Mr. Flores-Miramontes, the petitioner in the case, was admitted to the U.S. from Mexico as a lawful permanent resident in 1978 when he was ten years old.  In June 1996 he pled guilty to sale or transportation of cocaine.  On returning to the U.S. from a visit to Mexico in November 1997, he was detained by the INS and charged with inadmissibility because of the drug trafficking conviction.

At his hearing, while still detained and not represented by counsel, Flores-Miramontes applied for asylum and withholding of removal.  The immigration judge denied all relief and ordered him deported.  Flores-Miramontes gave his notice of appeal to INS detention officers 8 days before the 30-day BIA filing deadline.  However, the INS did not mail the notice to the BIA until the day it was due to be filed; as a result it was received by the BIA two days late.  The BIA summarily dismissed the appeal as untimely filed, and Flores-Miramontes filed a petition for review of that decision with the court of appeals.

On appeal, the INS contended that the court lacked jurisdiction over the case because of INA section 242(a)(2)(C), which provides that "no court shall have jurisdiction to review any final order of removal" against individuals who are deportable because of specified criminal convictions.  However, the INS also argued that the statute should be interpreted to allow the court of appeals to review any "substantial constitutional" claims under Webster v. Doe, 486 U.S. 592 (1988), which held that statutes should be read to allow for judicial review of constitutional claims when there is no other means to obtain review of such claims.

In its decision, the court agreed with the INS that INA section 242(a)(2)(C) bars appellate jurisdiction to review removal orders by means of a petition for review, except in the narrow circumstances where petitioners claim that none of the criminal offenses specified in the statute as grounds for removal apply to them.  This conclusion follows the decision in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), where the Ninth Circuit interpreted a similar bar to review of deportation orders based on specified criminal offenses under the IIRIRA’s transitional rules (see "Ninth Circuit Finds Habeas Jurisdiction Survives AEDPA and IIRIRA; Pending Cases Unaffected by AEDPA Restrictions on 212(c) Relief," Immigrants’ Rights Update, Feb. 11, 2000, p.4).

However, the court disagreed with the INS’s contention that it was necessary to consider Flores-Miramontes’s constitutional claims.  It found instead that another judicial method of raising these claims—filing a habeas corpus petition under 28 U.S.C. section 2241—is available to him.  In reaching this conclusion, the court relied on Felker v. Turpin, 518 U.S. 651 (1996), which requires that any limitation of habeas jurisdiction must be "by express command" of Congress.  In Magana-Pizano the Ninth Circuit found that the IIRIRA’s transitional judicial review rules did not expressly repeal habeas jurisdiction, and with this decision the court also found that the permanent rules do not do so.

Because the court lacked jurisdiction over the petition for review, it ordered the petition dismissed.  The court also ordered the mandate stayed for an additional 30 days in order to allow the petitioner to file a habeas petition in district court.