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
REPLY BRIEF FOR THE PETITIONERS
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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
REPLY BRIEF FOR THE PETITIONERS
1. Jurisdiction. Respondent argues (Br. in Opp. 13-15) that there is no
conflict among the circuits on the jurisdictional decision of the court
below-namely, that the district courts have jurisdiction under the general
federal habeas corpus statute, 28 U.S.C. 2241, to review a criminal alien's
claim that the Attorney General erroneously determined that Section 440(d)
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1277, applies in pending deportation cases to
bar discretionary relief from deportation under 8 U.S.C. 1182(c) (1994)
to certain classes of criminal aliens. Recently, however, two courts of
appeals have disagreed with the First Circuit's jurisdictional ruling in
this case, and have held that Congress precluded access to the district
courts in immigration cases under Section 2241.
In LaGuerre v. Reno, No. 98-1954 (Dec. 22, 1998), which as respondent notes
(Br. in Opp. 14 n.19) involves the same jurisdictional and merits issues
as those presented here, the Seventh Circuit squarely rejected the First
Circuit's decision in this case. The Seventh Circuit held that a district
court could not exercise jurisdiction under Section 2241 over either the
non-constitutional claim or the constitutional claim that respondent has
sought to raise in this case. See LaGuerre, slip op. 7 ("We conclude
that for the class of aliens encompassed by [AEDPA] section 440(d), judicial
review by means of habeas corpus did not survive the enactment of that section.").
The Seventh Circuit noted that the purpose of Congress's 1996 amendments
to the immigration laws limiting jurisdiction over criminal aliens' challenges
to their deportation orders "was to curtail and speed up judicial review
of deportation orders against disfavored classes of criminals, such as drug
offenders." Id. at 6. But "[i]f the effect of the new provision
was, as [respondent here and the Goncalves court] believe, to shift judicial
review to the district court, followed of course by appeal to this court,
then Congress enlarged judicial review for these deportees (and for no others![)]."
Ibid. (emphasis added); see id. at 7 (noting that, if the Goncalves court
is right, then "Congress accomplished nothing toward its aim of curtailing
judicial review," and "[m]aybe less than nothing, if by closing
the door to review by the courts of appeals Congress simultaneously opened
the door to review by the district courts followed by review by the courts
of appeals").1
Similarly, in Richardson v. Reno, No. 98-4230, 1998 WL 889376 (Dec. 22,
1998), the Eleventh Circuit concluded that Congress "strip[ped] all
jurisdiction, including § 2241 habeas, from the district courts."
Id. at *4. The Eleventh Circuit emphasized (id. at *13) that 8 U.S.C. 1252(g)
(Supp. II 1996) provides that, notwithstanding "any other provision
of law, no court shall have jurisdiction" to review the decision of
the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders under the Immigration and Nationality Act (INA). As the Eleventh
Circuit explained, Section 1252(g)'s "broad admonition that it applies
'notwithstanding any other provision of law' sufficiently and clearly encompasses
other provisions of law, such as § 2241. When Congress says 'any,'
it means 'any' law, which necessarily includes § 2241." Richardson,
1998 WL 889376, at *13.2
Respondent suggests (Br. in Opp. 15-16) that this case is of limited importance
because it concerns only the transitional jurisdictional rules in Section
440(a) of AEDPA, 110 Stat. 1276, and 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. That is incorrect. A central
aspect of the First Circuit's decision was its rejection (Pet. App. 26a-28a)
of the government's argument that Section 1252(g)--which applies also to
IIRIRA's permanent review provisions-precluded the district court from exercising
habeas jurisdiction under Section 2241.3 Thus, district courts in the First
Circuit, bound by that decision, are likely to conclude in the future that,
notwithstanding Section 1252(g), they may exercise habeas jurisdiction under
Section 2241 at the behest of criminal aliens who are barred by IIRIRA's
permanent preclusion of review provision, 8 U.S.C. 1252(a)(2)(C) (Supp.
II 1996), from raising certain claims by petition for review directly in
the court of appeals. Indeed, respondent has pointed to no difference between
that permanent provision and the preclusion-of-review provisions in Section
440(a) of AEDPA and Section 309(c)(4)(G) of IIRIRA that would suggest any
difference in outcome. As a result, the bifurcated review scheme adopted
by the court of appeals, which perversely gives greater opportunities for
judicial review of deportation orders to the very criminal aliens whose
removal Congress wished to expedite, is likely to persist. See also Pet.
24 n.15.4
Respondent also notes (Br. in Opp. 18-20) that this Court has considered,
on habeas corpus proceedings, aliens' claims that they were eligible to
be considered for discretionary relief from deportation. In neither United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), nor United States
ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957), did the Court's
opinion address the question of habeas corpus jurisdiction, however, and
certainly in neither case did the Court suggest that habeas corpus jurisdiction
was required by the Constitution itself. This Court has never considered
itself bound by sub silentio jurisdictional holdings in the manner respondent
suggests. See FEC v. NRA Political Victory Fund, 513 U.S. 88, 97 (1994).
And although respondent maintains (Br. in Opp. 20) that judicial review
of his non-constitutional claim is required by Article III as well as the
Suspension of Habeas Corpus Clause, U.S. Const., Art. I, § 9, Cl. 2,
this Court has recognized that the federal courts have jurisdiction under
Article III to review statutory questions only to the extent that Congress
assigns it to them, see Block v. Community Nutrition Inst., 467 U.S. 340
(1984), and also that "[t]he power to expel aliens, being essentially
a power of the political branches of government, * * * may be exercised
entirely through executive officers, with such opportunity for judicial
review of their action as Congress may see fit to authorize or permit,"
Carlson v. Landon, 342 U.S. 524, 537 (1952) (internal quotation marks omitted);
see ibid. ("No judicial review [of deportation orders] is guaranteed
by the Constitution.").5
2. Merits. Respondent argues (Br. in Opp. 21-22) that there is no conflict
in the circuits on the merits of the Attorney General's decision in In re
Soriano (Pet. App. 125a-138a) that Section 440(d) of AEDPA applies to all
applications for relief from deportation pending at the time of AEDPA's
enactment. In LaGuerre, however, the Seventh Circuit ruled (slip op. 9-10),
contrary to the court below, that the Attorney General's decision in Soriano
is correct.6 The Seventh Circuit concluded that the application of Section
440(d) to pending cases does not implicate the presumption against retroactivity
because "[i]t would border on the absurd to argue that these aliens
might have decided not to commit drug crimes, or might have resisted conviction
more vigorously, had they known that if they were not only imprisoned but
also, when their prison term ended, ordered deported, they could not ask
for a discretionary waiver of deportation." LaGuerre, slip op. 10.
Given the conflict of authority on a matter affecting thousands of aliens
already in deportation proceedings or pursuing federal-court litigation
(see Pet. 23), review of the lower court's decision on the merits is warranted.
Respondent also argues (Br. in Opp. 22-23) that the decision below did not
articulate or rely on a presumption against retroactivity. That contention,
however, cannot withstand scrutiny. The First Circuit squarely held (Pet.
App. 43a) that "[t]he Attorney General's application of the new AEDPA
restrictions takes away a form of relief that, while discretionary, is plainly
substantive, and so implicates [the] presumption against retroactivity"
articulated in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Under
the decision below, therefore, congressional enactments restricting the
circumstances under which aliens may be granted discretionary relief from
deportation, or expanding the circumstances under which they may be deported,
are considered "substantive" and are therefore subject to the
presumption against retroactivity. That application of the presumption against
retroactivity to deportation cases has far-reaching implications for the
Attorney General's ongoing administration of the Nation's immigration laws,
conflicts with the Seventh Circuit's decision in LaGuerre, and warrants
review.7
Unlike the court of appeals, respondent acknowledges (Br. in Opp. 25) that
Congress expressly directed that other provisions of AEDPA be applied prospectively
only, but he nevertheless argues that a court should not infer from that
fact that Congress intended that Section 440(d) be applied to pending cases.
He argues that the "most relevant comparative provisions" to Section
440(d) supposedly are others in AEDPA that Congress expressly directed be
applied to pending cases. But if one is examining Congress's intent as to
the temporal scope of Section 440(d), the most relevant comparison would
not be (as respondent argues) to provisions in different subtitles of AEDPA
(see AEDPA § 413, 110 Stat. 1269, and § 421, 110 Stat. 1270) but
rather to an effective-date provision in the same section of AEDPA, Section
440(f). See 110 Stat. 1278. Since Congress, in Section 440(f), made only
the amendments in Section 440(e) applicable to cases in the future, it is
equally, if not more, reasonable to infer that Congress intended the rest
of Section 440, including Section 440(d), to apply to all pending cases.
Finally, respondent argues (Br. in Opp. 26-27) that the merits of the Attorney
General's decision in Soriano have not been sufficiently examined in the
courts of appeals because the First and Second Circuits have considered
only the first step of the Landgraf analysis, and have not also applied
the second step, involving the presumption against retroactivity. As just
explained, however, the court below did apply the presumption against retroactivity.
See Pet. App. 41a-44a. The Seventh Circuit, moreover, has now issued a directly
contrary ruling. See pp. 6-7, supra. The application of Landgraf principles
to Section 440(d) has been thoroughly aired in the courts of appeals and
in dozens of district court decisions and is fully ripe for this Court's
consideration.8
* * * * *
For the foregoing reasons, and for those set forth in the petition, the
petition for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DECEMBER 1998
1 See also Henderson v. INS, 157 F.3d 106, 119 n.9 (2d Cir. 1998) (considering
itself bound by prior circuit decision to find that district court had jurisdiction,
but acknowledging that "review in the courts of appeals seems more
consistent with congressional intent"), petition for cert. pending
sub nom. Reno v. Navas, No. 98-996 (filed Dec. 17, 1998).
2 Respondent argues (Br. in Opp. 15 n.21) that Richardson does not conflict
with the decision below because it did not involve judicial review of a
final order of deportation. The ruling in Richardson, however, was broader
in scope than the context of review of final deportation orders, and necessarily
encompassed the conclusion that the district courts lack jurisdiction under
Section 2241 to entertain challenges to final orders of deportation. See
Richardson, 1998 WL 889376, at *13 ("Accordingly, we conclude that
[Section 1252(g)] repeals any statutory jurisdiction over immigration decisions
other than that conferred by [Section 1252]. That repeal includes §
2241 habeas jurisdiction over immigration decisions by the Attorney General
under the INA."). Indeed, the Eleventh Circuit further addressed and
rejected Richardson's contention that, if Section 1252(g) precludes district
court habeas jurisdiction over immigration decisions under Section 2241,
then it violates the Constitution because he would have no opportunity for
judicial review of his final order of deportation. See id. at *28-*29.
3 Indeed, respondent defends (Br. in Opp. 18) this aspect of the court of
appeals' decision as a correct application of the presumption against repeal
of habeas corpus articulated in Felker v. Turpin, 518 U.S. 651 (1996), and
as avoiding serious constitutional questions about Section 1252(g). As the
Eleventh Circuit observed in Richardson, however, Felker does not support
the First Circuit's construction of Section 1252(g) in the decision below,
because the withdrawal of jurisdiction in Section 1252(g) is much broader
than it was in the statute examined in Felker. "Unlike Felker, the
language of [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 [the INA itself.]"
Richardson, 1998 WL 889376, at *14.
4 Respondent contends (Br. in Opp. 6) that the position advanced in our
petition, that a criminal alien covered by the jurisdiction-limiting and
preclusion-of-review provisions of AEDPA and IIRIRA may nonetheless raise
constitutional challenges to provisions of the INA affecting his deportation
order on a petition for review in the court of appeals, is inconsistent
with the government's position in Kolster v. INS, 101 F.3d 785 (1st Cir.
1996), and Chow v. INS, 113 F.3d 659 (7th Cir. 1997), where the government
moved for dismissal of the petitions for review. Kolster, however, involved
a claim that the Attorney General had incorrectly construed another aspect
of Section 1182(c)'s requirements for eligibility for discretionary relief
from deportation, see 101 F.3d at 787; we argued there, as we have argued
here (Pet. 21) that Congress permissibly withdrew the federal courts' jurisdiction
to consider such non-constitutional claims involving eligibility for discretionary
relief from deportation. Chow also involved only non-constitutional challenges
to the alien's deportation order. See 113 F.3d at 662. After AEDPA was enacted,
Chow argued that its withdrawal of review in the court of appeals was itself
unconstitutional, see id. at 668, but that is not a "constitutional
claim[]" raised against the deportation order itself (see Br. in Opp.
6).
5 Respondent relies (Br. in Opp. 20) on CFTC v. Schor, 478 U.S. 833 (1986),
for the proposition that the federal courts must have authority to review
his non-constitutional claim. That case, however, involved a federal agency's
authority to adjudicate a state-law claim, not limitations on a federal
court's jurisdiction to review a federal agency's determination of a federal
statutory issue. See id. at 850-858. Moreover, the Court has noted that
immigration cases involve "public rights" that may be assigned
to administrative agencies for adjudication. See Crowell v. Benson, 285
U.S. 22, 51 (1932).
6 Although the Seventh Circuit concluded that the district court had no
jurisdiction over the aliens' habeas corpus petitions under Section 2241
(see p. 2, supra), it noted the possibility that the aliens might be able
to raise their claims by petitions for review in the courts of appeals,
see LaGuerre, supra, slip op. 8-9, 10-11, and it addressed the merits of
their contentions "lest [the aliens] feel that [the court has] tripped
them up on a technicality" (namely, having filed "in the wrong
court under the wrong statute"), id. at 9. Even if the court of appeals'
discussion of the merits of the aliens' claims was technically dictum, it
will almost surely be followed by subsequent panels of that court. Compare
Henderson, 157 F.3d at 119 (following conclusion in Jean-Baptiste v. Reno,
144 F.3d 212, 229-220 (2d Cir. 1998), which was arguably dictum, that Section
2241 jurisdiction remains available in district courts for criminal aliens).
7 Respondent observes (Br. in Opp. 24 n.30) that Landgraf relied on Chew
Heong v. United States, 112 U.S. 536 (1884), to support the presumption
against retroactivity. See Landgraf, 511 U.S. at 271-272. Chew Heong, however,
turned crucially on the fact that, under a preexisting treaty between the
United States and China, certain Chinese nationals then in the United States
had what the Court described as "the right to go from and return to
the United States at pleasure, without being subjected to regulations or
conditions affecting that right." 112 U.S. at 539; see id. at 543.
Because the treaty had secured such a right, the Court concluded that a
subsequent Act of Congress, requiring a certificate for a Chinese national
to reenter the United States, should not be applied to a Chinese national
who had left the United States before the Act was passed and thereafter
sought to reenter, because to apply it in that manner would retroactively
impair the "rights previously vested" in him. See id. at 559.
By contrast, the application of Section 440(d) of AEDPA to pending deportation
proceedings does not affect any "rights previously vested," because
no alien has a right to discretionary relief from deportation. See INS v.
Yueh-Shaio Yang, 519 U.S. 26, 30 (1996); Jay v. Boyd, 351 U.S. 345, 354
(1956). The Attorney General's construction of Section 440(d) in Soriano,
therefore, is not "retroactive" at all.
8 Respondent also notes (Br. in Opp. 27) that he has raised a constitutional
equal-protection challenge to Section 1182(c), and that the court of appeals'
decision made it unnecessary for that constitutional claim to be resolved.
It is true that, if the Court were to agree with respondent that the district
court had habeas corpus jurisdiction in his case but were to agree with
the government that Section 440(d) is applicable to his case, then the courts
would have to consider respondent's constitutional claim on remand. It is
unlikely, however, that the courts of appeals will be able to avoid the
constitutional issue raised by respondent. The same claim has been raised
by many aliens whose deportation proceedings were commenced after AEDPA's
date of enactment, and the Seventh Circuit has already concluded that the
claim has no merit. See LaGuerre, slip op. 11. Further, if the Court grants
certiorari in INS v. Magana-Pizano, No. 98-836, as respondent has agreed
it should do if it grants review in this case (see Br. in Opp. 27-28), and
if the Court concludes in that case (as we have argued, 98-836 Pet. 18-19)
that the Ninth Circuit had jurisdiction over the alien's constitutional
claim raised in the petition for review (the same claim as the one raised
in this case), then the Ninth Circuit will in any event have to address
that claim on remand from this Court.