No. 98-1361
In the Supreme Court of the United States
OCTOBER TERM, 1998
RALPH RICHARDSON, PETITIONER
v.
JANET RENO, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
DONALD E. KEENER
ALISON R. DRUCKER
ERNESTO H. MOLINA, JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the district court has jurisdiction under 28 U.S.C. 2241 to review
petitioner's claim (a) that, as a legal permanent resident returning to
the United States detained a port of entry because of his prior criminal
conviction and placed in removal proceedings, he was entitled to a bond
hearing before an immigration judge to determine whether he should be released
from detention, (b) that his current mandatory detention, pursuant to 8
U.S.C. 1226(c)(1) (Supp. III 1997), violates the Due Process Clause or the
Excessive Bail Clause, or (c) that, because he was taken into custody several
years after he completed his criminal sentence, and not immediately after
he was released, he is not covered by the mandatory-detention provision
of Section 1226(c)(1).
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1361
RALPH RICHARDSON, PETITIONER
v.
JANET RENO, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-101) is reported at 162
F.3d 1338. The opinion of the district court (Pet. App. 105-118) is reported
at 994 F. Supp. 1466. The report and recommendation of the magistrate judge
(Pet. App. 119-132) are unreported. The order of the immigration judge denying
bond (Pet. App. 154-155) and the decision of the district director denying
parole (App., infra, 1a-2a) are unreported.
JURISDICTION
The amended judgment of the court of appeals was entered on December 22,
1998. The petition for a writ of certiorari was filed on February 23, 1999.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. This case involves a challenge to the application and, in this Court,
the constitutionality of new provisions of the immigration laws concerning
the detention of criminal aliens who are required to be removed from the
United States because of their criminal convictions. The provisions at issue
here, which concern the detention of such criminal aliens pending the completion
of their administrative removal proceedings, were added by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
Div. C, 110 Stat. 3009-546, enacted on September 30, 1996, which comprehensively
revised the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.
First, IIRIRA requires that certain criminal aliens be removed from the
United States, and bars the Attorney General from granting those aliens
discretion- ary relief from such removal (known as "cancellation of
removal" under the new terminology of IIRIRA). IIRIRA § 304, 110
Stat. 3009-594. Thus, 8 U.S.C. 1182(a)(2) (1994 & Supp. III 1997) provides
that an alien who has been convicted of any offense involving moral turpitude
or any controlled substance offense, or who has engaged in trafficking of
controlled substances, is inadmissible to the United States and shall be
removed. See 8 U.S.C. 1182(a)(2)(A)(i)(I) and (II), and (C) (1994 &
Supp. III 1997). In addition, 8 U.S.C. 1229b(a)(3) (Supp. III 1997) provides
that the Attorney General may not cancel the removal of any alien who has
been convicted of an "aggravated felony," which is defined elsewhere
in the INA to include any crime involving trafficking in controlled substances,
see 8 U.S.C. 1101(a)(43)(B).
Second, IIRIRA provides that the Attorney General "shall take into
custody" any alien who is inadmissible by reason of having committed
any offense covered in Section 1182(a)(2) (including those mentioned above).
8 U.S.C. 1226(c)(1)(A) (Supp. III 1997).1 Such an alien may be released
from custody, before entry of a final order of removal, only if the Attorney
General determines that such release is necessary to protect a witness,
a person cooperating with a criminal investigation, or a relative or associate
of such person, and if the alien satisfies the Attorney General that he
will not pose a danger to the safety of persons or property and that he
is likely to appear for any scheduled proceeding. 8 U.S.C. 1226(c)(2) (Supp.
III 1997).2
Third, when Congress enacted these mandatory-detention provisions in IIRIRA,
it also authorized the Attorney General to postpone their final implementation
for two years. See IIRIRA § 303(b)(2), 110 Stat. 3009-586. To address
the possibility that the Attorney General might elect to do so, Congress
enacted certain "Transition Period Custody Rules" (TPCR) to apply
in that event, instead of the mandatory-detention provisions. IIRIRA §
303(b)(3), 110 Stat. 3009-586 to 3009-587. The TPCR directed the Attorney
General to take into custody any criminal alien covered by Section 1182(a)(2),
but also authorized the Attorney General to release such an alien if he
was "lawfully admitted to the United States" and satisfied the
Attorney General that he would not pose a danger to persons or pro- perty
and would appear for proceedings. IIRIRA § 303(b)(3)(B)(i), 110 Stat.
3009-587.
IIRIRA defined "admission" and "admitted" to refer to
"the lawful entry of the alien into the United States after inspection
and authorization by an immigra- tion officer." 8 U.S.C. 1101(a)(13)(A)
(Supp. III 1997). IIRIRA further provided that an alien lawfully admitted
for permanent residence "shall not be regarded as seeking an admission
into the United States for purposes of the immigration laws" except
under certain circumstances, including if the alien "has committed
an offense identified in section 1182(a)(2)." 8 U.S.C. 1101(a)(13)(C)(v)
(Supp. III 1997). The result is that a legal permanent resident alien who
has committed a criminal offense covered by Section 1182(a)(2), and who
leaves the country and thereafter seeks to return, may be considered an
alien "seeking an admission into the United States."
The Attorney General exercised her authority to delay the final implementation
of the permanent detention rules of IIRIRA for two years. She also promulgated
regulations governing the detention of criminal aliens under the TPCR. Those
regulations provided that, in the case of an alien who had been lawfully
admitted to the United States and was thereafter placed in detention pending
his removal proceeding, the alien, after an initial custody determination
made by an INS District Director, could apply to an immigration judge for
release upon bond. 8 C.F.R. 236.1(d)(1). The regulations also provided,
however, that an immigration judge would have no such authority in the case
of "arriving aliens," 8 C.F.R. 236.1(c)(5)(i), defined elsewhere
in the regulations to mean "an alien who seeks admission to * * * the
United States * * * at a port-of-entry," 8 C.F.R. 1.1(q). "Arriving
aliens," under the TPCR, could apply only to a district director, not
an immigration judge, for release on bond, and could appeal from an adverse
decision of the district director to the Board of Immigration Appeals (BIA).
8 C.F.R. 236.1(d)(1), (2)(i) and (3)(i). Accordingly, under the Attorney
General's regulations implementing the TPCR, a legal permanent resident
alien who had been convicted of a criminal offense covered by Section 1182(a)(2),
and who left the country and thereafter sought to return, was considered
an "arriving alien," and could apply only to the district director
(with subsequent appeal to the BIA), not an immigration judge, for release
from detention.
2. Petitioner is a 32-year-old native and citizen of Haiti. He was admitted
to the United States in 1968 as a lawful permanent resident. In 1984, he
was convicted of carrying a concealed firearm. In 1990, he was convicted
of trafficking in cocaine. He was sentenced to five years in prison for
the trafficking offense and served four years. In 1993, he was arrested
for violation of probation when he eluded the police. Pet. App. 4, 106.
On October 26, 1997, petitioner returned to the United States after a two-day
trip to Haiti. During petitioner's inspection for admission, he admitted
to having been convicted for trafficking in cocaine, arrested for violation
of probation when he eluded the police, arrested for loitering and prowling,
arrested for possession of marijuana, and convicted for possession of a
concealed firearm. Petitioner was detained and placed in removal proceedings.
Pet. App. 5-6.
On the same day, the Immigration and Naturalization Service (INS) commenced
removal proceedings against petitioner, charging him with inadmissibility
pursuant to 8 U.S.C. 1182(a)(2)(A)(i)(I) and (II), (B), and (C) (1994 &
Supp. III 1997) (referring respectively to a conviction for a crime involving
moral turpitude, a conviction for a controlled substance offense, multiple
criminal convictions, and engaging in drug trafficking). App., infra, 3a-
4a. On November 13, 1997, petitioner requested parole from the INS District
Director. While that request was pending, petitioner also requested parole
from an immigration judge. Pet. App. 6, 107. On November 24, 1997, the immigration
judge denied petitioner's request for parole or release on bond, on the
ground that petitioner was an "arriving alien," and therefore
under the Attorney General's TPCR regulations an immigration judge lacked
jurisdiction to hear his request for parole. Id. at 7, 154-155. On December
4, 1997, the INS District Director denied petitioner's request for parole.
The District Director concluded that, based on petitioner's convictions,
his release was not in the public interest, and that there were no humanitarian
reasons for granting parole. App., infra, 1a-2a. Petitioner did not appeal
to the BIA from the decision of either the immigration judge or the District
Director.
3. On November 26, 1997, petitioner filed a petition for writ of habeas
corpus in the United States District Court for the Southern District of
Florida; he subsequently filed an amended petition. Pet. App. 7, 133. In
his amended petition, filed on December 10, 1997, petitioner alleged that
the Attorney General's TPCR regulations that denied him the opportunity
for a hearing before an immigration judge violated equal-protection principles
by creating a class of lawful permanent residents who are not afforded a
hearing before an immigration judge because of their brief departure from
the United States, while affording such a hearing to lawful permanent residents
who have not departed the United States. Id. at 141. He also alleged that
the denial of a bond hearing before an immigration judge and his detention
without bail violated procedural due process, substantive due process, and
the Excessive Bail Clause of the Eighth Amendment. Id. at 144-147. Finally,
petitioner argued that, to the extent the Attorney General's TPCR regulations
provided that he should be treated as an "arriving alien" seeking
admission to the United States (and therefore not entitled to a bond hearing
before an immigration judge) rather than a returning lawful permanent resident
alien, those regulations were contrary to the doctrine of Rosenberg v. Fleuti,
374 U.S. 449 (1963). Pet. App. 150. Under that decision, which construed
the term "entry" in the INA as it existed prior to IIRIRA, a lawful
permanent resident alien who made a brief, causal, and innocent trip abroad
and then sought to return to the United States was not deemed to be seeking
an "entry" into this country upon his return. See 374 U.S at 451-461
(discussing 8 U.S.C. 1101(a)(13) (1958)).
On February 13, 1998, the district court granted the writ of habeas corpus
and ordered a bond hearing to be held by an immigration judge within eleven
days. Pet. App. 105-118. The district court found that it had jurisdiction
to entertain the claims in petitioner's habeas corpus petition. Id. at 110.
(Although the district court did not cite an explicit provision for its
jurisdiction, it presumably relied on 28 U.S.C. 2241, the general federal
habeas corpus statute.) The district court rejected (Pet. App. 109-110)
the INS's argument that such jurisdiction was precluded by 8 U.S.C. 1226(e)
and 1252(g) (Supp. III 1997). On the merits, the district court held that
the INS regulation treating criminal aliens such as petitioner as "arriving
aliens" was contrary to the statute. The court concluded that, when
Congress enacted IIRIRA, it did not supersede the Fleuti doctrine under
which legal permanent resident aliens returning to the United States from
a brief, casual, and innocent trip abroad are not treated as aliens seeking
entry into the United States. Pet. App. 115-117.
4. On February 23, 1998, the court of appeals granted the INS's request
for a stay of the district court's order pending appeal, and ordered expedited
briefing. Pet. App. 104. On April 2, 1998, Justice Kennedy denied petitioner's
application to vacate the court of appeals' stay. Id. at 103. On October
10, 1998, while this case was pending in the court of appeals, the TPCR
expired, and, as petitioner notes (Pet. 9), after that time, petitioner's
custody was based on the permanent custody provisions of IIRIRA. Petitioner
requested leave to file a supplemental brief in the court of appeals on
questions concerning mandatory detention under those provisions, but the
court of appeals denied that request. See Pet. 9-10.
5. Meanwhile, on January 8, 1998, an immigration judge found petitioner
inadmissible pursuant to Sections 1182(a)(2)(A)(i)(I) (conviction for crime
involving moral turpitude), 1182(a)(2)(A)(i)(II) (conviction for controlled
substance offense), and 1182(a)(2)(C) (engaging in drug trafficking), and
ordered him deported to Haiti. App., infra, 5a-6a. Petitioner appealed the
immigration judge's order of removal to the Board of Immigration Appeals.
Petitioner's brief to the BIA was originally due on June 29, 1998. After
clarification of the briefing schedule, petitioner requested and received
an extension for the filing of his brief. He ultimately filed his brief
with the BIA on October 15, 1998. The INS filed its responding brief on
November 26, 1998. Id. at 9a-11a. The appeal to the BIA is still pending.
6. On December 22, 1998, the court of appeals, in a lengthy opinion, vacated
the district court's order for lack of jurisdiction. Pet. App. 1-101. The
court concluded that 8 U.S.C. 1252(g) (Supp. III 1997) had divested the
district court of authority to hear petitioner's challenges. Pet. App. 1-101.
a. After reviewing IIRIRA's far-reaching changes to the immigration laws
(Pet. App. 11-39), the court framed the "first question" before
it as whether Section 1252(g) "has eliminated federal jurisdiction
under [28 U.S.C.] 2241 over [petitioner's] habeas petition." Pet. App.
40. The court answered that question in the affirmative because, it stated,
Section 1252(g) "clearly and unequivocally precludes any jurisdiction
in the district court except that provided in [Section 1252]." Pet.
App. 43. Observing (ibid.) that Section 1252(g) provides that, "notwithstanding
any other provision of law, * * * no court shall have jurisdiction"
to review certain matters except as provided in Section 1252 itself, the
court found that this locution "sufficiently and clearly encompasses
other provisions of law, such as [28 U.S.C.] 2241." "When Congress
says 'any,' it means 'any' law, which necessarily includes § 2241."
Pet. App. 43-44. The court found that conclusion buttressed by the fact
that Congress had also repealed an express provision in the INA that had
recognized some authority in the district courts to grant the writ of habeas
corpus. See id. at 45-46.3
The court rejected two arguments put forward by petitioner to avoid the
effect of Section 1252(g). First, it rejected petitioner's reliance on the
rule against repeals of habeas corpus jurisdiction by implication, and in
particular his argument that Section 1252(g) did not oust the district court's
habeas corpus jurisdiction under 28 U.S.C. 2241 because Section 1252(g)
does not mention Section 2241 expressly. Pet. App. 46-47. The court suggested
that, by using sweeping language, including "notwithstanding any other
provision of law," Section 1252(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 [Section 1252]." Pet. App. 47-48.
Second, the court rejected petitioner's argument that Section 1252(g) "affects
only final removal orders" and does not address "interim detention
orders" such as denying bond and parole. Pet. App. 46 n.100. The court
concluded that the INS's "interim orders and actions are not collateral
proceedings but are inextricably part of the removal proceedings and covered
by the broad language of [Section 1252(g)]." Id. at 46-47 n.100.
b. The court of appeals also rejected petitioner's argument that the elimination
of the district court's jurisdiction over his habeas corpus petition under
28 U.S.C. 2241 would contravene the Due Process Clause, Article III, and
the Suspension of Habeas Corpus Clause. Pet. App. 48-71. As for the Due
Process Clause, the court concluded that the Clause does not necessarily
require judicial review of all immigration decisions, and that instead,
the question is whether the alien has adequate procedural safeguards attendant
to the relevant administrative decision. Id. at 57-59. The court also rejected
(id. at 59) petitioner's argument that limiting his opportunity to request
bond to a written submission to the INS District Director rather than a
hearing before an immigration judge deprived him of due process. Applying
the test of Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976), the court
found the opportunity for written submission to the District Director sufficient
because, while petitioner's liberty interest was, in its view, "weighty"-"although
slightly attenuated given his resident alien status"-the risk of error
is low, since petitioner's counsel was able to make a full submission to
the District Director supported by written evidence, and the INS's interest
in avoiding bond hearings before immigration judges is "fairly high"
given the volume of arriving aliens at numerous ports of entry. Pet. App.
60.
With respect to the mandatory-detention provision in Section 1226(c) that
had just come into effect, the court observed (Pet. App. 60 n.119) that
"Congress acts well within its plenary power in mandating detention
of a criminal alien with an aggravated felony conviction facing removal
proceedings." That mandatory detention "poses no constitutional
issue," the court of appeals continued, because this Court "already
has stated that [t]he Eighth Amendment has not prevented Congress from defining
the classes of [immigration] cases in which bail shall be allowed. The Supreme
Court has determined that bail need not be provided in all immigration cases."
Ibid. (quoting Carlson v. Landon, 342 U.S. 524, 545 (1952) (ellipsis and
internal quotation marks omitted)).
The court of appeals further held that what it called "IIRIRA's repeal
of § 2241 habeas over INS decisions" (Pet. App. 61) did not violate
Article III. The court observed that Article III does not require judicial
review in any inferior federal court, and that "[t]he jurisdiction
of the inferior federal courts are [sic] created by statute and jurisdiction
does not exist except to the extent conferred by statute." Pet. App.
62. "Similar to many congressionally-enacted limits on federal jurisdiction,
Article III does not preclude Congress from removing all judicial review
over immigration decisions from the inferior courts." Ibid.
Finally, the court rejected the contention that Section 1252(g), by precluding
the district court from entertaining petitioner's habeas corpus petition
under 28 U.S.C. 2241, effected an unconstitutional suspension of the writ
of habeas corpus. The court first reviewed (Pet. App. 64-88) the history
of habeas corpus in the immigration context and other appellate decisions
examining Section 1252(g). The court then concluded that, in Section 1252(b)(9)-which
independently provides that "[j]udicial 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 * * * shall be available only
in judicial review of a final order [of removal] under [Section 1252]"-Congress
had chosen "to delay federal court review of all claims of aliens against
whom removal proceedings have been instituted until the conclusion of the
administrative proceedings." Id. at 86. The court found the availability
of judicial review at that point sufficient to allay constitutional concerns
about a suspension of the writ of habeas corpus, because "[d]eferring
[petitioner's] claims until the entry of a final order of deportation does
not raise substantial constitutional concerns. Congress has broad latitude
to regulate the mode and timing of judicial review of administrative agency
decisions, even where constitutional claims are involved." Id. at 87-88.
Thus, the court likened the operation of Section 1252(b)(9) in this case
to an exhaustion requirement, which "avoids piecemeal review by consolidating
all challenges to the deportation process into a single judicial proceeding."
Id. at 88.
The court acknowledged that another provision of the INA added by IIRIRA,
8 U.S.C. 1252(a)(2)(C) (Supp. III 1997), significantly restricts the jurisdiction
of the court of appeals to hear any claim by a criminal alien such as petitioner
on a petition for review of a final order of removal. Pet. App. 90-91. The
court stressed, however, that some judicial review remained available to
an alien in petitioner's position on such a petition for review, including
a constitutional attack on a provision of the INA itself. Id. at 91-92.
Thus, the court concluded that the INA "still assures [petitioner]
a significant degree of judicial review in the court of appeals after a
final removal order," id. at 93-94, and it found that review sufficient
to allay constitutional concerns about a suspension of habeas corpus, id.
at 94-96.
DISCUSSION
Petitioner argues that the court of appeals erred in concluding that, because
of 8 U.S.C. 1252(g) (Supp. III 1997), the district court lacked jurisdiction
over his habeas corpus petition challenging the application, to this case,
of the Attorney General's TPCR regulations classifying him as an "arriving
alien" who was not entitled to a hearing before an immigration judge
on the question whether he should be released on bond pending the outcome
of his removal proceeding. That challenge, however, is now moot, because
the TPCR rules have expired. See Burke v. Barnes, 479 U.S. 361, 363-364
(1987); Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam); see also Fursari
v. Steinberg, 419 U.S. 379, 386-390 (1975); Diffenderfer v. Central Baptist
Church, 404 U.S. 412, 414 (1972).
Petitioner argues, however, that this Court should grant review to determine
whether the permanent mandatory-detention provisions of IIRIRA, 8 U.S.C.
1226(c)(1) (Supp. III 1997), apply to his case, and if so, whether they
are constitutional. The lower courts, however, did not examine those questions
in detail (although the court of appeals did indicate, in a footnote, that
it saw no constitutional difficulty with the mandatory-detention provisions,
see Pet. App. 60 n.119), and the parties did not brief any questions relating
to the permanent mandatory-detention rules. (Petitoner sought leave to file
a supplemental brief on the permanent rules, which was denied by the court
of appeals. See Pet. App. 102.) Given the lack of briefing in the court
of appeals on such a potentially far-reaching issue, it would not be appropriate
for this Court to grant plenary review to examine those issues in detail
in the first instance. See Fursari, 419 U.S. at 389; Lewis v. Continental
Bank Corp., 494 U.S. 472, 482 (1990). Nor is there a conflict in the circuits
on the application or constitutionality of the mandatory-detention provisions
that would otherwise warrant this Court's review; the only court of appeals
that has addressed their constitutionality in detail has concluded that
Section 1226(c)(1) is fully consistent with the Due Process Clause. Parra
v. Perryman, No. 99-1287, 1999 WL 173692, at *3-*4 (7th Cir. Mar. 24, 1999).
We do observe, however, that the court of appeals' analysis of Section 1252(g)
has been superseded by this Court's construction of the same provision in
Reno v. American-Arab Anti-Discrimination Committee, 119 S. Ct. 936 (1999)
(AADC). In AADC, the Court rejected the contention that Section 1252(g)
covers "all claims arising from deportation proceedings" (id.
at 943) and concluded instead that the provision is more narrowly limited
to specific "decisions or actions that may be part of the deportation
process" (ibid.); see id. at 945 n.9 (referring to Section 1252(g)'s
"explicit limitation to specific steps in the deportation process").4
The court of appeals also discussed 8 U.S.C. 1252(b)(9) (Supp. III 1997)
in the course of its jurisdictional ruling.5 See Pet. App. 86-89. It is
unclear whether the court of appeals intended to rule that Section 1252(b)(9)
constitutes an independent preclusion of district court review on habeas
corpus proceedings on petitioner's claim that he is entitled to a bond hearing
before an immigration judge, or whether the court intended its discussion
of Section 1252(b)(9)'s "final order" requirement and the exhaustion
principle it embodies essentially to reinforce its principal holding that
Section 1252(g) forecloses review. It is also unclear to what extent the
court's discussion of Section 1252(b)(9) was influenced by its analysis
of Section 1252(g). Accordingly, we suggest that the Court grant the certiorari
petition, vacate the judgment below, and remand for further proceedings
in light of Reno v. American-Arab Anti-Discrimination Committee, 119 S.
Ct. 936 (1999), which discussed (id. at 942-943) Section 1252(b)(9) as well
as Section 1252(g).
CONCLUSION
The petition for a writ of certiorari should be granted, the judgment of
the court of appeals vacated, and the case remanded for further proceedings
in light of Reno v. American-Arab Anti-Discrimination Committee, 119 S.
Ct. 936 (1999).
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
DONALD E. KEENER
ALISON R. DRUCKER
ERNESTO H. MOLINA, JR.
Attorneys
APRIL 1999
1 Although Section 1226(c)(1) makes the detention of such a criminal alien
mandatory, another provision, Section 1226(a)(1), grants the Attorney General
discretionary authority to detain other aliens pending the outcome of removal
proceedings.
2 Somewhat different considerations govern the detention of aliens after
a final order of removal is entered. The Attorney General is required to
remove the alien within 90 days after the order becomes final, and may not
release a criminal alien from detention during that 90-day period. 8 U.S.C.
1231(a)(1)(A) and (2) (Supp. III 1997). If the Attorney General is unable
to remove the alien within 90 days, however (as where the country to which
the alien has been ordered deported will not accept him), the Attorney General
may under limited circumstances release the alien from detention. 8 U.S.C.
1231(a)(3) (Supp. III 1997).
3 In Section 401(e) of the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1268, entitled "ELIMINATION
OF CUSTODY REVIEW BY HABEAS CORPUS," Congress repealed former 8 U.S.C.
1105a(a)(10) (1994). Former Section 1105a(a)(10) had provided that "any
alien in custody pursuant to an order of deportation may obtain judicial
review thereof by habeas corpus proceedings."
4 Section 1252(g) provides: "Except as provided in this section and
notwithstanding any other provision of law, no court shall have jurisdiction
to hear any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this chapter."
5 Section 1252(b)(9) provides: "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."