Michael Bakhtriger v. Kenneth John Elwood, Acting District Director of the Philadelphia Office of the…

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 02-4134
MICHAEL BAKHTRIGER,
Appellant
v.
KENNETH JOHN ELWOOD, ACTING
DISTRICT DIRECTOR OF THE
PHILADELPHIA OFFICE OF THE
IMMIGRATION AND
NATURALIZATION SERVICE;
THEODORE NORDMARK,
ASSISTANT DISTRICT DIRECTOR
FOR
DEPORTATION AND DETENTION;
AND THE IMMIGRATION AND
NATURALIZATION SERVICE
On Appeal from the United States
District Court for the Eastern District of
Pennsylvania
(Dist. Court No. 02-cv-00535)
District Judge: Hon. Herbert J. Hutton
Argued: October 14, 2003
Before: SLOVITER, ROTH and
CHERTOFF, Circuit Judges
(Filed: March 10, 2004 )
Steven A. Morley, Esq. (Argued)
Morley, Surin & Griffin
325 Chestnut Street
Suite 1305
Philadelphia, PA 19106
Counsel for Appellant
Sonya F. Lawrence, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellees
OPINION
CHERTOFF, Circuit Judge.
Appellant Michael Bakhtriger, a
lawful permanent resident in the United
States, was convicted of a felony and
subjected to immigration removal
proceedings. Bakhtriger challenged the
removal proceedings by petition for habeas
corpus. The District Court determined that
Bakhtriger was essentially seeking review
of a discretionary determination of the
Immigration and Naturalization Service
(INS). The District Court held, however,
that there is no jurisdiction under the
habeas statute, 28 U.S.C. § 2241, to review

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discretionary determinations or factual
findings of the INS.
This question of the scope of
habeas jurisdiction is one of first
impression in this Circuit. We agree with
the District Court’s reading of the law and
we will affirm.
I.
Bakhtriger entered the United
States in February 1993, from the former
Soviet Republic of Moldova, his native
country. He was granted the protection of
the United States as a refugee and became
a lawful permanent resident in April 1994.
In April 1998, Bakhtriger was convicted of
possession of both cocaine base and heroin
in the Court of Common Pleas in
Montgomery County, Pennsylvania. Less
than a year later, in January and February
of 1999, Bakhtriger was arrested for
violating his probation, and sentenced to 2-
12 months imprisonment.
Bakhtriger’s controlled substance
conviction rendered him removable1 under
8 U.S.C. § 1227(a)(2)(B)(i), which
provides:
(B) Controlled substances
(i) Conviction
Any alien who at any time
after admission has been
convicted of a violation of
(or a conspiracy or attempt
to violate) any law or
regulation of a State, the
United States, or a foreign
country relating to a
controlled substance (as
defined in section 802 of
Title 21), other than a single
o f f e n s e i n v o l v i n g
possession for one’s own
use of 30 grams or less of
marijuana, is [removable].
8 U.S.C. § 1227(a)(2)(B). The INS
initiated removal proceedings against
Bakhtriger on April 17, 2000. Before the
Immigration Judge (IJ), Bakhtriger did not
contest that he was an alien or that he had
committed a removable offense. Rather,
Bakhtriger applied for asylum and
withholding of removal under 8 U.S.C. §
1158, and relief from removal under the
Convention Against Torture, 8 U.S.C. §
1231.
Bakhtriger, through his own
testimony and that of his mother,
attempted to show that he had a reasonable
fear of persecution should he return to
Moldova. The evidence presented by
1 Under recent amendments to the
Immigration and Nationality Act, the term
“removal” embraces concepts of both
“deportation” and “exclusion.” See Illegal
Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-208,
Div. C, § 308, 110 Stat 3009-619. Saying
that Bakhtriger was “removable” is
equivalent to saying that he was
“deportable.”

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Bakhtriger focused on his history of past
religious persecution as a member of the
Jewish faith in Moldova, and his fears of
what might befall him if he should return.
Bakhtriger’s mother recounted that
her husband had been an officer in the
Soviet army, but had been hampered in his
advancement as a result of his religion.
She also explained that Jews in Moldova
were prevented from publicly practicing
their religion. Both witnesses emphasized
that anti-semitism was pervasive under the
old Soviet regime, and that the post-Soviet
Moldovan government took no action to
curb the open hostility emanating from
large segments of the public.
Other testimony indicated that,
while living in Moldova, Bakhtriger was
routinely harassed, called derogatory
names, and physically beaten as a result of
his religion. According to his mother,
Bakhtriger was prevented from attending
any prestigious colleges or universities.
Instead, he was directed to a trade school
to learn television repair. At this school,
too, Bakhtriger was beaten by fellow
students. Later, mirroring the experience
of his father, Bakhtriger lost two
successive jobs in factories as a result of
his religion.
Both Bakhtriger and his mother
recounted that anti-semitic signs and
graffiti regularly marred fences and
buildings. In the spring of 1992, the door
of the apartment in which the Bakhtrigers
lived was etched with a Star of David,
something the Bakhtrigers took as a
threat—that anti-semitic elements were
“marking” the apartment as one in which
Jews lived. Bakhtriger recounted that
during a recent trip back to Moldova he
was attacked in public and a necklace
bearing the Star of David was ripped from
his neck.
The IJ credited the testimony of
both witnesses and found that Bakhtriger
had suffered past persecution. But the IJ
found that the INS had presented sufficient
proof of “changed country conditions” in
Moldova to rebut the presumption that
Bakhtriger had a well-founded fear of
persecution. Even so, the IJ exercised his
discretion to grant asylum where the
applicant has “demonstrated compelling
reasons for being unwilling or unable to
return to the country arising out of the
severity of the past persecution.” 8 CFR §
208.13(b)(1)(iii)(A).
The INS appealed the IJ’s decision
to the Board of Immigration Appeals
(BIA). The BIA deferred to the IJ’s
determination that Bakhtriger and his
mother were credible witnesses, and
accepted the IJ’s summary of the evidence.
However, the BIA overturned the IJ’s
grant of asylum and ordered that
Bakhtriger be removed to Moldova. The
BIA decided that even if the IJ accurately
described the level of persecution,
Bakhtriger’s experience did not rise to the
level found in previous cases where the
Board determined to exercise its authority
to grant asylum for compelling reasons.
Bakhtriger filed a petition for a writ
of habeas corpus in the Eastern District of
Pennsylvania. Before the District Court,

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Bakhtriger did not claim a denial of a
constitutional right or an error in
application of the statutory standards.
Rather, he argued that the factual record
did not support the finding by both the IJ
and the BIA that there was no well-
founded fear of future persecution because
conditions in Moldova have changed. As
he put it, “the IJ and BIA ignored evidence
in the record of centuries of anti-semitism
and persecution of Jews.” J.A. 7.
Bakhtriger also urged that even if
there was no well-founded fear of
persecution, the BIA wrongly reversed
what was concededly the IJ’s “broadly
define[d]” discretion to grant asylum based
on past persecution. J.A. 20. Again, in the
habeas petition’s own words, Bakhtriger
contended that the BIA wrongly
determined that he “was not entitled to
asylum on a discretionary basis.” J.A. 7.
Based on the petition, the District
Court reasoned that Bakhtriger sought
review of a discretionary determination,
and therefore dismissed the petition for
want of subject matter jurisdiction. The
District Court noted that habeas review of
criminal alien removal proceedings falls
under the general habeas statute, 28 U.S.C.
§ 2241. The District Court held, however,
that the scope of review of immigration
proceedings under section 2241 is limited
to constitutional claims or errors of law.
The District Court reasoned that factual
and discretionary determinations are not
cognizable under section 2241, and the
federal courts therefore lack jurisdiction to
entertain such claims in habeas challenges
to removal proceedings.
This timely appeal followed.
A district court’s determination that
it lacks subject matter jurisdiction is a
determination of law over which we
exercise plenary review. See Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176
(3d Cir. 2000). Moreover, we exercise
plenary review where a district court
dismisses a habeas corpus petition based
on a legal conclusion without holding an
evidentiary hearing. See Zettlemoyer v.
Fulcomer, 923 F.2d 284, 291 (3d Cir.
1991).
II.
In 1996, Congress overhauled the
Immigration and Nationality Act (INA),
see 8 U.S.C. § 1101 et seq., by enacting
two statutes in rapid succession, the
Antiterrorism and Effective Death Penalty
Act (AEDPA), Pub L. No. 104-132, 110
Stat. 1214, and the Illegal Immigrant
Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, Div. C,
110 Stat. 3009-546. Under the amended
INA, asylum remains a discretionary
determination on the part of the INS. But
AEDPA and IIRIRA enacted two changes
curtailing court review of removal
proceedings.2 To understand these
2 In addition to imposing a new set
of permanent rules, IIRIRA provided for a
set of “transitional” rules. All removal
cases commenced before April 1, 1997, in
which a final order of deportation was
filed after October 30, 1996 are subject to
the transitional rules. See Illegal
Immigrant Reform and Immigrant

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changes, we must briefly review the
development of judicial review of
immigration determinations.
Until 1952, judicial jurisdiction to
review executive decisions relating to
immigration was founded exclusively on
the writ of habeas corpus. See United
States v. Jung Ah Lung, 124 U.S. 621
(1888). During that period, “habeas
corpus was the only remedy by which
deportation orders could be challenged in
the courts.” Heikkila v. Barber, 345 U.S.
229, 230 (1953). A challenge to the
exclusivity of the habeas remedy was
briefly mounted after the 1946 passage of
the Administrative Procedure Act (APA),
which overhauled administrative law.
Some aliens sought to appeal executive
immigration decisions under the APA’s
general mandate that courts set aside any
administrative agency action that was an
abuse of discretion or unsupported by
substantial evidence. The Supreme Court
held the APA inapplicable, however,
reasoning that the then-existing specific
immigration statute was meant to preclude
judicial review of immigration decisions
“except insofar as it was required by the
Constitution.” Heikkila, 345 U.S. at 235.
In 1952, while the Heikkila case
was pending, Congress reconfigured the
immigration laws. Heikkila itself declined
to rule on the amended act, 345 U.S. at
232 n.4, but the Supreme Court soon had
the opportunity to address the new law. In
Shaughnessy v. Pedreiro, the Court held
that the amended INA was subject to the
APA’s expanded review because the 1952
revisions, passed after the APA became
effective, did not “expressly” supersede or
modify the expanded right of review
granted by the APA. 349 U.S. 48, 51-52
(1955).
In 1961, Congress changed the
immigration statutes again. Under the
1961 amendments, aliens f acin g
deportation were funneled into the courts
of appeals for direct review under a
standard similar to the APA standard. See
8 U.S.C. § 1105a(a) (1994); see also H.R.
Rep. No. 87-1086 (1961), reprinted in
1961 U.S.C.C.A.N. 2950, 2967-76. Aliens
subject to exclusion were not provided a
means of direct review. See H.R. Rep. No.
87-1086 (1961), reprinted in 1961
U.S.C.C.A.N. 2950, 2967-76. The 1961
amendments, however, clarified that all
aliens, whether facing deportation or
subject to exclusion, were entitled to
review by habeas corpus. See id.; see also
8 U.S.C. §§ 1105a(a)(10) & 1105a(b)
(1994).3 It is unclear—though irrelevant
Responsibility Act of 1996, Pub. L. No.
104-208, Div. C, § 309, 110 Stat. 3009-
625. All cases commenced after April 1,
1997 are subject to the permanent rules.
See Illegal Immigrant Reform and
Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, Div. C, § 306(c), 110
Stat. 3009-612. Because Bakhtriger’s
removal proceedings were commenced on
April 17, 2000, we will restrict our
discussion to the permanent rules.
3 Section 1105a(a)(10) was
originally codified as section 1105a(a)(9).

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to our analysis—whether the provision for
habeas corpus review contained in new
INA sections 1105a(a)(10) and 1105a(b)
actually created independent bases for
habeas corpus jurisdiction or merely
reserved the availability of habeas corpus
pursuant to 28 U.S.C. § 2241. See INS v.
St. Cyr, 533 U.S. 289, 310 (2001).
In 1996, Congress enacted AEDPA
and IIRIRA to reorder and curtail court
review of deportation and exclusion
decisions. AEDP A repealed the
immigration habeas provision contained in
8 U.S.C. § 1105a(a) and IIRIRA
eliminated the remainder of 8 U.S.C. §
1105a. See AEDPA § 401(e), 110 Stat.
1268; IIRIRA § 306(b), 110 Stat. 3009-
612. IIRIRA also consolidated judicial
review in the courts of appeals under a so-
called “zipper clause,” which stated that
“judicial review of all questions of law and
fact, including interpretation and
application of constitutional and statutory
provisions, arising from any action taken
or proceeding brought to remove an alien”
must take place in the courts of appeals. 8
U.S.C. § 1252(b)(9); see also 8 U.S.C. §
1252(a). In sum, these provisions
appeared to consolidate all appeals of INS
determinations in a single action, brought
only from a final order of removal, and
brought only in the courts of appeals. See
8 U.S.C. §§ 1252(a)(1) and (b)(9).
In addition to seeking to “zipper”
jurisdiction to review in the courts of
appeals, AEDPA and IIRIRA excluded
certain categories of INS decisionmaking
from this appellate judicial review
altogether. See 8 U.S.C. § 1252(a)(2)(C).
Among the determinations deemed
unreviewable were so-called “criminal
alien removal cases”—final orders of
removal where the alien was removable
for having committed controlled substance
offenses, aggravated felonies, certain
firearm offenses, miscellaneous national
security or defense-related crimes, or for
having multiple convictions for crimes
involving moral turpitude. See 8 U.S.C. §
1252(a)(2)(C); see also Patel v. Ashcroft,
294 F.3d 465, 468 & n.3 (3d Cir. 2002).4
See Immigration Act of 1990, § 545(b)(2),
Pub. L. No. 101-649, 104 Stat. 4978; H.R.
Rep. 87-1086 (1961), reprinted in 1961
U.S.C.C.A.N. 2950, 2967-76.
4 At first blush, a separate provision
of the amended INA might suggest that
direct court of appeals review of asylum
determinations in criminal alien removal
cases remains available notwithstanding
the zipper. In addition to eliminating
direct review of criminal alien removal
orders in section 1252(a)(2)(C), the
amended INA also provides that
“notwithstanding any other provision of
law, . . . (ii) no court shall have
jurisdiction to review . . . any other
decision or action of the Attorney General
the authority for which is . . . in the
discretion of the Attorney General, other
than the granting of relief under 8 U.S.C.
§ 1158(a) [asylum] of this title.” 8 U.S.C.
§ 1252(a)(2)(B) (emphasis added). One
possible reading of section 1252(a)(2)(B)
is that courts retain jurisdiction to review

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In cases where the basis for
removal is the commission of the crimes
enumerated in section 1252 the net effect
of the 1996 immigration law amendment
was to eliminate direct review by the
courts of appeals of the BIA’s
determination. We so held in Liang v.
INS. 206 F.3d 308, 323 (3d Cir. 2000).5
But that shifted the issue of reviewability
back to the district courts. The question
arose whether in criminal alien removal
cases, the preclusion of direct review,
coupled with the zipper clause, eliminated
all court review, including collateral
review under the original habeas corpus
provision contained in section 2241.
In Liang, we held that collateral
habeas review under section 2241 survived
the zipper in criminal alien removal cases.
Id. at 323. The Supreme Court confronted
this issue in St. Cyr. 533 U.S. at 292.
There, the Court definitively agreed that
habeas review of criminal alien removal
cases under section 2241 was not
foreclosed by AEDPA or IIRIRA. Id. at
314. Endorsing the approach we took in
Liang and earlier decisions, St. Cyr held
that, absent a crystal clear repeal of
jurisdiction to consider habeas claims by
aliens, the provisions of AEDPA and
IIRIRA that preclude judicial review
would not be interpreted to repeal section
2241 jurisdiction. Id. At least part of the
reasoning behind this ruling was the desire
to avoid the thorny constitutional question
posed if Congress had entirely pre-empted
review of an alien’s claims. Id.
asylum determinations notwithstanding the
limitations of section 1252(a)(2)(C). A
closer reading of section 1252(a)(2)(B),
however, and one that is more consonant
with section 1252(a)(2)(C), is that section
1252(a)(2)(B) leaves untouched—neither
limiting nor augmenting— the authority
courts would otherwise have to review
asylum determinations. Said another way,
section 125 2(a)(2 )(B) is n ot an
independent grant of authority for courts to
review asylum determinations, but merely
an exemption of asylum determinations
from the general class of discretionary
determinations that the section makes
unreviewable. That being the case, the
elimination by section 1252(a)(2)(C) of
jurisdiction to review any determination in
criminal alien removal cases also includes
elimination of jurisdiction to review
asylum determinations in those cases.
Such a reading was implicit in our holding
in Ogbudimkpa v. Ashcroft, 342 F.3d 207,
213 (3d Cir. 2003).
5 Whether the courts of appeals
retain jurisdiction in criminal alien
removal cases to consider “challenges to
the factual determinations thought to
trigger the jurisdiction-stripping provisions
(such as whether an individual is an alien
and whether he or she has been convicted
of an ‘aggravated felony’ within the
meaning of the statute)” has been the
subject of some debate. See Calcano-
Martinez v. INS, 533 U.S. 348, 350 n. 2
(2001). We have read the statute to allow
such jurisdictional review. See Drakes v.
Zimski, 240 F.3d 246, 247 (3d Cir. 2001).

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Through its decision in St. Cyr, the
Cou rt divide d the la ndsc ape of
immigration review into two parts. Non-
criminal aliens retain a right under the
statute to deferential, but still substantive,
direct review in the courts of appeals. See
8 U.S.C. § 1252(a)(1); Dia v. Ashcroft,
353 F.3d 228 (3d Cir. 2003) (en banc).
Criminal aliens have no right to direct
review, but retain the residual right to seek
relief under the traditional habeas statute.
See St. Cyr, 533 U.S. at 314. Having
resolved this threshold jurisdictional issue,
the Court specifically left open the scope
of review available under residual section
2241. That set the stage for what has
become the most recent chapter in the
debate: Precisely what kinds of challenges
are cognizable in criminal alien removal
habeas petitions?
III.
In answering this question we do
not paint on a blank canvas.
The Supreme Court and this Court
have recently construed the range of
section 2241 review at least so far as to
establish what it comprehends at a
minimum. In St. Cyr, the Supreme Court
rejected the Government’s argument that
classic habeas review encompassed only
review of substantial constitutional or
jurisdictional questions. The Supreme
Court ruled that “pure questions of
law”—such as whether the Attorney
General had legal authority to waive
removal— fell within the ambit of
traditional habeas review. Id. at 301. This
Court has recently interpreted such
questions to include issues of application
of law to fact, where the facts are
undisputed and not the subject of
challenge. Ogbudimkpa v. Ashcroft, 342
F.3d 207, 222 (3d Cir. 2003).6
But if that marks the minimum
review available under general habeas
corpus, does it also mark the maximum
review? Or, as Bakhtriger contends, are
federal courts in habeas cases entitled to
address whether removal of a criminal
alien, while not erroneous as a matter of
constitutional or statutory interpretation, is
nevertheless an abuse of discretion or
unsupported by substantial evidence?
This, of course, is the APA-style standard
of review that is afforded when courts of
appeals directly review decisions of the
BIA, as is permitted in the cases of non-
criminal aliens. 8 U.S.C. § 1252(a)(1);
see, Dia, 353 F.3d at 228.
6 In Sol v. INS, 274 F.3d 648, 651
(2d Cir. 2001), the Second Circuit read our
earlier decision in Catney v. INS, 178 F.3d
190, 195 (3d Cir. 1999), as holding that
section 2241 review does not embrace
“‘denial of discretionary relief to a
criminal alien.’” Respectfully, this reading
of our decision in Catney was incorrect.
While the context of our comment on
scope of review may have been somewhat
ambiguous, it actually related to review on
direct appeal of a deportation order from
the BIA, and did not address habeas
review. At any rate, the Second Circuit
correctly anticipated the position that we
now take in this decision.

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We believe that, under section
2241, habeas proceedings do not embrace
review of the exercise of discretion, or the
sufficiency of the evidence. Our
conclusion is supported by the history of
interpretation of the general habeas
provision over the years; by the structure
of the immigration laws as amended in
1996; and by the reasoning of St. Cyr
itself.
A.
Over a century ago, Congress
enacted an early version of a zipper clause
by mandating that exclusion decisions of
immigration officials were to be final,
subject only to review within the executive
branch. Act of March 3, 1891, c. 517, § 5;
26 Stat. 827, 828, 1115. Shortly thereafter,
the Supreme Court considered an appeal
from the denial of a writ of habeas corpus
by an excluded citizen of Japan. The
Court acknowledged that because the
alien’s liberty was restrained, she was
“doubtless entitled to a writ of habeas
corpus to ascertain whether the restraint is
lawful.” Ekiu v. United States, 142 U.S.
651, 660 (1892) (italics in original). But
the court observed:
[T]he final determination of
those facts may be entrusted
by Congress to executive
officers; and in such a case,
as in all others, in which a
statute gives a discretionary
power to an officer, to be
exercised by him upon his
own opinion of certain facts,
he is made the sole and
exclusive judge of the
existence of those facts, and
no other tribunal, unless
expressly authorized by law
to do so, is at liberty to
reexamine or controvert the
sufficiency of the evidence
on which he acted.
Id.
Until the 1952 amendments to the
immigration law allowed broader APA-
styl e j u d i c i a l r e v i e w f o r I N S
determinations, the Court had hewed
mainly to this circumscribed scope of
review, with slight modification. See
Yamataya v. Fisher, 189 U.S. 86 , 97, 102
(1903); United States ex rel. Vajtauer v.
Commissioner of Immigration at Port of
New York, 273 U.S. 103 (1927); Bridges
v. Wixon, 326 U.S. 135, 149, 156 (1945);
Estep v. United States, 327 U.S. 114, 122-
23 & n.14 (1946). So long as there was
sufficient procedural fairness to comport
with due process, courts were not to
“weigh the evidence” and were required to
honor the administrative decisions “even
though they may be erroneous.” Estep,
327 U.S. at 122.7
7 Both Vajtauer and Estep indicated
that the writ of habeas corpus might issue
where there is “no basis in fact”— i.e., no
evidence—for a determination. See
Vajtauer, 273 U.S. at 110; Estep, 327 U.S.
at 122. This may have been either as a
matter of reviewing the legal basis for the
agency’s jurisdiction, Estep, 327 U.S. at
122-23, or as a matter of due process, see

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As we have already observed, when
the passage of the APA in 1946 first raised
the prospect that immigration decisions
might be reviewable under the broader
standards of abuse of discretion and
substantial evidence, the Supreme Court
specifically rejected that approach in the
context of habeas corpus. Heikkila, 345
U.S. at 236-37. The Court held that,
whatever the minor adjustments in the
measure of habeas review over the years,
habeas corpus must always be based on
bedrock requirements of due process,
rather than the “very different . . . statutory
[i.e., APA] standard of review, e.g.,
deciding on ‘the whole record’ whether
there is substantial evidence to support
administrative findings of fact.” Id. at
236. Heikkila concluded that “it is the
scope of inquiry on habeas corpus that
differentiates use of the writ from judicial
review as that term is used in the
Administrative Procedure Act.” Id.
United States ex rel Accardi v.
Shaughnessy, 347 U.S. 260 (1954), is
particularly instructive on this point. The
habeas corpus petition in that case was
based, inter alia, on the argument that the
Attorney General had impermissibly
interfered with the discretion that had been
delegated by regulations to the BIA,
thereby violating those regulations. The
Supreme Court held that this transgression
of the regulations violated due process and
warranted a new hearing.
But the petitioner also raised the
contention that “‘in all similar cases the
[ B IA ] ha[d] exercised favorable
discretion.’” Id. at 264 n.5. This
argument was rejected by the Supreme
Court, which pointedly observed:
It is important to emphasize
that we are not here
reviewing and reversing the
manner in which discretion
was exercised. If such were
the case we would be
discussing the evidence in
the record supporting or
undermining the alien’s
claim to discretionary relief.
Rather, we object to the
Board’s alleged failure to
exercise its own discretion,
contrary to existing valid
regulations.
Id. at 268.
Despite the Court’s essential
constancy in restricting the use of habeas
corpus to assertions of constitutional or
statutory violations, the statutory landscape
changed in 1952. Congress’s choice in the
1952 immigration law amendments not to
expressly supersede or modify the APA for
immigration determinations effectively
broadened the scope of judicial review of
INS determinations. See Shaughnessy v.
Perdiero, 349 U.S. at 51-52. In point of
fact, the broadened scope of review was
literally applicable only to direct appeal of
INS determinations under the APA. But it
was not long before courts viewed
Heikkila 345 U.S. at 235-36 & n. 11; see
also Mahler v. Eby, 264 U.S. 32, 41-42
(1924); Zakonaite v. Wolf, 226 U.S. 272,
274 (1912).

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Congress as having intended to augment
traditional habeas review with broader
APA-style review. Compare Jay v. Boyd,
351 US. 345, 354-55 (1956) (explaining
that executive discretion to suspend
deportation is “a matter of grace” and
“unfettered discretion”) with United States
ex rel Hintopolous v. Shaughnessy, 353
U.S. 72, 77 (1957) (rejecting a challenge
to suspension based on claim of abuse of
discretion and arbitrary and capricious
reasoning).8 Put another way, in effect
courts began treating APA judicial review
as one of the laws of the United States
enforceable through the habeas statute.
Once the habeas provisions of the
immigration statute were added in 1961,
they were viewed as consistent with a
standard of judicial review calling for
APA-style examination of the exercise of
discretion and substantiality of evidence.
In Moret v. Karn, this Court read the 1952
i m m i g r a t i o n a m e n d m e n t s ( a s
supplemented by the 1961 legislation) to
require that in habeas cases:
[T]he appropriate standard
of review in such cases is
whether the a ge nc y’s
decision is “arbitrary,
capricious, and abuse of
discretion or otherwise not
in accordance with the law.”
5 U.S.C. § 706(2)(A) [the
APA].
. . . This standard of review
is consistent w ith the
legislative history of the
Immigration and Nationality
Act of 1952 . . . .
746 F.2d 989, 991 (3d Cir. 1984).9
It seems fair to say, then, that
classic immigration cases under section
2241 before 1952 were reviewed for
constitutional and legal error only, and that
immigration cases that arose under the
habeas writ between 1952 and 1996 were
treated under the same standard of review
as direct appeals from the BIA—that is to
say, under broader APA review of
8 Because the Court in Hintopolous
rejected a challenge based on abuse of
discretion, the court did not actually
consider whether such a challenge was
within the scope of habeas review. See
Hintopolous, 353 U.S. at 78-79.
Decisions during the 1961 to 1996
time-frame, however, appear to treat the
APA standard of review as applicable
without any distinction between direct
review under old section 1105a(a) and
habeas corpus under old section 1105a(b).
See, e.g., Mondragon v. Ilchert, 653 F.2d
1254, 1255-56 (9th Cir. 1980).
9 Some of the courts adopting the
view that section 1105a created a basis for
habeas corpus jurisdiction independent
from 28 U.S.C. § 2241 have found that,
from 1961 to 1996, broader review was
available exclusively through 1105a
habeas, and that 2241 habeas was available
only to aliens asserting constitutional or
statutory violations. See Gutierrez-Chavez
v. INS, 298 F.3d 824, 827-28 (9th Cir.
2002).

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discretion and of the sufficiency of the
evidence.
B.
That brings us to the 1996
amendments under AEDPA and IIRIRA.
The government initially advocated that
the amendments to the INA enacted by
AEDPA and IIRIRA be treated as
precluding all judicial examination of
removal determinations in the cases of
criminal aliens. The Supreme Court,
however, rejected that view. See St. Cyr,
533 U.S. at 312. The Court held that
Congress succeeded only in repealing
direct appellate review of such cases and
the special immigration habeas provisions
of section 1105a; what remained was the
original section 2241 habeas remedy. That
fact in itself suggests that the scope of
review one would expect to find under the
residual section 2241 is no greater than
what existed before Congress began to
graft APA-style review onto habeas
jurisdiction in 1952.
To be sure, St. Cyr does not
explicitly set forth the boundaries of
habeas review of removal actions under
section 2241, nor does it expressly address
whether review of discretion or
administrative fact-finding is available.
See Sol, 274 F.3d at 651. But the actual
reasoning in the St. Cyr decision compels
the conclusion that under section 2241 as
it currently stands, the broader species of
review for substantial evidence and abuse
of discretion typical of APA challenges
must be wholly out of bounds.
In St. Cyr, the Court confronted the
1996 statutory “zipper” language that
states:
Judicial review of all
questions of law and fact,
including interpretation and
application of constitutional
and statutory provisions,
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.
8 U.S.C. § 1252(b)(9). The judicial review
section, 8 U.S.C. § 1252, in turn provides
for direct review by the courts of appeals
of BIA decisions, but prohibits it in the
case of criminal aliens.
The meaning of the term “judicial
review” became the critical interpretive
issue presented to the Supreme Court. If
judicial review meant all review by any
court, as the government and the
dissenting Justices urged, then the zipper
clause and the criminal alien preclusion
clause, taken together, made removal of
criminal aliens totally unreviewable under
the statutory scheme. If “judicial review”
was a term of art referring only to a certain
type of court review, however, then what
was precluded was not all review by the
courts, but only review of a certain kind.
The majority in St. Cyr adopted the
latter interpretation, seizing upon the
earlier decision in Heikkila to differentiate
between “judicial review” in a specific

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13
sense, and court review under the
traditional habeas writ. See St. Cyr, 533
U.S. at 312 (citing Heikkila). The Court
declared: “In the immigration context,
‘judicial review’ and ‘habeas corpus’ have
historically distinct meanings.” St. Cyr,
533 U.S. at 311 (citing Heikkila, 345 U.S.
at 236). But for this distinction to make
sense in reading the 1996 zipper
amendments, there had to be some
significant difference between the scope of
review under “judicial review” and that
under section 2241 habeas corpus.
Otherwise, the amendments’ withdrawal of
“judicial review” on the one hand would
be nullified on the other hand by the
retention of habeas corpus with identical
scope of court review. In other words, a
definition of habeas corpus jurisdiction
that made the scope of claims available on
habeas review coextensive with the scope
of claims available on direct review would
necessarily render the preclusion provision
of AEDPA and IIRIRA utterly pointless
and would create an internal contradiction
within the immigration statutes.
As a matter of logic, therefore, the
Court necessarily recognized that the
“limited role played by the courts in
habeas corpus proceedings was far
narrower than the judicial review
authorized by the APA.” Id. at 312. In
effect, the Court reaffirmed the rule set
forth in Heikkila. And by drawing that
distinction as to scope of review, the Court
was able to give meaning to the 1996
statutory preclusion provision. For under
this interpretation, AEDPA and IIRIRA
succeeded in precluding broader APA-
style “judicial review” for criminal aliens
by eliminating direct “judicial review” in
the courts of appeals. What remained for
criminal aliens facing removal was only
the core section 2241 habeas provision
with its narrower scope of pure legal
review.
The Supreme Court in St. Cyr also
addressed the provision of AEDPA that
specifically eliminated one of the 1961
special habeas provisions of the INA, by
deleting 8 U.S.C. § 1105a(a)(10). St. Cyr,
533 U.S. at 308-10. The Court held that
the repeal of this section 1105a special
habeas provisions did not implicitly repeal
the residual habeas statute, section 2241.
Again, that interpretation can make sense
only if, as we have seen, section 2241
residual habeas corpus is understood to
carry a more limited scope of review than
the broader APA-style review which the
courts applied under section 1105a. See
Gutierrez-Chavez v. INS, 298 F.3d 824,
828 (9th Cir. 2002). Were section 1105a
review and section 2241 review to have
identical scope, the repeal by AEDPA and
IIRIRA of the former—and not the
latter—would appear to be a vain or
incomplete legislative act.
In short, to accept Bakhtriger’s
contention here that section 2241 habeas
review incorporates an examination of the
exercise of discretion or weight of the
evidence in the underlying removal
proceedings would be to erase the
distinction between “judicial review” and
habeas review that was an indispensable
ingredient in the reasoning of St. Cyr. See
533 U.S. at 311-12. Bakhtriger’s

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argument would also wholly nullify the
content of the preclusion provisions that
Congress enacted and would defy decades
of the history of interpretation of section
2241. Accordingly, we believe that the
scope of review under section 2241 must
be confined to questions of constitutional
and statutory law.
Our interpretation is consistent with
decisions in other circuits. In the wake of
St. Cyr, we are not aware of any cases that
have upheld habeas review of factual
findings or discretionary determinations in
criminal alien removal cases. Rather, all
circuits to decide the issue have limited
criminal alien habeas petitions to
constitutional challenges or errors of law.
See Bravo v. Ashcroft, 341 F.3d 590, 592-
93 (5th Cir. 2003); Gutierrez-Chavez, 298
F.3d at 828; Carranza v. INS, 277 F.3d 65,
72 (1st Cir. 2002); Sol, 274 F.3d at 651;
Bowrin v. INS, 194 F.3d 483, 490 (4th Cir.
1999).10
We join them.
IV.
Bakihtriger’s habeas petition
challenges both the underpinnings of the
BIA factual findings and the BIA’s
decision not to exercise discretion in favor
of asylum. For the reasons stated above,
these matters are not reviewable under the
residual habeas provision—28 U.S.C. §
2241. Indeed, the BIA’s determination
that the circumstances of Bakhtriger’s case
do not rise to the level of other cases in
which the authorities have exercised their
discretion in favor of asylum is precisely
the sort of application of discretion that the
Supreme Court declined to review in
Accardi, 347 U.S. at 264. In Accardi, the
petitioner’s challenge to the exercise of
discretion by the immigration officials was
effectively the same as that mounted by
Bakhtriger—the “allegation that the
appellant was treated differently from
other aliens similarly situated.” 206 F.2d
at 901. The Supreme Court expressly
affirmed the court of appeals in its refusal
to entertain that challenge to discretion
(although the Court ultimately reversed on
another ground). Accardi, 347 U.S. at 264
n. 5. We reject Bakhtriger’s identical
challenge to discretion here.
Perhaps recognizing that his effort
to obtain review of discretion and evidence
would be ill-fated, Bakhtriger tries to
repackage these claims as matters of law
by pointing out that the reason he is
subject to removal is pursuant to a law of
the United States, and that the “substantial
evidence” standard under APA-style
review is established as a legal
requirement. The fact that there are legal
principles that govern these matters,
however, does not convert every question
of fact or discretion into a question of law.
If it did, rivers of ink expended in case law
distinguishing between legal and factual
10 Yang v. INS, 109 F.3d 1185,
1195-96 (7th Cir. 1997) takes the same
position, but we do not rely on it because
the Seventh Circuit appears to have relied
in part on its view that IIRIRA had
abolished review under section 2241, a
position later repudiated by St. Cyr.

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15
questions would have been spilled for no
reason. Similarly, although review as a
matter of law encompasses deciding
whether legal principles have been
properly applied to undisputed facts, see
Ogbudimkpa, 342 F.3d at 222, it does not
encompass deciding the factual issues
themselves.
We will not delineate the precise
boundaries between permitted review of
legal questions and forbidden review of
factual issues or matters of discretion in
this opinion. What is clear in this case is
that the review Bakhtriger seeks is
squarely on the forbidden side of the line.
The District Court correctly determined
that it lacked jurisdiction to review the
claims in Bakhtriger’s habeas petition.
V.
For the foregoing reasons, we will affirm
the judgment of the District Court.

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