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Federal courts have jurisdiction to entertain habeas corpus petitions from aliens and non-aliens alike, despite congressional measures restricting such review, the 2nd U.S. Circuit Court of Appeals has ruled. Confronting the latest in a series of jurisdictional issues posed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the court joined the 3rd Circuit in finding that non-criminal aliens may petition federal judges for habeas relief “even though, unlike criminal aliens, they continue to enjoy the right to appeal directly from a final order of removal.” The decision in Liu v. Immigration and Naturalization Service, 01-2153, reverses a lower court’s dismissal of Luya Liu’s habeas petition for lack of subject matter jurisdiction. Second Circuit Judge Robert D. Sack said the status of Liu, as a non-criminal alien, had to be evaluated in light of INS v. St. Cyr, 533 U.S. 289 (2001), in which the U.S. Supreme Court found that a criminal alien, even after restrictions imposed by Congress, could still challenge a final removal order by filing a habeas petition under 28 U.S.C. � 2241. The St. Cyr Court said attempts to repeal habeas jurisdiction must be clear and specific or Congress would run afoul of the Suspension Clause in Article I, � 9 of the U.S. Constitution. And amendments to the country’s immigration laws limiting habeas review through the IIRIRA and the AEDPA contained no such “plain statement,” the Supreme Court said. Liu came to the United States from China in 1995 claiming she had suffered political persecution because of opinions she expressed in China and Japan. She applied for asylum and a withholding of deportation, but in June 1997, an immigration judge ordered her to leave the country or face deportation. That decision was upheld by the Board of Immigration Appeals. She filed a petition for a writ of habeas corpus in the Southern District of New York in January 2000. Judge Sidney H. Stein ruled that, under the IIRIRA, Liu’s only avenue of appeal was directly to the 2nd Circuit, and that the district court lacked jurisdiction to consider immigration board appeals unless they involved removal proceedings based on an alien’s criminal conduct. But writing for the 2nd Circuit, Judge Sack said: “Nothing in St. Cyr suggests that its holding — in substance, an exercise in statutory construction — applies only to criminal aliens.” THIRD CIRCUIT RULING Sack said the 3rd Circuit in Chmakov v. Blackman, 266 F.3d 210 (3d Cir. 2001), rejected the INS argument that, while Congress did not intend to repeal habeas jurisdiction for criminal deportees in the AEDPA and the IIRIRA, Congress intended to repeal it for non-criminal aliens, a position the 3rd Circuit said bordered on the “nonsensical.” “We agree,” Sack said. “The Court’s decision in St. Cyr does not suggest, expressly or implicitly, that its holding that Congress did not repeal Section 2241 by any provision of AEDPA or IIRIRA applies only to criminal aliens.” He said the 2nd Circuit rejected the grounds for distinguishing the holding in St. Cyr offered by the dissent in Chmakov, where a 3rd Circuit judge said the direct avenue of appeal from the Board of Immigration Appeals to the federal appellate courts gave non-criminal aliens a forum for review that was denied criminal aliens. The dissent in Chmakov emphasized that, absent habeas review, criminal aliens would have no forum in which to challenge their deportation. Sack said that was beside the point. “But the St. Cyr Court referred repeatedly to the ‘forum availability requirement’ as REINFORCING the plain statement rule,” Sack said. “In any event, whatever the proper weight to be assigned to the various arguments marshaled in support of the Court’s decision, St. Cyr held as a matter of statutory construction that ‘habeas jurisdiction under Section 2241 was not repealed by the AEDPA and IIRIRA.’” “The Court’s construction of those statutes, which does not distinguish, expressly or implicitly, between criminal and non-criminal aliens, compels our conclusion,” Sack said. Senior Judges Ellsworth A. Van Graafeiland and Ralph K. Winter joined in the opinion. Jonathan J. Gass, Mitchell A. Lowenthal and Mary Ann Rekuc of New York-based Cleary, Gottlieb, Steen & Hamilton represented Liu. Assistant U.S. Attorneys Krishna R. Patel and Jeffrey S. Oestericher represented the government.

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