No. 98-836
In the Supreme Court of the United States
OCTOBER TERM, 1998
IMMIGRATION AND NATURALIZATION SERVICE, ET AL.,
PETITIONERS
v.
DANIEL MAGANA-PIZANO
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH 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
T
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-836
IMMIGRATION AND NATURALIZATION SERVICE, ET AL.,
PETITIONERS
v.
DANIEL MAGANA-PIZANO
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
1. The Ninth Circuit has held unconstitutional 8 U.S.C. 1252(g) (Supp. II
1996), as applied to criminal aliens who are subject to the preclusion-of-review
provisions of Section 440(a) of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 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. As we explain
in the certiorari petition (at 14-16), a decision holding an Act of Congress
unconstitutional warrants review by this Court. Respondent essentially ignores
that compelling basis for review by this Court.
2. Respondent argues (Br. in Opp. 14-17) that there is no conflict among
the circuits on the jurisdictional issue decided by the court of appeals-namely,
that a district court may exercise jurisdiction under the general federal
habeas corpus statute, 28 U.S.C. 2241, to review a criminal alien's claims
(a) that the Attorney General erroneously determined that Section 440(d)
of AEDPA, 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, and (b) that, so construed by the Attorney General,
Section 1182(c) violates constitutional equal-protection principles as applied
to his case, because it denies eligibility for discretionary relief from
deportation to criminal aliens placed in deportation proceedings in the
United States, but not those seeking admission when returning from abroad.
Recently, however, two courts of appeals have disagreed with the Ninth Circuit's
ruling in this case and have held that Congress permissibly 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. 15 n.15), raises the same jurisdiction and merits issues as
those presented here, the Seventh Circuit rejected the Ninth Circuit's decision
in this case. The Seventh Circuit held that the district courts may not
exercise jurisdiction under Section 2241 over claims such as those raised
by respondent in this case. The Seventh Circuit concluded that, in Section
440(a) of AEDPA, 110 Stat. 1276, Congress had precluded the covered classes
of criminal aliens' access to the district courts by habeas corpus under
28 U.S.C. 2241. LaGuerre, slip op. 7 ("We conclude that for the class
of aliens encompassed by section 440(d), judicial review by means of habeas
corpus did not survive the enactment of that section."). The court
further held that this preclusion of district court jurisdiction does not
violate the Suspension of Habeas Corpus Clause, U.S. Const., Art. I, §
9, Cl. 2. It first expressed "doubt that the suspension clause requires
preserving habeas corpus as a vehicle for challenging final orders of deportation
in cases in which the jurisdiction of the immigration authorities over the
alien is not in question." LaGuerre, slip op. 4. It then suggested
that judicial review for aliens covered by Section 440(d) of AEDPA has not
been "totally extinguished," id. at 7, because aliens may be able,
on petition for review of a deportation order filed directly in the court
of appeals, to "challenge their deportation on constitutional grounds,"
id. at 9. The court expressed assurance that, under the regime established
by Congress requiring that all challenges to deportation orders be heard,
if at all, in the courts of appeals, "the layering of judicial review
proposed by [the aliens] is avoided, judicial review is curtailed as Congress
intended, but enough of a safety valve is left to enable judicial correction
of bizarre miscarriages of justice." Id. at 8.1
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. Moreover, the Eleventh Circuit concluded, this preclusion
of review in the district courts presents no constitutional difficulty under
the Suspension of Habeas Corpus Clause. Id. at * 28-*29. It noted that the
courts of appeals still retain, on petition for review of a removal order,
authority to "determine that the removal order: (1) is against an alien
(2) who is removable (3) by reason of having committed a criminal offense
covered in certain enumerated sections," and also the authority to
"entertain a constitutional attack" upon the INA itself. See id.
at *29 (internal quotation marks omitted).2
3. Respondent suggests (Br. in Opp. 18-19) that this case is of limited
importance because it concerns only the transitional jurisdictional rules
of AEDPA and IIRIRA. That is incorrect. Although the decision below construed
a transitional provision of IIRIRA, Section 309(c)(4)(G), to preclude review
of all of respondents' claims raised in his petition for review (see Pet.
App. 30a-31a), the court followed decisions construing the similar Section
440(a) of AEDPA (see Pet. 16-17 n.9), and there is little reason to doubt
that the court will do likewise in construing the substantively similar
permanent replacement, 8 U.S.C. 1252(a)(2)(C) (Supp. II 1996).3 Moreover,
that construction will not be affected by the court of appeals' recent grant
of rehearing en banc in Hose v. INS, 141 F.3d 932 (9th Cir. 1998), withdrawn,
No. 97-15789 (Dec. 2, 1998), because Hose does not involve a criminal alien
covered by either Section 440(a) of AEDPA or Section 309(c)(4)(G) of IIRIRA.
Accordingly, whatever the outcome of the rehearing en banc in Hose, it is
likely that, in the future, courts in the Ninth Circuit will conclude one
of two things. They may conclude--as the panel below concluded in this case
-that all direct review in the court of appeals is precluded for criminal
aliens like respondent, that review in the district courts under 28 U.S.C.
2241 is precluded for the same aliens by Section 1252(g) (which is applicable
to IIRIRA's permanent review provisions), and that the resulting total preclusion
of review violates the Suspension of Habeas Corpus Clause, requiring recourse
to Section 2241 as a remedy. Alternatively, they may conclude-as the First
Circuit concluded in Goncalves v. Reno, 144 F.3d 110 (1998), petition for
cert. pending, No. 98-835, and the Second Circuit concluded in Henderson
v. INS, 157 F.3d 106 (1998), petition for cert. pending sub nom. Reno v.
Navas, No. 98-996-that Section 1252(g) does not preclude the district court
from reviewing deportation orders under 28 U.S.C. 2241. Either decision
would leave the district courts free to review orders of deportation, and
either would be wrong, as we have explained in our petitions in this case,
in Goncalves, and in Navas.4
4. Respondent defends the court of appeals' conclusion by arguing that Section
2241 was not repealed by implication in AEDPA (Br. in Opp. 20-22). The court
of appeals, however, did not agree with respondent's position that AEDPA
had no effect on Section 2241. To the contrary, it concluded (Pet. App.
20a) that Section 1252(g) had indeed "forfended access to relief under
28 U.S.C. § 2241 in immigration cases" (although it found that
result to be unconstitutional). The First and Second Circuits have concluded
that Section 1252(g) did not preclude access to the district courts under
28 U.S.C. 2241, as respondent notes (Br. in Opp. 20-21). But as the Eleventh
Circuit observed, that reading is not faithful to the plain language of
Section 1252(g). That Section "states comprehensively that '[e]xcept
as provided in this section and notwithstanding any other provision of law,
no court shall have jurisdiction' over the specified claims. * * * 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. The rule against repeals by implication articulated
in Felker v. Turpin, 518 U.S. 651 (1996), therefore has no application here;
Section 1252(g) ousts the district courts' jurisdiction under 28 U.S.C.
2241 explicitly, not impliedly.
Respondent also notes (Br. in Opp. 23- 24) that this Court has considered,
in 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).
Although respondent maintains (Br. in Opp. 24-25) that judicial review of
his non-constitutional claim is required by Article III as well as the Suspension
of Habeas Corpus Clause, 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."). That is especially so where,
as here, the alien does not challenge his deportability (or, therefore,
the INS's jurisdiction over him), but rather challenges the Attorney General's
denial of discretionary relief from deportation. See LaGuerre, slip op.
9 (doubting that the Suspension of Habeas Corpus Clause "requires preserving
habeas corpus as a vehicle for challenging final orders of deportation in
cases in which the jurisdiction of the immigration authorities over the
alien is not in question").5
5. Finally, respondent urges (Br. in Opp. 25) this Court to grant his conditional
cross-petition for a writ of certiorari, to ensure that the Court may reach
all the jurisdictional issues in the case and grant complete relief. We
agree, for the reasons set forth in our response to that conditional cross-petition
(see 98-1011 Gov't Br. for Cross-Resp.). Respondent also suggests (Br. in
Opp. 26) that it would not be appropriate to grant certiorari in Goncalves
to address the merits of the Attorney General's construction of Section
440(d) of AEDPA, because the Court would not be able to reach that issue
in Goncalves if it agrees with the government that the district courts lack
jurisdiction under Section 2241. Should the Court disagree with our jurisdictional
argument, however, and conclude that jurisdiction was proper in the district
court under Section 2241, then it would be able in Goncalves to reach the
merits of the temporal scope of Section 440(d) (which is independently worthy
of this Court's review). But if the Court agrees with our jurisdictional
position, then it would be able to resolve the temporal scope of Section
440(d) by granting review in Reno v. Navas, petition for cert. pending,
No. 98-996, which presents all the jurisdictional issues presented in this
case and Goncalves, and also raises the merits issues as well. In Navas,
one of the aliens (Navas), like respondent here, filed both a petition for
review and a petition for habeas corpus, and another (Henderson) filed a
petition for review; the Second Circuit dismissed the petitions for review
but granted relief to Navas on his habeas corpus petition, after concluding
on the merits that Section 440(d) of AEDPA does not apply to aliens who
filed an application for discretionary relief under Section 1182(c) before
AEDPA was enacted. See 98-996 Pet. 14-19. If either Navas or Henderson files
a conditional cross-petition for a writ of certiorari challenging the Second
Circuit's dismisal of his petition for review (as respondent did here, to
preserve his opportunity for relief), then the Court will be able reach
the merits of the Section 440(d) issue in Navas, even if it concludes that
the district courts lack jurisdiction under 28 U.S.C. 2241.
* * * * *
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 The Seventh Circuit noted that the purpose of Congress's 1996 amendments
to the immigration laws precluding review of criminal aliens' challenges
to their deportation orders "was to curtail and speed up judicial review
of deportation orders directed against disfavored classes of criminals,
such as drug offenders." LaGuerre, slip op. 6. But "[i]f the effect
of the new provision was * * * 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 courts that have held
to the contrary are 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"). See also Henderson v. INS, 157
F.3d 106, 119 n.9 (2d Cir. 1998) (finding itself bound by precedent to agree
with decision below, 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. 17-18) 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
28 U.S.C. 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, as discussed in the text, the court specifically
considered and rejected Richardson's contention that, if Section 1252(g)
precluded district court habeas jurisdiction over immigration decisions
under 28 U.S.C. 2241, then it would violate the Constitution because he
would have no opportunity for judicial review of his final order of deportation.
See 1998 WL 889376, at *28-*29.
3 The court of appeals did note (Pet. App. 30a n.3) that the permanent jurisdictional
changes made by IIRIRA in Section 1252(a)(2)(C) were not before it, and
on that basis the INS has argued (in order to preserve its jurisdictional
position) that courts are not obligated to extend the decision below to
cases arising under IIRIRA's permanent jurisdictional provisions, especially
in other circuits (see Br. in Opp. 19 n.17). The rationale for the decision
below, however, suggests the Ninth Circuit will follow and extend it when
construing Section 1252(a)(2)(C).
4 Respondent contends (Br. in Opp. 9) 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 Chow v. INS, 113 F.3d 659 (7th Cir. 1997),
where the government moved for dismissal of the petition for review, and
in Goncalves. Chow, however, involved only non-constitutional challenges
to the alien's deportation order. See id. at 662. After AEDPA was enacted,
Chow argued that its withdrawal of the court of appeals' jurisdiction over
his petition for review was itself unconstitutional, see id. at 668, but
that is not a "constitutional claim[]" raised against the deportation
order itself (see Br. in Opp. 8). In Goncalves, the alien did not file a
petition for review in the court of appeals; he filed only a habeas corpus
petition in district court. The First Circuit had previously held in Kolster
v. INS, 101 F.3d 785 (1st Cir. 1996) that Section 440(a) of AEDPA precluded
it from exercising jurisdiction over petitions for review filed by criminal
aliens covered by that Section, but that case also involved only non-constitutional
challenges to a deportation order. Similarly, the fact that we opposed certiorari
in cases in which the courts of appeals dismissed petitions for direct review,
where the aliens had not filed habeas corpus petitions and the courts of
appeals had therefore not comprehensively addressed the issue of habeas
corpus jurisdiction (see Br. in Opp. 9 & n.11) in no way suggests that
review is unwarranted in this case, where respondent did file a habeas corpus
petition under Section 2241, and the court of appeals did comprehensively
address the jurisdictional issue.
5 Respondent relies (Br. in Opp. 24) 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, but that case 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).