Case: Calcano-Martinez v. INS

Three consolidated petitions were prompted by the enactment of the Illegal Immigration Reform and Responsibility Act of 1996 (“IIRIRA”). For decades, the Immigration and Naturalization Act (“INA”) provided for a discretionary waiver of deportation to allow amelioration of the rigid application of the deportability provisions in the case of legal permanent residents who committed deportable criminal offenses. The eligibility waiver criteria were limited to legal permanent residents who had maintained an uninterrupted lawful domicile in the United States for seven years. In enacting the IIRIRA in 1996, Congress reworked the role of the courts in immigration decisions by severely limiting judicial review of final orders of deportation for certain classes of aliens. Like the prior statute, the IIRIRA vested courts of appeals with the authority to consider petitions challenging final orders removing aliens from the United States. However, unlike the previous provisions, the IIRIRA expressly precluded courts of appeals from exercising “jurisdiction to review any final order of removal against any alien who is removable by reason of” a conviction for certain criminal offenses, including any aggravated felony. Essentially, the IIRIRA repealed INA § 212(c) in its entirety and replaced it with another form of relief entitled “cancellation of removal.” Cancellation of removal relief permitted waiver of deportation for certain classes of aliens; however, it was categorically not available to an alien convicted of a crime that qualified as an “aggravated felony” under the statute.

The petitioners in all three cases were permanent legal residents of the United States who had been ordered to be deported because of their prior criminal convictions. Each filed petitions in the Second Circuit for review of the final orders of removal entered against them by the Board of Immigration Appeals (“BIA”). Each petitioner also filed a petition for habeas corpus in either the U.S. District Court for the Southern District of New York or the U.S. District Court for the Eastern District of New York. 

The First Case:

In April of 1996, the first petitioner, who was a native citizen of the Dominican Republic but had been a permanent resident of the United States since 1971, pled guilty in New York State court to the attempted criminal sale of a controlled substance in the third degree. On October 9, 1996, she received a sentence of one to three years. On June 16, 1997, the Immigration and Naturalization Service (“INS”) instituted removal proceedings against the first petitioner on the grounds that her criminal conviction rendered her deportable pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) (aggravated felony) and 1227(a)(2)(B)(i) (controlled substance offense). At a removal hearing, where the first petitioner was represented by counsel, an Immigration Judge ordered the first petitioner deportable as charged by the INS and ruled that, based on her criminal conviction, she was statutorily ineligible for any relief from removal. The first petitioner timely appealed the Immigration Judge’s decision to the BIA, but the BIA refused to consider the first petitioner’s application for Section 1182(c) relief and issued a final order of removal.

On January 29, 1998, the first petitioner filed a petition for review in the Second Circuit under 8 U.S.C. § 1252(a)(2), challenging the final order of removal entered against her by the BIA. (Docket No. 98-4033). On October 13, 1999, the first petitioner also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the Southern District of New York. (Docket No. 1:99-cv-10481). The first petitioner’s habeas petition was dismissed without prejudice to refile after the Second Circuit ruled on her petition for review under 8 U.S.C. § 1252(a)(2).

The Second Case: 

In September 1994, the second petitioner, who was a native of Mexico but had been a permanent resident of the United States since 1989, was convicted in a New York State court for the criminal sale of a controlled substance in the second degree. On September 6, 1994, he received an indeterminate sentence of four years to life imprisonment, but he was released after approximately four years. On June 24, 1997, the INS instituted removal proceedings against the second petitioner on the grounds that his criminal conviction rendered the him deportable pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) (aggravated felony) and 1227(a)(2)(B)(i) (controlled substance offense). At a removal hearing, an Immigration Judge ordered the second petitioner deportable as charged by the INS and ruled that, based on his criminal conviction, he was statutorily ineligible for any relief from removal. The second petitioner timely appealed the Immigration Judge’s decision to the BIA on May 4, 1998, but the BIA refused to consider the second petitioner’s application for Section 1182(c) relief and issued a final order of removal.

On June 4, 1998, the second petitioner filed a petition for review in the Second Circuit under 8 U.S.C. § 1252(a)(2), challenging the final order of removal entered against him by the BIA. (Docket No. 98-4214). On October 13, 1999, the second petitioner also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the Southern District of New York. (Docket No. 1:99-cv-10482-WHP). By stipulation and order dated December 20, 1999, the petitioner’s habeas petition was dismissed without prejudice to refile after the Second Circuit ruled on his petition for review under 8 U.S.C. § 1252(a)(2).

The Third Case:

In November 1996, the third petitioner, who was a native and citizen of Guyana but had been a permanent resident of the United States since 1987, pled guilty to the use of a telephone to facilitate the distribution of heroin in violation of 21 U.S.C. §§ 843(b), (d). On February 13, 1997, she received a four-month sentence followed by a period of supervised release for one year. In May 1997, the INS instituted removal proceedings against the third petitioner on the grounds that her criminal conviction rendered her deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony). On July 24, 1997, at a removal hearing, where the third petitioner was represented by counsel, an Immigration Judge ordered the third petitioner deportable as charged by the INS and ruled that, based on her criminal conviction, she was statutorily ineligible for any relief from removal. The third petitioner timely appealed the Immigration Judge’s decision to the BIA. On May 28, 1997, the BIA issued a decision dismissing the third petitioner’s appeal.

On June 29, 1998, the third petitioner filed a petition for review in the Second Circuit under 8 U.S.C. § 1252(a)(2), challenging the final order of removal entered against her by the BIA. (Docket No. 98-4246). On October 13, 1999, the third petitioner also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the Eastern District of New York (Docket No. 1:99-cv-06515-ERK).

The Second Circuit’s Decision:

On September 7, 1999, the Second Circuit consolidated the three petitioners’ cases (98-4033, 98-4214, and 98-4246). The appeals panel was composed of Judges James Lowell Oakes, John M. Walker Jr., and Damon J. Keith.

On appeal, the petitioners did not dispute that they were aliens with criminal convictions that rendered them deportable under INA. Rather, they sought appellate review of their final orders of removal on two grounds. First, the petitioners argued that the BIA erred by interpreting IIRIRA § 304’s repeal of INA § 212(c) relief and replacement with “cancellation of removal” to apply retroactively to an alien who was convicted before April 1, 1997, the effective date of IIRIRA § 304(a). The petitioners further contended that if IIRIRA was interpreted to apply retroactively to pre-enactment convictions, IIRIRA § 304(a) was unconstitutional because it violated their rights guaranteed under the due process and equal protection clauses of the U.S. Constitution.

In contrast, the government argued that district courts’ traditional habeas corpus jurisdiction had been repealed by IIRIRA § 304 and that the court of appeals’ jurisdiction for petition for review was limited to two types of inquiries. First, aliens could file petitions for review to challenge whether they fell within the language of Section 1252(a)(2)(C), the preclusion provision, and thus could challenge the BIA’s finding that they were (i) aliens, (ii) who were removable, and (iii) on the basis of a listed offense. Second, aliens who were removable on the basis of a listed offense could raise “substantial constitutional” challenges to their removal order. As to the petitioners’ specific claims, the government asserted that the petitioners could not raise their statutory retroactivity claim in any court, and that the petitioners’ constitutional claims were not substantial and were therefore unreviewable.

Many amici curiae briefs were filed in this case, including by the Legal Aid Society of New York, the New York State Association of Criminal Defense Lawyers, The New York State Defenders Association.

The three-judge panel of the Second Circuit heard oral argument on March 30, 2020. On September 1, 2000, the Second Circuit filed its judgment. 232 F.3d 328. The judges held that the Second Circuit lacked jurisdiction under INA § 242(a)(2)(C)’s preclusion-of-review provision over the petitions for review challenging the petitioners’ final orders of removal since the petitioners were convicted of “aggravated felonies” within the meaning of the relevant statutes. The Second Circuit also held that the IIRIRA did not repeal district courts’ jurisdiction to review criminal aliens’ removal orders by writ of habeas corpus under 28 U.S.C. § 2241. Accordingly, the Second Circuit dismissed the petitions without reaching the merits and held that the petitioners could purse their constitutional and statutory claims in their previously-filed district court habeas corpus actions.

The Supreme Court’s Decision:

On December 20, 2000, the petitioners filed a petition for a writ of certiorari with the United States Supreme Court, and on January 19, 2001, the Supreme Court granted the petition for a writ of certiorari.

On February 2, 2001, the American Bar Association filed an amicus curiae brief in support of the petitioners. The Supreme Court heard oral arguments in this case on April 24, 2001.

On June 25, 2001, the Supreme Court affirmed the judgment of the Second Circuit in a 5-4 opinion. 533 U.S. 348. The Supreme Court agreed with the Second Circuit that it lacked jurisdiction to hear the petitions for direct review at issue in this case. Since the petitioners were convicted of “aggravated felonies” within the meaning of the relevant statutes, the plain language of § 1252(a)(2)(C) fairly explicitly stripped the courts of appeals of jurisdiction to hear their claims on petitions for direct review. The Supreme Court agreed with the petitioners that leaving aliens without a forum for adjudicating claims such as those raised in this case would raise serious constitutional questions. However, the Supreme Court found that Congress had not spoken with sufficient clarity to strip the district courts of jurisdiction to hear habeas petitions raising identical claims. The petitioners must, therefore, proceed with their petitions for habeas corpus if they wished to obtain relief.

On the same day the Supreme Court issued its decision, it also issued its decision in INS v. St. Cyr. In that case, the court ruled that federal district courts did have jurisdiction over habeas petitions arising out of similar factual circumstances. Habeas was the proper remedy.