No. 98-835
In the Supreme Court of the United States
OCTOBER TERM, 1998
JANET RENO, ET AL., PETITIONERS
v.
RAUL PERCIRA GONCALVES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
DONALD E. KEENER
LINDA S. WENDTLAND
EDWARD J. DUFFY
LORRI L. SHEALY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
Respondent, an alien found deportable because of his criminal convictions,
applied for discretionary relief from deportation under 8 U.S.C. 1182(c)
(1994). The Board of Immigration Appeals (BIA), following an earlier decision
of the Attorney General, concluded that he was statutorily ineligible for
such discretionary relief under amendments to Section 1182(c) made by Section
440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Respondent filed a petition for a writ of habeas corpus in district court,
challenging the Attorney General's interpretation of Section 1182(c) and
the constitutionality of that provision, but the district court dismissed
for lack of jurisdiction. The court of appeals ruled that the district court
had jurisdiction over respondent's claims under the general federal habeas
corpus statute, 28 U.S.C. 2241. It also held, contrary to the Attorney General's
interpretation, that the amendments made to Section 1182(c) by Section 440(d)
of AEDPA do not apply to aliens who had already filed applications for Section
1182(c) relief as of the date of AEDPA's enactment.
The questions presented are:
1. Whether the district court had jurisdiction over respondent's challenges
to his deportation order raised in his petition for a writ of habeas corpus.
2. Whether the Attorney General permissibly concluded that the amendments
to Section 1182(c) made by Section 440(d) of AEDPA, providing that certain
classes of aliens are ineligible for discretionary relief from deportation
under Section 1182(c), should apply in the cases of aliens who had already
filed applications for Section 1182(c) relief as of the date of AEDPA's
enactment.
PARTIES TO THE PROCEEDING
Petitioners are Janet Reno, the Attorney General of the United States; Doris
Meissner, the Commissioner of Immigration and Naturalization; Steve Farquharson,
District Director of the Immigration and Naturalization Service (INS); the
Department of Justice; and the INS. Petitioners were defendants in the district
court and appellees in the court of appeals.
Respondent, who was the habeas corpus petitioner in the district court and
the appellant in the court of appeals, is Raul Percira Goncalves.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-835
JANET RENO, ET AL., PETITIONERS
v.
RAUL PERCIRA GONCALVES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Attorney General, the Commissioner
of Immigration and Naturalization, the District Director of the Immigration
and Naturalization Service (INS), the Department of Justice, and the INS,
respectfully petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-58a)1 is reported at 144 F.3d
110. The memorandum opinion and order of the district court (App. 75a-78a)
are unreported, as are the decision and order of the immigration judge (App.
59a-72a) and the decision of the Board of Immigration Appeals (App. 73a-74a).
JURISDICTION
The judgment of the court of appeals was entered on May 15, 1998. A petition
for rehearing was denied on July 31, 1998. App. 79a-80a. On October 20,
1998, Justice Souter extended the time within which to file a petition for
a writ of certiorari, to and including November 30, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Reprinted in an appendix to this petition (App. 81a-90a) are pertinent portions
of the Suspension of Habeas Corpus Clause of the Constitution, Art. I, §
9, Cl. 2; 8 U.S.C. 1105a(a) and 1182(c), as in effect before and after April
24, 1996; 8 U.S.C. 1252(a) and (g) (Supp. II 1996); Sections 401(e), 440(a),
and 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1268, 1276, 1277; Sections 304, 306, and
309 of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-587, 3009-607, 3009-625;
and 28 U.S.C. 2241.
STATEMENT
1. This case presents questions about the application and, potentially,
the constitutionality of several major changes to the Nation's immigration
laws enacted by Congress in 1996. Those changes were designed in large part
to reduce the opportunities for criminal aliens to obtain administrative
relief from deportation, and to facilitate their removal from the United
States by streamlining and channeling judicial review of their deportation
orders. Two enactments by Congress are particularly pertinent: the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110
Stat. 1214; and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546.
a. Before the enactment of AEDPA, an alien lawfully admitted for permanent
residence who was subject to deportation because of a criminal conviction
could (like other permanent resident aliens) apply to the Attorney General
for discretionary relief from deportation under 8 U.S.C. 1182(c) (1994).
To be eligible for such relief, the alien had to show that he had had a
lawful unrelinquished domicile in this country for seven years, and that,
if his conviction was for an "aggravated felony," as defined in
the Immigration and Nationality Act (INA) at 8 U.S.C. 1101(a)(43) (1994),
he had not served a term of imprisonment for that conviction of five years
or longer. See 8 U.S.C. 1182(c) (1994).2 If the Attorney General, in the
exercise of her discretion, denied relief, then the alien could challenge
that denial by filing a petition for review of his deportation order in
the court of appeals. See 8 U.S.C. 1105a(a) (1994) (repealed 1996) (incorporating
Hobbs Administrative Orders Review Act, 28 U.S.C. 2341-2351). Under certain
circumstances, an alien in custody pursuant to an order of deportation could
also seek judicial review thereof by filing a petition for a writ of habeas
corpus, pursuant to 8 U.S.C. 1105a(a)(10) (1994) (repealed 1996).
b. In 1996, Congress twice restricted both the substantive eligibility of
criminal aliens for discretionary relief from deportation and the availability
of judicial review of criminal aliens' deportation orders.
i. On April 24, 1996, Congress enacted AEDPA. Section 440(d) of AEDPA, 110
Stat. 1277, amended 8 U.S.C. 1182(c) to make certain classes of criminal
aliens categorically ineligible for discretionary relief under that Section--including
aliens who were deportable because they had been convicted of certain "crimes
involving moral turpitude," see 8 U.S.C. 1251(a)(2)(A)(ii) (1994).
At the same time, AEDPA repealed 8 U.S.C. 1105a(a)(10) (1994), which had
permitted aliens in custody pursuant to an order of deportation to obtain
judicial review in habeas corpus proceedings, and replaced it with an express
prohibition of judicial review of deportation orders entered against aliens
who are deportable by reason of having committed certain criminal offenses.
AEDPA §§ 401(e) and 440(a), 110 Stat. 1268, 1276-1277. Thus, since
the enactment of AEDPA, Section 1105a(a)(10) has provided that any final
order of deportation against an alien who is deportable by reason of having
committed one of the disqualifying offenses "shall not be subject to
review by any court." 110 Stat. 1277.
ii. On September 30, 1996, Congress enacted IIRIRA, which comprehensively
amended the INA. IIRIRA repealed Section 1182(c) on a prospective basis,
and replaced it with another form of discretionary relief known as "cancellation
of removal." See IIRIRA § 304(b), 110 Stat. 3009-597; 8 U.S.C.
1229b (Supp. II 1996). Certain classes of criminal aliens were made ineligible
for cancellation of removal. See 8 U.S.C. 1229b(a)(3) and (b)(1)(C) (Supp.
II 1996). The cancellation of removal provisions, however, were made applicable
only to aliens who are placed in removal proceedings on or after April 1,
1997, and therefore do not govern this case. See IIRIRA § 309(a) and
(c)(1), 110 Stat. 3009-625. For cases commenced prior to April 1, 1997,
including this case, IIRIRA retained Section 1182(c)-including the amendment
made by Section 440(d) of AEDPA that made certain classes of criminal aliens
ineligible for relief under Section 1182(c).
IIRIRA also replaced the INA's judicial review provision in 8 U.S.C. 1105a
(1994) with a new 8 U.S.C. 1252 (Supp. II 1996), again for cases in which
the administrative procedings were commenced on or after April 1, 1997.
See IIRIRA § 309(c)(1), 110 Stat. 3009-625. The new Section 1252 provides
for judicial review of all final removal orders in the courts of appeals
pursuant to the Hobbs Act, 28 U.S.C. 2341-2351. See 8 U.S.C. 1252(a)(1)
(Supp. II 1996). Section 1252 also carries forward the preclusion of review
in Section 1105a(a)(10) (as amended by AEDPA § 440(a)), by providing
that "no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed"
a crime within one of several classes of criminal offenses. 8 U.S.C. 1252(a)(2)(C)
(Supp. II 1996). The new Section 1252 further provides, in a paragraph entitled
"CONSOLIDATION OF QUESTIONS FOR JUDICIAL REVIEW," 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 under this
subchapter shall be available only in judicial review of a final order under
this section," 8 U.S.C. 1252(b)(9) (Supp. II 1996)-i.e., only in the
court of appeals, as provided in Section 1252(a)(1).
Cases (such as this one) in which the administrative proceedings were begun
prior to April 1, 1997, continue to be governed by 8 U.S.C. 1105a, as amended
by AEDPA. IIRIRA § 309(c)(2), 110 Stat. 3009-625. Even for such cases,
however, Congress enacted special rules for any such cases in which the
final deportation order is entered on or after October 31, 1996. One of
those special rules, in Section 309(c)(4)(G) of IIRIRA, reinforces the preclusion
of judicial review in the amended Section 1105a(a)(10) by providing that
"there shall be no appeal permitted in the case of an alien who is
inadmissible or deportable by reason of having committed [specified criminal
offenses]." 110 Stat. 3009-626.3
Finally, in IIRIRA, Congress enacted a sweeping jurisdiction-limiting provision,
8 U.S.C. 1252(g) (Supp. II 1996), which provides:
Except as provided in [8 U.S.C. 1252] 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 [the INA].
The new Section 1252(g) is expressly made applicable "without limitation
to claims arising from all past, pending, or future exclusion, deportation,
or removal proceedings under [the INA]." IIRIRA § 306(c)(1), 110
Stat. 3009-612 (as amended by Pub. L. No. 104-302, § 2(1), 110 Stat.
3657).
c. After the enactment of these major immigration laws, two important questions
arose in immigration proceedings about the scope of Section 440(d) of AEDPA,
which, as we have said, amended 8 U.S.C. 1182(c) to bar the granting of
relief to certain criminal aliens. Like many other aliens in deportation
proceedings affected by AEDPA and IIRIRA, respondent challenges his deportation
order by seeking to litigate both of those questions. The instant case concerns
whether, and if so in what forum, either of those
challenges may be brought. On the merits, it also concerns the first of
the two recurring questions, described below:
i. First, the question arose as to whether the amendment to Section 1182(c)
made by Section 440(d) of AEDPA applies to aliens who had been placed in
deportation proceedings before the enactment of AEDPA. On June 27, 1996,
a closely divided Board of Immigration Appeals (BIA) initially decided that
Section 440(d) does apply to deportation proceedings that had already been
initiated, but that it should not be applied to aliens who had filed applications
for Section 1182(c) relief in those proceedings before AEDPA's enactment.
In re Soriano, Int. Dec. No. 3289 (App. 91a-123a). On September 12, 1996
(before IIRIRA was enacted), the Attorney General, exercising her authority
under 8 C.F.R. 3.1(h), vacated the opinion of the BIA in Soriano and certified
for her decision the question whether Section 440(d) applies to applications
filed as of the date of its enactment.4 App. 124a.
On February 21, 1997, the Attorney General concluded in Soriano that AEDPA
Section 440(d) applies to all deportation proceedings pending on the date
of its enactment, including those in which aliens had already submitted
applications for Section 1182(c) relief. App. 125a-138a. Following the analytical
framework set forth by this Court in Landgraf v. USI Film Products, 511
U.S. 244 (1994), the Attorney General concluded that application of Section
440(d) to pending deportation cases is not retroactive because it does not
"impair a right, increase a liability, or impose new duties on criminal
aliens. The consequences of Respondent's conduct remain the same before
and after the passage of AEDPA: criminal sanctions and deportation."
App. 131a-132a. The Attorney General further concluded that Section 440(d)
"is best understood as Congress's withdrawal of the Attorney General's
authority to grant prospective relief. Thus, the statute alters both jurisdiction
and the availability of future relief, and should be applied to pending
applications for relief." App. 132a.
ii. Second, the question arose whether AEDPA Section 440(d) bars the Attorney
General from granting Section 1182(c) relief to criminal aliens who temporarily
proceeded abroad and are seeking admission to the United States, as well
as to criminal aliens in the United States who are in deportation proceedings.
The BIA concluded in In re Fuentes-Campos, Int. Dec. No. 3318 (May 14, 1997),
and In re Gonzalez-Camarillo, Int. Dec. No. 3320 (June 19, 1997), that Section
440(d) bars relief only for criminal aliens in deportation proceedings.
2. Respondent is a native and citizen of Portugal who was admitted to the
United States as a lawful permanent resident alien in 1972. In January 1988
he was convicted in Massachusetts state court of larceny; in March 1989
he was convicted in state court of assault and battery with a dangerous
weapon; and in June 1992 he was convicted in state court of knowingly receiving
stolen property. C.A. App. 80-86. Because those offenses were two or more
"crimes involving moral turpitude" under the INA, and because
they did not arise out of a "single scheme of criminal misconduct,"
they rendered him deportable under the INA. See 8 U.S.C. 1251(a)(2)(A)(ii)
(1994) (now recodified at 8 U.S.C. 1227(a)(2)(A)(ii) (Supp. II 1996)).
On December 11, 1990, the INS issued an Order to Show Cause against respondent.5
Respondent conceded his deportability and applied to the immigration judge
(IJ) for discretionary relief under Section 1182(c). On January 20, 1995,
the IJ denied relief as a matter of discretion after a review of respondent's
crimes and personal circumstances, and entered an order of deportation.
App. 62a-72a.
Respondent appealed the denial of relief to the BIA. While his appeal was
pending, Congress enacted Section 440(d) of AEDPA. On March 24, 1997, the
BIA dismissed respondent's appeal, relying upon the Attorney General's decision
in Soriano. App. 73a-74a.
3. On August 8, 1997, respondent filed a petition for a writ of habeas corpus
in the United States District Court for the District of Massachusetts.6
He contended that the Attorney General had erred in concluding that AEDPA
Section 440(d) rendered him ineligible for Section 1182(c) relief. He also
contended that AEDPA Section 440(d) violates constitutional equal-protection
principles insofar as it is applied to bar relief under Section 1182(c)
for criminal aliens in deportation proceedings, but not those returning
from a temporary trip abroad. C.A. App. 7-13.
On August 14, 1997, the district court dismissed respondent's petition,
concluding that Congress had divested the district courts of jurisdiction
over challenges to deportation orders. The district court also concluded
that, even if it retained a residual power to provide habeas corpus review
of constitutional claims, it would deny relief because respondent's claims
were without merit. App. 75a-77a.
4. The court of appeals reversed. App. 1a-58a. It concluded that the district
court had jurisdiction over respondent's claims under the general federal
habeas corpus statute, 28 U.S.C. 2241. On the merits, the Court ruled that
the Attorney General's construction of Section 440(d) in Soriano was wrong,
and that Section 440(d) of AEDPA does not apply to aliens in respondent's
situation. The court therefore did not reach respondent's equal protection
claim, and it remanded the case to the BIA for a determination whether respondent
should be granted relief under Section 1182(c) as a matter of discretion.
a. On the jurisdictional issue, the court of appeals first concluded, as
it had in earlier cases (see note 6, supra), that an alien in respondent's
situation could not raise either his statutory or his constitutional claim
by the usual means of judicial review of a deportation order-namely, in
a petition for review filed in the court of appeals. App. 13a-17a. "A
straightforward reading of [Section 309(c)(4)(G) of IIRIRA]," the court
reasoned, "leads to the conclusion that IIRIRA does not permit initial
jurisdiction in the courts of appeals to hear 'appeals' by aliens, like
[respondent], who have been convicted of two crimes of moral turpitude."
App. 15a. The court rejected the Attorney General's argument that, to the
extent that an alien in respondent's situation might have a substantial
constitutional claim, it may still be heard by the court of appeals on petition
for review. See App. 11a-13a.
The court of appeals next concluded that the district court could entertain
respondent's claims through an exercise of its general habeas corpus jurisdiction
under 28 U.S.C. 2241. See App. 18a-38a. Framing the question as whether
"Congress has repealed 28 U.S.C. § 2241, as applied to immigration
cases such as this one," App. 20a, the court rejected the government's
argument that AEDPA and IIRIRA preclude district courts from reviewing deportation
orders under 28 U.S.C. 2241. The court relied in large part on the presumption
against repeal of habeas corpus jurisdiction by implication, as articulated
in Felker v. Turpin, 518 U.S. 651 (1996). App. 20a-22a. "Felker makes
clear," the court believed, that "if Congress intends to repeal
or restrict habeas jurisdiction under § 2241, it must say so explicitly."
App. 20a.
The court rejected the government's argument that the district court's habeas
corpus jurisdiction to review the substance of deportation orders had been
divested by AEDPA-which had repealed old Section 1105a(a)(10), providing
for habeas corpus review if the alien was in custody, and had replaced it
with a preclusion of judicial review of deportation orders entered against
criminal aliens-and by IIRIRA-which had enacted the new jurisdiction-limiting
provision in 8 U.S.C. 1252(g) (Supp. II 1996). AEDPA, the court reasoned,
struck only the reference to habeas corpus in the INA itself (which it characterized
as a "specialized immigration provision" designed to ensure that
aliens in custody "would have a supplemental collateral remedy"),
and did not expressly amend 28 U.S.C. 2241. App. 24a-25a. As for Section
1252(g)-which provides that, "notwithstanding any other provision of
law," no court shall have jurisdiction to review any claim arising
out of the Attorney General's decision to commence or adjudicate removal
proceedings, except as provided under Section 1252 itself-the court declined
to read the "notwithstanding" clause as affecting the district
court's authority under 28 U.S.C. 2241. According to the court, the government's
argument that Section 1252(g) divests the district courts of jurisdiction
to review deportation orders under 28 U.S.C. 2241 "leads us to apply
the long standing rule disfavoring repeal of jurisdictional provisions by
implication, a rule which is particularly appropriate here." App. 27a.
Further, the court stated, accepting the government's argument "would
raise substantial and complex constitutional questions concerning the limits
of Congress' power under Article III to control the jurisdiction of the
federal courts," App. 28a, and could also require the court to decide
whether preclusion of all judicial review of respondent's claims would constitute
an unconstitutional suspension of the writ of habeas corpus, in contravention
of Article I, Section 9, of the Constitution, App. 29a. The court suggested
as well that the posture of this case implicates "the historical core
of the Suspension Clause-jurisdiction to review the legality of detention
by executive branch officers." Ibid.
Finally, the court held that respondent's claim to relief under Section
1182(c) fell within the scope of the district court's authority under 28
U.S.C. 2241. App. 31a-36a. The court observed that Section 2241(c) provides
that the writ of habeas corpus shall not extend to a "prisoner"
unless, inter alia, he is in custody "in violation of the Constitution
or laws * * * of the United States." App. 31a (emphasis added by court
of appeals). It also stated that "numerous immigration cases under
the § 2241 jurisdiction have considered claims of statutory right,
sometimes described as an integral part of ensuring due process of law."
App. 31a-32a. The court rejected the argument that, because the Attorney
General has the discretion to deny respondent's application for Section
1182(c) relief in any event, her decision concerning his statutory eligibility
for that form of relief is itself not reviewable in habeas corpus; the court
reasoned that, "[a]nalytically, the decision whether an alien is eligible
to be considered for a particular discretionary form of relief is a statutory
question separate from the discretionary component of the administrative
decision whether to grant relief." App. 34a-35a.
b. On the merits, the court of appeals held that the Attorney General's
decision in Soriano-that Section 440(d) of AEDPA bars a grant of discretionary
relief under Section 1182(c) in pending cases-is contrary to the presumption
against retroactive application of federal statutes. App. 38a-57a. Although
the court expressed doubt on the point (see App. 39a-40a & n.20), it
assumed, for purposes of deciding the case, that the analytical framework
of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984)-under which deference is owed to an agency's reasonable construction
of a statute that is silent or ambiguous on the matter at hand-applies to
the Attorney General's decision about the "effective date of a governing
statute." App. 40a. Nonetheless, the court concluded (App. 41a) that
the first step of the Chevron analysis, "employing traditional tools
of statutory construction," includes the "familiar * * * presumption
against retroactivity" expressed in Landgraf, supra. Therefore, the
court concluded, Section 440(d) is inapplicable to respondent unless there
is "a plain statement from Congress that expressly provides for retroactive
application." App. 42a.
The court's review of the text of AEDPA yielded no indication to its satisfaction
that Congress had expressly intended that Section 440(d) be applied retroactively.
The court noted that Sections 413(g) and 421 of AEDPA, 110 Stat. 1269-1270,
which bar various forms of relief from deportation for aliens involved in
terrorism, contained explicit "effective date" provisions. Those
provisions, the court believed, would have been superfluous if Congress
had thought that such restrictions "would as a matter of course be
applied to pending cases." App. 44a-50a.
The court of appeals found its textual analysis bolstered by its understanding
of AEDPA's legislative history. See App. 51a-57a. The court observed that
the original Senate version of the bill that became AEDPA had contained
express language making what eventually became Section 440(d) retroactive,
but that that language was dropped after a House-Senate conference. App.
52a-55a. And, the court noted, by the time IIRIRA was enacted later in 1996,
the BIA had already concluded in Soriano that Section 440(d) of AEDPA should
not be applied to pending applications for relief. The court therefore suggested
that, when Congress enacted IIRIRA, it was "presumptively aware of
what was then the governing agency interpretation," and yet Congress
did not disturb that interpretation. App. 56a.7
REASONS FOR GRANTING THE PETITION
The court of appeals has erroneously decided two issues of broad significance
for the administration of the Nation's immigration laws. First, it has concluded-notwithstanding
successive congressional enactments channeling judicial review of all deportation
orders into the courts of appeals, and significantly restricting judicial
review of deportation orders affecting criminal aliens in particular-that
criminal aliens may invoke the habeas corpus jurisdiction of the district
courts under 28 U.S.C. 2241 to challenge the merits of their orders of deportation.
That conclusion cannot be squared with the structure of judicial review
of deportation orders that Congress has enacted. Moreover, as demonstrated
by the hundreds of pending cases in which criminal aliens have sought habeas
corpus relief, the ruling below will lead to significant delays in the removal
of such aliens from the United States, despite Congress's clear intent that
removal of criminal aliens be expedited and that all review in the district
courts be eliminated. The court of appeals' jurisdictional ruling also raises
issues closely related to those presented in Magana-Pizano v. INS, 152 F.3d
1213 (1998), in which the Ninth Circuit held (contrary to the First Circuit
in this case) that 8 U.S.C. 1252(g) (Supp. II 1996) does divest a district
court of habeas corpus jurisdiction under 28 U.S.C. 2241 to review deportation
orders, but then further held that that statutory preclusion contravenes
the Suspension of Habeas Corpus Clause of the Constitution, Art. I, §
9, Cl. 2. We accordingly are filing a petition for a writ of certiorari
in Magana-Pizano, simultaneously with the filing of the petition in this
case. We suggest either that certiorari be granted in both cases, or that
the petition in Magana-Pizano be held pending the disposition of the petition
and the decision in this case.
Second, the court of appeals has concluded that Section 440(d) of AEDPA,
which restricted the eligibility of criminal aliens for discretionary relief
from deportation under 8 U.S.C. 1182(c) (1994), implicates the presumption
against retroactivity of federal statutes and so is not to be applied in
the case of any alien who had submitted an application for discretionary
relief before AEDPA's enactment. The question of the temporal scope of the
amendments made by Section 440(d) affects thousands of aliens in pending
administrative and judicial proceedings. More generally, the court's conclusion
that AEDPA's amendment to Section 1182(c) implicates the presumption against
retroactivity has potentially far-reaching consequences for the Attorney
General's administration of the immigration laws, for it is at odds with
the courts' historic treatment of deportation proceedings as inherently
prospective in nature. Review is therefore warranted of the lower court's
ruling on the merits as well.
1. a. The court of appeals' central jurisdictional conclusion in this case
was that a criminal alien who is precluded from obtaining judicial review
of his deportation order in the court of appeals because of Section 309(c)(4)(G)
of IIRIRA (and Section 440(a) of AEDPA) may instead obtain judicial review
by filing a petition for a writ of habeas corpus in district court under
28 U.S.C. 2241. App. 30a. That result is fundamentally at odds with the
statutory framework Congress has fashioned for judicial review of deportation
orders. Since 1961, Congress has consistently provided that such review
should proceed in the courts of appeals, in order to avoid delays in deportations.8
It reenacted that basic aspect of the judicial review scheme in 1996. See
8 U.S.C. 1252(a) (Supp. II 1996). In 1996, Congress also expressly repealed
the limited provision in 8 U.S.C. 1105a(a)(10) for habeas corpus review
in the district courts for aliens held in custody pursuant to deportation
orders that had remained in existence since 1961. See AEDPA § 401(e),
110 Stat. 1268 (titled "Elimination of Custody Review by Habeas Corpus").
Further, it restricted judicial review of criminal aliens' deportation orders
to a considerable degree-in both Section 440(a) of AEDPA and Section 309(c)(4)(G)
of IIRIRA for cases in which deportation proceedings were commenced prior
to April 1, 1997, and in 8 U.S.C. 1252(a)(2)(C) (Supp. II 1996) for all
cases in the future. And, to ensure that those exclusive-review procedures
would not be circumvented, Congress enacted Section 1252(g), which provides
that "notwithstanding any other provision of law," no judicial
review of any claim arising out of deportation proceedings may be had except
under the procedures established in the INA itself.
These consistent and successive enactments show that Congress has required
that judicial review of deportation orders be had, if at all, only in the
courts of appeals. The court of appeals concluded in this case, however,
that Congress has not acted with sufficient clarity to prevent aliens from
collaterally challenging their deportation orders in the district courts
under 28 U.S.C. 2241. The result of that decision is that criminal aliens
may proceed in district court under 28 U.S.C. 2241 to test the validity
of their deportation orders, whereas all other aliens must file petitions
for review in the court of appeals, pursuant to the INA's exclusive-review
procedures. That result not only frustrates Congress's intent that review
of criminal aliens' deportation proceedings be streamlined and limited;
it turns Congress's scheme on its head. It is scarcely conceivable that
Congress would have intended criminal aliens to have greater opportunities
for judicial review (and delay) of their deportation orders than all other
aliens. Cf. Foti v. INS, 375 U.S. 217, 224 (1963) (noting Congress's concern
with delays in judicial review of deportation orders); Stone v. INS, 514
U.S. 386, 399 (1995) (similar). But inevitably, permitting criminal aliens
to proceed in district court under 28 U.S.C. 2241 would make the entire
process of judicial review of those aliens' deportation orders longer than
the process of reviewing non-criminal aliens' deportation orders.9
b. The court of appeals' decision, moreover, rests on a faulty but significant
premise, namely, that Section 440(a) of AEDPA and Section 309(c)(4)(G) of
IIRIRA prevent criminal aliens from raising any claim of any kind on a petition
for review in the courts of appeals. See App. 13a-15a. Because the court
believed that criminal aliens were altogether barred from proceeding in
the courts of appeals, it expressed concern that, absent judicial review
of deportation orders under 28 U.S.C. 2241, those aliens would have no access
to judicial review at all-a situation that, it believed, would raise serious
constitutional concerns under Article III and the Suspension of Habeas Corpus
Clause, Art. I, § 9, Cl. 2. See App. 19a-20a, 28a-30a.
AEDPA Section 440(a) amended 8 U.S.C. 1105a(a)(10) (1994) to provide that
orders of deportation against aliens convicted of certain criminal offenses
"shall not be subject to review by any court." IIRIRA Section
309(c)(4)(G) further provides that "there shall be no appeal permitted
in the case of an alien who is inadmissible or deportable by reason of having
committed" the same kinds of criminal offenses. Those provisions-and
the parallel provision in 8 U.S.C. 1252(a)(2)(C) (Supp. II 1996) applicable
to cases commenced after April 1, 1997-do not, however, withdraw all power
from the courts of appeals to review deportation orders entered against
such aliens.10
First, consistent with the general rule that a court has jurisdiction to
determine its own jurisdiction, a court of appeals may entertain a petition
for review to the extent that the petitioner contends that he does not fall
within the category of aliens for whom judicial review is precluded-e.g.,
to review a contention that the petitioner is not an alien, that he was
not convicted of the offense that formed the basis of the deportation order,
or that that offense is not one for which judicial review is barred by Section
440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA. See Magana-Pizano v.
INS, 152 F.3d at 1216; Ter Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.),
cert. denied, 118 S. Ct. 624 (1997); Coronado-Durazo v. INS, 123 F.3d 1322
(9th Cir. 1997) (petition for rehearing pending); but see Berehe v. INS,
114 F.3d 159, 161 (10th Cir. 1997) (concluding that IIRIRA Section 309(c)(4)(G)
does not permit review of deportability).
Second, those provisions do not, in our view, withdraw the well-established
authority of the courts of appeals to entertain a constitutional challenge
to a provision of the INA itself, which the BIA has no authority to resolve.
See Magana-Pizano Pet. 18-19. Compare Johnson v. Robison, 415 U.S. 361,
373-374 (1974). The court of appeals therefore would have jurisdiction to
entertain respondent's contention that Section 1182(c), as amended by Section
440(d) of AEDPA, violates the equal protection component of the Fifth Amendment's
Due Process Clause to the extent it bars relief to criminal aliens in deportation
proceedings but not to those returning from a temporary trip abroad.
In fact, in the new 8 U.S.C. 1252(b)(9) (Supp. II 1996), entitled "CONSOLIDATION
OF QUESTIONS FOR JUDICIAL REVIEW," Congress specifically provided that
"[j]udicial review of all questions of law and fact, including interpretation
and application of constitutional and statutory provisions," arising
from proceedings to remove an alien from the United States "shall be
available only in judicial review of a final order under this section"-i.e.,
only in the court of appeals. In a case such as this, then, a criminal alien's
constitutional challenge to a provision of the INA must be considered by
the court of appeals together with any statutory claim the petitioner has
that may still be considered by the court of appeals (see p. 19, supra).
Although Section 1252(b)(9) does not apply of its own force to cases commenced
before April 1, 1997, it nevetheless reinforces the conclusion that under
the statutory framework in effect both before and after IIRIRA, constitutional
challenges are to be heard in the court of appeals, where all legal challenges
to deportation orders are to be consolidated, not in a separate habeas corpus
proceeding in the district court. Thus, while there is no doubt that Section
440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA were intended to restrict
the courts of appeals' authority to review the merits of deportation orders
entered against criminal aliens, a criminal alien may, as before, raise
a constitutional challenge to a provision of the INA itself in the court
of appeals.11
Section 440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA do not, however,
permit a court of appeals to consider the particular non-constitutional
claim made by respondent here-namely, that the Attorney General misconstrued
AEDPA Section 440(d) in concluding that he is not eligible for discretionary
relief from deportation under Section 1182(c). That statutory claim does
not go to the question whether the preclusions of judicial review in AEDPA
Section 440(a) and IIRIRA Section 309(c)(4)(G) apply, and it therefore is
not within the jurisdicton of the court of appeals to determine its own
jurisdiction. Nor could that claim be presented to the district court, for
Congress's decision to channel all judicial review into the courts of appeals-as
reflected by 8 U.S.C. 1105a (as amended by AEDPA Section 440(a)) and 8 U.S.C.
1252(g) (Supp. II 1996)-prevents the district court from exercising jurisdiction
(whether under the habeas corpus statute or otherwise) to entertain challenges
to deportation proceedings.
The withdrawal of the courts' authority to hear that particular claim, however,
raises no constitutional concerns, for (as we explain further in our petition
in Magana-Pizano, at 20-21), that claim goes not to respondent's deportability,
but rather to whether respondent will be granted discretionary relief from
deportation, comparable to "'the President's power to pardon a convict.'"
INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996) (quoting Jay v. Boyd, 351
U.S. 345, 354 (1956)). That claim therefore does not fall within whatever
scope of the habeas corpus remedy is preserved by the Suspension Clause.
Thus, the court of appeals' concern that there would not otherwise be a
judicial forum for the claim should not have led the court to hold that
28 U.S.C. 2241 remains available as a vehicle to consider it.12
c. The court of appeals' conclusion that Congress did not intend to foreclose
habeas corpus review under 28 U.S.C. 2241 for criminal aliens challenging
their deportation orders conflicts with the Ninth Circuit's decision in
Hose v. INS, 141 F.3d 932 (1998) (petition for rehearing pending). In Hose,
the court concluded that the "notwithstanding" clause of Section
1252(g) had, in fact, forfended aliens' access to habeas corpus remedies
under 28 U.S.C. 2241.13 As that court noted:
[The] language [in Section 1252(g)] is clear. Except as provided in section
1252, federal courts are divested of all jurisdiction to hear any claim
by any alien involving an immigration proceeding. * * * Section 1252 does
not give the district court jurisdiction to hear Hose's [Section 2241] habeas
petition. Not having been granted jurisdiction under section 1252, that
jurisdiction is removed just as the statute says it is.
141 F.3d at 935. The Ninth Circuit expressly disagreed (ibid.) with the
court of appeals' holding in this case (which, it stated, was "contrary
to the clear language" of Section 1252(g)) and with the Second Circuit's
similar decision in Jean-Baptiste v. Reno, 144 F.3d 212, 218-220 (1998)
(petition for rehearing pending). That divergence of views among the courts
of appeals about such an important matter as the continued availability
of a habeas corpus remedy under 28 U.S.C. 2241 warrants this Court's review.14
The importance of this case is underscored by the large number of aliens
nationwide who are in a situation similar to respondent's. Approximately
466 petitions for review have been filed in the courts of appeals and 376
petitions for a writ of habeas corpus have been filed in the district courts
in which criminal aliens have challenged the BIA's denial of Section 1182(c)
relief to them based on the application of Section 440(d) of AEDPA. In addition,
there are about 2600 administrative cases still pending in which the issue
of the temporal scope of Section 440(d) may be dispositive of the alien's
deportation proceeding, and about 5400 others in which the BIA has dismissed
an alien's appeal based on Soriano. Many of those aliens might seek habeas
corpus review, since there is no express time limitation for doing so. See
note 9, supra. We have been further informed that there are currently approximately
23,000 removable aliens held in federal prisons and 54,000 removable aliens
incarcerated in state prisons. Once those aliens are placed in removal proceedings,
many of them may claim, as respondent has claimed in this case (and Magana-Pizano
has claimed in his) that neither AEDPA nor IIRIRA is applicable to their
cases (because their applications were filed or convictions were entered
before the effective dates of AEDPA and IIRIRA), and so their eligibility
for discretionary relief should be judged under pre-AEDPA law. Review in
this case would resolve whether (and if so where) they may bring such a
claim.15
2. a. Certiorari is also warranted to review the court of appeals' holding
on the merits that Section 440(d) of AEDPA does not render ineligible any
alien who applied for Section 1182(c) relief before the date of AEDPA's
enactment. As noted above, that issue is currently being litigated in hundreds
of cases, in every circuit but one, and in thousands of administrative proceedings.
Our position, as we have explained, is that neither the courts of appeals
nor the district courts have jurisdiction to review that claim. But if we
are wrong on the jurisdictional issue, then this Court's resolution of the
merits is needed so that the Attorney General-and the lower courts that
would then consider such claims-will know definitively whether the Attorney
General must adjudicate thousands of applications for discretionary relief
filed by criminal aliens in deportation proceedings.
More generally, the court of appeals' conclusion that Section 440(d) implicates
the presumption against retroactivity may have far-reaching ramifications
for treatment by the Attorney General of legislative changes in the standards
for relief from deportation, and indeed deportability. Under the court of
appeals' reasoning, any change made by Congress in the standards governing
an alien's ability to remain in this country must, presumptively, not be
applied to pending cases, because such a change would be "substantive"
and therefore impermissibly "retroactive." App. 43a. This view,
however, is at odds with the courts' traditional understanding of deportation
as inherently prospective, in that it concerns the alien's right to remain
in the country. Thus, in INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984),
this Court explained that "[t]he deportation hearing looks prospectively
to the respondent's right to remain in this country in the future. Past
conduct is relevant only insofar as it may shed light on the respondent's
right to remain." Congress's views respecting aliens have changed over
time, and it has modified the deportation laws accordingly; the court of
appeals' decision in this case would presume that no such modifications
may be applied to pending cases-or even, perhaps, to any past conduct.
Other courts of appeals have concluded, contrary to the First Circuit in
this case, that legislative changes affecting the Attorney General's discretionary
authority to grant relief from deportation are not properly characterized
as retroactive, because they have "only a prospective impact."
Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996). Thus, all the courts
of appeals that considered the issue (including the First Circuit) concluded
that the Immigration Act of 1990, which disqualified aggravated felons who
had served five years in prison from Section 1182(c) relief, was to be applied
to aliens who had already been convicted of aggravated felonies.16 Although
those courts relied in part on particular indications in the 1990 Act that
Congress intended it to apply regardless of the date of the alien's conviction,
they also emphasized that the 1990 Act did not implicate the presumption
against retroactivity at all, because "'Congress did not attach additional
consequences [to past criminal activity] but merely withdrew a previously
available form of discretionary relief.'" Scheidemann, 83 F.3d at 1523
(quoting De Osorio v. United States INS, 10 F.3d 1034, 1042 (4th Cir. 1993)).
The court of appeals' decision in this case is in marked contrast to those
decisions, and raises the important and recurring issue of how the Attorney
General may reasonably construe the scope of legislative changes in standards
governing deportation and relief from deportation.
b. The court of appeals' analysis of AEDPA Section 440(d)'s application
to this case was seriously flawed. The court of appeals observed that, in
Sections 413 and 421 of AEDPA, Congress expressly provided that provisions
making alien terrorists ineligible for certain forms of relief should be
applied to pending cases; the court inferred from those provisions that
Congress did not intend that Section 440(d) be so applied. App. 44a-51a.
The court did not, however, address the fact that, in at least three other
sections of Title IV of AEDPA, including the closely neighboring Section
440(f), Congress also provided that particular amendments would not apply
to pending applications or pre-enactment events. See AEDPA § 435(b),
110 Stat. 1275; § 440(f), 110 Stat. 1278; § 441(b), 110 Stat.
1279. The most that one can say about the text of AEDPA is that there is
no clear pattern demonstrating that Congress intended the amendments made
by Title IV to apply only to post-enactment cases unless otherwise stated.17
Because the text of the amendment to 8 U.S.C. 1182(c) made by Section 440(d)
of AEDPA does not yield an unambiguous expression of congressional intent
that it does not apply to those criminal aliens who happened to have filed
applications before AEDPA was enacted, the court of appeals should have
deferred to the Attorney General's conclusion in Soriano that aliens who
had not already been granted relief under Section 1182(c) when AEDPA was
enacted are ineligible to receive it. See Chevron, 467 U.S. at 843; 8 U.S.C.
1103(a)(1) (Supp. II 1996) (vesting the Attorney General with authority
to interpret the INA).
The Attorney General's statutory interpretation is plainly reasonable and
consistent with Congress's purposes in enacting AEDPA. As the Attorney General
explained in Soriano, the amendment made by Section 440(d) does not implicate
the presumption against retroactivity because it operates only prospectively
to deny criminal aliens a form of relief from deportation that would allow
them to remain in the country in the future, and because it operates to
remove a class of cases from her jurisdiction under Section 1182(c). App.
133a. In addition, the enactment of Section 440(a) along with Section 440(d)
demonstrates that Congress was particularly concerned about the large number
of deportable criminal aliens in the United States, and sought to limit
their opportunities for relief and to accelerate their removal. See also
S. Rep. No. 48, 104th Cong., 1st Sess. 3-4 (1995) (recommending measures
to that effect); H.R. Rep. No. 22, 104th Cong., 1st Sess. 6-9 (1995) (similar).
The Attorney General's decision in Soriano, therefore, gives full effect
to the legislative purposes underlying Section 440(d) and should not have
been disturbed.
3. For the reasons given above, the court of appeals' rulings on both jurisdiction
and the merits raise issues of substantial and recurring importance in the
Attorney General's administration of the immigration laws. Review by this
Court therefore is warranted.
On November 4, 1998, this Court heard oral argument in Reno v. American-Arab
Anti-Discrimination Committee (AADC), No. 97-1252, which also concerns whether
the district courts retain any jurisdiction to review deportation matters
after AEDPA and IIRIRA, and specifically concerns the scope of 8 U.S.C.
1252(g) (Supp. II 1996). AADC does not, however, directly involve the continued
availability of the writ of habeas corpus or any question arising under
the Suspension of Habeas Corpus Clause.18 Nor does it involve the second
question presented in this case: whether the Attorney General must adjudicate
the applications filed by thousands of criminal aliens for discretionary
relief under Section 1182(c). The widespread and disruptive litigation on
both the habeas corpus issue and the Section 1182(c) issue in the lower
courts has delayed the deportation of thousands of criminal aliens. A decision
by the Court this Term that resolves that litigation is important for the
sound and expeditious administration of the immigration laws that Congress
intended when it enacted AEDPA and IIRIRA. We therefore suggest that the
Court not hold the petition in this case pending its decision in AADC, so
that the Court will be in a position to render a definitive decision this
Term on the questions presented in this case if its decision in AADC does
not absolutely foreclose adjudication of claims such as respondent's here-a
challenge to the denial of his application for discretionary relief from
his conceded deportability.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
DONALD E. KEENER
LINDA S. WENDTLAND
EDWARD J. DUFFY
LORRI L. SHEALY
Attorneys
NOVEMBER 1998
1 "App." refers to the separately bound appendix to this petition.
2 Although Section 1182(c) by its terms allowed the Attorney General to
admit permanent resident aliens who had temporarily proceeded abroad and
were returning to their domicile in the United States, it had long been
interpreted (in response to the Second Circuit's decision in Francis v.
INS, 532 F.2d 268 (1976)) also to permit the Attorney General to waive the
grounds for deportation of lawfully admitted permanent resident aliens who
were present in the United States and in deportation proceedings. See In
re Silva, 16 I.& N. Dec. 26 (BIA 1976); Gonzalez v. INS, 996 F.2d 804,
806 (6th Cir. 1993); Ashby v. INS, 961 F.2d 555, 557 & n.2 (5th Cir.
1992); Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981).
3 Congress further provided that, notwithstanding subsection (b) of 8 U.S.C.
1105a (1994), judicial review of final orders of exclusion during the transition
period also would be in the court of appeals, not in the district court
in habeas corpus proceedings. See IIRIRA § 309(c)(4)(A), 110 Stat.
3009-626.
4 Also on September 12, 1996, the Solicitor General filed a supplemental
brief in this Court in INS v. Elramly, No. 95-939, addressing the temporal
scope of AEDPA Section 440(d). In that brief, we argued (at 15-18) that
Section 440(d) had divested the Attorney General of authority to grant Section
1182(c) relief in pending cases. On September 16, 1996, the Court remanded
Elramly to the court of appeals for further consideration in light of AEDPA.
INS v. Elramly, 518 U.S. 1051 (1996).
5 The charges of deportability were originally based on the 1988 larceny
and 1989 assault convictions, but the 1992 conviction for receiving stolen
property was later substituted for the assault conviction as a basis for
deportation. See C.A. App. 82.
6 Respondent did not file a petition for review of his deportation order
in the court of appeals. The First Circuit had previously held that Section
440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA had divested it of all
jurisdiction over petitions for review filed by criminal aliens covered
by those Sections. See Santos v. INS, 124 F.3d 64 (1st Cir. 1997); Kolster
v. INS, 101 F.3d 785 (1st Cir. 1996).
7 As we note at p. 7, supra, by the time IIRIRA was enacted on September
30, 1996, the Attorney General had already vacated the BIA's decision in
Soriano, and the Solicitor General had already filed a brief in this Court
taking the position that AEDPA Section 440(d) was applicable to already-pending
applications for Section 1182(c) relief.
8 In 1961, Congress enacted 8 U.S.C. 1105a(a), which provided that the court-of-appeals
review procedures of the Hobbs Act, 28 U.S.C. 2341-2351, "shall be
the sole and exclusive procedure for[] the judicial review of all final
orders of deportation." Congress enacted Section 1105a(a) because it
was dissatisfied with the bifurcated system of review that resulted from
this Court's decision in Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), permitting
aliens to proceed in district court. See H.R. Rep. No. 1086, 87th Cong.,
1st Sess. 22, 27-28 (1961). As this Court observed in Foti v. INS, 375 U.S.
217, 224 (1963), "[t]he fundamental purpose behind [placing exclusive
review in the courts of appeals] was to abbreviate the process of judicial
review of deportation orders in order to frustrate certain practices which
had come to the attention of Congress, whereby persons subject to deportation
were forestalling departure by dilatory tactics in the courts." See
also Stone v. INS, 514 U.S. 386, 399 (1995).
9 As we explain in greater detail in our petition for a writ of certiorari
in Magana-Pizano (at 22-23), aliens proceeding in district court pursuant
to 28 U.S.C. 2241 would have markedly greater opportunities for delay than
those proceeding directly in the courts of appeals. Section 2241 contains
no express time limit on the filing of a petition for a writ of habeas corpus,
in contrast with the strict time limits governing the exclusive-review procedures
of the INA. See 8 U.S.C. 1252(b)(1) (Supp. II 1996); 8 U.S.C. 1105a(a)(1)
(1994) (repealed 1996). Also, unlike the INA, 28 U.S.C. 2241 does not require
consolidation of challenges to initial deportation orders with challenges
to denials of motions to reopen or reconsider. Cf. 8 U.S.C. 1252(b)(6) (Supp.
II 1996). And, of course, an alien who was unsuccessful in district court
could appeal to the court of appeals, and thereby obtain further delay.
10 Although AEDPA Section 440(a) and IIRIRA Section 309(c)(4)(G) are applicable
only to judicial review of immigration proceedings commenced before April
1, 1997, their permanent replacement, 8 U.S.C. 1252(a)(2)(C) (Supp. II 1996),
is substantively similar. Thus, courts in the future are likely to construe
Section 1252(a)(2)(C) in light of the courts' construction of its predecessor
provisions, just as they have issued conforming constructions of AEDPA Section
440(a) and IIRIRA Section 309(c)(4)(G). See App. 2a, 10a (relying on Kolster
v. INS, 101 F.3d 785 (1st Cir. 1996), and Santos v. INS, 124 F.3d 64 (1st
Cir. 1997)); Magana-Pizano v. INS, 152 F.3d at 1216 (relying on Ter Yang
v. INS, 109 F.3d 1185, 1192 (7th Cir.), cert. denied, 118 S. Ct. 624 (1997),
and Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996)).
11 Because the courts of appeals remain available to consider such a constitutional
challenge, the bar to such challenges in the district court, whether in
habeas corpus proceedings or otherwise, is "unquestionably constitutional."
See Weinberger v. Salfi, 422 U.S. 749, 762 (1975); see also Swain v. Pressley,
430 U.S. 372, 381 (1977) (Congress may substitute alternative review procedures
in place of habeas corpus).
12 Even if a judicial forum were constitutionally required for this aspect
of respondent's effort to seek discretionary relief from his conceded deportability,
at a minimum the court of appeals should have held that that claim should
be addressed in the court of appeals on petition for review, and not in
the district court in habeas corpus proceedings. Such a construction of
Section 440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA would be far
more harmonious with Congress's general design than is the result reached
by the court of appeals, permitting respondent to proceed in district court.
Cf. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-632
(1973) ("It is well established that our task in interpreting separate
provisions of a single Act is to give the Act the most harmonious, comprehensive
meaning possible in light of the legislative policy and purpose.")
(internal quotation marks omitted).
13 In Magana-Pizano, 152 F.3d at 1220, the Ninth Circuit subsequently concluded
that that deprivation of a judicial forum under 28 U.S.C. 2241 was unconstitutional
in the case of a criminal alien who (it believed) would have no other judicial
forum for any of his claims.
14 The Seventh Circuit has also suggested that Section 1252(g) "abolishes
even review under § 2241, leaving only the constitutional writ [of
habeas corpus] unaided by statute." Ter Yang v. INS, 109 F.3d at 1195.
Elsewhere, however, it has suggested that review under Section 2241 might
remain available. Turkhan v. INS, 123 F.3d 487, 490 (7th Cir. 1997).
15 Even aliens convicted in the future of criminal offenses and deportable
on that ground may be affected by this case. Such criminal aliens who are
ineligible for cancellation of removal under 8 U.S.C. 1229b (Supp. II 1996)
may nonetheless seek to raise constitutional and other challenges to their
orders of removal. Because, as we have explained (note 10, supra), courts
are likely to construe the jurisdiction-limiting provisions applicable to
criminal aliens in new Section 1252(a)(2)(C) in conformity with judicial
constructions of Section 440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA,
it is likely that criminal aliens in the future, if allowed to do so, will
proceed in district court under 28 U.S.C. 2241 rather than in the court
of appeals.
16 See Immigration Act of 1990, Pub. L. No. 101-649, § 511(a), 104
Stat. 5052, as amended by Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. No. 102-232, § 306(a)(10), 105 Stat. 1751;
Scheidemann, 83 F.3d at 1523; Samaniego-Meraz v. INS, 53 F.3d 254, 256 (9th
Cir. 1995); Asencio v. INS, 37 F.3d 614, 616-617 (11th Cir. 1994); De Osorio
v. United States INS, 10 F.3d 1034, 1038-1042 (4th Cir. 1993); Buitrago-Cuesta
v. INS, 7 F.3d 291, 295 (2d Cir. 1993); Barreiro v. INS, 989 F.2d 62 (1st
Cir. 1993).
17 The court of appeals also relied (App. 52a-53a) on a predecessor to Section
440(d) passed by the Senate, which would have directed (at Section 303(f))
that the amendments be applied to all pending cases. That temporal-scope
provision did not survive the House-Senate conference, and the court of
appeals inferred from that fact that the conference intentionally dropped
the provision because it wanted the amendments to apply only prospectively.
But since, in the final version of AEDPA, Congress expressly provided both
that certain provisions of Title IV be applied prospectively only and that
certain others be applied to pending cases, one can draw no firm conclusion
from the fact that Congress dropped the Senate's temporal-scope provision.
Indeed, the conference report indicates only that the House receded to the
Senate-bill predecessor of Section 440(d) because it "enhance[d] the
ability of the United States to deport criminal aliens." H.R. Conf.
Rep. No. 518, 104th Cong., 2d Sess. 119 (1996).
18 We discuss the habeas corpus issue in our opening brief (at 25-26 n.12,
45 n.20) in AADC.