Ralph RICHARDSON, Petitioner-Appellee, v. Janet RENO, Attorney General of the United States; Doris Meissner, Commission, Immigration and Naturalization Service; Robert Wallis, Acting District Director, Immigration and Naturalization Service; United States Immigration and Naturalization Service; United States Department of Justice; and Executive Office of Immigration Review, Respondents-Appellants, 162 F.3d 1338

HULL, Circuit Judge: The Court VACATES and WITHDRAWS the previous opinion dated December 9,1998 and substitutes the following opinion. While the remainder of the opinion stays the same, the Court has revised footnotes 88, 137, and the third paragraph in

Section IV(

H) and added the following subsequent history to the citations of Hose v. INS, 141 F.3d 932 (9th Cir.1998): withdrawn and reh’g en banc granted, — F.3d -, No. 97-15789, 1998 WL 848048 (9th Cir. December 2,1998). Although the Ninth Circuit’s order granting the rehearing en banc was dated December 2, 1998, the order did not appear in the online subsequent history of Hose until December 10, 1998 — the date after the Court published its original decision in this case. TABLE OF CONTENTS I. FACTS AND PROCEDURAL HISTORY .1342 II. RICHARDSON’S HABEAS CORPUS PETITION.1344 III.

NEW IMMIGRATION LAWS.1345 A. “Removal” Proceedings.1345 B. Permanent Resident Criminal Aliens Returning From Abroad.1346 C. Supreme Court’s Fleuti Doctrine.1347 D. Detention of Criminal Aliens “Seeking Admission”.1348 E. Detention Under TPCRs in IIRIRA § 303(b)(3).1349 F. Detention Under INA § 236(c) .1351 G. INA § 236(

e) Restricts Review of Bond and Parole Decisions.1352 H. Procedures for Removal Hearings.1353 I. IIRIRA Consolidates Judicial Review in the Court of Appeals .1353 J. INA § 242(a)(2)(

C) Restricts Review of Removal Orders Against Criminal Aliens .1354 K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions_1355 IV. DISCUSSION .1355 A. INA § 242(

g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions.1356 B. No Constitutional Infirmities to Avoid.1359 C. Eleventh Circuit’s Boston-Boilers Decision.1360 D. Due Process Clause.1362 E.

Article III.1364 F. Suspension Clause.1364 G. Second Circuit’s Henderson Decision.1367 H. Ninth Circuit’s Maganar-Pizano Decision .1368 I. Seventh Circuit’s Yang Decision .1369 J. INA §§ 242(b)(9) and (

d) Require Final Removal Order.1373 K. Alternative Review Under INA Satisfies Suspension Clause.1375 V. CONCLUSION.1378 This appeal arises from a district court’s order granting a writ of habeas corpus to a thirty-year permanent resident alien petitioner with a cocaine-trafficking conviction who was detained as he attempted to enter the United States after a two-day trip to Haiti. The INS district director denied bond pending the outcome of petitioner’s removal proceedings.

Petitioner filed his habeas corpus petition under 28 U.S.C. § 2241 asserting that the INS’ illegal detention, denial of admission, and denial of a bond hearing violated his constitutional and statutory rights as a lawful permanent resident alien. This case presents issues of first impression in this Circuit regarding subject matter jurisdiction under the Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). After review, we find the district court lacked jurisdiction over the habeas corpus petition.

We reverse and order the district court to dismiss the petition. I. FACTS AND PROCEDURAL HISTORY Appellee-petitioner Ralph Richardson (“Richardson”) is a native and citizen of Haiti who has been a lawful permanent resident alien in the United States since 1968. In 1984, Richardson was convicted of carrying a concealed weapon. In 1990, Richardson was convicted of trafficking cocaine and served five years in prison.

The parties do not dispute that Richardson could have been deported under the immigration laws in existence in 1990 and could be deported under current immigration law but that deportation proceedings were never initiated. On October 24, 1997, Richardson left the United States and traveled to Haiti. On October 26, 1997, Richardson attempted to re-enter the United States at the Miami International Airport, but was not allowed to enter. At the initial immigration checkpoint, Richardson presented an expired “1-151” card, also called an Alien Resident Card, and a valid Haitian passport.

Richardson’s use of an expired card caused him to be referred to a secondary immigration inspector for a more detailed interview regarding his eligibility to enter the United States. Through this inspection, the INS concluded that Richardson, although a lawful permanent resident alien, was no longer eligible to enter the United States under the new immigration laws due to his prior criminal convictions. During the inspection, Richardson admitted his criminal history including his cocaine trafficking conviction, an aggravated felony under INA § 101(a)(43).

Richardson was taken to the Krome Detention Center, Miami, Florida, and immediately was placed in “removal” proceedings under INA § 240. On November 13,1997, Richardson’s attorney sent a letter to the INS district director in Miami requesting release from custody. On December 4, 1997, the district director denied Richardson’s request. On November 18, 1997, while awaiting the district director’s response, Richardson also sought release on bond with the immigration judge at Krome. New INA § 101(a)(13)(C)(

v) provides that a lawful permanent resident alien, returning from abroad, is not deemed to be seeking an official “admission” to the United States, and can be admitted summarily, unless the alien has been convicted of certain crimes. Since Richardson’s conviction for trafficking cocaine is a crime described in INA § 101(a)(13)(C)(v), the immigration judge found that Richardson was “seeking admission” to the United States, that aliens “seeking admission” at the border can request release only from a district director, and that immigration judges lack jurisdiction over such requests.

On November 24, 1997, the immigration judge denied Richardson’s release request for lack of jurisdiction. On November 26, 1997, Richardson filed in the district court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Richardson filed an amended petition on December 10,1997. Richardson’s petition asserted, inter alia, that he was being illegally detained and, at a minimum, was entitled to a hearing before an immigration judge on his release request and not merely consideration by the district director. The INS moved to dismiss Richardson’s petition for lack of subject matter jurisdiction.

On December 30, 1997, the magistrate judge issued a report finding statutory habe-as jurisdiction under 28 U.S.C. § 2241 and recommending that Richardson be given “an individualized hearing, within 14 days of any order adopting this recommendation at which time the immigration judge should considered [sic] whether petitioner is an arriving alien, and if not, whether and under what circumstances petitioner may be released from custody pending the completion of deportation proceedings.” On January 8, 1998, Richardson’s removal proceedings concluded with the immigration judge’s order that Richardson be removed to Haiti.

After a hearing during which Richardson testified and was represented by counsel, the immigration judge found that, because of his criminal convictions, Richardson was “inadmissible” under INA §§ 212(a)(2)(A)(i)(D, 212(a)(2)(A)(i)(II), and 212(a)(2)(

C) and not entitled to cancellation of removal under INA § 240A(a). Richardson’s appeal of the removal order to the Board of Immigration Appeals (“BIA”) remains pending. On February 19, 1998 and over the INS’ objections, the district court adopted the magistrate judge’s report and recommendation, denied the INS’ motion to dismiss and granted Richardson’s petition.

The district court ordered the immigration judge to hold “an individualized hearing within eleven (11) days from the date stamped on the Order, at which time the Immigration Judge should determine whether Petitioner is an arriving alien, and if not, whether and under what conditions Petitioner may be released from custody pending the completion of deportation proceedings.” This appeal ensued. On February 23, 1998, this Court granted the INS’ motion to stay the district court’s order pending this appeal. Richardson remains in custody. II.

RICHARDSON’S HABEAS CORPUS PETITION Before examining the new immigration laws, we outline Richardson’s claims. In this case, Richardson does not dispute that he is an alien, that he has a cocaine-trafficking conviction, and that cocaine trafficking is a basis for both inadmissibility and deportability under the INA. Instead, Richardson’s habeas corpus petition asserts, inter alia, that his constitutional and statutory rights were violated because: (1) the INS ignored his thirty-year legal permanent resident alien status, misinterpreted INA § 101(a)(13)(

C) in classifying Richardson as an arriving alien “seeking admission,” unlawfully detained him, and illegally denied him admission, as opposed to permitting entry into the United States and then initiating removal proceedings based on “deportability”; (2) the Attorney General’s detaining and denying a legal permanent resident alien admission back into the United States and delegating her custody release authority to only the INS district director, without a bond hearing before an immigration judge, are ultra vires of the INA and illegal; (3) the Attorney General’s detaining and denying a legal permanent resident alien admission and a bond hearing before the immigration judge solely because of his brief trip abroad violates that resident alien’s due process guarantees under the Due Process Clause of the Fifth Amendment; and (4) the Attorney General’s allowing a bond hearing before an immigration judge for legal permanent resident aliens arrested in the United States, but denying a bond hearing to Richardson only because of his two-day sojourn abroad violates the equal-protection guarantees of the Due Process Clause of the Fifth Amendment.

In explaining why he filed his habeas petition while his BIA appeal remained pending, Richardson contends that exhaustion of administrative remedies is futile because the INA, as amended by IIRIRA, eliminates judicial review in the courts of appeals over any prospective BIA final order removing him as a criminal alien, and forecloses appeal of the INS’ district director’s bond decisions to an immigration judge.

Finally, Richardson asserts that INA § 242(g)’s exclusive-jurisdiction provision does not repeal habe-as jurisdiction under 28 U.S.C. § 2241 and does not prevent the district court from hearing a permanent resident alien’s habeas petition alleging unlawful executive detention in violation of the INA and the Constitution. Since Richardson attempted to enter the United States on October 26, 1997, IIRIRA’s extensive revisions to the INA undisputedly govern this case. III. NEW IMMIGRATION LAWS In 1996, Congress twice revised the INA.

The changes began incrementally with the' enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in April 1996 and accelerated with IIRIRA’s major structural revisions to the INA in September 1996.

Congress’ reconstruction of the INA includes, inter alia, these key elements applicable to Richardson’s appeal: (1) new custody rules mandating detention of aliens after a serious criminal conviction; (2) new procedures for prompt removal of criminal aliens from the United States; (3) new restrictions on judicial review that preclude all judicial involvement in the administrative agency removal and detention process until after a final removal order is entered by the BIA; (4) new provisions directing that judicial review shall be exclusively under the INA and in only the court of appeals after a final BIA removal order; and (5) new provisions removing all other formerly available federal-court jurisdiction over the detention and removal of criminal aliens, including repeal of statutory habeas under 28 U.S.C. § 2241.

Simply put, IIRIRA strips all jurisdiction, including § 2241 habeas, from the district courts, places exclusive judicial review in the court of appeals, and delays even that judicial review until after a final administrative agency order. Congress has reduced judicial review to one time in one place in an effort to expedite the removal of resident aliens with serious criminal convictions. Since these legislative revisions to the INA are extensive, complicated, and affect so many resident aliens with criminal convictions in such a significant manner, we outline them in detail.

A. “Removal” Proceedings Upon being denied entry, Richardson was detained and immediately placed in “removal” proceedings. As one of its broad structural changes to the INA, IIRIRA eliminated some of the distinctions between “deportation” and “exclusion” proceedings and created a unified set of proceedings in INA § 240 called “removal proceedings.” New INA § 240(e)(2) defines the term “removable” as an alien who is “deportable” or an alien who is “inadmissible” (replacing the old term “excludable”).

New INA § 240(a)(3) provides that unless specified otherwise under the INA, a removal proceeding “shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” Under the unified framework in INA § 240, many of the procedures in “removal proceedings” are now the same regardless of whether the alien is seeking admission to the United States or the alien is being deported from the United States.

In contrast, the substantive grounds for determining “inadmissibility” and “deportability” are still handled in several separate parts of the INA and vary considerably. However, Richardson’s cocaine-trafficking conviction is a sufficient basis alone for both deportation and inadmissibility under the INA. B. Permanent Resident Criminal Aliens Returning From Abroad IIRIRA also altered the rules for permanent resident aliens returning from abroad, which is why the INS detained Richardson and immediately initiated “removal proceedings” against him.

Under IIRIRA’s restructuring, most permanent resident aliens returning from abroad are summarily admitted back into this country. In this regard, new INA § 101(a)(13)(

c) provides that: an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien: (

i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings, (

v) has committed an offense identified in

section 212(a)(2) of this Act [which includes controlled substances], unless since such offense the alien has been granted relief under

section 212(

h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer. INA § 101(a)(13)(C) (emphasis supplied).

Section 101(a)(13)(C)(

v) references offenses in “section 212(a)(2),” which provides that any alien convicted of a controlled substance offense is inadmissible. Because Richardson was a lawful permanent resident with a cocaine-trafficking conviction covered by § 1182(a)(2), the INS treated him as an arriving alien “seeking admission” to the United States under INA § 101(a)(13)(

C) and subjected him to inspection as any other alien arriving to the United States. C. Supreme Court’s Fleuti Doctrine Immediately upon his detention, the INS initiated removal proceedings against Richardson. In turn, Richardson filed his § 2241 habeas petition in the district court. Richardson contended, inter alia, that the INS had interpreted erroneously new INA § 101(a)(13)(C), illegally considered him an arriving alien “seeking admission,” and therefore unlawfully detained him and denied him admission and bond.

Before 1996, INA § 101(a)(13) provided that a returning permanent resident alien shall not be regarded as making “an entry” into the United States if the alien’s presence abroad was not “intended or reasonably ... expected.” In Rosenberg v.

Fleuti 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1964), the Supreme Court interpreted “intended” in former INA § 101(a)(13) as an intent to depart the country in a manner “meaningfully interruptive of the alien’s permanent residence.” The Court held that a lawful permanent resident’s “innocent, casual and brief’ excursion was not sufficiently in-terruptive of the alien resident’s status to be “intended” and would not be deemed an “entry.” Id. Unfortunately for Richardson, IIRIRA replaces former INA § 101(a)(13) with an entirely new statutory scheme. New INA § 101(a)(13)(

A) replaces the term “entry” with the terms “admission” and “admitted,” which are defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” The statute no longer references an alien’s intent. Instead, new INA § 101(a)(13)(

C) provides that a lawful permanent resident “shall not be regarded as seeking admission,” and thus shall be summarily admitted back into the United States, unless the alien falls under one of the six subpara-graphs (

i) through (vi) of INA § 101(a)(13)(

C) quoted above. Since Richardson’s cocaine-trafficking conviction is covered expressly by INA § 101(a)(13)(C)(v), the INS treated Richardson as an arriving alien “seeking admission.” In the district court, the INS stressed that, in another case, the BIA had held that Fleuti’s “innocent, casual, and brief’ rule no longer applies because IIRIRA repealed the statutory language relied upon in Fleuti, The INS emphasized that INA § 101(a)(13)(

C) no longer defines “admission” with reference to an alien’s intent, thus removes the entire Fleuti concept, and requires the INS to treat Richardson as “seeking admission.” Rejecting the INS’ position, the district court determined that the INS was not required to treat Richardson as “seeking admission.” The district court interpreted new INA § 101(a)(13)(

C) as specifying only when a returning alien may not be regarded as “seeking admission,” as opposed to shall be regarded as “seeking admission.” The INS submits that the language of INA § 101(a)(13)(

C) is explicit and nondiscretionary and that the district court circumvented its plain language. The proper construction of INA § 101(a)(13)(

C) and the Fleuti issue are some of the issues Richardson has raised before the BIA in his pending appeal of the immigration judge’s removal order. D. Detention of Criminal Aliens “Seeking Admission” While his BIA appeal proceeds, Richardson’s habeas claims also stem, in part, from IIRIRA’s new stringent custody rules for aliens with serious criminal convictions. INA § 235(b)(2)(

A) provides that any alien “seeking admission” to the United States who “is not clearly and beyond a doubt entitled to be admitted” “shall be detained” for removal proceedings, as follows: ... in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under

section 240 [removal proceedings]. INA § 235(b)(2)(A) (emphasis supplied). An alien so detained may seek parole into the United States temporarily. INA § 212(d)(5)(

A) provides that the Attorney General “may in his discretion ... parole into the United States temporarily under such conditions as he may prescribe only on a case-by-ease basis for urgent humanitarian reasons or significant public benefit or for reasons deemed strictly in the public interest any alien applying for admission to the United States.” At the time of Richardson’s attempted entry, the Attorney General’s regulations delegated to the INS district director the authority to review “parole” requests.

On December 4, 1997, the district director sent Richardson’s counsel a letter outlining Richardson’s criminal convictions and denying parole on the basis of no showing of a significant public benefit or urgent humanitarian reasons. After initial custody and release determinations by the INS district director, aliens may seek release from the immigration judge. However, at the time of Richardson’s attempted entry, the Attorney General’s regulations provided that immigration judges lacked jurisdiction over release requests by “arriving aliens” facing removal proceedings. E. Detention Under TPCRs in IIRIRA § 303(b)

(3) IIRIRA enacted new mandatory custody rules for certain criminal aliens in both INA § 236(

c) and the Transition Period Custody Rules (“TPCRs”) in IIRIRA § 303(b)(3). When Richardson attempted to enter the United States, the TPCRs mandated the detention of certain criminal aliens, as follows: (

A) In General — During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who— (

i) has been convicted of an aggravated felony (as defined under

section 101(a)(43) of the Immigration and Nationality Act, as amended by

section 321 of [IIRIRA]) (ii) is inadmissible by reason of having committed any offense covered in

section 212(a)(2) of such Act (hi) is deportable by reason of having committed any offense covered in

section 241 (a)(2)(A)(ii), (A)(iii), (B), (C), or (

D) of such Act (before redesignation under this subtitle), or (iv) is inadmissible under

section 212(a)(3)(

B) of such act or deportable under

section 241(a)(4)(

B) of such act (before redesignation under this subtitle) when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. IIRIRA § 303(b)(3)(A). The TPCRs mandated Richardson’s detention because his cocaine-trafficking conviction is an aggravated felony under the- INA and thus falls under subparagraph (

i) of the TPCR in IIRIRA § 303(b)(3)(A). Richardson’s cocaine-trafficking conviction is also an offense covered by INA §§ 212(a)(2), 241(a)(2), 212(a)(3)(B), and 241(a)(4)(B), and thus is also covered by the other three subparagraphs (ii), (iii), and (iv) of the TPCR in IIRIRA § 303(b)(3)(A). The TPCRs also significantly restricted the Attorney General’s release authority for the criminal aliens subject to the TPCRs’ mandatory detention. The TPCR in IIRIRA § 303(b)(3)(

B) provides that the Attorney General “may release” an alien but only if the alien is an alien described in subpara-graphs (A)(ii) or (A)(iii) of the TPCR in IIRIRA § 303(b)(3), is lawfully admitted, will not pose a danger and is likely to appear for any scheduled proceeding. Under the TPCRs, the Attorney General could not have released an alien detained because of an aggravated felony conviction because that alien is in a category mandatorily detained under the TPCR in IIRIRA § 303(b)(3)(A) (U and is not in an (A)(ii) or (A)(iii) category subject to release under the TPCR in IIRIRA § 303(b)(3)(B).

When Richardson attempted to enter the country, the Attorney General had implemented regulations delegating her detention and release authority under the TPCRs and INA § 236(c). Under those regulations, the INS district director made an initial determination regarding custody and release of criminal aliens under both the TPCRs and INA § 236(c). After the district director’s initial determination, an alien could seek release from an immigration judge. However, immigration judges lacked jurisdiction over release requests of “arriving aliens” facing removal proceedings.

In addition to denying parole, the INS district director’s letter, dated December 4, 1997, concluded that Richardson “would have no incentive to appear for Immigration hearings” and thus in effect denied bond as well. Although Richardson was subject to mandatory detention and not eligible for release on bond, it appears that the district director considered release on bond. F. Detention Under INA § 236(

e) Although enacted by IIRIRA in 1996, new INA § 236(

c) was not in effect when Richardson attempted to enter the United States on October 24, 1997. IIRIRA § 303(b)(2) allowed the Attorney General to delay the implementation of INA § 236(

e) for up to two years by providing notice to Congress that the INS lacked sufficient space and personnel to accommodate the mandate of INA § 236(c). The Attorney General twice provided such notice and delayed the effective date of INA § 236(

c) until October 10, 1998. During the two-year interim, the TPCR in IIRIRA § 303(b)(3) supplanted INA § 236(c). As of October 10, 1998, INA § 236(c)(1) also mandates Richardson’s detention, whether he is considered inadmissible or deportable, for his criminal convictions, as explained below. New INA § 236 contains some general custody rules for aliens in removal proceedings and some specific, more stringent, custody rules for certain criminal aliens. Under INA § 236(a) “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Under INA § 236(

a) and (b), the Attorney General may grant'bond or parole and may revoke bond or parole for an alien so arrested. However, INA § 236(

c) provides for mandatory detention of certain criminal aliens, whether inadmissible or deportable. Subpar-agraph (1) of new INA § 236(c), entitled “Detention of criminal aliens,” mandates that the Attorney General shall take into custody a criminal alien who falls into one of these four categories: (

A) is inadmissible by reason of having committed any offense covered in

section 212(a)(2), (

B) is deportable by reason of having committed any offense covered in

section 237(a)(2)(A)(ii), (A)(in), (B), (C), or (D), (

C) is deportable under

section 237(a)(2)(A)(

i) on the basis of an offense for which the alien has been sentenced] to a term of imprisonment of at least 1 year, or (

D) is inadmissible under

section 212(a)(3)(

B) or deportable under

section 237(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. INA § 236(c)(1). Next, subparagraph (2) of new INA § 236(

c) provides that the Attorney General “may release” an alien in one of these four mandatory detention classes “only if the Attorney General decides” that the alien’s release is necessary to the protection of someone cooperating in the investigation of major criminal activity, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of others and is likely to appear at any scheduled hearing. Richardson’s cocaine-trafficking offense brings him within several mandatory detention categories in INA § 236(c)(1), but he does not fall within the discretionary release option in INA § 236(c)(2). G. INA § 236(

e) Restricts Review of Bond and Parole Decisions Of particular relevance to Richardson’s situation is INA § 236(

e) which applies to detention and release decisions under both INA § 236(

c) and the TPCR in IIRIRA § 303. INA § 236(

e) significantly restricts the judicial review of the Attorney General’s decisions as follows: (

e) Judicial review The Attorney General’s discretionary judgment regarding the application of this

section [236’s custody rules] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this

section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. INA § 236(e). Thus, the INS contends that the district court had no jurisdiction to review the INS district director’s discretionary decision to grant or deny Richardson bond or parole. Richardson responds that INA § 236(

e) applies to only final, not interim, orders, and that historically bond decisions were considered collateral to the removal proceedings and cognizable under § 2241 habeas in immigration cases. However, INA § 236(e), by its plain language, bars judicial review of the INS’ discretionary bond and parole decisions. Nonetheless, we note that Richardson is not actually seeking review of those INS discretionary decisions but instead review of his constitutional claim that denial of bond without a hearing before an immigration judge violates his constitutional rights. H.

Procedures for Removal Hearings While only the INS district director decided Richardson’s request for parole and bond, IIRIRA did not diminish Richardson’s right to a full hearing before the immigration judge on the merits of his removal from the United States. Before issuing any removal order, an immigration judge still must hold a hearing in which the alien may be represented by counsel. The alien is entitled to present evidence and cross-examine witnesses presented by the United States. A complete record is required to be kept of all testimony and evidence produced at the hearing.

A “criminal alien” subject to removal (either as inadmissible or deportable) has a right to appeal a removal order to the BIA, and the immigration judge “shall inform the alien of the right to appeal.” Represented by counsel, Richardson received a hearing before an immigration judge on the merits of his removal from the United States and has appealed the judge’s removal order to the BIA. As of this date, the BIA has not issued its decision. I.

IIRIRA Consolidates Judicial Review in the Court of Appeals IIRIRA also completed the major overhaul of federal-court jurisdiction over immigration matters begun by the AEDPA. Prior to 1996, INA § 106 set out the judicial-review scheme for deportation and exclusion orders. INA § 106(a)(2) provided for petition for review in the court of appeals. In addition, INA § 106(a)(10) allowed aliens in custody to seek habeas corpus review of final deportation orders under the INA. Aliens also could rely on 28 U.S.C. § 2241 habeas corpus to challenge INS detention or deportation proceedings.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA § 440 repealed INA § 106(a)(10), which had allowed habeas corpus review under the INA. In its place, AEDPA § 440(

a) enacted a new INA § 106(a)(10), which states that a final deportation order against an alien deportable for certain criminal offenses “shall not be subject to review by any court.” Five months after the AEDPA, Congress enacted IIRIRA.

Section 306 of IIRIRA repealed the entire judicial-review scheme in INA § 106 and replaced it with a new judicial-review scheme in INA § 242. IIRIRA did not eliminate all judicial review. Instead, IIRIRA removed all jurisdiction from the district courts and consolidated judicial review into the court of appeals. INA § 242(b)(2) provides that the venue for judicial review is only in the court of appeals. More importantly, INA § 242(g), entitled “Exclusive Jurisdiction,” provides that except as provided in INA § 24.2, no court shall have jurisdiction over aliens’ claims arising from the Attorney General’s decisions or actions, as follows: Except as provided in this

section [242] 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 commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. INA § 242(g). IIRIRA also mandated the timing of the INA’s exclusive judicial review. INA § 242(b)(9) prescribes that judicial review shall be only after a final removal order, as follows: 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

chapter shall be available only in judicial review of a final order under this section. INA § 242(b)(9). INA § 242(d)(1) mandates that “a court may review a final order of removal only if ... the alien has exhausted all administrative remedies available ....” In these new INA provisions, Congress has abbreviated judicial review to one place and one time: only in the court of appeals and only after a final removal order and exhaustion of all administrative remedies.

In IIRIRA, Congress strictly regulated the exclusive mode and timing of judicial review in order to remove overlapping jurisdiction and to prevent dilatory tactics previously used to forestall departure of aliens. J. INA § 242(a)(2)(

C) Restricts Review of Removal Orders Against Criminal Aliens Even within the INA’s exclusive judicial-review scheme, Congress further limited what a court of appeals can review after a final removal order. Of particular relevance to Richardson is INA § 242(a)(2)(C), which provides that no court shall have jurisdiction to review “any final order of removal against an alien who is removable” because of certain criminal convictions, as follows: Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in

section 212(a)(2) [covers certain controlled substance offenses] or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by

section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by

section 237(a)(2)(A)®. INA § 242(a)(2)(C).

Section 212(a)(2) includes Richardson’s cocaine-trafficking conviction. New INA § 242(a)(2)(

C) is similar to former INA § 106(a)(10) which also placed restrictions on judicial review of deportation orders against criminal aliens. As detailed later, this Court has upheld the judicial review restrictions in former INA § 106(a)(10) as constitutional. Boston-Bollers v. INS, 106 F.3d 352 (11th Cir.1997). K. INA § 242(a)(2)(B)(ii) Restricts Review of Discretionary Decisions IIRIRA also limits other aspects of the exclusive judicial review remaining for aliens under the INA.

INA § 242(a)(2)(B)(ii) limits judicial review of the Attorney General’s discretionary decisions, as follows: Notwithstanding any other provision of law, no court shall have jurisdiction to review— (ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of relief under

section 208(a). INA § 242(a)(2)(B)(ii). IV. DISCUSSION Against this backdrop, Richardson filed his habeas petition in the district court under 28 U.S.C. § 2241. Given IIRIRA’s overhaul of the judicial-review scheme in immigration cases, the first question we must address is whether INA § 242(g), as enacted by IIRI-RA, has eliminated federal jurisdiction under § 2241 over Richardson’s habeas petition. A. INA § 242(

g) Precludes § 2241 Habeas Jurisdiction Over Immigration Decisions We begin by recognizing and applying established canons of statutory construction applicable to immigration statutes. First, ambiguities in the law are to be interpreted in favor of the alien. Second, restrictions on jurisdiction are to be read narrowly, courts should not assume that jurisdiction is repealed unless the statute says so explicitly, and repeals by implication of jurisdictional statutes are disfavored. Although guided by these same principles, courts are divided on whether the new INA § 242(

g) abrogates statutory habeas, as provided in § 2241, over an alien’s petition challenging detention or a final removal order. See Hose v. INS, 141 F.3d 932, 934-35 (9th Cir.) (holding that INA § 242(

g) deprives district court of habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241), withdrawn and reh’g en banc granted, 161 F.3d 1225 (9 th Cir.1998); Cabrera v. Reno, 5 F.Supp.2d 244, 245-46 (D.N.J.1998) (same); Ray v. Reno, 3 F.Supp.2d 1249, 1251 (D.Utah 1998) (same); Rusu v. Reno, 999 F.Supp. 1204, 1209-10 (N.D.Ill.1998) (same); Mendez-Tapia v. Sonchik, 998 F.Supp. 1105, 1107 (D.Ariz.1998) (same); Marriott v. Ingham, 990 F.Supp. 209, 213-14 (W.D.N.Y.1998) (same); Mustata v. United States Dep’t of Justice, 979 F.Supp. 536, 539 (W.D.Mich.1997) (same); Mayers v.

Reno, 977 F.Supp. 1457, 1461 (S.D.Fla.1997) (same); Udenze v. Strapp, 977 F.Supp. 418, 421 (N.D.Tex.1997) (same); Moore v. District Director, INS, 956 F.Supp. 878, 882 (D.Neb.1997) (same); see also Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.) (stating in dicta that “effective April 1, 1997, § 306(

a) of the IIRIRA [INA § 242] abolishes even review under § 2241, leaving only the constitutional writ, unaided by statute”), cert. denied sub nom, Katsoulis v. INS, - U.S. -, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997). But see Goncalves v. Reno, 144 F.3d 110, 113, 120-21 (1st Cir.1998) (holding that IIRIRA did not eliminate § 2241 habeas corpus jurisdiction); Jean-Baptiste v. Reno, 144 F.3d 212, 218-20 (2d Cir.1998) (same); Tam v. INS, 14 F.Supp.2d 1184, 1187-88 (E.D.Cal.1998) (same); Lee v. Reno, 15 F.Supp.2d 26, 37 (D.D.C.1998) (same); Barrett v.

INS, 997 F.Supp. 896, 900 (N.D.Ohio 1998) (same); Gutierrez-Martinez v. Reno, 989 F.Supp. 1205, 1209 (N.D.Ga.1998) (same); Morisath v. Smith, 988 F.Supp. 1333, 1338 (W.D.Wash.1997) (same); Mojica v. Reno, 970 F.Supp. 130, 157 (E.D.N.Y.1997) (same). After review, we conclude that INA § 242(

g) abrogates jurisdiction over Richardson’s § 2241 habeas corpus petition for several reasons. First, the language of INA § 242(

g) is plain and clear. INA § 242(g)’s language that “[ejxcept as provided in this

section [242] ... no court shall have jurisdiction” clearly and unequivocally precludes any jurisdiction in the district court except that provided in INA § 242. INA § 242 does not permit the kind of habeas corpus review in the district court Richardson sought. Instead, INA § 242 provides for judicial review for aliens only in the court of appeals and only after a final removal order. More importantly, INA § 242(g)’s broad admonition that it applies “notwithstanding any other provision of law” sufficiently and clearly encompasses other provisions of law, such as § 2241.

When Congress says “any,” it means “any” law, which necessarily includes § 2241. In addition, while INA § 242 consolidates judicial review in the court of appeals for aliens, there is another

section within INA § 242 that does permit limited habeas corpus review under INA § 242(e)(2) for certain non-resident arriving aliens. INA § 235(b)(1) permits a single immigration officer to remove summarily a non-resident arriving alien without a removal hearing or review, unless the alien indicates an intention to apply for asylum or indicates fear of persecution. Therefore, INA § 242(e)(2) provides for statutory habeas review under the INA in this narrowly limited situation. This evidences Congress’ ability to create statutory habeas review under the INA when it so desires.

Congress’ express provision of some limited habeas review within § 2J/.2 of the INA underscores Congress’ clear intent in INA § 242(

g) that no court shall have jurisdiction over immigration decisions except as provided under INA § 342. Second, in addition to the sweeping language of new INA § 242(g), the elimination of INA § 106(a)(10)’s habeas corpus review by the AEDPA further evidences congressional intent to preclude statutory habeas corpus review over immigration decisions. AEDPA § 440 first eliminated the specific habeas review granted under former INA § 106(a)(10). Then IIRIRA enacted the broad language of INA § 242(

g) that “notwithstanding any other provision of law, no court shall have jurisdiction except as provided under INA § 242.” Thus, the AEDPA and IIRIRA reflect Congress’ clear intent to avoid unduly protracted litigation over removal orders against resident aliens by consolidating all judicial challenges in the courts of appeals under INA § 242(b)(2) after a final removal order, and by removing all district-court jurisdiction, including § 2241 habeas jurisdiction, over immigration decisions. Accordingly, we conclude that INA § 242(

g) repeals any statutory jurisdiction over immigration decisions other than that conferred by INA § 242. That repeal includes § 2241 habeas jurisdiction over immigration decisions by the Attorney General under the INA. Richardson’s main argument is that § 2241 habeas corpus jurisdiction survives IIRIRA’s enactment of new INA § 242(

g) because INA § 242(

g) fails to mention § 2241 expressly. Richardson emphasizes the presumption against implied repeal of habeas corpus jurisdiction addressed in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). However, the jurisdictional repeal at issue in Felker was much narrower than the repealing language of INA § 242(g). AEDPA § 106(b)(3)(

E) repealed a narrow class of Supreme Court jurisdiction — the Court’s review of a court of appeals decision denying or granting authorization to file a second or successive habeas corpus petition. In addition, AEDPA § 106(

b) specifically cited § 2244(

b) as the statute it amended. In Felker, the Supreme Court determined that this express prohibition of a specific, limited form of judicial review of second or successive habeas corpus petitions, did not also repeal by implication the Supreme Court's original jurisdiction to entertain habeas petitions. Conversely, the repeal of jurisdiction under INA § 242(

g) is much broader. INA § 242(

g) does not address a limited set of statutory provisions. Instead, the jurisdiction-repealing language in INA § 242(

g) states comprehensively that “[ejxcept as provided in this

section and notwithstanding any other provision of law, no court shall have jurisdiction” over the specified claims. INA § 242(

g) expressly repeals any and all jurisdiction except that conferred by INA § 242. Unlike Felker, the language of INA § 242(

g) does not require repeal by implication. Indeed, Congress could hardly have chosen broader language to convey its intent to repeal any and all jurisdiction except that provided by INA § 242. Based on the foregoing, we conclude that INA § 242(

g) repealed § 2241 habeas jurisdiction over Richardson’s claims challenging his executive detention without bond and removal order and that the district court erred in exercising jurisdiction under § 2241. B. No Constitutional Infirmities to Avoid Richardson asserts that IIRIRA’s elimination of § 2241 jurisdiction means he has no judicial review of his executive detention. Although conceding many aliens can still obtain judicial review in the court of appeals under the INA, Richardson stresses that other limitations within the INA’s judicial-review scheme result in his having no judicial review whatsoever. Richardson contends, for example, that INA § 242(a)(2)(

C) adds other limits to the judicial review available to criminal aliens and thus he has no judicial review under the INA. Richardson argues that no judicial review whatsoever of his executive detention violates the Due Process Clause,

Article III, and the Suspension Clause. For those reasons, Richardson submits INA § 242(

g) cannot repeal § 2241 ha-beas. The INS responds that INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration decisions creates no constitutional infirmities because the INA does not eliminate all judicial review for Richardson. According to the INS, these new INA provisions, enacted by IIRIRA, do not “operate to bar the court of appeals from redressing substantial claims of constitutional error as part of the petition for review” of any final removal order against criminal aliens.

The INS and Richardson vigorously dispute how much judicial review is required under the INA to avoid constitutional infirmities arising from the INA’s repeal of § 2241 habeas jurisdiction over immigration decisions. The INS concedes only that any constitutionally required judicial review of administrative agency decisions must occur under the INA and in the form of a petition for review in the court of appeals after a final removal order. Richardson rejoins that the other circuits have held that INA § 242(

g) does not repeal § 2241 habeas, in large part, to avoid what the Second Circuit described as “serious constitutional issues” in Jean-Baptiste or what the First Circuit termed “serious, novel and complex constitutional issues” in Gon-calves, stating: Finally, our refusal to find express repeal of § 2241 in new INA § 242(

g) eliminates the need to address serious, novel and complex constitutional issues. We would be loathe to find a repeal where that repeal creates serious constitutional problems. We note these constitutional concerns briefly to underscore the wisdom of avoiding them. Goncalves, 144 F.3d at 122. Similarly, in Jean-Baptiste, the Second Circuit outlined how historically habeas was available to aliens, why permanent resident aliens enjoy procedural due process rights, and avoided what it foresaw as “serious constitutional issues” under the Suspension Clause and Due Process Clause. Jean-Baptiste, 144 F.3d at 219.

The Second Circuit worried that without § 2241 habeas, a permanent resident criminal alien would lack a forum in which to vindicate substantial constitutional rights. Id. We agree with Richardson that both the First and Second Circuits’ holdings that INA § 242(

g) did not repeal § 2241, stemmed from their adopting a principle of “constitutional avoidance,” as opposed to following the plain language of INA § 242(g). We reject this “constitutional avoidance” approach for two reasons. First, although courts wisely prefer avoiding thorny constitutional issues, the language of INA § 242(g), in our view, is plain, unambiguous, and yields only one permissible statutory construction. See United States v.

Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (“[Cjourts cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”); American-Arab Anti-Discrimination Comm. v. Reno, 132 F.3d 531, 532-33 (9th Cir.1997) (O’Seannlain, J., dissenting from the denial of rehearing en banc) (“Whatever the merits of constitutional avoidance might be, no court may ‘avoid’ a perceived conflict when the text is unambiguous, as it is here.

The avoidance canon, invoked with such abandon, amounts to nothing less than rewriting the statute.”), cert. granted, — U.S. -, 118 S.Ct. 2059, 141 L.Ed.2d 137 (1998). Second, examining, not avoiding, Richardson’s constitutional concerns, we find that INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration decisions does not violate the Due Process Clause and

Article III because neither provision mandates judicial review of immigration decisions. This repeal also does not violate the Suspension Clause because Richardson still has adequate and effective judicial review available under the INA. In light of these significant constitutional issues, we outline why in considerable detail. C. Eleventh Circuit’s Boston-Boilers Decision This Circuit already has upheld as constitutional the similar, restricted judicial review afforded criminal aliens under former INA § 106(a)(10), enacted by the AEDPA. Boston-Bollers v. INS, 106 F.3d 352 (11th Cir.1997).

Although decided before the effective date of IIRIRA’s repeal of § 2241 and involving a slightly different statute, Bostom-Bollers is our necessary starting point because it held that INA § 106(a)(10)’s precluding judicial review of a deportation order against a permanent resident criminal alien did not violate the Due Process Clause or

Article III. Quoting from Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), this Court recognized that the “responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government,” and that “over no conceivable subject is the legislative power of Congress more complete.” Boston-Bollers, 106 F.3d at 355.

Accordingly, this Court determined that INA § 106(a)(10) did not violate the Due Process Clause because deportation is not a criminal proceeding or punishment and no judicial review is guaranteed by the Due Process Clause, stating: This restriction of federal court jurisdiction does not violate the Due Process Clause. As the Supreme Court stated in Carlson v.

Landon, “[t]he power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely though executive officers, with such opportunity for judicial review of their action as congress may see fit to authorize or permit.” 342 U.S. 524, 537, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952) (internal quotation omitted). And since “[djeportation is not a criminal proceeding and has never been held to be punishment ... [n]o judicial review is guaranteed by the Constitution.” Id. at 537, 72 S.Ct. at 533 (footnote omitted).

Because the Constitution does not give aliens the right to judicial review of deportation orders,

section 440(a)(10) does not violate the Due Process Clause. 106 F.3d at 355. In addition, this Court concluded that former INA § 106(a)(10) did not offend

Article III because Congress and the executive branch exercise plenary authority over immigration regulation. Id. at 355. We also recognized that “the federal appellate courts have ‘jurisdiction to review certain final orders of deportation and exclusion against aliens only because Congress has conferred it.’ ” 106 F.3d at 354 (quoting Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir.1996)). Accordingly, this Court concluded that INA § 106(a)(10)’s restricting judicial review of deportation orders against criminal aliens “not only does not violate

Article III, it is illustrative of the concept of separation of powers envisioned by the Constitution.” Id. Boston-Boilers would resolve Richardson’s constitutional concerns were it not for two facts: (1) when this Court interpreted former INA § 106(a)(10) in Boston-Bollers, IIRI-RA’s repeal of § 2241 was not yet effective, and (2) in a footnote, this Court in Boston-Boilers expressly recognized that whether INA § 106(a)(10) precluded judicial review of deportation orders against criminal aliens “via a writ of habeas corpus” was not presented in that appeal. Id. at 354 n. 1.

While Boston-Bollers informs our analysis, we recognize that it was decided under INA § 106(a)(10) as enacted by the AEDPA, was not colored by the same constitutional concerns created by IIRIRA’s repeal of § 2241 habeas in INA § 242(g), and did not address the restrictions now in INA § 242(a)(2)(

C) on judicial review of deportation orders against criminal aliens. Nonetheless, we find that these additional circumstances still do not create constitutional infirmities in IIRIRA’s new judicial-review scheme. We reach this conclusion not only for the reasons outlined in Bostorir-Bollers but also because Congress clearly has the authority (

a) to repeal § 2241 jurisdiction over immigration decisions, (

b) to legislate that all judicial review of immigration decisions must be exclusively under the INA, and (

e) to regulate the exclusive mode and precise timing of that judicial review within the INA’s provisions. As shown below, Congress’ repeal of § 2241 and its enactment of the requirement that all judicial review now be exclusively under the INA, in the court of appeals, and after a final removal order do not violate the Due Process Clause,

Article III, or the Suspension Clause. We now examine each such constitutional provision in turn. D. Due Process Clause Permanent resident aliens are protected by the Due Process Clause of the Fifth Amendment which provides that “[n]o person shall be ... deprived of life, liberty or property, without due process of law....” U.S. Const. amend. V. Although the political branches exercise plenary control over the admission and removal of aliens, INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v.

Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Wfhile an alien seeking initial admission to the United States has no constitutional rights regarding an application for admission, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950), “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982).

The Supreme Court has held that a permanent resident alien “continuously present” in the United States has a right to procedural due process in any proceedings to remove that alien from the country. See, e.g., Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Landon v. Plasencia, 459 U.S. at 21, 103 S.Ct. 321. At the core of the alien’s due process rights is the right to notice of the nature of the charges and a meaningful opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98, 73 S.Ct. 472, 97 L.Ed. 576 (1953).

Removal proceedings under the INA are not criminal proceedings and are not

summary ejection proceedings. See Boston-Bollers, 106 F.3d 352, 355 (11th Cir.1997). Instead, removal proceedings are imbued with procedural safeguards that satisfy the Due Process Clause. The alien has the right to notice, the opportunity to present evidence and cross examine witnesses, and the right to do so with the assistance of counsel at a hearing before an immigration judge. Given these procedural safeguards, no judicial review is required to provide the process due to a permanent resident alien facing removal. See, e.g., Carlson v.

Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Boston-Bollers, 106 F.3d at 354-55; Yang v. INS, 109 F.3d 1185, 1196-97 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, — U.S. -, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997). Therefore, the fact that IIRIRA repeals § 2241 habeas jurisdiction over immigration decisions, provides for exclusive judicial review under the INA, and within that INA scheme further limits the mode, timing and types of issues for which Richardson can seek judicial review under the INA, does not violate the Due Process Clause.

We recognize that Richardson also asserts that the INA’s limiting his bond requests in these removal proceedings to written request to the INS district director, without any judicial review by an immigration judge, deprives him of due process. We disagree. The sufficiency of that process is evaluated under the three factors outlined in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):(1) a petitioner’s interest in additional procedures; (2) the “risk” of the procedure; and (3) the government’s interest in the procedure.

Richardson’s “liberty interest” under the Due Process Clause is weighty, although slightly attenuated given his resident alien status. However, the “risk” factor is low, as Richardson’s counsel was able to make written bond and parole requests to the INS district director, supported by evidence, which here included several documents and affidavits on Richardson’s behalf. In contrast, the INS’ interest is fairly high in its district director’s being able to make parole and bond decisions for arriving aliens facing removal proceedings in that district without a subsequent hearing before an immigration judge.

Given the volume of arriving aliens and numerous ports of entry, it simplifies the procedures, expedites consideration, and reduces costs, while still giving the alien an opportunity to request bond and parole. Being the initial step in the removal proceedings, the INS’ bond and parole procedures also must be evaluated in light of the many procedural safeguards in the overall removal proceedings. Indeed, Richardson received a plenary removal hearing before an immigration judge. Richardson has shown no due process violation. E.

Article III IIRIRA’s repeal of § 2241 habeas over INS decisions also does not violate

Article III. While § 2 of

Article III extends the judicial power to “all eases ... arising under the Constitution,” § 1 of

Article III provides that this judicial power shall be vested “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill §§ 1, 2. Even if Richardson had no judicial review available in the district court under § 2241 or in the court of appeals under the INA,

Article III does not mandate the judicial review of immigration decisions in any inferior court. Instead, Congress possesses the sole authority to establish the jurisdiction of the inferior federal courts. The jurisdiction of the inferior federal courts is created by statute and jurisdiction does not exist except to the extent conferred by statute. Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850). Therefore, inferior federal courts must have some statutory basis upon which to retain jurisdiction regardless of the character of Richardson’s claims. Similar to many con-gressionally enacted limits on federal jurisdiction,

Article III does not preclude Congress from removing all judicial review over immigration decisions from the inferior courts. F. Suspension Clause Contending that he has no judicial review available under the INA, Richardson asserts that the Suspension Clause entitles him to judicial review, and thus Richardson argues INA § 242(

g) cannot be read to repeal § 2241 habeas. 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. I § 9. Since “the traditional Great Writ was largely a remedy against executive detention,” the INS concedes that the Suspension Clause requires some limited judicial review of Richardson’s executive detention. The INS emphasizes, however, that any constitutionally required judicial review (

a) must be found under the INA and not § 2241 habeas, and (

b) is limited to only “substantial constitutional claims” or “substantial claims of constitutional error.” The Supreme Court has not defined the level of judicial review preserved by the Suspension Clause, unaided by § 2241 or its precursor statutes, because statutory habeas review historically has been available since 1789. Both parties repeatedly cite Heikkila v.

Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953), in which the Supreme Court held that “the 1917 Immigration Act ... clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution.” Id. at 234-35, 73 S.Ct. 603. The Supreme Court upheld the preclusion of judicial review in the 1917 Act, but in the context of statutory habeas remaining available, stating; The rule which we reaffirm recognizes the legislative power to prescribe applicable procedures for those who would contest deportation orders.

Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases in order to minimize opportunities for repetitious litigation and consequent delays as well as to avoid possible venue difficulties connected with any other type of action. Id. at 237, 73 S.Ct. 603. Thus, Heikkila does not resolve the issue here of whether IIRI-RA’s repeal of § 2241 habeas would violate the Suspension Clause if Richardson has no judicial review under the INA.

Unguided by direct Supreme Court precedent, the Second, Seventh, and Ninth Circuits have thoughtfully addressed and reached different conclusions about what level of judicial review is protected by the Suspension Clause, what scope of judicial review the INA provides, and whether constitutional infirmities are created by INA § 242(g)’s repeal of § 2241 habeas jurisdiction over immigration decisions.

The Second and Ninth Circuits have outlined in great detail the two-hundred year history of the Suspension Clause and why the Great Writ protected by the Suspension Clause (whether under an originalist approach as it existed in 1789 or today) requires judicial review of an alien’s executive detention that is the equivalent of § 2241 habeas. Magana-Pizano v. INS, 152 F.3d 1213, 1217-21 (9th Cir.1998); Henderson v. INS, 157 F.3d 106, 112-21 (2d Cir.1998). In Magana-Pizano, the Ninth Circuit concluded that INA § 242(g)’s repeal of § 2241 habeas violated the Suspension Clause.

In Jean-Baptiste, 144 F.3d 212 (2d Cir.1998), the Second Circuit, in order to avoid the Suspension Clause issue, held that INA § 242(

g) did not repeal § 2241 habeas. A subsequent panel of the Second Circuit in Henderson followed yet questioned the correctness of the Jean-Baptiste decision. The Seventh Circuit took a different approach. After outlining the history of § 2241 habeas and the Suspension Clause, the Seventh Circuit agreed that “[ajliens may seek the writ that Art. I § 9 cl. 2 preserves against suspension.” Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.1997). However, the Seventh Circuit found that “28 U.S.C. § 2241 offers an opportunity for collateral attack more expansive than the Great Writ preserved in the Constitution.” Id.

While Yang’s direct holding involved the restrictions on a criminal alien’s judicial review under former INA § 106(a)(10), the Seventh Circuit noted that “effective April 1, 1997, § 306(

a) of the IIRIRA [INA § 242] abolishes even review under § 2241, leaving only the constitutional writ, unaided by statute.” Id. The Seventh Circuit found that the particular errors of law and discretionary INS decision of which Yang, a criminal alien in custody, sought judicial review were simply not protected by the “Great Writ.” Id. Similarly, the Seventh Circuit noted there is a “vast gulf between the non-suspendable constitutional writ” and certain other forms of judicial review, such as under the Administrative Procedures Act. Id.

Below we first discuss the different approaches of these three circuits in considerable detail. Second, we address IIRIRA’s clear mandate that judicial review be exclusively after a final removal order — a factor we find not given sufficient weight by our sister circuits. Third, we outline why we find INA § 242(g)’s repeal of § 2241 habeas and its requirement of exclusive judicial review under the INA do not conflict with the Suspension Clause. G. Second Circuit’s Henderson Decision When it decided Henderson, the Second Circuit in Jean-Baptiste already had held that INA § 242(

g) did not repeal § 2241 habeas. Jean-Baptiste v. Reno, 144 F.3d 212, 218-19 (2d Cir.1998); Henderson v. INS, 157 F.3d 106, 119 (2d Cir.1998). Subsequently, in Henderson the Second Circuit revisited whether constitutional issues under the Suspension Clause are actually implicated by IIRIRA’s repeal of § 2241 habeas. Noting that it was bound by Jean-Baptiste, the Second Circuit in Henderson held that INA § 242(

g) did not repeal § 2241.

However, in a footnote, the Second Circuit in Henderson expressly acknowledged that “[w]ere we not bound by Jeavr-Baptiste, the members of this panel would be strongly inclined to find that the proper mechanism for judicial review is by petition for review in the courts of appeals, rather than by § 2241 habeas in the district courts.” The Henderson panel noted that Congress “clearly” meant to streamline judicial review and concluded that “it seems perverse to find that the new laws [IIRIRAJ actually added a layer of review in the district courts that did not generally exist before.” The Second Circuit in Henderson noted that Jean-Baptiste expressly had reserved the question of the extent and nature of judicial review remaining available under the INA post-IIRIRA.

The Henderson panel rejected the INS’ contention that judicial review under IIRIRA is limited to “substantial constitutional issues.” Instead, the Second Circuit indicated that judicial review post-IIRIRA “ ‘is much like it was prior to the enactment of the INA’ and is similar to that which existed under the early statutes that were ‘intended to make these administrative decisions nonreviewable to the fullest extent possible under the Constitution.’ ” The Second Circuit then noted that the Attorney General’s position that no court has power to review her

interpretation of immigration laws “is, to put it mildly, not only at war with the historical record described earlier in this opinion' — for at least a hundred years, the courts have reviewed the executive branch’s

interpretation of the immigration laws, and have deemed such review to be constitutionally mandated — it is also hard to square with the core conception of habeas corpus as it has been applied over many centuries.” Ultimately, the Second Circuit in Henderson concluded only that whatever the remaining parameters of § 2241 relief in the immigration context, the claims presented by the Henderson aliens facing deportation fell within the remaining scope of § 2241.

As its holding, the Second Circuit stated “federal courts have jurisdiction under § 2241 to grant writs of habeas corpus to aliens when those aliens are ‘in custody in violation of the Constitution or laws or treaties of the United States.’ ” But, the Second Circuit immediately qualified that holding by stating that “[t]his is not to say that every statutory claim that an alien might raise is cognizable on habeas.” Instead, the court concluded that the range of claims available under § 2241 consisted of “the sort that the courts have secularly enforced ... in the face of statutes seeking to limit judicial jurisdiction to the fullest extent constitutionally possible.” H.

Ninth Circuit’s Maganctr-Pizano Decision Two recent Ninth Circuit decisions also address INA § 242(g)’s repeal of § 2241 ha-beas. In Hose v. INS, 141 F.3d 932, 935 (9th Cir.), withdrawn and reh’g en banc granted, 161 F.3d 1225, No. 97-15789, 1998 WL 848048 (9th Cir. December 2, 1998), the Ninth Circuit first held that INA § 242(

g) repealed § 2241 jurisdiction, noting that the noncriminal alien in that case still could seek judicial review of the BIA’s final deportation order under INA § 242(b)(2) in the court of appeals. Subsequently, in Magana-Pizano v.

INS, 152 F.3d 1213, 1220 (9th Cir.), modified, 159 F.3d 1217 (9th Cir.1998), the Ninth Circuit held that, unlike the alien in Hose, a criminal alien cannot obtain full judicial review in the court of appeals due to INA § 242(a)(2)(C), that INA § 242(g)’s repeal of § 2241 jurisdiction as applied in that different context violated the Suspension Clause, and thus, § 2241 jurisdiction still existed over Magano-Pizano’s deportation order. In light of Hose’s holding that INA § 242(

g) repealed § 2241, the Ninth Circuit could not construe INA § 242(

g) to avoid constitutional issues. The Ninth Circuit found that Heikkila established the minimum constitutionally permissible level of judicial review in immigration cases and required the conclusion that, when Congress limits judicial review over immigration matters to the extent permitted by the Constitution, habeas remains available.

In other words, the Ninth Circuit found that “[sjimply put, elimination of all judicial review of executive detention violates the Constitution.” Based on this premise, the Ninth Circuit concluded that, as interpreted in Hose and applied to cases for which no judicial review is available, INA § 242(g)’s repeal of § 2241 was invalid under the Suspension Clause. Prior to granting rehearing en banc, the Ninth Circuit thus had adopted a hybrid approach to whether INA § 242(

g) repeals § 2241. For cases where judicial review remains in the court of appeals under the INA, the Ninth Circuit had interpreted INA § 242(

g) as repealing § 2241 jurisdiction. Conversely, for cases in which the Ninth Circuit finds that there is no judicial review under the INA, the Ninth Circuit concluded that INA § 242(

g) cannot constitutionally repeal § 2241 habeas and that some form of habeas relief remains available. I. Seventh Circuit’s Yang Decision Although involving former INA § 106(a)(10), the Seventh Circuit’s decision in Yang v. INS, 109 F.3d 1185, 1187 (7th Cir.), cert. denied sub nom, Katsoulis v. INS, — U.S. -, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997), also contains an instructive analysis of the Suspension Clause and Congress’ plenary power to remove judicial review over immigration decisions to the full extent permitted by the Constitution.

The specific facts and legal issues in Yang are an important background to its holding that the INA does not preclude all judicial review of deportation orders against criminal aliens. After finding that Yang’s conviction for concealing stolen firearms was a deportable offense under INA § 241(a)(2)(C), the immigration judge ordered Yang deported because of this conviction, among other reasons. On his petition for direct review in the court of appeals, Yang argued, inter alia, that he was not deportable under INA § 241(a)(2)(

C) because his conviction for concealing stolen firearms was not a crime involving the “possession” of a firearm. Although prior to IIRIRA’s repeal of § 2241 habeas, Yang was still faced with a similar judicial review bar in former INA § 106(a)(10) which provided that “[a]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in

section [designated sections omitted] ... shall not be subject to review by any court.” According to the INS, Yang was not entitled to judicial review of his final deportation order because the BIA already had determined that he was an alien deportable based on one of the sections referenced in INA § 106(a)(10). Like Boston-Bollers, the Seventh Circuit held that INA § 106(a)(10)’s restrictions on judicial review of Yang’s deportation order did not violate the Due Process Clause or

Article III. The Seventh Circuit also discussed how the review protected by the Suspension Clause is not coextensive with § 2241 habeas as follows: Aliens may seek the writ that Art. I § 9 cl. 2 preserves against suspension.

But we are reluctant to place weight on its availability, because the Supreme Court long ago made it clear that this writ does not offer what our petitioners desire: review of discretionary decisions by the political branches of government. [Citations omitted.] There is a vast gulf between the non-suspendable constitutional writ and the Administrative Procedure Act. [Citations omitted.] Similarly, in cases under 28 U.S.C. § 2254, “[a] federal court may not issue the writ on the basis of a perceived error of state law.” Pulley v.

Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984). [Citations omitted.] Likewise with errors of federal law. See United States v. Caceres, 440 U.S. 741, 752, 99 S.Ct. 1465, 1472, 59 L.Ed.2d 733 (1979) (error “by an executive agency in interpreting its own regulations surely does not raise any constitutional concerns”); Czerkies [v. U.S. Dept. of Labor], 73 F.3d [1435] at 1443 [(7th Cir.1996)] (“The government does not violate the Constitution every time it mistakenly denies a claim for benefits.”).

As a practical- matter, the right to obtain review, in any court, on the theories our petitioners advance is gone. That is the point of the legislation. Congress wanted to expedite the removal of criminal aliens from the United States by eliminating judicial review, not to delay removal by requiring aliens to start the review process in the district court rather than the court of appeals. Yang, 109 F.3d at 1195 (emphasis supplied).

The Seventh Circuit in Yang recognized, as did the Second Circuit in Henderson, that Congress wanted to eliminate review in the district courts and allow review only in the court of appeals. In addition to its Suspension Clause discussion, the Seventh Circuit in Yang explained how the INA does not abrogate all judicial review for criminal aliens because courts always have jurisdiction to determine whether a jurisdictional bar applies and to consider constitutional attacks on any such jurisdictional bar.

The Seventh Circuit explained succinctly that “a court has jurisdiction to determine whether it has jurisdiction.” The Seventh Circuit found that the language of INA § 106(a)(10) did not condition its restriction on judicial review merely on the Attorney General’s saying that an alien is deportable for one of the enumerated criminal offenses. Instead, the language of INA § 106(a)(10) conditioned its restriction on judicial review on there being “an alien” “who is deportable” “by reason of having committed a criminal offense” enumerated in the statute.

The Seventh Circuit noted that “[w]hen judicial review depends on a particular fact or legal conclusion, then a court may determine whether that condition exists.” Therefore, the Seventh Circuit held that INA § 106(a)(10) permitted courts to exercise jurisdiction to determine these three threshold issues in order to decide whether the jurisdictional bar in INA § 106(a)(10) applies: (1) whether the person is an alien, (2) whether the alien is deporta-ble, and (3) whether deportation is based on an enumerated criminal offense. Without as extensive a discussion as in Yang, the Fifth Circuit in Anwar v.

INS, 116 F.3d 140, 144 (5th Cir.1997), likewise concluded that even under INA § 106(a)(10)’s restrictions on judicial review, it could still exercise some jurisdiction over the alien’s petition for review. The Fifth Circuit noted that under INA § 106(a)(10), “unamended by IIRIRA,” judicial review was precluded if deportation was based on two convictions for a crime involving moral turpitude only if both of the convictions occurred within five years of when the alien entered the United States. Because one of Mr.

Anwar’s criminal convictions occurred more than five years after he entered the United States, the Fifth Circuit concluded that the jurisdictional bar of INA § 106(a)(10) did not apply. Accordingly, the Fifth Circuit proceeded to review the alien’s petition. Despite its lack of extensive discussion, the Anwar decision illustrates the same concept followed in Yang. The Fifth Circuit did not simply decline to exercise jurisdiction based on the INS’ asserted grounds for deportation.

Instead, the Fifth Circuit conducted its own review of the allegations supporting deportation to determine whether these allegations prohibited further judicial review. Finding that the judicial-review limiting provisions of INA § 106(a)(10) did not apply, the Fifth Circuit proceeded to entertain the alien’s claims. Moreover, in a subsequent decision, the Fifth Circuit expressly adopted the aspect of the Yang decision holding that the court of appeals can exercise jurisdiction in order to determine whether a jurisdictional bar precludes further jurisdiction. Okoro v. INS, 125 F.3d 920, 925 (5th Cir.1997).

Okoro involved a petition for review by an alien facing deportation under INA § 241(a)(2)(A)(ii), which provided for the deportation of any alien with two or more convictions of crimes involving moral turpitude. As a “threshold matter,” the Okoro court examined its own jurisdiction in light of INA § 106(a)(10), as amended by IIRIRA, which precluded judicial review of any final deportation order “against an alien who is deportable by reason of having committed ... any offense covered by [INA]

section 241(a)(2)(A)(ii) for which both predicate offenses are covered by [INA]

section 241(a)(2)(A)(i).” Thus, the court held that its jurisdiction depended on whether the alien was deportable based on convictions covered by INA § 241(a)(2)(A)(i) & (ii), as follows: To determine whether this jurisdictional bar applies to [the alien’s] petition for review, we must examine whether the underlying offenses relied on by the INS to deport [the alien] are (1) crimes involving moral turpitude, (2) not arising out of a single scheme of criminal misconduct, and (3) for which [the alien] was sentenced to one year or more of imprisonment, regardless of actual confinement.

Id. at 925 (citing Yang, 109 F.3d at 1192). After determining that all three of these elements applied to the alien, the court concluded that it lacked jurisdiction over the alien’s petition for review. In this same vein, this Court’s decision in Bostonr-Bollers also exercised jurisdiction both over the legal issue of whether AEDPA § 440(a)(10)’s enactment of INA § 106(a)(10) applied retroactively and over whether that retroactive application violated Boston-Bol-lers’ constitutional rights.

This Court in Boston-Boilers was not required to determine the three threshold issues that the courts did in Yang or Anwar, because the permanent resident alien facing deportation in Bostonr-Bollers conceded his alien status, criminal conviction, and deportability. The parties did not dispute that the alien’s petition for direct review fell within the expressed jurisdiction-limiting language of INA § 106(a)(10).

Nevertheless, in Bostonr-Bol-lers this Court exercised jurisdiction over the alien’s petition for direct review in the court of appeals attacking the constitutionality of the judicial review restrictions in INA § 106(a)(10). Before we conclude our discussion of the Yang decision, we note that the Tenth Circuit in Berehe v. INS, 114 F.3d 159, 161 (10th Cir.1997), declined to follow the Yang approach.

In Berehe, the court applied IIRI-RA § 309(c)(4)(G), which is a transitional rule restricting the judicial review of the deportation of certain criminal aliens, as follows: [T]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in

section 212(a)(2) or

section 241(a)(2)(A)(iii), (B), (C), or (

D) of the Immigration and Nationality Act ... or any offense covered by

section 241 (a)(2)(A)(ii) of such Act ... for which both predicate offenses are, without regard to their date of commission, otherwise covered by

section 241(a)(2)(A)© of such Act.... IIRIRA § 309(c)(4)(G). Rejecting the Yang approach, the court concluded that this language did not “permit the court to review the merits of whether an alien is validly deportable by reason of having committed one of the enumerated criminal offenses.” Berehe, 114 F.3d at 161.

In reaching this conclusion the court specifically reasoned that: To permit judicial review into the validity of the INS’s determination that an alien is deportable by reason of having committed one of the listed crimes, in the guise of making a determination as to the court’s jurisdiction, is to permit review of the very fact or condition that the statute appears on its face to be precluding from review. We conclude that such review is contrary to Congress’s intent to expedite deportation of criminal aliens. Id. at 162. However, we observe two additional points about the Tenth Circuit’s holding in Berehe.

First, although professing to follow Berehe, the Tenth Circuit in a subsequent case reviewed constitutional and statutory claims raised by an alien who had been found de-portable for a reason enumerated in INA § 106(a)(10) before the court dismissed the case for lack of jurisdiction. Wittgenstein v. INS, 124 F.3d 1244, 1245 (10th Cir.1997). Second, in Berehe, the Tenth Circuit did not discuss IIRIRA’s elimination of § 2241 habe-as jurisdiction to review immigration matters, the fact that jurisdiction to review immigration matters remains under only the INA, a

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