No. 98-1011
In the Supreme Court of the United States
OCTOBER TERM, 1998
DANIEL MAGANA-PIZANO, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE
ON CONDITIONAL CROSS-PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE CROSS-RESPONDENT
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether Section 440(a) of the Antiterrorism and Effective Death Penalty
Act of 1996 and Section 309(c)(4)(G) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 deprived the court of appeals of jurisdiction
over cross-petitioner's petition for review of his deportation order.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1011
DANIEL MAGANA-PIZANO, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE
ON CONDITIONAL CROSS-PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE CROSS-RESPONDENT
As explained in detail in our petition for a writ of certiorari in INS v.
Magana-Pizano, No. 98-836 (filed Nov. 18, 1998), cross-petitioner is an
alien deportable by reason of having been convicted of a controlled substance
offense. On May 17, 1996, the Immigration and Naturalization Service commenced
deportation proceedings against him. Cross-petitioner conceded his deportability
but applied for discretionary relief from deportation under 8 U.S.C. 1182(c)
(1994). The Board of Immigration Appeals (BIA), however, concluded that
he was ineligible under Section 1182(c) for such relief. The BIA followed
the Attorney General's decision in In re Soriano (98-836 Pet. App. 99a-112a),
that Section 440(d) of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1277, which amended Section
1182(c) to render aliens convicted of controlled substance offenses ineligible
for relief, should be applied in all pending deportation proceedings. See
98-836 Pet. 8-10.
Cross-petitioner then filed a petition for review of his deportation order
in the court of appeals, pursuant to 8 U.S.C. 1105a(a) (1994), and also
filed a petition for a writ of habeas corpus in district court under the
general federal habeas corpus statute, 28 U.S.C. 2241. He argued both that
the Attorney General's decision in Soriano was wrong as a matter of statutory
interpretation, and also that Section 1182(c) violated constitutional equal-protection
principles insofar as it had been construed by the BIA to deny eligibility
for discretionary relief to aliens placed in deportation proceedings in
the United States, but not aliens seeking admission to the United States
from abroad. The district court dismissed his habeas petition, and he appealed
to the court of appeals, which consolidated that appeal with his direct
petition for review. The court of appeals then concluded that (a) Section
309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-626, deprived
it of all jurisdiction over the petition for review; (b) 8 U.S.C. 1252(g)
(Supp. II 1996), as amended by IIRIRA, deprived the district court of jurisdiction
over the habeas corpus petition; but (c) that deprivation of judicial review
violated the Suspension of Habeas Corpus Clause, U.S. Const. Art. I, §
9, Cl. 2; and so (d) as a remedy for that purported unconstitutional suspension
of judicial review, the district court should be permitted to exercise jurisdiction
over cross-petitioner's claims under the general habeas corpus statute,
28 U.S.C. 2241. The court of appeals accordingly remanded the case to the
district court for further proceedings on the habeas corpus petition. See
98-836 Pet. 10-14.
The government has filed a petition for a writ of certiorari, asking this
Court to review the court of appeals' determination that the district court
could exercise habeas corpus jurisdiction under 28 U.S.C. 2241 to review
cross-petitioner's challenges to his deportation order. In our petition
for a writ of certiorari, we explain (at 16-22) that, although neither the
district court nor the court of appeals has jurisdiction to review the merits
of the Attorney General's decision in Soriano, the court of appeals does
have jurisdiction to review cross-petitioner's constitutional challenge
to a provision of the Immigration and Nationality Act itself, notwithstanding
Section 440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA. We argue further
that, if (contrary to our submission) the Constitution requires that some
court have jurisdiction over cross-petitioner's non-constitutional challenge
to the Attorney General's denial of his request for discretionary relief
from deportation, that court is the court of appeals, on direct petition
for review, and not the district court, on a collateral habeas corpus petition.
See 98-836 Pet. 18-21, 24-25.
The alien now has filed a conditional cross-petition for a writ of certiorari,
seeking review of the court of appeals' dismissal of his petition for review
for lack of jurisdiction; he urges the Court to grant his cross-petition
if it grants our principal petition (although he urges the Court to deny
our petition). We agree that the cross-petition should be granted if (as
we urge) the Court grants our petition, and that the two cases should be
consolidated for briefing and oral argument. If the Court agrees with our
submission that Section 440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA
do not deprive the court of appeals of all jurisdiction over the constitutional
claim in the petition for review (see 98-836 Pet. 16-20), and that Section
1252(g)'s restriction on the district court's jurisdiction therefore presents
no constitutional difficulty, it would reverse the court of appeals' judgment
insofar as it remanded the case to the district court for further proceedings
on the habeas corpus petition. Absent a cross-petition, however, the Court
might not have the authority also to reverse the court of appeals' dismissal
of cross-petitioner's petition for review and to direct that that petition
be heard on the merits of whatever claims are not barred by Section 440(a)
of AEDPA and Section 309(c)(4)(G) of IIRIRA. It appears that such a result
would grant relief beyond that awarded by the court of appeals, which ordinarily
can be ordered only if a cross-petition for a writ of certiorari is filed.
See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 119 n.14 (1985).
To ensure that the Court has the authority to address all the jurisdictional
questions presented in the case, and also to grant complete relief, the
cross-petition should be granted and consolidated with our petition for
briefing and oral argument.
* * * * *
For the foregoing reasons, the conditional cross-petition for a writ of
certiorari should be granted and
consolidated with the petition for a writ of certiorari in INS v. Magana-Pizano,
No. 98-836, for briefing and oral argument.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DECEMBER 1998