PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANKLYN ROOSEVELT BOWRIN,
Petitioner,

v.
                                                                        No. 97-2276
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.
(A21-114-011)

In Re: FRANKLYN ROOSEVELT
BOWRIN,                                                                         No. 98-592
Petitioner.

On Petition for Writ of Habeas Corpus.

(CA-98-2027-S)

Argued: March 1, 1999

Decided: October 20, 1999

Before ERVIN,* MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________

*Judge Ervin prepared the opinion in this case, but died prior to the
time the decision was filed. The remaining members of the panel con-
tinue to concur in what Judge Ervin wrote. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d) (1994).
No. 97-2276 dismissed and No. 98-592 reversed and remanded by
published per curiam opinion.

_________________________________________________________________

COUNSEL

COUNSEL: Lee P. Gelernt, AMERICAN CIVIL LIBERTIES
UNION, New York, New York; David Goren, LAW OFFICE OF
DAVID GOREN, Silver Spring, Maryland, for Petitioner. Jeffrey Jay
Bernstein, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney Gen-
eral, Richard M. Evans, Assistant Director, Office of Immigration Lit-
igation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.

_________________________________________________________________

OPINION

PER CURIAM:

In 1996, Congress passed two statutes that narrowed the rights of
certain classes of immigrants and restricted federal court jurisdiction
to review these immigrants' claims. They are the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-
132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-
208, 110 Stat. 3009-546 (1996). This case requires us to determine the
effect of these statutes on federal court jurisdiction to grant a writ of
habeas corpus sought by an immigrant in the custody of the Immigra-
tion and Naturalization Service ("INS") awaiting deportation. We
hold that these two statutes do not preclude federal court review of
habeas corpus petitions raising questions of pure law filed by immi-
grants imprisoned under a final order of deportation.

I.

Bowrin is a British citizen born on the island of Nevis. He entered
the United States on April 2, 1977 as the dependent of a temporary

                    2
worker. On June 6, 1978, Bowrin adjusted his immigration status to
that of a lawful permanent resident. Since that time, Bowrin married
a U.S. citizen and has three children who are also U.S. citizens.

On May 10, 1994, Bowrin was convicted by the Circuit Court for
the County of Prince Georges, Maryland for conspiracy to possess
marijuana with intent to distribute. He was sentenced to five years in
prison -- with all but 45 days suspended -- and two years probation.
Due to his conviction, the INS issued Bowrin a show cause order on
May 10, 1994, alleging deportability pursuant to INA
§§ 241(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 1999) (con-
viction of a violation of the Controlled Substances Act) and
241(a)(2)(A)(iii), 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999) (con-
viction of an aggravated felony).

In May, 1995, Bowrin conceded deportability and filed an applica-
tion for relief from deportation under the Immigration and Nationality
Act ("INA") § 212(c). See 8 U.S.C.A. § 1182(c) (West 1994),
repealed by IIRIRA § 304(b). The Immigration Judge originally cal-
endared a hearing on Bowrin's application for January 19, 1996, but
rescheduled it three times before finally hearing the case.

Meanwhile, on April 24, 1996, Congress enacted the AEDPA.
Among the AEDPA's numerous amendments to the INA was the
addition of § 440(d) which precluded aliens

          deportable by reason of having committed any 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)

from relief under INA § 212(c). AEDPA § 440(d).

In light of the AEDPA amendments to INA § 212(c), the INS
moved to dismiss Bowrin's petition for relief in August 1996. The
Immigration Judge denied the motion, citing the Board of Immigra-
tion ("BIA") decision in In re Soriano, Int. Dec. 3289, 

(BIA June 27, 1996). In Soriano, the BIA held that AEDPA

                    3
§ 440(d) did not apply retroactively to cases, like Bowrin's, where the
§ 212(c) application had been filed before the AEDPA took effect.
Since Bowrin's application was filed before the AEDPA was passed,
the Immigration Judge held that the AEDPA did not bar Bowrin's
application for § 212(c) relief. Relying on the BIA's Soriano opinion,
the Immigration Judge granted Bowrin's application for relief pursu-
ant to § 212(c) on November 7, 1996. The INS appealed the decision
to the BIA in November 1996, contesting only Bowrin's eligibility for
relief, not the merits of his § 212(c) application.

While the INS's appeal was pending before the BIA, the Attorney
General vacated the BIA's holding in Soriano. See In re Soriano, Int.
Dec. 3289, 

, at *38 (Op. Att'y Gen. Feb. 21, 1997).
The Attorney General held that the AEDPA's amendments to
§ 212(c) applied to all applications regardless of when they were
filed. Based on the Attorney General's reversal, the INS moved for
summary judgment on its appeal pending before the BIA. The BIA
sustained the INS's appeal and ordered Bowrin deported on grounds
that the Attorney General's ruling in Soriano rendered Bowrin ineligi-
ble for § 212(c) relief. Bowrin appealed the BIA's ruling to this Court
in September 1997.

While awaiting action on his direct BIA appeal, Bowrin filed a
habeas corpus petition in the United States District Court for the Dis-
trict of Maryland. The district court dismissed the petition for lack of
jurisdiction recommending that in the interest of justice the case be
transferred to this Court. On November 13, 1998, we consolidated
Bowrin's two appeals and calendared the case for oral argument.

II.

First we must determine whether we have jurisdiction to hear
Bowrin's direct appeal from the BIA's decision denying his eligibility
for § 212(c) relief. At oral argument, Bowrin's counsel acknowledged
and we agree that our recent decision in Hall v. INS, 

(4th Cir. 1999), is dispositive on this issue. In Hall, we held that the
"IIRIRA removes our jurisdiction over the appeals of those aliens
who are deportable by reason of their conviction of certain 

.

                    4
We limited our Hall ruling, however, concluding that this
jurisdiction-limiting procedure was triggered only when the requisite
jurisdictional facts are present; the petitioner must be (1) an alien, (2)
who has been convicted of one of the statutorily enumerated offenses
requiring deportability. See 

Our jurisdiction turns on proof
of these facts and, if Bowrin's appeal presents these jurisdictional
facts, we must dismiss his appeal.

Bowrin conceded deportability due to his criminal convictions
prior to his hearing before the Immigration Judge. This concession
means that Bowrin has acquiesced that his case presents the necessary
jurisdictional facts and his counsel as much as conceded this at oral
argument. On that ground, we must dismiss his direct appeal.

III.

Having dismissed Bowrin's direct appeal, we now address his
habeas corpus petition. Because jurisdiction is the first hurdle to be
cleared in every case, the primary question we must address is
whether the district court properly held that the AEDPA and the
IIRIRA divested it of jurisdiction over Bowrin's habeas corpus peti-
tion. The jurisdictional issues presented here have been chronicled
extensively in several federal appellate opinions and we do not
endeavor to repeat that which has already been detailed effectively
and at length. Our statutory analysis is only complete, however, if it
is given in context.

Before 1952 brought changes in the area of immigration law,
habeas corpus was the traditional method by which aliens obtained
review of deportation decisions pursuant to the general habeas corpus
statute, 28 U.S.C.A. § 2241 (West 1994). Since its inclusion in the
Judiciary Act of 1789, § 2241 has given district courts jurisdiction to
grant writs of habeas corpus to petitioners who are held in custody by
the federal government in violation of the Constitution, laws, or trea-
ties of the United States. See 28 U.S.C.A.§ 2241. Under this statute,
federal courts considered not only constitutional claims but claims of
statutory interpretation as well. See Goncalves v. Reno, 

,
123-24 (1st Cir. 1998).

In 1952, Congress enacted new statutes that channeled review of
most deportation matters to the courts of appeals. See Shah v. Reno,

                     5


, 721 (8th Cir. 1999). Changes made in 1961 further
tightened the system by requiring nearly all deportation decisions to
be heard exclusively by the courts of appeals. See 

habeas jurisdiction remained pursuant to INA
§ 106(a)(10). See 8 U.S.C.A. § 1105a(a)(10) (West 1994), repealed by
AEDPA § 440(a). Section 106(a)(10) provided that any alien held in
custody under an order of deportation could obtain judicial review by
habeas corpus. This subsection was designed to ensure that aliens
with access to ordinary judicial review could also file habeas petitions
if they were in custody. See 

. The provi-
sion promised that such aliens would have "a supplemental collateral
remedy," 

only to aliens that could obtain review
under the traditional judicial review process. Those ineligible for
habeas corpus relief under INA § 106(a)(10) were still able to obtain
habeas review under § 2241 even in the face of statutory language
prohibiting all other review. See Heikkila v. Barber, 

,
235-37 (1953).

Under this scheme, aliens like Bowrin who conceded deportation,
but still desired § 212(c) relief, could file a petition for direct review
in the court of appeals following a final deportation order by the BIA.
The court of appeals could then review questions of constitutional and
statutory law, as well as issues of discretion and fact -- although
under a narrowed standard of review. See Shah , 184 F.3d at 721.

The passage of the AEDPA in 1996 dramatically changed this sys-
tem. The AEDPA included jurisdictional changes -- including the
repeal of INA § 106(a)(10) -- and the addition of AEDPA § 440(d)
which excluded aliens convicted of certain enumerated criminal
offenses from eligibility for § 212(c) discretionary relief.

The IIRIRA was enacted several months later on September 30,
1996, and further altered the statutory landscape. Although passed in
1996, the IIRIRA did not take effect until April 1, 1997, but includes
transitional rules which apply to cases, like Bowrin's, pending prior
to its effective date. See IIRIRA § 309(c); Selgeka v. Carroll, 

, 341 (4th Cir. 1999). Section 309(c)(1) of the transitional
rules provides that the new IIRIRA rules for removing aliens, includ-
ing the new restrictive judicial-review procedures of INA § 242(g), 8

                     6
U.S.C.A. § 1252(g) (West 1999), do not apply to aliens who fell
within the transitional rules.

In apparent conflict with these transitional rules, IIRIRA
§ 306(c)(1) directs that § 1252(g) shall apply without limitation to all
past, pending, and future cases. See 

. Section
1252(g) provides that:

          Except as provided in this section and notwithstanding any
          other provision of law, no court shall have jurisdiction to
          hear any cause or claim by or on behalf of any alien arising
          from the decision or action by the Attorney General to com-
          mence proceedings, adjudicate cases, or execute removal
          orders against any alien under this chapter.

8 U.S.C.A. § 1252(g) (West 1999). A literal reading of this provision
seems to deprive all federal courts of jurisdiction"[e]xcept as pro-
vided in" § 1252(g). 

jurisdiction-excluding language of § 1252(g) precludes all
other sources of jurisdiction in deportation cases and incorporates the
other jurisdiction-related provisions provided in§ 1252, then it would
directly conflict with the transitional rules as set out in § 309(c)(1).
Furthermore, on its face, § 1252(g) appears to insulate from review by
any court decisions of the Attorney General on all deportation-related
cases including final orders of deportation. Such a statutory scheme
would likely raise substantial constitutional problems. Fortunately,
recent Supreme Court authority has clarified both of these issues.

In Reno v. American-Arab Anti-Discrimination Committee, the
Supreme Court deciphered this apparent conflict and helped us avoid
constitutional problems by construing § 1252(g) narrowly. 

, 

(1999) ("AADC II"). Although AADC II did not
directly present the question of whether § 1252(g) precludes judicial
review of habeas corpus petitions in district court, as we noted in
Selgeka, the Court "rejected the notion that section 1252(g) `covers
the universe of deportation claims.'" Selgeka , 184 F.3d at 341 (quot-
ing AADC II, 525 U.S. at ___, 119 S. Ct. at 943). The Court con-
cluded instead that § 1252(g) applies only to the "three discrete
actions that the Attorney General may take: her`decision or action'

                    7
to `commence proceedings, adjudicate cases, or execute removal
orders.'" AADC II, 525 U.S. at ___, 119 S. Ct. at 943. The Supreme
Court reasoned that § 1252(g) does not apply to "all claims arising
from deportation proceedings," 

1252(g) stripped the
federal courts of jurisdiction only to review challenges to the Attorney
General's decision to exercise her discretion to initiate or prosecute
these specific stages in the deportation process. See id.; see also

-42; 

. We read the
Court's AADC II ruling, therefore, to hold that § 1252(g) does not
apply to agency interpretations of statutes as these decisions do not
fall into any of the three categories enumerated in§ 1252(g). Accord

. District court jurisdiction over habeas corpus
petitions, like Bowrin's, therefore, is not prohibited by § 1252(g)
because it is inapplicable to final deportation orders.

If § 1252(g) does not govern our review of Bowrin's § 2241 habeas
petition, then what does? The transitional rules of the IIRIRA, specifi-
cally § 309(c)(4)(G). As previously stated, because he was already
involved in deportation proceedings when the IIRIRA took effect on
April 1, 1997, Bowrin's petition is subject to the transitional rules.
Subsection G provides that "there shall be no appeal permitted in the
case of an alien who is . . . deportable by reason of having committed"
certain enumerated criminal offenses, a list including that for which
Bowrin has been convicted. IIRIRA § 309(c)(4)(G). Under
§ 309(c)(4)(G), therefore, an "appeal" is explicitly unavailable to
Bowrin.

We believe that when it used the term "appeal," Congress meant
the process of ordinary appellate review commenced with the filing
of a notice of appeal or a petition for review in the courts of appeals.
See 

-23. Although Bowrin filed a direct appeal
over which we have already determined we lack jurisdiction, he also
filed a petition for a writ of habeas corpus in the district court, which
is the only issue remaining before us. IIRIRA § 309(c)(4)(G) does not
mention habeas corpus petitions under § 2241, nor does it appear to
preclude district court jurisdiction over such habeas petitions. We do
not believe, therefore, that the preclusion of jurisdiction over an
alien's direct appeal applies to prohibit general habeas jurisdiction in
the district court pursuant to § 2241.

                     8
The INS argues that, because AEDPA § 401(e) repealed the spe-
cific habeas jurisdiction under INA § 106(a)(10), Congress intended
to remove all avenues for aliens to pursue any kind of habeas review
in district court. Section 401(e) says nothing about repealing § 2241
habeas, however, but merely discusses habeas as provided under
§ 106(a)(10). We can find no express reference in any of the related
statutes explicitly stating that aliens such as Bowrin are prohibited
from seeking judicial review in district court on habeas pursuant to
§ 2241.

Finding no such specific reference to § 2241, we apply the long-
standing rule disfavoring repeal of jurisdictional provisions by impli-
cation. See Felker v. Turpin, 

, 660-62 (1996). The
applicable provisions of the AEDPA refer explicitly to repealing
habeas jurisdiction as provided under INA § 106(a)(10), but there is
no mention of § 2241, the general federal habeas statute, even though
it was the traditional basis for judicial review of executive decisions
in immigration matters. We believe that had Congress intended to
eliminate all habeas jurisdiction under § 2241, it would have done so
by using the same explicit references it used to repeal INA
§ 106(a)(10). Its failure to do so, we believe, means that the remedy
remains intact. Furthermore, the implicit repeal of federal habeas
jurisdiction would potentially raise serious constitutional questions
we think are avoidable given this logical statutory construction.

In summary, we join several of our sister circuits in holding that,
absent express congressional intent in the language of either the
AEDPA or the IIRIRA to eliminate the general federal habeas corpus
review pursuant to 28 U.S.C.A. § 2241, the remedy remains available
to Bowrin and other aliens similarly situated. See 

, cert. denied, 

(1999); Henderson v. INS,

, 118-19 (2d Cir. 1998), cert. denied, 

(1999); Sandoval v. Reno, 

, 238 (3d Cir. 1999); 

; Magana-Pizano v. INS, 

, 1221-22
(9th Cir. 1998), as amended 

, 1218 (9th Cir. 1998),
vacated on other grounds, 

(1999); Jurado-Gutierrez
v. Greene, No. 97-1437(L), 

, at *7-8 (10th Cir. Aug.
19, 1999). But see LaGuerre v. Reno, 

, 1040 (7th Cir.
1998) (concluding that AEDPA § 440(a) removed habeas review).

                    9
IV.

Having determined that the district court had jurisdiction over
Bowrin's habeas petition pursuant to § 2241, we next address the
scope of that review. The First, Second, Third, Eighth, and Ninth Cir-
cuits have all held that § 2241 jurisdiction includes not only constitu-
tional claims, but also statutory claims like the one presented in
Bowrin's petition. See 

("The pure stat-
utory claims Goncalves makes here are well within precedent inter-
preting the core habeas protection provided by § 2241."); 

(holding that statutory claims "affecting the substan-
tial rights of aliens of the sort the courts have secularly enforced" are
subject to habeas review); 

("[T]he
Supreme Court has repeatedly recognized that aliens may press statu-
tory claims in habeas proceedings."); Shah , 

("[T]he writ
. . . would be limited to those kinds of questions normally reviewable
on habeas at the time the Constitution was written .. . [which]
included statutory issues."); Magana-Pizano , 152 F.3d at 1221,
vacated on other grounds, 

(1999) (concluding that
habeas remedies afforded pursuant to § 2241 include review of statu-
tory questions). The Seventh and D.C. Circuits have taken the oppo-
site position. See 

(finding it unnecessary
to address this question after determining that habeas corpus jurisdic-
tion pursuant to § 2241 did not survive the enactment of the AEDPA
and the IIRIRA but implying that no such jurisdiction remained);
Ramallo v. Reno, 

, 1214 (D.C. Cir. 1997) (suggesting
that § 1252(g) repealed statutory habeas jurisdiction, but not constitu-
tional habeas jurisdiction).

We cast our lot with those circuits that have found that statutory
habeas jurisdiction lies firmly within the scope of judicial review of
a § 2241 habeas petition. Historically, the Supreme Court has recog-
nized that aliens could obtain review of statutory questions in habeas
proceedings, even when "judicial review in the immigration context
was reduced to the minimum required by the Constitution." 

(citation omitted). This precedent supports our hold-
ing that district court habeas review under § 2241 includes the ability
to review Bowrin's petition for both statutory and constitutional ques-
tions.

                    10
In addition, we agree with the First and Second Circuits that the
language of § 2241 does not indicate that jurisdiction is limited only
to constitutional claims. See 

("The lan-
guage of § 2241 itself does not contemplate a limitation of jurisdic-
tion only to constitutional claims."); 

n.11
(noting that "[n]othing in the language of either the Antiterrorism Act
or the Immigration Reform Act suggests that Congress expressly
repealed § 2241, [or] limited its scope") (citation omitted). In the
absence of a clear statement by Congress that courts should no longer
consider claims of statutory right in immigration cases under § 2241
jurisdiction, we conclude that they continue to have jurisdiction to
consider both types of questions.

Further supporting this conclusion is the fact that the INS's argu-
ment, that § 2241 habeas review is limited to constitutional questions,
is based on a different context in which prisoners in state custody can
file successive federal habeas petitions and often have the ability to
obtain full judicial process through the entire state and federal sys-
tems. See 

n.8; 

. Bowrin's case is quite different and involves executive detention
in which aliens have never had their claims reviewed by any court,
federal or state. We find, therefore, that district courts reviewing
aliens' habeas petitions filed pursuant to § 2241 may consider both
statutory and constitutional questions when presented.

Like our sister circuits, we wish to underscore that our holding here
is a narrow one. Only questions of pure law will be considered on
§ 2241 habeas review. Review of factual or discretionary issues is
prohibited. Thus, we do not suggest that review of§ 2241 habeas peti-
tions is as broad as it was under INA § 106. See 

; 

. We do hold, however, that statu-
tory claims affecting the substantial rights of aliens that have tradi-
tionally been judicially enforced are cognizable on§ 2241 habeas.
Accord 

the foregoing reasons, we dismiss Bowrin's direct appeal for
lack of jurisdiction. Second, we hold that the district court had juris-
diction to review Bowrin's habeas petition pursuant to § 2241 and

                     11
that such consideration includes review of statutory as well as consti-
tutional issues. The district court's dismissal of Bowrin's habeas cor-
pus petition is therefore reversed and the case is remanded with
instructions to consider the merits of Bowrin's petition.

No. 97-2276 - DISMISSED
No. 98-592 - REVERSED AND REMANDED

                    12