This matter is before the Court on petitioner's amended application for a writ of habeas corpus and request to stay deportation, respondents' motion to dismiss and petitioner's reply. Petitioner, a detainee at the U.S. Immigration and Naturalization Service's detention facility at Oakdale, Louisiana, is proceeding in forma pauperis in this matter. Petitioner challenges the constitutionality of a deportation order issued by the INS, the proceedings relating thereto and the lawfulness of his deportation. He requests a stay of his deportation and judicial review of his constitutional claims and of the deportation order itself.
Notified that the Attorney General intended to deport petitioner imminently, the Court held a status conference on March 6, 1997. Promptly thereafter the Court appointed Robert E. Juceam and Kimberly Kolch to represent petitioner in this case, set a briefing schedule and stayed petitioner's deportation pending the Court's determination of this matter. The Court directed counsel to brief the following questions:
1. Whether this Court has jurisdiction to entertain petitioner's application for a writ of habeas corpus because it was filed before enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996? Or whether only a court of appeals -- in this case the United States Court of Appeals for the Fifth Circuit -- has exclusive jurisdiction over matters relating to petitioner's deportation?
2. If jurisdiction were in the Fifth Circuit, would this Court have authority to enter a stay of petitioner's deportation while he appeals his deportation to that court?
3. Whether petitioner's time has expired to appeal his deportation order to the Fifth Circuit? If so, can petitioner still proceed in this Court?
4. What, if any, requirements exist to give notice of appeal rights to an alien who has been ordered deported? Should equitable tolling be considered if petitioner was not informed about his right to appeal?
5. Whether this Court or any court has authority to review deportation proceedings beyond claims of "substantial" constitutional violations?
Petitioner is a citizen of Nigeria who entered the United States as a visitor in 1988, married a United States citizen in 1989 and became a lawful permanent resident of the United States in 1992. Respondents' Memorandum of Points and Authorities in Support of Motion to Dismiss the Habeas Petition and Deny the Request for a Stay of Deportation ("Resp. Mem."), Exh. A, Order to Show Cause. On April 29, 1994, petitioner was convicted, following a plea of guilty, of conspiracy to possess with intent to distribute heroin and sentenced to 36 months' imprisonment and four years of supervised release. Resp. Mem., Exh. C, Judgment and Commitment. Deportation proceedings were instituted while petitioner was serving his sentence in the criminal case. In early 1996, petitioner was released from federal prison and transferred to the INS detention facility at Oakdale, Louisiana. Resp. Mem. at 5. Petitioner sought release on bond, but after a hearing on April 11, 1996, an immigration judge denied bond on May 1, 1996. Resp. Mem., Exh. D, Bond Decision of the Immigration Judge.
On May 10, 1996, petitioner appeared before an immigration judge for a deportation hearing. Petitioner asserted his right to counsel and sought a continuance in order to retain counsel. Resp. Mem., Exh. B, Oral Decision of the Immigration Judge; Respondents' Reply to Petitioner's Memorandum of Law in Opposition to Respondents' Motion to Dismiss ("Resp. Repl."), Exh. A, Transcript of May 10, 1996 Hearing. Noting that four previous continuances had been granted for petitioner to retain counsel, the immigration judge denied the request for continuance and proceeded with the hearing. Resp. Mem., Exh. B at 2-3; Resp. Repl., Exh. A, Transcript of May 10 Hearing at 7. Petitioner refused to participate in the hearing and stood mute. Resp. Mem., Exh. B, Oral Decision of the Immigration Judge at 3; Resp. Repl., Exh. A, Transcript of May 10 Hearing at 8-10, 13.
The immigration judge found petitioner deportable because he had been convicted of conspiracy to possess with intent to distribute heroin. Resp. Mem., Exh. B at 3; Resp. Repl., Exh. A, Transcript of May 10 Hearing at 12. The immigration judge also concluded that petitioner was not eligible for a waiver of deportability under former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), because it had been repealed. Resp. Mem., Exh. B, Oral Decision of the Immigration Judge at 4 ("Although the respondent may have been eligible for [Section] 212(c) relief at the outset of April, [after April 24, 1996] individuals who have been convicted of drug offenses are no longer eligible for [Section] 212(c) relief."). Petitioner appealed the deportation finding to the Bureau of Immigration Appeals, which affirmed the immigration judge's decision on January 22, 1997. Resp. Mem., Exh. F, Opinion of the Board of Immigration Appeals.
A. The New Laws
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996). Sections 401(e) and (f) of the AEDPA repealed Section 106(a)(10) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a(a)(10), which had provided that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." Section 440(a) of the AEDPA created a new INA Section 106(a)(10) which reads as follows:
(a) JUDICIAL REVIEW -- Section 106 of the Immigration and Nationality Act (8 U.S.C. § 1105a(a)(10)) is amended to read as follows: "(10) Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2) (A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241 (a)(2)(A)(i), shall not be subject to review by any court."