1105a(a) and IIRIRA
                                                   having multiple convictions for crimes
eliminated the remainder of 8 U.S.C. §
                                                   involving moral turpitude. See 8 U.S.C. §
1105a. See AEDPA § 401(e), 110 Stat.
                                                   1252(a)(2)(C); see also Patel v. Ashcroft,
1268; IIRIRA § 306(b), 110 Stat. 3009-
                                                   294 F.3d 465, 468 & n.3 (3d Cir. 2002). 4
612. IIRIRA also consolidated judicial
review in the courts of appeals under a so-
called “zipper clause,” which stated that
“judicial review of all questions of law and               4 At first blush, a separate provision
fact, including interpretation and                 of the amended INA might suggest that
application of constitutional and statutory        direct court of appeals review of asylum
provisions, arising from any action taken          determinations in criminal alien removal
or proceeding brought to remove an alien”          cases remains available notwithstanding
must take place in the courts of appeals. 8        the zipper. In addition to eliminating
U.S.C. § 1252(b)(9); see also 8 U.S.C. §           direct review of criminal alien removal
1252(a).      In sum, these provisions             orders in section 1252(a)(2)(C), the
appeared to consolidate all appeals of INS         amended INA also provides that
determinations in a single action, brought         “notwithstanding any other provision of
only from a final order of removal, and            law, . . . (ii) no court shall have
brought only in the courts of appeals. See         jurisdiction to review . . . any other
8 U.S.C. §§ 1252(a)(1) and (b)(9).                 decision or action of the Attorney General
                                                   the authority for which is . . . in the
                                                   discretion of the Attorney General, other
                                                   than the granting of relief under 8 U.S.C.
See Immigration Act of 1990, § 545(b)(2),          § 1158(a) [asylum] of this title.” 8 U.S.C.
Pub. L. No. 101-649, 104 Stat. 4978; H.R.          § 1252(a)(2)(B) (emphasis added). One
Rep. 87-1086 (1961), reprinted in 1961             possible reading of section 1252(a)(2)(B)
U.S.C.C.A.N. 2950, 2967-76.                        is that courts retain jurisdiction to review

                                               6
       In cases where the basis for                 But that shifted the issue of reviewability
removal is the commission of the crimes             back to the district courts. The question
enumerated in section 1252 the net effect           arose whether in criminal alien removal
of the 1996 immigration law amendment               cases, the preclusion of direct review,
was to eliminate direct review by the               coupled with the zipper clause, eliminated
courts of appeals of the BI A’s                     all court review, including collateral
determination. We so held in Liang v.               review under the original habeas corpus
INS. 206 F.3d 308, 323 (3d Cir. 2000). 5            provision contained in section 2241.
                                                            In Liang, we held that collateral
asylum determinations notwithstanding the           habeas review under section 2241 survived
limitations of section 1252(a)(2)(C). A             the zipper in criminal alien removal cases.
closer reading of section 1252(a)(2)(B),            Id. at 323. The Supreme Court confronted
however, and one that is more consonant             this issue in St. Cyr. 533 U.S. at 292.
with section 1252(a)(2)(C), is that section         There, the Court definitively agreed that
1252(a)(2)(B) leaves untouched—neither              habeas review of criminal alien removal
limiting nor augmenting— the authority              cases under section 2241 was not
courts would otherwise have to review               foreclosed by AEDPA or IIRIRA. Id. at
asylum determinations. Said another way,            314. Endorsing the approach we took in
section 125 2(a)(2 )(B) is n ot an                  Liang and earlier decisions, St. Cyr held
independent grant of authority for courts to        that, absent a crystal clear repeal of
review asylum determinations, but merely            jurisdiction to consider habeas claims by
an exemption of asylum determinations               aliens, the provisions of AEDPA and
from the general class of discretionary             IIRIRA that preclude judicial review
determinations that the section makes               would not be interpreted to repeal section
unreviewable. That being the case, the              2241 jurisdiction. Id. At least part of the
elimination by section 1252(a)(2)(C) of             reasoning behind this ruling was the desire
jurisdiction to review any determination in         to avoid the thorny constitutional question
criminal alien removal cases also includes          posed if Congress had entirely pre-empted
elimination of jurisdiction to review               review of an alien’s claims. Id.
asylum determinations in those cases.
Such a reading was implicit in our holding
in Ogbudimkpa v. Ashcroft, 342 F.3d 207,
213 (3d Cir. 2003).                                 and whether he or she has been convicted
                                                    of an ‘aggravated felony’ within the
        5 Whether the courts of appeals             meaning of the statute)” has been the
retain jurisdiction in criminal alien               subject of some debate. See Calcano-
removal cases to consider “challenges to            Martinez v. INS, 533 U.S. 348, 350 n. 2
the factual determinations thought to               (2001). We have read the statute to allow
trigger the jurisdiction-stripping provisions       such jurisdictional review. See Drakes v.
(such as whether an individual is an alien          Zimski, 240 F.3d 246, 247 (3d Cir. 2001).

                                                7
        Through its decision in St. Cyr, the         questions to include issues of application
Cou rt divide d the la ndsc ape of                   of law to fact, where the facts are
immigration review into two parts. Non-              undisputed and not the subject of
criminal aliens retain a right under the             challenge. Ogbudimkpa v. Ashcroft, 342
statute to deferential, but still substantive,       F.3d 207, 222 (3d Cir. 2003).6
direct review in the courts of appeals. See
                                                            But if that marks the minimum
8 U.S.C. § 1252(a)(1); Dia v. Ashcroft,
                                                     review available under general habeas
353 F.3d 228 (3d Cir. 2003) (en banc).
                                                     corpus, does it also mark the maximum
Criminal aliens have no right to direct
                                                     review? Or, as Bakhtriger contends, are
review, but retain the residual right to seek
                                                     federal courts in habeas cases entitled to
relief under the traditional habeas statute.
                                                     address whether removal of a criminal
See St. Cyr, 533 U.S. at 314. Having
                                                     alien, while not erroneous as a matter of
resolved this threshold jurisdictional issue,
                                                     constitutional or statutory interpretation, is
the Court specifically left open the scope
                                                     nevertheless an abuse of discretion or
of review available under residual section
                                                     unsupported by substantial evidence?
2241. That set the stage for what has
                                                     This, of course, is the APA-style standard
become the most recent chapter in the
                                                     of review that is afforded when courts of
debate: Precisely what kinds of challenges
                                                     appeals directly review decisions of the
are cognizable in criminal alien removal
                                                     BIA, as is permitted in the cases of non-
habeas petitions?
                                                     criminal aliens. 8 U.S.C. § 1252(a)(1);
                     III.                            see, Dia, 353 F.3d at 228.
       In answering this question we do
not paint on a blank canvas.
        The Supreme Court and this Court                     6 In Sol v. INS, 274 F.3d 648, 651
have recently construed the range of                 (2d Cir. 2001), the Second Circuit read our
section 2241 review at least so far as to            earlier decision in Catney v. INS, 178 F.3d
establish what it comprehends at a                   190, 195 (3d Cir. 1999), as holding that
minimum. In St. Cyr, the Supreme Court               section 2241 review does not embrace
rejected the Government’s argument that              “‘denial of discretionary relief to a
classic habeas review encompassed only               criminal alien.’” Respectfully, this reading
review of substantial constitutional or              of our decision in Catney was incorrect.
jurisdictional questions. The Supreme                While the context of our comment on
Court ruled that “pure questions of                  scope of review may have been somewhat
law”—such as whether the Attorney                    ambiguous, it actually related to review on
General had legal authority to waive                 direct appeal of a deportation order from
removal— fell within the ambit of                    the BIA, and did not address habeas
traditional habeas review. Id. at 301. This          review. At any rate, the Second Circuit
Court has recently interpreted such                  correctly anticipated the position that we
                                                     now take in this decision.

                                                 8
        We believe that, under section                    exclusive judge of the
2241, habeas proceedings do not embrace                   existence of those facts, and
review of the exercise of discretion, or the              no other tribunal, unless
sufficiency of the evidence.            Our               expressly authorized by law
conclusion is supported by the history of                 to do so, is at liberty to
interpretation of the general habeas                      reexamine or controvert the
provision over the years; by the structure                sufficiency of the evidence
of the immigration laws as amended in                     on which he acted.
1996; and by the reasoning of St. Cyr
                                                   Id.
itself.
                                                          Until the 1952 amendments to the
                    A.
                                                   immigration law allowed broader APA-
       Over a century ago, Congress                styl e j u d i c i a l r e v i e w f o r I N S
enacted an early version of a zipper clause        determinations, the Court had hewed
by mandating that exclusion decisions of           mainly to this circumscribed scope of
immigration officials were to be final,            review, with slight modification. See
subject only to review within the executive        Yamataya v. Fisher, 189 U.S. 86 , 97, 102
branch. Act of March 3, 1891, c. 517, § 5;         (1903); United States ex rel. Vajtauer v.
26 Stat. 827, 828, 1115. Shortly thereafter,       Commissioner of Immigration at Port of
the Supreme Court considered an appeal             New York, 273 U.S. 103 (1927); Bridges
from the denial of a writ of habeas corpus         v. Wixon, 326 U.S. 135, 149, 156 (1945);
by an excluded citizen of Japan. The               Estep v. United States, 327 U.S. 114, 122-
Court acknowledged that because the                23 & n.14 (1946). So long as there was
alien’s liberty was restrained, she was            sufficient procedural fairness to comport
“doubtless entitled to a writ of habeas            with due process, courts were not to
corpus to ascertain whether the restraint is       “weigh the evidence” and were required to
lawful.” Ekiu v. United States, 142 U.S.           honor the administrative decisions “even
651, 660 (1892) (italics in original). But         though they may be erroneous.” Estep,
the court observed:                                327 U.S. at 122.7
       [T]he final determination of
       those facts may be entrusted
       by Congress to executive                            7 Both Vajtauer and Estep indicated
       officers; and in such a case,               that the writ of habeas corpus might issue
       as in all others, in which a                where there is “no basis in fact”— i.e., no
       statute gives a discretionary               evidence—for a determination.          See
       power to an officer, to be                  Vajtauer, 273 U.S. at 110; Estep, 327 U.S.
       exercised by him upon his                   at 122. This may have been either as a
       own opinion of certain facts,               matter of reviewing the legal basis for the
       he is made the sole and                     agency’s jurisdiction, Estep, 327 U.S. at
                                                   122-23, or as a matter of due process, see

                                               9
        As we have already observed, when              warranted a new hearing.
the passage of the APA in 1946 first raised
                                                               But the petitioner also raised the
the prospect that immigration decisions
                                                       contention that “‘in all similar cases the
might be reviewable under the broader
                                                       [ B IA ] ha [ d] e xe r cise d f a vorable
standards of abuse of discretion and
                                                       discretion.’”   Id. at 264 n.5.       This
substantial evidence, the Supreme Court
                                                       argument was rejected by the Supreme
specifically rejected that approach in the
                                                       Court, which pointedly observed:
context of habeas corpus. Heikkila, 345
U.S. at 236-37. The Court held that,                          It is important to emphasize
whatever the minor adjustments in the                         that we are not here
measure of habeas review over the years,                      reviewing and reversing the
habeas corpus must always be based on                         manner in which discretion
bedrock requirements of due process,                          was exercised. If such were
rather than the “very different . . . statutory               the case we would be
[i.e., APA] standard of review, e.g.,                         discussing the evidence in
deciding on ‘the whole record’ whether                        the record supporting or
there is substantial evidence to support                      undermining the alien’s
administrative findings of fact.” Id. at                      claim to discretionary relief.
236. Heikkila concluded that “it is the                       Rather, we object to the
scope of inquiry on habeas corpus that                        Board’s alleged failure to
differentiates use of the writ from judicial                  exercise its own discretion,
review as that term is used in the                            contrary to existing valid
Administrative Procedure Act.” Id.                            regulations.
        United States ex rel Accardi v.                Id. at 268.
Shaughnessy, 347 U.S. 260 (1954), is
                                                               Despite the Court’s essential
particularly instructive on this point. The
                                                       constancy in restricting the use of habeas
habeas corpus petition in that case was
                                                       corpus to assertions of constitutional or
based, inter alia, on the argument that the
                                                       statutory violations, the statutory landscape
Attorney General had impermissibly
                                                       changed in 1952. Congress’s choice in the
interfered with the discretion that had been
                                                       1952 immigration law amendments not to
delegated by regulations to the BIA,
                                                       expressly supersede or modify the APA for
thereby violating those regulations. The
                                                       immigration determinations effectively
Supreme Court held that this transgression
                                                       broadened the scope of judicial review of
of the regulations violated due process and
                                                       INS determinations. See Shaughnessy v.
                                                       Perdiero, 349 U.S. at 51-52. In point of
                                                       fact, the broadened scope of review was
Heikkila 345 U.S. at 235-36 & n. 11; see
                                                       literally applicable only to direct appeal of
also Mahler v. Eby, 264 U.S. 32, 41-42
                                                       INS determinations under the APA. But it
(1924); Zakonaite v. Wolf, 226 U.S. 272,
                                                       was not long before courts viewed
274 (1912).

                                                  10
Congress as having intended to augment             require that in habeas cases:
traditional habeas review with broader
                                                          [T]he appropriate standard
APA-style review. Compare Jay v. Boyd,
                                                          of review in such cases is
351 US. 345, 354-55 (1956) (explaining
                                                          whe the r the a ge nc y’s
that executive discretion to suspend
                                                          decision is “arbitrary,
deportation is “a matter of grace” and
                                                          capricious, and abuse of
“unfettered discretion”) with United States
                                                          discretion or otherwise not
ex rel Hintopolous v. Shaughnessy, 353
                                                          in accordance with the law.”
U.S. 72, 77 (1957) (rejecting a challenge
                                                          5 U.S.C. § 706(2)(A) [the
to suspension based on claim of abuse of
                                                          APA].
discretion and arbitrary and capricious
reasoning).8 Put another way, in effect                   . . . This standard of review
courts began treating APA judicial review                 is consistent w ith the
as one of the laws of the United States                   legislative history of the
enforceable through the habeas statute.                   Immigration and Nationality
                                                          Act of 1952 . . . .
       Once the habeas provisions of the
immigration statute were added in 1961,            746 F.2d 989, 991 (3d Cir. 1984). 9
they were viewed as consistent with a
                                                          It seems fair to say, then, that
standard of judicial review calling for
                                                   classic immigration cases under section
APA-style examination of the exercise of
                                                   2241 before 1952 were reviewed for
discretion and substantiality of evidence.
                                                   constitutional and legal error only, and that
In Moret v. Karn, this Court read the 1952
                                                   immigration cases that arose under the
i m m ig r a t io n ame ndm ents ( a s
                                                   habeas writ between 1952 and 1996 were
supplemented by the 1961 legislation) to
                                                   treated under the same standard of review
                                                   as direct appeals from the BIA—that is to
                                                   say, under broader APA review of
       8 Because the Court in Hintopolous
rejected a challenge based on abuse of
discretion, the court did not actually
consider whether such a challenge was                     9 Some of the courts adopting the
within the scope of habeas review. See             view that section 1105a created a basis for
Hintopolous, 353 U.S. at 78-79.                    habeas corpus jurisdiction independent
       Decisions during the 1961 to 1996           from 28 U.S.C. § 2241 have found that,
time-frame, however, appear to treat the           from 1961 to 1996, broader review was
APA standard of review as applicable               available exclusively through 1105a
without any distinction between direct             habeas, and that 2241 habeas was available
review under old section 1105a(a) and              only to aliens asserting constitutional or
habeas corpus under old section 1105a(b).          statutory violations. See Gutierrez-Chavez
See, e.g., Mondragon v. Ilchert, 653 F.2d          v. INS, 298 F.3d 824, 827-28 (9th Cir.
1254, 1255-56 (9th Cir. 1980).                     2002).

                                              11
discretion and of the sufficiency of the           1996 statutory “zipper” language that
evidence.                                          states:
                    B.                                    Judicial review of all
                                                          questions of law and fact,
       That brings us to the 1996
                                                          including interpretation and
amendments under AEDPA and IIRIRA.
                                                          application of constitutional
The government initially advocated that
                                                          and statutory provisions,
the amendments to the INA enacted by
                                                          arising from any action
AEDPA and IIRIRA be treated as
                                                          taken or proceeding brought
precluding all judicial examination of
                                                          to remove an alien from the
removal determinations in the cases of
                                                          United States under this
criminal aliens. The Supreme Court,
                                                          subchapter shall be available
however, rejected that view. See St. Cyr,
                                                          only in judicial review of a
533 U.S. at 312. The Court held that
                                                          final order under this
Congress succeeded only in repealing
                                                          section.
direct appellate review of such cases and
the special immigration habeas provisions          8 U.S.C. § 1252(b)(9). The judicial review
of section 1105a; what remained was the            section, 8 U.S.C. § 1252, in turn provides
original section 2241 habeas remedy. That          for direct review by the courts of appeals
fact in itself suggests that the scope of          of BIA decisions, but prohibits it in the
review one would expect to find under the          case of criminal aliens.
residual section 2241 is no greater than
                                                           The meaning of the term “judicial
what existed before Congress began to
                                                   review” became the critical interpretive
graft APA-style review onto habeas
                                                   issue presented to the Supreme Court. If
jurisdiction in 1952.
                                                   judicial review meant all review by any
        To be sure, St. Cyr does not               court, as the government and the
explicitly set forth the boundaries of             dissenting Justices urged, then the zipper
habeas review of removal actions under             clause and the criminal alien preclusion
section 2241, nor does it expressly address        clause, taken together, made removal of
whether review of discretion or                    criminal aliens totally unreviewable under
administrative fact-finding is available.          the statutory scheme. If “judicial review”
See Sol, 274 F.3d at 651. But the actual           was a term of art referring only to a certain
reasoning in the St. Cyr decision compels          type of court review, however, then what
the conclusion that under section 2241 as          was precluded was not all review by the
it currently stands, the broader species of        courts, but only review of a certain kind.
review for substantial evidence and abuse
                                                           The majority in St. Cyr adopted the
of discretion typical of APA challenges
                                                   latter interpretation, seizing upon the
must be wholly out of bounds.
                                                   earlier decision in Heikkila to differentiate
       In St. Cyr, the Court confronted the        between “judicial review” in a specific

                                              12
sense, and court review under the                   style “judicial review” for criminal aliens
traditional habeas writ. See St. Cyr, 533           by eliminating direct “judicial review” in
U.S. at 312 (citing Heikkila). The Court            the courts of appeals. What remained for
declared: “In the immigration context,              criminal aliens facing removal was only
‘judicial review’ and ‘habeas corpus’ have          the core section 2241 habeas provision
historically distinct meanings.” St. Cyr,           with its narrower scope of pure legal
533 U.S. at 311 (citing Heikkila, 345 U.S.          review.
at 236). But for this distinction to make
                                                           The Supreme Court in St. Cyr also
sense in reading the 1996 zipper
                                                    addressed the provision of AEDPA that
amendments, there had to be some
                                                    specifically eliminated one of the 1961
significant difference between the scope of
                                                    special habeas provisions of the INA, by
review under “judicial review” and that
                                                    deleting 8 U.S.C. § 1105a(a)(10). St. Cyr,
under section 2241 habeas corpus.
                                                    533 U.S. at 308-10. The Court held that
Otherwise, the amendments’ withdrawal of
                                                    the repeal of this section 1105a special
“judicial review” on the one hand would
                                                    habeas provisions did not implicitly repeal
be nullified on the other hand by the
                                                    the residual habeas statute, section 2241.
retention of habeas corpus with identical
                                                    Again, that interpretation can make sense
scope of court review. In other words, a
                                                    only if, as we have seen, section 2241
definition of habeas corpus jurisdiction
                                                    residual habeas corpus is understood to
that made the scope of claims available on
                                                    carry a more limited scope of review than
habeas review coextensive with the scope
                                                    the broader APA-style review which the
of claims available on direct review would
                                                    courts applied under section 1105a. See
necessarily render the preclusion provision
                                                    Gutierrez-Chavez v. INS, 298 F.3d 824,
of AEDPA and IIRIRA utterly pointless
                                                    828 (9th Cir. 2002). Were section 1105a
and would create an internal contradiction
                                                    review and section 2241 review to have
within the immigration statutes.
                                                    identical scope, the repeal by AEDPA and
        As a matter of logic, therefore, the        IIRIRA of the former—and not the
Court necessarily recognized that the               latter—would appear to be a vain or
“limited role played by the courts in               incomplete legislative act.
habeas corpus proceedings was far
                                                           In short, to accept Bakhtriger’s
narrower than the judicial review
                                                    contention here that section 2241 habeas
authorized by the APA.” Id. at 312. In
                                                    review incorporates an examination of the
effect, the Court reaffirmed the rule set
                                                    exercise of discretion or weight of the
forth in Heikkila. And by drawing that
                                                    evidence in the underlying removal
distinction as to scope of review, the Court
                                                    proceedings would be to erase the
was able to give meaning to the 1996
                                                    distinction between “judicial review” and
statutory preclusion provision. For under
                                                    habeas review that was an indispensable
this interpretation, AEDPA and IIRIRA
                                                    ingredient in the reasoning of St. Cyr. See
succeeded in precluding broader APA-
                                                    533 U.S. at 311-12.           Bakhtriger’s

                                               13
argument would also wholly nullify the               of asylum. For the reasons stated above,
content of the preclusion provisions that            these matters are not reviewable under the
Congress enacted and would defy decades              residual habeas provision—28 U.S.C. §
of the history of interpretation of section          2241. Indeed, the BIA’s determination
2241. Accordingly, we believe that the               that the circumstances of Bakhtriger’s case
scope of review under section 2241 must              do not rise to the level of other cases in
be confined to questions of constitutional           which the authorities have exercised their
and statutory law.                                   discretion in favor of asylum is precisely
                                                     the sort of application of discretion that the
        Our interpretation is consistent with
                                                     Supreme Court declined to review in
decisions in other circuits. In the wake of
                                                     Accardi, 347 U.S. at 264. In Accardi, the
St. Cyr, we are not aware of any cases that
                                                     petitioner’s challenge to the exercise of
have upheld habeas review of factual
                                                     discretion by the immigration officials was
findings or discretionary determinations in
                                                     effectively the same as that mounted by
criminal alien removal cases. Rather, all
                                                     Bakhtriger—the “allegation that the
circuits to decide the issue have limited
                                                     appellant was treated differently from
criminal alien habeas petitions to
                                                     other aliens similarly situated.” 206 F.2d
constitutional challenges or errors of law.
                                                     at 901. The Supreme Court expressly
See Bravo v. Ashcroft, 341 F.3d 590, 592-
                                                     affirmed the court of appeals in its refusal
93 (5th Cir. 2003); Gutierrez-Chavez, 298
                                                     to entertain that challenge to discretion
F.3d at 828; Carranza v. INS, 277 F.3d 65,
                                                     (although the Court ultimately reversed on
72 (1st Cir. 2002); Sol, 274 F.3d at 651;
                                                     another ground). Accardi, 347 U.S. at 264
Bowrin v. INS, 194 F.3d 483, 490 (4th Cir.
                                                     n. 5. We reject Bakhtriger’s identical
1999). 10
                                                     challenge to discretion here.
       We join them.
                                                              Perhaps recognizing that his effort
                   IV.                               to obtain review of discretion and evidence
                                                     would be ill-fated, Bakhtriger tries to
       Bakihtriger’s habeas petition
                                                     repackage these claims as matters of law
challenges both the underpinnings of the
                                                     by pointing out that the reason he is
BIA factual findings and the BIA’s
                                                     subject to removal is pursuant to a law of
decision not to exercise discretion in favor
                                                     the United States, and that the “substantial
                                                     evidence” standard under APA-style
                                                     review is established as a legal
       10 Yang v. INS, 109 F.3d 1185,                requirement. The fact that there are legal
1195-96 (7th Cir. 1997) takes the same               principles that govern these matters,
position, but we do not rely on it because           however, does not convert every question
the Seventh Circuit appears to have relied           of fact or discretion into a question of law.
in part on its view that IIRIRA had                  If it did, rivers of ink expended in case law
abolished review under section 2241, a               distinguishing between legal and factual
position later repudiated by St. Cyr.

                                                14
questions would have been spilled for no
reason. Similarly, although review as a
matter of law encompasses deciding
whether legal principles have been
properly applied to undisputed facts, see
Ogbudimkpa, 342 F.3d at 222, it does not
encompass deciding the factual issues
themselves.
        We will not delineate the precise
boundaries between permitted review of
legal questions and forbidden review of
factual issues or matters of discretion in
this opinion. What is clear in this case is
that the review Bakhtriger seeks is
squarely on the forbidden side of the line.
The District Court correctly determined
that it lacked jurisdiction to review the
claims in Bakhtriger’s habeas petition.
                    V.
For the foregoing reasons, we will affirm
the judgment of the District Court.




                                              15
