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Click here for the full text of this decision FACTS:Jaysukh Zalawadia came to this country from India in 1988. In 1995, he pleaded guilty to burglary and felony theft charges. Under the immigration law at the time, Zalawadia’s conviction did not automatically subject him to deportation. Instead, under the Immigration in Nationality Act �212(a)(2)(A)(i)(I), because the charges were crimes involving moral turpitude, if he left the country, he would be deemed inadmissible for re-entry. The Supreme Court further narrowed interpreted that rule to mean that brief, casual or innocent travel would not bar re-entry. And, even if the type of travel did bar the alien from re-entering, he could still seek a waiver from the Attorney General. Section 212(c) allowed immigrants who traveled briefly outside the United States to return to return to the country. The Antiterrorism and Effective Death Penalty Act and Illegal Immigration Reform and Immigrant Responsibility Act in 1996 replaced �212(c) and modified the Supreme Court’s interpretation of that section. The new law said that any travel outside the country for someone in Zalawadia’s position would bar re-entry. In 1998, Zalawadia briefly left the United States on a business trip. Upon his return, and applying the new provisions, the INS detained him and he was eventually ordered removed. At an appeal, the Board of Immigration Appeals applied the provisions of the IIRIRA retroactively and ordered Zalawadia removed from the country. Zalawadia filed for habeas corpus relief, which was denied. While his appeal was pending with this court, he was deported, so this court dismissed the appeal. On writ of certiorari to the U.S. Supreme Court, however, the high court vacated the district court’s decision on the ground that the IIRIRA did not apply retroactively. On remand, the magistrate judge again denied Zalawadia’s habeas petition, saying that the deportation order did not violate Zalawadia’s rights under the immigration statute. Zalawadia appeals. He asks this court to vacated the order. He says the case the district court should have been remanded to the BIA instead of considering the merits of his claim on its own. HOLDING:Vacated and remanded. The court rules that it has jurisdiction to consider Zalawadia’s habeas petition, and that the petition should be granted. However, the court also holds that it does not have authority to grant relief to Zalawadia in the form of remanding the case to the BIA to consider claims he raises under �212(c). The government argues that the district court lacked jurisdiction because, once he was deported, Zalawadia was no longer “in custody,” and thus could not be granted habeas relief. The court points that the Supreme Court has made it clear that the “in custody” determination is to be made as of the time the habeas petition filed. The court also notes that several federal circuit courts, under similar circumstances, have held that a deportation subsequent to the filing of a habeas petition does not deprive the courts of jurisdiction. The court faults the government’s argument with confusing the “in custody” requirement with mootness. In some cases, a habeas petitioner’s release from custody � in whatever form � renders his petition moot. But in this case, where Zalawadia has been deported and is being denied re-entry, he still has a live case or controversy for the courts to consider. The court then confirms that Zalawadia is entitled to some sort of relief because the deportation order was based on faulty application of the law. Although Zalawadia has been released from detention in the United States and has since been deported, he still faces concrete collateral consequences arising out of that illegal order. The court goes on to decide that the only appropriate relief is for the district court to vacate its original deportation order. “Ordering any other relief would be inconsistent with the limited authority a habeas court possesses,” the court explains. The court further explains “what this case is and what it is not.” It is not a direct appeal of a BIA decision because the IIRIRA has stripped courts of such jurisdiction. This fact significantly narrows the court’s scope of review, it says. And unlike direct review, habeas review is of the correctness of an order, only as it relates to detention. The traditional form of relief under a habeas petition is to discharge the petitioner from physical custody. If the petitioner has been released, but still suffers from collateral consequences, an appropriate remedy is to vacate or modify the underlying illegal judgment or order under which the petition was detained. Therefore, the court vacates the district court order without further instructions. “We should be clear: In reaching this conclusion, we do not suggest that Zalawadia has no way of obtaining other non-habeas remedies. Once his removal order has been vacated, he may be eligible to apply for re-entry with the BIA. That question is not before us, however.” OPINION:Jolly, J.; Jolly, Wiener and Walter, JJ. CONCURRENCE AND DISSENT:Weiner, J. “I concur in the panel majority’s conclusion that Mr. Zalawadia satisfies the”in custody’ requirement for federal habeas corpus jurisdiction. With all due respect, however, I part company with the panel majority when it proceeds to auto-emasculate the habeas powers of federal courts by severely restricting the range of remedies that I find to be available in habeas. Specifically, I can find no statutory or jurisprudential support for the majority’s conclusion that, even though we can and must vacate Mr. Zalawadia’s removal order and remand his case to the district court, we are powerless to instruct the district court to remand to the BIA for it to consider affording him the opportunity to seek 212(c) discretionary relief. And, I find distressing the unavoidable conclusions that (1) the panel majority’s reasoning is wholly irreconcilable with the Supreme Court’s prior decision in this very case, and (2) the effect of the panel majority’s cabining of the remedial powers of federal habeas courts is to render nugatory the Supreme Court’s express directive in its remand of this case to us. For these reasons . . . I must respectfully dissent.”

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