Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2003

Ogbudimkpa v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-1181P




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                                    PRECEDENTIAL

                                             Filed August 22, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 02-1181


                 CHRISTOPHER OGBUDIMKPA,
                                             Appellant
                                   v.
           JOHN ASHCROFT, Attorney General
                 of the United States;
        KENNETH JOHN ELWOOD, District Director,
               INS Philadelphia District

        Appeal from the United States District Court
           for the Middle District of Pennsylvania
             (D.C. Civil Action No. 01-cv-01511)
        District Judge: Honorable James M. Munley

                      Argued June 26, 2003
         Before: SLOVITER, AMBRO, Circuit Judges,
                and TUCKER,* District Judge

                (Opinion Filed: August 22, 2003)




* Honorable Petrese B. Tucker, United States District Court Judge for the
Eastern District of Pennsylvania, sitting by designation.
                             2


                      Timothy C. Hester, Esquire
                      Kevin C. Newsom, Esquire (Argued)
                      Covington & Burling
                      1201 Pennsylvania Avenue, N.W.
                      Washington, D.C. 20004
                        Attorneys for Petitioner
                      Kate L. Mershimer, Esquire
                      Office of the United States Attorney
                      Federal Building
                      228 Walnut Street
                      P.O. Box 11754
                      Harrisburg, PA 17108
                      Ethan B. Kanter, Esquire
                      United States Department of Justice
                      Office of Immigration Litigation
                      1331 Pennsylvania Avenue, N.W.
                      Washington, D.C. 20530
                      Robert D. McCallum, Jr.
                       Assistant Attorney General
                       Civil Division
                      Michael P. Lindemann
                       Assistant Director
                      Christopher C. Fuller (Argued)
                       Senior Litigation Counsel
                      United States Department of Justice
                      Office of Immigration Litigation
                      P.O. Box 878
                      Ben Franklin Station
                      Washington, D.C. 20044
                        Attorneys for Respondent


                OPINION OF THE COURT

AMBRO, Circuit Judge:
  We decide whether a district court has jurisdiction to
consider a habeas corpus petition that alleges violations of
Article 3 of the United Nations Convention Against Torture
                                   3


(“CAT”).1 Congress has implemented CAT2 by enacting the
Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”).3     Because   generally    we    do     not   infer
Congressional intent to repeal habeas jurisdiction, and
because FARRA’s jurisdictional provisions do not
specifically foreclose habeas corpus jurisdiction under 28
U.S.C. § 2241, the general habeas statute, we hold that
CAT claims are cognizable under § 2241. We therefore
reverse the District Court’s dismissal for lack of jurisdiction
of Christopher Ogbudimkpa’s habeas corpus petition and
remand so that it may consider the merits of his petition.
I.   Facts and Procedural History
   Ogbudimkpa is a citizen of Nigeria who entered the
United States in 1982 on a non-immigrant student visa. In
1985 an Immigration Judge (“IJ”) ordered Ogbudimkpa to
be deported for remaining longer than his visa permitted
and for working without Government authorization, under
Immigration and Nationality Act (“INA”) § 241(a)(9), 8 U.S.C.
§ 1251(a)(9) (current version at 8 U.S.C. § 1227(a)(1)). The
Immigration and Naturalization Service (“INS”) did not
immediately remove him. In 1994 Ogbudimkpa was
convicted and sentenced on state drug charges and, upon
his release from prison in 1996, paroled to INS custody.
  In 1999 the Board of Immigration Appeals (“BIA”) granted
Ogbudimkpa’s motion to reopen his removal proceedings so
that he might seek protection under Article 3 of CAT, which
provides that “[n]o State Party shall expel, return (‘refouler’)
or extradite a person to another State where there are
substantial grounds for believing that he would be in
danger of being subjected to torture.” Ogbudimkpa testified
that, if he were returned to Nigeria, he would be
imprisoned, tortured, or possibly executed by “his extended

1. The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment of Punishment, G.A. Res. 39/46, Annex, 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984).
2. To facilitate ease of understanding, we adopt colloquial usage by
eliminating “the” before “CAT” and the later-defined “FARRA,” “IIRIRA”
and “AEDPA.”
3. Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-
822 (1998) (codified as Note to 8 U.S.C. § 1231).
                                   4


family members, one of whom is a senator, past president
of the Nigerian government, and another who holds the
rank of major either in the police or the military.” The IJ
concluded that Ogbudimkpa had testified credibly, but had
not demonstrated that it was more likely than not he would
be tortured if returned to Nigeria. The BIA affirmed the IJ’s
decision.
  Ogbudimkpa filed a pro se Motion for Emergency Stay of
Removal in the United States District Court for the Middle
District of Pennsylvania, arguing that the United States
Attorney General had erred in not granting him relief from
removal under Article 3 of CAT. The District Court treated
this motion as a petition for a writ of habeas corpus under
28 U.S.C. § 2241. In the first set of what became a game of
forum ping pong, the Government moved to dismiss for lack
of jurisdiction, arguing that the Circuit Court was the
proper forum for Ogbudimkpa’s CAT claims.4 Ogbudimkpa
(continuing to act pro se) petitioned the District Court to
transfer his case to our Court, and the Government
consented. But upon transfer of the case to our Court, the
Government again moved to dismiss for lack of jurisdiction,
claiming the jurisdictional bar of § 309(c)(4)(G) of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“ IIRIRA”) applied to Ogbudimkpa because of his
status as a criminal alien, even though the criminal
conviction did not form the basis of the charges of
deportation. This was exactly the opposite tack to the one
taken by the Government in the District Court.5 Unaware of

4. To the District Court, the Government argued that, under § 2242 of
FARRA, only our Court had jurisdiction to review his claim because
FARRA provides that review may only be had for final orders of
deportation, and the courts of appeals have exclusive jurisdiction to
conduct that review. The Government noted that, if the basis of the order
of removal of Ogbudimkpa had been his criminal conviction, then
§ 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 would preclude our Court from exercising
jurisdiction, and in that situation his only recourse would be to file a
habeas petition in the District Court. However, “the basis of the charges
of deportation against [Ogbudimkpa] was not because he was a criminal
alien,” but because he had violated the conditions of his visa. Hence, we
would have jurisdiction.
5. We caution that the Catch-22 tactics of the Government are
inappropriately confusing and misleading, especially when used against
a pro se litigant.
                                    5


the “whipsawing” procedural posture of this case, we
granted the Government’s motion to dismiss in an
unpublished (and of course non-precedential) judgment
order.6 In doing so we noted the possibility that
Ogbudimkpa might petition for a writ of habeas corpus.7

6. The issue raised by the Government’s flip-flopping positions —
whether the jurisdictional bar applies only where the INS actually
charges the criminal conduct as the basis for removal (as the
Government conceded in the District Court) or whether it is a status-
based bar and applies to any alien with an applicable criminal conviction
(as the Government argued before us) — has resulted in a circuit split.
Compare Lopez-Elias v. Reno, 

, 793 (5th Cir. 2000) (basis
of charge for removal immaterial for purposes of jurisdictional bar);
Fernandez-Bernal v. Attorney General, 

, 1310 (11th Cir.
2001) (same) with Choeum v. INS, 

, 38 (1st Cir. 1997)
(jurisdictional bar applies only when criminal conduct is basis of charge
for removal); Yousefi v. INS, 

, 324-25 (4th Cir. 2001) (same);
Briseno v. INS, 

, 1322-23 (9th Cir. 1999) (same). We have
not addressed this issue in a published opinion, and do not do so in this
case.
7. Ogbudimkpa argues that the District Court erred in ignoring the law
of the case as set forth by this unpublished judgment order. Under the
law-of-the-case doctrine, “once an issue has been decided, parties may
not relitigate that issue in the same case.” Waldorf v. Shuta, 

, 616 n.4 (3d Cir. 1998). Because, in dismissing Ogbudimkpa’s
petition, we stated that Ogbudimkpa “may seek review of his claims
before the District Court in a habeas corpus proceeding,” Ogbudimkpa
argues that we have decided that the District Court has jurisdiction to
hear his habeas corpus claims.
   We shall not impute the resolution of a complicated issue from dictum
in a judgment order. Dicta statements are not binding law of the case.
See United Artists Theatre Circuit, Inc. v. Township of Warrington, 

, 397 (3d Cir. 2003). Similarly, courts may refuse to infer
decisions on issues that were barely presented, or from summary
decisions. 18B Charles A. Wright et al., Federal Practice and Procedure
§ 4478 (2d ed. 2002); see also Univ. Hosps. of Cleveland v. Emerson Elec.
Co., 

, 848 n.6 (6th Cir. 2000) (refusing to presume that
“footnote tersely stating [the conclusion] without discussion” constituted
law of the case).
  Ogbudimkpa argues that we were obliged to decide the issue at the
time of the Government’s motion and cites to Liang v. INS, 

(3d Cir. 2000). In Liang, we concluded that IIRIRA divests courts of
                                      6


  Back yet again in District Court, Ogbudimkpa (still acting
pro se) filed a petition for habeas relief that essentially
replicated the petition he had filed in November 2000. The
Government moved to dismiss for lack of subject matter
jurisdiction and the District Court granted that motion,
concluding that it lacked jurisdiction to consider his petition.8
This appeal followed,9 an appeal in which Ogbudimkpa has
been superbly represented by appointed counsel.10

appeals of jurisdiction over certain petitions for review, but that district
courts retain their general habeas jurisdiction under § 2241 to consider
the lawfulness of the removal 

. We noted that the
“determination of our jurisdiction over [aliens’] petitions for review is
inextricably intertwined with the question whether the district courts
have continued habeas jurisdiction.” 

But we are not
persuaded by this argument that the two decisions are necessarily
intertwined. In Liang, we affirmatively noted our intent to resolve the
issue whether district courts had habeas corpus jurisdiction. 

no intent to resolve the issue presented in this case in our prior
unpublished judgment order.
8. The District Court concluded that it lacked jurisdiction to review
Ogbudimkpa’s claims in part because there is no judicial review under
FARRA “except as part of the review of a final order of removal pursuant
to section 242 of the [INA]” and because Ogbudimkpa’s final order of
removal was issued pursuant to § 241(a)(9), not § 242 of the INA. As
Ogbudimkpa notes, and as the Government conceded at oral argument,
what occurs pursuant to § 242 of the INA is judicial review, not the
issuance of final orders of removal. All final orders of removal are issued
pursuant to another section, such as § 241(a)(9). Compare INA § 242
(setting forth procedure for judicial review of orders of removal) with
§ 241(a) (listing deportable aliens). If the District Court’s interpretation of
FARRA were correct, then no court would ever have jurisdiction because
no final orders are issued pursuant to § 242 of the INA. Because the
District Court based its conclusion that it lacked jurisdiction on another
ground, we note this error only in passing.
9. We have jurisdiction to review the final decision of the District Court
under 28 U.S.C. § 1291. Our review of jurisdictional questions is plenary.
Allied Signal Recovery Trust v. Allied Signal, Inc., 

, 267 (3d
Cir. 2002).
10. The Court is grateful for the outstanding efforts of appointed counsel
Kevin C. Newsom and Timothy C. Hester of the Covington & Burling law
firm in Washington, D.C. Their briefs and advocacy exhibit both an
exceptional amount of research and a high level of craftsmanship.
                                    7


II.   Discussion
  A.       Background

      1.    The Convention Against Torture
   The United Nations drafted CAT in order to “make more
effective the struggle against torture and other cruel,
inhuman     or   degrading   treatment   or   punishment
throughout the world.” United Nations: Draft Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, U.N. Doc. E/CN.4/1984/72,
Preamble (1984). On December 10, 1984, the United
Nations General Assembly adopted CAT by unanimous
agreement. Committee on Foreign Relations, Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, S. Exec. Rep. No. 101-30, at 2
(1990).
  President Reagan signed CAT on April 18, 1988, 

following reservation: “The Government of the United
States of America reserves the right to communicate, upon
ratification, such reservations, interpretive understandings,
or declarations as are deemed necessary.” United Nations
Treaty Collection: Declarations and Reservations, http://
www.unhchr.ch/html/menu3/b/treaty12_asp.htm.              One
month later, the President transmitted CAT to the Senate
for approval, with nineteen proposed “reservations,
understandings,      and    declarations,”    including    the
“declaration that [CAT] is not self-executing,” and the
assurance that “[t]he recommended legislation necessary to
implement [CAT] will be submitted to the Congress
separately.” S. Treaty Doc. No. 100-20, iii, vi (1988).11

11. The President’s message also stated: “Although the terms of [CAT],
with the suggested reservations and understandings, are consonant with
U.S. law, it is nevertheless preferable to leave any further
implementation that may be desired to the domestic legislative and
judicial process. The following declaration is therefore recommended, to
clarify that the provisions of [CAT] would not of themselves become
effective as domestic law: “The United States declares that the provisions
of Articles 1 through 16 of [CAT] are not self-executing.” S. Treaty Doc.
No. 100-20, at 2.
                                   8


  The Senate adopted a resolution of advice and consent to
ratification of CAT, subject to the declaration that it be
deemed non-self-executing, on October 27, 1990. 136 Cong.
Rec. 36,198 (1990). The instrument of ratification included
the declaration that “the provisions of articles 1 through 16
of [CAT] are not self-executing.” United Nations Treaty
Collection:    Declarations   and    Reservations,     http://
www.unhchr.ch/html/menu3/b/treaty12_asp.htm.               On
October 21, 1994, President Clinton deposited the
instrument of ratification with the United Nations.
Regulations Concerning the Convention Against Torture, 64
Fed. Reg. 8478-01 (Feb. 19, 1999).

    2.   FARRA
  To implement Article 3 of CAT, Congress passed FARRA
in 1998. FARRA § 2242(a) provides that “[i]t shall be the
policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for
believing the person would be in danger of being subjected
to torture.” Section 2242(b) of FARRA requires “the heads of
the appropriate agencies” to “prescribe regulations to
implement the obligations of the United States under
[CAT’s] Article 3.” Accordingly, the Department of Justice (of
which the INS at that time was a division) promulgated
regulations delineating the procedures for deciding CAT
claims. Pursuant to 8 C.F.R. § 208.16(c)(2), if an alien can
demonstrate that it is “more likely than not” that he or she
would be tortured if removed to a particular country, the
INS must grant him or her protection. Depending on the
status of the alien, that protection may take the form either
of permanent withholding of removal or of temporary
deferral of removal. 8 C.F.R. § 208.16(c)(4). The latter
protection exists only until changed conditions in the

  In response to criticisms of the Senate Foreign Relations Committee,
President Bush submitted a “revised and reduced list” of twelve proposed
conditions in January 1990. S. Exec. Rep. No. 101-30, at 2. The
Committee concluded that the revised list “in large measure eliminate[d]
th[e] problem” and recommended ratification. 

4.
                                     9


proposed country of removal make it no longer more likely
than not that the alien will be tortured if returned. 8 C.F.R.
§ 208.17(b).
   At issue in this case are the jurisdictional provisions of
FARRA and whether they preclude district courts from
exercising habeas jurisdiction over claims alleging
violations of CAT. Section 2242(d) of FARRA contains a
jurisdiction-limiting   provision    and    a    jurisdiction-
consolidating provision. The jurisdiction-limiting provision
denies federal courts the power to review the regulations
promulgated      under    FARRA.    

consolidating provision12 prescribes that CAT claims may be
considered only as part of final orders of deportation
reviewed pursuant to § 242 of the INA, 8 U.S.C. § 1252. 

this section shall be construed as providing
any court jurisdiction to consider or review claims raised
under [CAT] or this section, or any other determination
made with respect to the application of the policy set forth
in subsection (a), except as part of the review of a final
order of removal pursuant to section 242 of the
Immigration and Nationality Act.”).
   While on its face FARRA’s zipper clause acts only to
consolidate jurisdiction in one action in the court of
appeals, its effect is also to limit the extent to which courts
of appeal may exercise that jurisdiction. Section 2242(d) of
FARRA provides that only CAT claims that arise in the
context of final orders of removal may be reviewed by the
courts of appeal. But FARRA is not the first federal
enactment to affect courts’ jurisdiction in immigration
proceedings. IIRIRA “expressly precludes the 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.” See Calcano-Martinez v.
INS, 

, 350 (2001) (citing 8 U.S.C.
§ 1252(a)(2)(C)).13 By confining judicial review to final orders

12. This type of provision is often referred to as a “zipper clause” as it
“consolidates or ‘zips’ ‘judicial review’ of immigration proceedings into
one action in the court of appeals.” Mahadeo v. Reno, 

, 12 (1st
Cir. 2000); accord INS v. St. Cyr, 

, 313 (2001).
13. Indeed, IIRIRA was not the first statute to limit the jurisdiction of the
federal courts in immigration proceedings. The Antiterrorism and
                                     10


of removal, which are unreviewable if the petitioner has
committed certain crimes, FARRA prevents the courts of
appeals from reviewing CAT claims raised in deportation
proceedings by aliens with certain criminal convictions.

     3.   St. Cyr
  We follow the breadcrumb trail to the Supreme Court’s
opinion in INS v. St. Cyr, 

(2001), which may
provide an answer to the question whether habeas relief
remains available. St. Cyr decided this issue with respect
to, inter alia, IIRIRA,14 which contains a jurisdictional

Effective Death Penalty Act of 1996 (“AEDPA”), was enacted on April 24,
1996. Pub.L. No. 104-132, 110 Stat. 1214. It added a new provision to
the immigration laws that “[a]ny final order of deportation against an
alien who is deportable by reason of having committed [an enumerated
crime] shall not be subject to review by any court.” AEDPA § 440(a), 110
Stat. at 1276. Six months later, Congress enacted IIRIRA. Pub. L. No.
104-208, 110 Stat. 3009-546 (1996).
   Relevant to this case are the provisions of IIRIRA that consolidate and
limit judicial review in removal proceedings. IIRIRA, like FARRA, contains
a zipper clause that consolidates and limits judicial review in removal
proceedings to review of final orders of removal under INA § 242, 8
U.S.C. § 1252. IIRIRA § 306(a) (codified at INA § 242(b)(9), 8 U.S.C.
§ 1252(b)(9)) (“Judicial review of all questions of law and fact . . . arising
from any action taken or proceeding brought to remove an alien from the
United States under this subchapter shall be available only in judicial
review of a final order under this section.”). The scope of this provision
is, as yet, not fully clear. 

n.2.
  IIRIRA also codified AEDPA’s jurisdiction-limiting provision mentioned
supra note 13. 8 U.S.C. § 1252(a)(2)(C). Under IIRIRA’s transitional rules
(applicable to removal proceedings commenced before April 1, 1997),
IIRIRA § 309(c)(4)(G), “there shall be no appeal permitted in the case of
an alien who is inadmissible or deportable by reason of having
committed” certain enumerated criminal offenses. 110 Stat. 3009-546,
626-27. Under IIRIRA’s permanent rules (applicable to removal
proceedings commenced after April 1, 1997), IIRIRA § 306(a), “no court
shall have jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed” certain
enumerated criminal offenses. (codified at INA § 242(a)(2)(c), 8 U.S.C.
§ 1252(a)(2)(c)).
14. At issue in St. Cyr were two provisions of IIRIRA (codified in three
separate sections of the United States Code), §§ 306 and 306(a) (codified
                                     11


provision similar to FARRA. The Supreme Court held that
the jurisdiction-limiting provisions of IIRIRA (which deprive
appellate courts of the right to review the final orders of
removal of certain classes of criminal aliens) did not
contain a sufficiently explicit statement of Congress’ intent
to deprive district courts of their pre-existing habeas
jurisdiction to effect that 

. As
a result, the Court concluded that habeas relief remained
available under 28 U.S.C. § 2241 to raise challenges to
petitioners’ final orders of deportation. 

of statutory                 construction guided the
Supreme Court’s analysis in St.           Cyr. One canon provided a
reason to conclude that the               statute did not foreclose
habeas review; the other made             that construction possible.
   The Court invoked the canon of constitutional avoidance:
“if an otherwise acceptable construction of a statute would
raise serious constitutional problems, and where an
alternative interpretation of the statute is fairly possible, we
are obligated to construe the statute to avoid such
problems.” 

(internal citations omitted). Here,
the “serious constitutional problem” that concerned the
Court was the potential violation of the Constitution’s
Suspension Clause implicated by foreclosure of habeas
review.16 Construing the statute to allow for habeas review

at 8 U.S.C. §§ 1252(a)(1), 1252(a)(2)(C), and 1252(b)(9)). St. Cyr also dealt
with a jurisdiction-limiting provision of AEDPA — § 401(e) — that
repealed former INA § 106(a)(10), which provided, inter alia, habeas relief
for an alien in custody pursuant to a deportation order. St. 

. We refer primarily to St. Cyr’s interpretation of IIRIRA because it
is IIRIRA that more closely mirrors the language of FARRA.
15. We had reached the same conclusion the previous year in 

.
16. The Suspension Clause provides that “[t]he privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S. Const. art.
1, § 9, cl. 2. As the Court noted in St. Cyr, there are differing opinions
as to the scope of the Suspension Clause and whether it protects the
writ only to the extent it was available in 1789, as it existed after the
1867 amendment extending the writ to state prisoners, or in its current
form as a result of subsequent legal 

.
                                    12


would avoid a potential Suspension Clause issue, thus not
requiring the Court “to answer the difficult question of what
the Suspension Clause protects.” 

n.13.17
   The second canon of construction invoked by the Court
was the plain statement rule. This rule is designed “to
ensure that, absent unambiguous evidence of Congress’s
intent, extraordinary constitutional powers are not invoked,
or important constitutional protections eliminated, or
seemingly inequitable doctrines applied.” Cipollone v. Liggett
Group, Inc., 

, 546 (1992) (Scalia, J.,
concurring). Here, both the extraordinary power of
Congress to eliminate all Article III review of the deportation
orders of certain aliens and the elimination of the important
constitutional protections embodied by the Suspension
Clause were at issue. “[W]hen a particular interpretation of
a statute invokes the outer limits of Congress’ power” —
here, the power to deprive the courts of all jurisdiction to
review certain types of cases — “we expect a clear
indication that Congress intended that result.” St. 

(citing Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council, 

, 575
(1988)).18 And there exists a “longstanding rule requiring a
clear statement of congressional intent to repeal habeas
jurisdiction.” St. 

(citing Ex parte
Yerger, 

, 102 (1869)). “Implications from statutory
text or legislative history are not sufficient . . . ; instead
Congress must articulate specific and unambiguous
statutory directives to effect a repeal” of habeas

17. The Supreme Court did suggest that the Suspension Clause might be
violated if habeas review were to be foreclosed in the immigration
context. It noted that because of the Clause, “ ‘some judicial intervention
in deportation cases’ is unquestionably ‘required by the Constitution.’ ”
St. 

(quoting Heikkila v. Barber, 

, 235
(1953)). At the very least, it protects the writ of habeas corpus as it
existed in 1789. 

. “At its historical core” the writ of habeas
corpus was designed to provide a means for “reviewing the legality of
Executive detention” and hence it is in this context that the writ’s
protections are at their strongest. 

habeas review was unavailable for these petitioners, there would be
“an absence of [a judicial] forum” to hear their claims. St. 

.
                                   13


jurisdiction. 

see also Felker v. Turpin, 

, 660-61 (1996) (declining to conclude that Title I of
AEDPA repealed habeas jurisdiction because it did not
explicitly mention habeas corpus);19 Demore v. Kim, ___ U.S.
___, ___, 

, 1714 (2003) (concluding that
district court had jurisdiction to consider habeas corpus
claim challenging statute permitting aliens to be held
indefinitely without bail despite language stating that “[n]o
court may set aside any action or decision by the Attorney
General” because “where a provision precluding review is
claimed to bar habeas review, the Court has required a
particularly clear statement that such is Congress’ intent”).
  In the context of these principles, the Court concluded
that the language of IIRIRA was not sufficiently precise to
repeal the habeas jurisdiction theretofore available via 28
U.S.C. § 2241. None of the jurisdiction-limiting provisions
that the Government alleged divested the district court of
habeas jurisdiction contained a “clear, unambiguous, and
express statement of congressional intent to preclude
judicial consideration on habeas.” St. 

.
In particular, they did not “explicitly mention[ ] habeas, or
28 U.S.C. § 2241.” 

As a result, the Court
concluded, no provision of IIRIRA “speaks with sufficient
clarity to bar jurisdiction pursuant to the general habeas
statute.” 

  B.   Cognizability of Habeas Corpus Claims Under
       FARRA
  Notwithstanding the above, the District Court in this case
concluded that it lacked habeas jurisdiction under 28
U.S.C. § 2241 to consider claims arising under CAT and its
implementing     legislation    and    regulations.    After
consideration of the parties’ arguments, we conclude that
FARRA’s jurisdictional provisions do not preclude habeas
jurisdiction.
  As noted above, two provisions of FARRA affect the
jurisdiction of the federal courts. Only one is relevant to

19. Felker involved provisions of AEDPA, entirely unrelated to those at
issue in St. Cyr, that provide habeas relief to persons confined pursuant
to a state-court 

.
                                     14


this case. FARRA’s jurisdiction-limiting provision provides
that “[n]o court shall have jurisdiction to review the
regulations adopted to implement this section.” FARRA
§ 2242(d). Here, however, Ogbudimkpa does not challenge
the regulations themselves, but the IJ’s application of the
regulations to his case, and thus this provision is not
implicated. At issue here is whether the jurisdiction-
consolidating clause in § 2242(d), which limits courts’
jurisdiction to consider CAT claims to the review of final
orders of removal, precludes habeas review.

     1.   Applying St. Cyr’s Principles
   Guided by St. Cyr’s analysis of a similar provision in
IIRIRA, we join the First, Second and Ninth Circuits in
concluding that, because § 2242(d) of FARRA fails to state
explicitly that a district court may not exercise jurisdiction
over habeas corpus claims or mention 28 U.S.C. § 2241, the
District Court retains that jurisdiction.20 St. 

(holding that a statute must “explicitly mention[ ]
habeas, or 28 U.S.C. § 2241,” to “speak[ ] with sufficient
clarity to bar jurisdiction pursuant to the general habeas
statute”); see also 

(describing St.
Cyr as “establish[ing] ‘a superclear statement, “magic
words” requirement for the congressional expression of ’ an
intent to preclude habeas review”) (quoting St. Cyr, 533

20. Prior to the Supreme Court’s decision in St. Cyr, the Ninth Circuit
concluded that habeas review was available for CAT claims. Cornejo-
Barreto v. Seifert, 

, 1015-16 (9th Cir. 2000). The Court
reasoned that, although § 2242(b) of FARRA did not provide a new grant
of jurisdiction to federal courts, nothing precluded them from “look[ing]
to existing jurisdictional statutes to entertain a petition for review.” 

After St. Cyr, the First and Second Circuits recently concluded as
well that habeas review is available for CAT claims. Saint Fort v.
Ashcroft, 

, 200 (1st Cir. 2003); Wang v. Ashcroft, 

, 141 (2d Cir. 2003).
  We note that several district courts in this Circuit have anticipated our
holding in this case, apparently assuming that, as a result of St. Cyr,
district courts have jurisdiction to consider habeas corpus claims
alleging CAT or FARRA claims. See, e.g., Builes v. Nye, 

, 525 (M.D. Pa. 2003); Chinchilla-Jimenez v. INS, 

, 683 (E.D. Pa. 

(Scalia, J., dissenting)); 

(“[A] statute must, at a minimum, explicitly mention either
‘habeas corpus’ or ‘28 U.S.C. § 2241’ in order to limit or
restrict § 2241 jurisdiction.”).
    We note first that the same constitutional concern that
guided the Supreme Court to its conclusion in St. Cyr is
present in this case. As in St. Cyr, the Government asks us
to interpret a statute in a way that would foreclose an
individual’s ability to invoke the writ of habeas corpus. To
determine whether this foreclosure violates the Suspension
Clause of the Constitution would require us to construe
that Clause’s scope, a task the Supreme Court concluded
should be a last resort in light of the considerable
differences of opinion on the breadth of the 

n.13. The danger of a Suspension Clause
violation here is as acute as in St. Cyr because this case
involves the “historical core” of the writ of habeas corpus:
providing a means for “reviewing the legality of Executive
detention,” including the detention of aliens. 

. We
decline to consider the Government’s argument that
“ ‘[a]cknowledging no habeas corpus remedy for a narrow
subject-matter category of claims does not effect an
outright ‘suspension’ of the writ of habeas corpus.” Resp’t
Br. at 24-25. Accepting or denying the truth of this
statement is, spot on, what the St. Cyr Court sought to

n.13 (“The fact that this Court would
be required to answer the difficult question of what the
Suspension Clause protects is in and of itself a reason to
avoid answering the constitutional questions that would be
raised by concluding that review was barred entirely.”). We
follow the Supreme Court’s lead and thus forgo construing
the Suspension Clause. St. 

-01; see
also 

(noting desire to “avoid serious
constitutional concerns”).
   We note also that the reasons to require a clear
statement of Congressional intent are also present here. As
discussed above, while Ogbudimkpa initially sought review
of the final order of removal issued in his case, that petition
was dismissed by our Court for lack of jurisdiction. If we
were to conclude here that there is no habeas jurisdiction,
no Article III court will review Ogbudimkpa’s CAT claims.
                               16


We are reluctant to construe the statute to bar any type of
judicial review without a clear statement from Congress
indicating its intent to do so. Accord St. 

. In addition, the construction that the Government
proposes would eliminate habeas jurisdiction, something
that also requires a clear statement of intent on the part of
Congress. 

   With these considerations in mind, we turn to the
language of FARRA. A side-by-side comparison (with
emphasis added) of the provision of IIRIRA at issue in St.
Cyr that most closely mirrors the language of FARRA at
issue here convinces us that FARRA does not foreclose
habeas review.


       IIRIRA § 306(a)              FARRA § 2242(d)4

 “Notwithstanding        any    “Notwithstanding        any
 other provision of law, no     other provision of law, . . .
 court shall have jurisdic-     nothing in this section
 tion to review any final       shall be construed as pro-
 order of removal against       viding any court jurisdic-
 an alien who is removable      tion    to   consider     or
 by reason of having com-       review claims under [CAT]
 mitted” certain enumer-        or this section . . . except
 ated criminal offenses.        as part of the review of a
                                final order of removal pur-
                                suant to section 242 of the
                                [INA].”

With strong indication from the Supreme Court that
nothing will suffice but the most explicit statement that
habeas jurisdiction under 28 U.S.C. § 2241 is repealed, and
because § 2242(d) of FARRA does not mention habeas
corpus or 28 U.S.C. § 2241, we conclude, by analogy to St.
Cyr, that FARRA does not foreclose a district court from
exercising habeas jurisdiction over claims alleging
violations of CAT.
                                   17


    2.        Arguments to Distinguish St. Cyr

         a.    Differences between FARRA and IIRIRA
   The Government reasons that a different result from St.
Cyr should occur in this case, carefully parsing the
differences between the statutory language of FARRA and
IIRIRA in search of support. It notes that FARRA does not
just forbid “review” but also “expressly prohibits any
interpretation of its terms that would confer jurisdiction
either to ‘consider’ or to ‘review’ ” a CAT claim.
   St. Cyr rejects this line of argument. That the wording of
FARRA is minimally different from IIRIRA is immaterial in
the absence of a clear statement by Congress of its intent
explicitly to foreclose habeas jurisdiction. Even assuming
that FARRA’s language is broader than IIRIRA’s language at
best does nothing more than create a slight ambiguity as to
Congress’ intent. But statutory “ambiguity does not help
the INS” and “[o]nly the clearest statement of congressional
intent will support the INS’ position.” St. 

n.35. Indeed, in St. Cyr the Court concluded that
habeas relief under 28 U.S.C. § 2241 remained available
notwithstanding the fact that one provision under review,
entitled “Elimination of Custody Review by Habeas Corpus,”
repealed the INA provision authorizing habeas relief, INA
§ 106(a)(10).21 The Court reasoned that this provision could
not “eliminate what it did not originally grant — namely,
habeas jurisdiction pursuant to 28 U.S.C. § 2241.” St. 

. In other words, excising a specific INA
provision theretofore authorizing habeas review did not
affect the general habeas authority granted by § 2241. If
excising a provision authorizing habeas review is not
sufficiently explicit an expression of Congressional intent to
foreclose habeas jurisdiction, then the use of the word
“consider” in addition to the word “review” cannot be
deemed sufficiently explicit.

21. As already noted, see supra note 14, St. Cyr considered jurisdictional
provisions of both IIRIRA and AEDPA. The caption quoted is from AEDPA
§ 401(3).
                                   18


       b.   Non-Self-Executing Treaties
   The Government argues that because St. Cyr did not
involve a non-self-executing treaty, the Supreme Court’s
reasoning does not apply to FARRA. Further, because
FARRA involves such a treaty, there is no habeas
jurisdiction unless Congress grants it. With a self-executing
treaty, “no domestic legislation is required to give [it] the
force of law in the United States.” Trans World Airlines, Inc.
v. Franklin Mint Corp., 

, 252 (1984).
Conversely, a non-self-executing treaty is one that “must be
implemented by legislation before it gives rise to a private
cause of action.” Mannington Mills, Inc. v. Congoleum Corp.,

, 1298 (3d Cir. 1979) (citing Head Money
Cases, 

, 589-90 (1884)). As noted above, in
ratifying CAT the Senate gave its “advice and consent
subject to [the declaration by the United States] that the
provisions of Articles 1 through 16 of [CAT] are not self-
executing.” 136 Cong. Rec. 36,198.22

22. Ogbudimkpa argues that (a) CAT should be deemed a self-executing
treaty, (b) the District Court erred in relying solely on the Senate’s
declaration that CAT was non-self-executing, and (c) the Senate’s
declaration that the treaty was non-self-executing was unconstitutional.
Because in enacting FARRA Congress implemented CAT, we need not
consider whether CAT is self-executing. See 

n.6 (“Because Congress passed legislation implementing Article 3 of
[CAT], we need not reach the issue of whether that provision of the treaty
is self-executing.”).
  We similarly find it unnecessary to consider the proposition that
habeas corpus claims may be based on violations of treaties regardless
whether the treaty is non-self-executing or self-executing. While this
argument is well-thought-out, it has been rejected by a number of our
sister Circuits in a rather cursory manner.
  The argument starts from the basic premise that CAT, as a ratified
treaty, is the law of the United States, with or without implementing
legislation. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the
Laws of the United States which shall be made in Pursuance thereof;
and all treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land.”). Courts have
jurisdiction under 28 U.S.C. § 1331 to consider cases arising out of
treaties. 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). While the exact meaning of the terms
“self-executing” and “non-self-executing” is the subject of much scholarly
                                    19


  Premised on its conclusion that CAT is not self-executing,
the Government states that an alien has only those CAT

debate, see, e.g., Carlos Manuel Vazquez, The Four Doctrines of Self-
Executing Treaties, 89 Am. J. Int’l L. 695 (1995), the law of this Circuit,
as already noted, defines a non-self-executing treaty as one that “must
be implemented by legislation before it gives rise to a private cause of
action.” Mannington 

; see also Tel-Oren v. Libyan
Arab Republic, 

, 808 (D.C. Cir. 1984) (Bork, J., concurring)
(quoting Mannington 

); but see Restatement
(Third) on Foreign Relations Law, § 111 cmt h (“Whether a treaty is self-
executing is a question distinct from whether the treaty creates private
rights or remedies.”). Ratification purporting to cabin a treaty as non-
self-executing nonetheless provides jurisdiction to the United States
courts to hear cases premised on its violation (one example might be
where CAT is interposed as a defense to removal), but does not provide
a cause of action. Dreyfus v. Von Finck, 

, 28, 30 (2d Cir.
1976) (dismissing claim based on non-self-executing treaty violation
because while 28 U.S.C. § 1331 provided jurisdiction for the court to
consider a claim under a treaty, it did not provide a cause of action).
   Habeas relief is available for violations of a treaty. See 28 U.S.C.
§ 2241(c)(3) (providing that writs of habeas corpus may be granted to a
prisoner who is “in custody in violation of the Constitution or laws or
treaties of the United States”); see also Mali v. Keeper of the Common
Jail, 

(1887) (considering habeas petition premised on treaty
violation). Thus, the general habeas statute, 28 U.S.C. § 2241, provides
a cause of action that 28 U.S.C. § 1331 does not. As a result, the
argument continues, a treaty that is ratified but not self-executing need
not be implemented in order for a party to have a habeas cause of action
under that treaty. But see 

(“Unless a treaty is
self-executing, however, it does not, in and of itself, create individual
rights that can give rise to habeas relief.”); accord Bannerman v. Snyder,

, 724 (6th Cir. 2003) (concluding that “the reference to
‘treaties of the United States’ in § 2241 cannot be construed as an
implementation of non-self-executing provisions of treaties so as to
render them judicially enforceable under § 2241”); Al Odah v. United
States, 

, 1146 (D.C. Cir. 2003) (rejecting habeas claim
because “[t]reaties do not generally create rights privately enforceable in
the courts. Without authorizing legislation, individuals may sue for
treaty violations only if the treaty is self-executing.”) (Randolph, J.,
concurring); Wesson v. U.S. Penitentiary Beaumont, 

, 348
(5th Cir. 2002) (“Wesson’s claim of a violation of the International
Covenant on Civil and Political Rights fails because the treaty is not self-
executing and Congress has not enacted implementing legislation. Thus,
                                    20


claims that Congress has expressly provided. In essence,
the Government contends, the question that the Supreme
Court asked in St. Cyr — is there evidence that Congress
intended to foreclose the availability of habeas review — is
turned around in the context of a non-self-executing treaty
and becomes, instead, whether there is evidence that
Congress intended to provide for the availability of habeas
review. Were this analysis correct, habeas review would not
be available for claims based on violations of CAT because,
the Government points out, there is no explicit evidence
that Congress intended to provide for that review.
  We agree with the First and Second Circuits that the
proper starting point is the question whether FARRA
deprives the District Court of habeas jurisdiction, not
whether it grants it. Habeas relief is available for an
individual who claims his or her continued detention
violates a statute or a treaty. 28 U.S.C. § 2241(c)(3). CAT
has been implemented by FARRA and its accompanying
regulations. FARRA makes it federal law that no one shall
be removed “to a country in which there are substantial
grounds for believing the person would be in danger of
being subjected to torture.” FARRA, § 2242(a). It follows
that those individuals whose detention violates FARRA may
challenge their detention under 28 U.S.C. § 2241, just as
with any other detentions that violate federal law. See

n.16 (“Once Congress created rights
under CAT by enacting FARRA, § 2241 necessarily became

habeas relief is not available for such a violation.”); United States v.
Warden, FMC Rochester, 

, 1063 (8th Cir. 2002) (rejecting
§ 2241 claim alleging violations of treaty on ground that it “does not bind
federal courts because the treaty is not self-executing and Congress has
yet to enact implementing legislation”).
  Thus, while we sidestep this thicket (whether a treaty is self-executing
or non-self-executing treaty has been dubbed “the most confounding”
distinction in the law of treaties, Vazquez, The Four Doctrines of Self-
Executing Treaties, 89 Am. J. Int’l L. at 695 (quoting United States v.
Postal, 

, 876 (5th Cir. 1979))), we note the interesting
issues the argument engenders, particularly those with respect to the
availability of habeas relief under a non-self-executing treaty absent
implementing legislation.
                                    21


a proper avenue of relief for individuals in custody in
violation of FARRA and its implementing regulations.”);
Saint 

(“Saint Fort’s claims do not rest
solely on a treaty that is not self-executing, they rest on the
CAT through the FARRA and the regulations, and on a
claim of violation of constitutional rights.”).23 Thus, whether
CAT is or is not self-executing is irrelevant.

       c.   Historical Practice
   In support of its argument that Congress must
affirmatively grant habeas jurisdiction, the Government
notes that there is no history of district courts reviewing
CAT claims in the form of habeas corpus petitions. We are
unpersuaded that this is relevant. In the words of the
Second Circuit (which also dismissed this argument), “it
makes no difference whether the type of claim allegedly
being excluded from § 2241 is long-standing or newly
created.” 

n.16. Once Congress
created rights under CAT by enacting FARRA, § 2241
“became a proper avenue of relief for individuals in custody
in violation of FARRA and its implementing regulations.” 

similar vein, the Government contends that the lack
of history of habeas review of CAT claims distinguishes this
case from St. Cyr because there was a longstanding history
of habeas review of deportation and exclusion orders prior

23. The Government argues that because FARRA provides “an
affirmative, but limited grant of jurisdiction,” it must also affirmatively
grant habeas jurisdiction. Resp. Br. at 24. For this argument to be
correct, FARRA must be different from other statutes with a limited grant
of jurisdiction. For instance, every federal criminal law provides an
affirmative, though limited, grant of jurisdiction (because the federal
Government has no general police power) and yet nearly all federal
criminal laws do not explicitly provide for habeas jurisdiction. If the
Government’s theory of habeas jurisdiction is correct, every time
Congress enacted a criminal law, a district court would lack jurisdiction
to hear habeas corpus claims based on violations of that law unless that
criminal statute affirmatively granted habeas jurisdiction. Cf. Reply Br.
at 13 (“The Government’s position would . . . require Congress to go
through the pointless exercise of attaching (redundant) jurisdiction
grants to each and every point of legislation implementing a treaty’s
provisions.”).
                              22


to IIRIRA, whereas there is no such history of CAT claims
prior to FARRA. But the St. Cyr Court’s analysis of the
historical availability of the writ of habeas corpus did not
focus narrowly, as the Government would have us do, on
whether there was a history of habeas review of the exact
claims at issue in that case.
   Using the broad lens of the St. Cyr Court, we conclude
that the question is whether the general nature of the
claims at issue were historically reviewable on a writ of
habeas corpus. Habeas corpus writs were traditionally
issued “to command the discharge of seamen who had a
statutory exemption from impressment into the British
Navy, to emancipate slaves, and to obtain the freedom of
apprentices and asylum inmates.” St. 

.
Here, as in St. Cyr, the general nature of the claim is that
of a challenge to the validity of executive detentions, and we
are persuaded by St. Cyr’s analysis demonstrating that
these challenges invoke the writ’s protections in their
purest form. 

(“At its historical core, the writ of
habeas corpus has served as a means of reviewing the
legality of Executive detention”); 

(noting “the
historical use of habeas corpus to remedy unlawful
Executive action” and “to redress the improper exercise of
official discretion”); 

(arguing that “to conclude
that the writ is no longer available in this context would
represent a departure from historical practice in
immigration law. The writ of habeas corpus has always
been available to review the legality of Executive
detention.”).
   Even if we were to narrow the lens, disallowing habeas
relief would still be a departure from historical practice. Not
only did the writ traditionally issue as a means to review
the legality of Executive detention of citizens, it also issued
as a means of reviewing the legality of Executive detention
of aliens. St. 

. And it traditionally
issued as a means of reviewing the legality of the detention
of aliens in the face of alleged treaty violations. Brief Amici
Curiae of Legal Historians Listed Herein in Support of
Respondents: INS v. St. Cyr, 

(2001), 16 Geo.
Immigr. L.J. 465, 482 (2001) (describing cases in which
deserting alien sailors brought habeas corpus petitions
                                     23


based on violations of treaties or federal laws); see also

(considering habeas corpus petition
brought on behalf of alien sailor alleging violations of
consular agreement between the United States and
Belgium). Hence the conclusion that habeas review was not
available for CAT claims would, as in St. Cyr, represent “a
departure from historical practice,” a departure we decline
to follow. St. 

.
  We therefore hold that district courts may exercise
habeas jurisdiction over petitions alleging violations of CAT
or FARRA and that FARRA does not speak with sufficient
clarity to deprive the district courts of that jurisdiction.24

24. We hold that a district court has jurisdiction to consider habeas
corpus petitions that allege violations of CAT. If CAT is a non-self-
executing treaty (and individuals do not have a right to bring habeas
claims based on violations of non-self-executing treaties, as discussed
supra note 22), then, strictly speaking, the District Court may have
jurisdiction only to consider claims alleging FARRA violations. The
Restatement (Third) of Foreign Relations Law, § 111 cmt h (1987),
suggests that “it is the implementing legislation, rather than the
agreement itself, that is given effect as law in the United States. That is
true even when a non-self-executing agreement is ‘enacted’ by, or
incorporated in, implementing legislation.” Assuming that CAT is non-
self-executing, then so-called CAT claims may be, in fact, FARRA claims.
  But because the language of FARRA is virtually identical to the
language of Article 3 of CAT, the distinction is one without a difference.
It would be absurdly formalistic to conclude that there is no habeas
jurisdiction if a petitioner invokes Article 3 of CAT, but that there is
habeas jurisdiction if a petitioner invokes § 2242(a) of FARRA, when the
language of the two provisions are substantively the same. Compare
Article 3, CAT (“No State Party shall expel, return (“refouler”) or extradite
a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.”) with
FARRA § 2242(a) (“It shall be the policy of the United States not to expel,
extradite, or otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for believing the person
would be in danger of being subjected to torture.”).
  The “bottom line” — if CAT is indeed non-self-executing, then FARRA
implements CAT and provides a cause of action for violations of CAT, but
it does not make CAT self-executing. The technical result — an
individual has a claim under FARRA for a violation of CAT, but not
under CAT itself. But because the distinction between FARRA and Article
3 of CAT is inconsequential, the continued colloquial reference to CAT
rather than FARRA is likewise inconsequential and thus we relegate this
discussion to a footnote.
                             24


  C.    Scope of Review
  The Government further asserts that, even if we were to
conclude (as we have done) that district courts have
jurisdiction under 28 U.S.C. § 2241 to review CAT or
FARRA claims, the District Court has no jurisdiction over
Ogbudimkpa’s habeas corpus claims because he has not
sought review on a legal or constitutional claim, but rather
of a factual issue. We disagree. Ogbudimkpa does not
dispute the factual findings of the IJ. Rather, he argues
that the IJ wrongly applied the standard for relief set forth
in FARRA and its implementing regulations to the facts of
his case. Habeas relief is traditionally available to correct
“errors of law, including the erroneous application or
interpretation of statutes.” St. 

(emphasis added). A district court’s habeas jurisdiction
encompasses review of the BIA’s application of legal
principles to undisputed facts. 

(“Wang’s argument on appeal challenging the BIA’s
application of the particular facts in this case to the
relevant law falls within the permissible scope of review.”);
see also Saint 

(noting the Second
Circuit’s conclusion in Wang while declining to reach issue
because the petitioner’s claim was constitutional in nature).
Because Ogbudimkpa alleges misapplication of a legal
principle to undisputed facts of record, this case falls
within the scope of habeas jurisdiction granted to the
District Court by 28 U.S.C. § 2241.
III.   Conclusion
   District courts have jurisdiction to consider claims
alleging violations of CAT raised in habeas corpus petitions.
Congress implemented CAT by passing FARRA. FARRA’s
jurisdictional provisions do not refer to habeas corpus or 28
U.S.C. § 2241, and thus do not speak with sufficient
precision to divest district courts of that habeas
jurisdiction. Because the scope of habeas jurisdiction
extends to claims concerning the correct interpretation or
application of a statute, the District Court has jurisdiction
to    consider    Ogbudimkpa’s      claim   that    the   BIA
misinterpreted FARRA (and the regulations implementing
FARRA) in concluding that the facts in this case do not
satisfy the standard for relief under CAT. Accordingly, we
                              25


reverse the District Court’s dismissal for lack of subject
matter jurisdiction and remand for it to consider the merits
of Ogbudimkpa’s habeas corpus petition.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit