No. 98-996
In the Supreme Court of the United States
OCTOBER TERM, 1998
JANET RENO, ET AL., PETITIONERS
v.
SAUL NAVAS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND 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. 98-996
JANET RENO, ET AL., PETITIONERS
v.
SAUL NAVAS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
1. Jurisdiction. Respondents acknowledge (Br. in Opp. 17) that there is
a "disagreement" among the courts of appeals on the jurisdictional
question presented in this case- namely, whether the district courts have
jurisdiction to review challenges to deportation orders under the general
federal habeas corpus statute, 28 U.S.C. 2241. That issue is of great importance
in the administration of the immigration laws, and the court of appeals
decided it incorrectly. As we explain in our certiorari petition (at 19-24),
Congress precluded the district courts from exercising habeas corpus jurisdiction
to entertain collateral challenges to orders of deportation in four separate
ways: (1) by expressly repealing the habeas corpus jurisdiction formerly
provided by the Immigration and Nationality Act (INA), 8 U.S.C. 1105a(a)(10)
(1994; repealed 1996), in Section 401(e) of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1268 (entitled
"ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS"); (2) by replacing
that provision with a new Section 1105a(a)(10) that expressly precludes
judicial review of deportation orders entered against certain criminal aliens,
enacted in Section 440(a) of AEDPA, 110 Stat. 1276-1277; (3) by enacting
yet another preclusion of judicial review of such orders entered in transitional
cases, in 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; and (4) by enacting the sweeping, permanent jurisdiction-limiting
provision of 8 U.S.C. 1252(g) (Supp. III 1997), in Section 306(a) of IIRIRA,
110 Stat. 3009-612.
The disagreement on the jurisdictional issue in the lower courts is extensive.
The First, Second, and (now) Third Circuits have held that Congress has
not precluded aliens' access to the district courts to raise collateral
challenges to the merits of their deportation orders under 28 U.S.C. 2241;1
the Ninth Circuit has held that Congress has precluded such access, but
that that preclusion is unconstitutional;2 and the Seventh and Eleventh
Circuits have held that Congress has eliminated the district courts' jurisdiction
to review deportation orders under 28 U.S.C. 2241, and that that preclusion
is constitutional.3 This Court's review is needed to resolve the disagreement
among the lower courts about the proper forum for such judicial review of
deportation orders as remains available after Congress's enactment of AEDPA
and IIRIRA. See Sandoval v. Reno, Nos. 98-1099, 98-1547, & 98-3214 (3d
Cir. Jan. 26, 1999), slip op. 11 ("The resulting division among the
courts on this important issue leaves the definitive interpretation for
resolution by the Supreme Court.").
Respondents advance two arguments in an attempt to minimize this conflict
among the circuits. First, they argue (Br. in Opp. 13-14) that the disagreement
involves only interim provisions of AEDPA and IIRIRA governing judicial
review of orders of deportation involving aliens in proceedings on or before
April 1, 1997, the general effective date of IIRIRA, and not orders of removal
entered after that date. That contention is incorrect. The First, Second,
and Third Circuits have held that a permanent provision of IIRIRA, Section
1252(g)-which broadly provides that, "notwithstanding any other provision
of law, no court shall have jurisdiction" to hear challenges to removal
orders except as set forth in Section 1252 itself, see 8 U.S.C. 1252(g)
(Supp. III 1997)-has no effect on the district courts' jurisdiction under
28 U.S.C. 2241.4 See note 1, supra. Respondents have offered no reason why
district courts in those circuits, bound by those decisions, will not conclude
in the future that, despite Section 1252(g), they may exercise jurisdiction
to review orders of removal under 28 U.S.C. 2241 at the behest of criminal
aliens who are deemed barred by IIRIRA's permanent preclusion of review
provision, 8 U.S.C. 1252(a)(2)(C) (Supp. III 1997), from raising claims
by petitions for review directly in the courts of appeals.5
Respondents also argue (Br. in Opp. 17-20) that the conflict among the circuits
is limited to the forum (court of appeals or district court) in which challenges
to deportation orders may be heard, and does not concern the permissible
scope, after IIRIRA, of judicial review. That disagreement as to the proper
forum in which challenges to deportation orders may be pursued, however,
is of fundamental significance to the administration of the Nation's immigration
laws. As we have explained (Pet. 21-24; 98-835 Pet. 15-17; 98-836 Pet. 21-25),
Congress has long perceived that challenges to deportation orders in district
courts carry the potential for considerable delay in deporting aliens, and
has therefore consistently channeled judicial review of such orders to the
courts of appeals. See also Stone v. INS, 514 U.S. 386, 399 (1995); Foti
v. INS, 375 U.S. 217, 224 (1963). The court of appeals' decision in this
case departs from that consistently expressed congressional preference for
review in the courts of appeals (as that court acknowledged, see Pet. App.
30a n.9). Indeed, it turns the congressionally enacted structure for review
of immigration decisions upside down, for it permits criminal aliens opportunities
for greater review (and delay) of their deportation orders by allowing them
to proceed as an initial matter in the district court rather than the court
of appeals, where all other aliens have been required to proceed-previously
under 8 U.S.C. 1105a(a) (1994), and now under 8 U.S.C. 1252(a) (Supp. III
1997).6 Moreover, administrative and judicial proceedings involving thousands
of aliens similarly situated to respondents are still pending in the lower
courts and before the Board of Immigration Appeals (see Pet. 23-24), and
it is vitally important that the government, those aliens, and the lower
courts know where (if anywhere) such cases may be brought. This Court's
review of the court of appeals' decision is therefore warranted.7
2. Merits. Respondents argue (Br. in Opp. 21-22) that the court of appeals
correctly rejected the Attorney General's decision in In re Soriano (Pet.
App. 389a-402a). In Soriano, the Attorney General construed Section 440(d)
of AEDPA, which bars certain classes of criminal aliens from discretionary
relief from deportation under 8 U.S.C. 1182(c) (1994), to apply to all deportation
proceedings pending at the time of AEDPA's enactment. In contrast to the
decision below, however, the Seventh Circuit has concluded that the Attorney
General's decision in Soriano is correct. LaGuerre v. Reno, Nos. 98-1954
& 98-2613, 1998 WL 912107 (Dec. 22, 1998). The Seventh Circuit observed,
moreover, 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 [their] 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." Id. at *5. Given the conflict of authority
on a matter affecting thousands of aliens already in deportation proceedings
or pursuing federal-court litigation (see Pet. 24, 26), review of the lower
court's decision on the merits is warranted.8
According to respondents (Br. in Opp. 24-26), the court of appeals correctly
inferred that Section 440(d) of AEDPA does not apply to pending cases from
the fact that Congress explicitly provided in AEDPA that other changes to
the immigration laws were to be applied to pending cases. But, as we have
noted (Pet. 25-26 n.14), the most relevant points of comparison to Section
440(d) are found in Subtitle D of Title IV of AEDPA, which governs "Criminal
Alien Procedural Improvements" (110 Stat. 1273), and, specifically,
in Section 440 of AEDPA, which governs "Criminal Alien Removal"
(110 Stat. 1276). There, Congress expressly provided that Section 440(e)
(immediately adjacent to Section 440(d), at issue here)-which expanded the
definition of "aggravated felony," conviction of which renders
an alien deportable-was to be applied only to future immigration cases.
See AEDPA § 440(f) (providing that Section 440(e) "shall apply
to convictions entered on or after the date of the enactment of this Act,"
with an exception for AEDPA Section 440(e)(3), referring to convictions
for alien smuggling, which was made applicable as if enacted in 1994), 110
Stat. 1278. The most obvious inference to be drawn from that express prospective-only
directive is that Section 440(d), which also makes deportation consequences
turn on an alien's conviction for a crime but contains no such prospective-only
directive, should be applied to pending cases.
Respondents attempt (Br. in Opp. 25) to diminish the impact of Section 440(f)
by arguing that it is not a "pure prospectivity provision[.]"
In a limited sense Section 440(f) does not make Section 440(e) purely prospective,
for under Sections 440(e) and (f) an alien may be deported as an aggravated
felon even if his crime was committed before enactment of AEDPA, as long
as the conviction was entered after AEDPA's enactment. The principal thrust
of Section 440(f), however, is to make clear that Section 440(e) does not
make an alien deportable based on his pre-existing conviction for a crime
newly defined as an aggravated felony. The INA makes an alien's deportability
turn on his conviction for an aggravated felony, not his commission of such
a crime. See 8 U.S.C. 1251(a)(2)(A)(iii) (1994); 8 U.S.C. 1227(a)(2)(A)(iii)
(Supp. III 1997). Accordingly, Section 440(e) of AEDPA was expressly made
to apply prospectively based on the event that renders an alien deportable-a
criminal conviction for an aggravated felony-which places it in sharp contrast
to Section 440(d) of AEDPA. See also 98-835 Pet. 26-27 (discussing two other
prospective-only provisions in AEDPA's criminal alien subtitle that reinforce
the conclusion that Section 440(d), which contains no such provision, applies
to pending cases).
Respondents argue further (Br. in Opp. 26-28) that, even if the lower court's
inferences from the statutory structure and text about the temporal scope
of Section 440(d) were unwarranted, it would have been justified in applying
the presumption against retroactive applications of federal civil statutes
to this case, as the First Circuit did in Goncalves v. Reno, 144 F.3d 110,
128 (1998), petition for cert. pending, No. 98-835 (filed Nov. 18, 1998).
But see LaGuerre, 1998 WL 912107, at *5 (stating that "[i]t would border
on the absurd" to apply the presumption against retroactivity in this
situation). That is incorrect, for the application of Section 440(d) to
pending cases would not be retroactive. As the Attorney General concluded
in her decision in Soriano, Section 440(d) divested her of the power to
grant prospective relief from deportation (see Pet. App. 395a-397a); it
is thus akin to a statute withdrawing jurisdiction, or altering the terms
of permissible injunctive relief in futuro. "[T]he relevant activity
that the rule regulates," Landgraf v. USI Film Prods., 511 U.S. 244,
291 (1994) (Scalia, J., concurring in the judgment), is the Attorney General's
authority to grant relief from deportation under Section 1182(c), not the
alien's criminal conduct or conviction.9
3. Proper Case For Complete Review. Finally, respondents submit (Br. in
Opp. 29-30) that if the Court does grant certiorari in one of the pending
cases arising out of the application of Section 440(d) of AEDPA, it should
grant plenary review in this case, rather than holding it for Reno v. Goncalves,
No. 98-835, or INS v. Magana-Pizano, No. 98-836. We agree, for the reasons
set forth in our response to the conditional cross-petition for a writ of
certiorari in this case (No. 98-1160, at 4-6). Now that respondents Navas
and Henderson have filed a cross-petition seeking review of the court of
appeals' dismissal of their petition for review, the Court could decide
both whether Section 309(c)(4)(G) of IIRIRA and Section 440(a) of AEDPA
prevented the court of appeals from taking jurisdiction over the various
claims in their petitions for review, and whether the district court had
jurisdiction over the similar claims raised in Navas's petition for habeas
corpus under 28 U.S.C. 2241. In addition, plenary review over the petition
and cross-petition in this case would also ensure that the Court could resolve
the reasonableness of the Attorney General's decision in Soriano, should
the Court reject our submission (see 98-996 Pet. 23) that neither the district
court nor the court of appeals had jurisdiction to review respondents' challenge
to the Attorney General's denial of discretionary relief based on Soriano.
* * * * *
For the foregoing reasons, and for those set forth in the petition, the
petition for a writ of certiorari should be granted.
SETH P. WAXMAN
Solicitor General
FEBRUARY 1999
1 See Goncalves v. Reno, 144 F.3d 110, 122-123 (1st Cir. 1998), petition
for cert. pending, No. 98-835 (filed Nov. 18, 1998); Jean-Baptiste v. Reno,
144 F.3d 212, 218-220 (2d Cir. 1998), petition for reh'g pending (filed
July 6, 1998); Pet. App. 13a, 27a-30a (decision below, following Jean-Baptiste);
Sandoval v. Reno, Nos. 98-1099, 98-1547, & 98-3214 (3d Cir. Jan. 26,
1999).
2 See Magana-Pizano v. INS, 152 F.3d 1213, 1216-1220, amended, 159 F.3d
1217 (9th Cir. 1998), petition for cert. pending, No. 98-836 (filed Nov.
18, 1998).
3 See LaGuerre v. Reno, Nos. 98-1954 & 98-2613, 1998 WL 912107, at *4-*5
(7th Cir. Dec. 22, 1998); Rodriguez v. Reno, No. 98-4426, 1999 WL 1762,
at *5-*6 (11th Cir. Jan. 4, 1999); Richardson v. Reno, No. 98-4230, 1998
WL 889376, at *12-*16, *28-*31 (11th Cir. Dec. 22, 1998). Respondents suggest
(Br. in Opp. 20-21 & n.19) that the Eleventh Circuit's decisions in
Rodriguez and Richardson do not conflict with the decision below because
Rodriguez did not concern a criminal alien barred from seeking review of
his removal order in the court of appeals, and Richardson did not involve
an alien who was subject to a final order of removal. In both cases, however,
the court framed the issue before it as whether Section 1252(g) altogether
precludes the district courts' habeas corpus jurisdiction over immigration
cases under 28 U.S.C. 2241. The Eleventh Circuit in Richardson therefore
ruled that Section 1252(g) "repeals any statutory jurisdiction over
immigration decisions other than that conferred by" Section 1252 itself,
including "§ 2241 habeas jurisdiction over immigration decisions
by the Attorney General under the INA," 1998 WL 889376, at *13, and
also rejected Richardson's contention that such preclusion of review in
district court violates the Constitution, id. at *28-*29. In Rodriguez,
the court followed its decision in Richardson to rule that Section 1252(g)
"repeals district court jurisdiction to issue writs of habeas corpus
under § 2241 to aliens challenging their removal from the United States,"
and that "IIRIRA's repeal of § 2241 is not unconstitutional because
IIRIRA does not eliminate all judicial review of immigration matters,"
but rather creates a "consolidated form of judicial review of proceedings
to remove aliens from the United States--a petition for review in the court
of appeals." 1999 WL 1762, at *5.
4 See Goncalves, 144 F.3d at 122-123; Jean-Baptiste, 144 F.3d at 218-220;
Pet. App. 29a-30a (relying on Jean-Baptiste); Sandoval, slip op. at 20-22.
Moreover, respondents defend (Br. in Opp. 15-16) this aspect of the court
of appeals' decision as a correct application of the presumption against
implied repeal of habeas corpus jurisdiction articulated in Felker v. Turpin,
518 U.S. 651 (1996), and as avoiding constitutional questions about Section
1252(g). As the Eleventh Circuit observed in Richardson, however, Felker
does not support the Second Circuit's construction of Section 1252(g) in
the decision below, because the repeal of jurisdiction under Section 1252(g),
in contrast to the statute examined in Felker, is comprehensive. "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. Further, Section 401(e)
of AEDPA, entitled "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS,"
expressly repealed the provision for habeas corpus review in 8 U.S.C. 1105a(a)(10).
Congress thus left nothing to implication. See Sandoval, slip op. at 34
(Alito, J., concurring in part and dissenting in part); LaGuerre, 1998 WL
912107, at *3.
5 As we explain in our certiorari petition (at 14-15), respondents Navas
and Henderson attempted to advance their claims by filing petitions for
direct review in the court of appeals. The court of appeals, however, believing
itself bound by language in its earlier decisions in Jean-Baptiste v. Reno,
supra, and Hincapie-Nieto v. INS, 92 F.3d 27, 28 (2d Cir. 1996), concluded
that Section 309(c)(4)(G) of IIRIRA and Section 440(a) of AEDPA eliminated
its jurisdiction to review any of the claims in those petitions for review,
including the constitutional claims. See Pet. App. 27a, 30a. We also point
out in our certiorari petitions in Goncalves (98-835 Pet. 19 n.10, 24 n.15)
and Magana-Pizano (98-836 Pet. 16-17 n.9, 26) that courts are likely to
construe IIRIRA's permanent preclusion of review provision covering criminal
aliens, 8 U.S.C. 1252(a)(2)(C) (Supp. III 1997), in conformity with Section
309(c)(4)(G) of IIRIRA and Section 440(a) of AEDPA. Although respondents
observe (Br. in Opp. 14-15) that their petitions for review are not governed
by the permanent rules of Section 1252(a)(2)(C), they advance no reason
to believe that the courts will construe that provision differently than
they have construed the earlier, similar provisions restricting judicial
review of petitions filed by specific classes of criminal aliens.
6 See also LaGuerre, 1998 WL 912107, at *3 (noting that if IIRIRA were construed
as respondents suggest, then "Congress accomplished nothing toward
its aim of curtailing judicial review" for criminal aliens, and "[m]aybe
less than nothing, if * * * Congress simultaneously opened the door to review
by the district courts followed by review by the courts of appeals").
7 For further discussion of the jurisdictional question presented, we also
refer the Court to our petitions and reply briefs in Goncalves (98-835 Pet.
14-24; 98-835 Reply Br. 1-6) and Magana-Pizano (98-836 Pet. 14-29; 98-836
Reply Br. 1-10).
8 Although the Seventh Circuit concluded in LaGuerre that the district court
had no jurisdiction over the aliens' habeas corpus petitions (see p. 2 &
n.3, supra), it also noted the possibility that the aliens might be able
to raise their claims by petitions for review in the courts of appeals,
see LaGuerre, 1998 WL 912107, at *4-*5, 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 *4. Even if the LaGuerre court's
discussion of the merits of the aliens' claims was technically dictum, it
will almost surely be followed by subsequent panels of that court, just
as the court of appeals in this case believed itself bound by language in
Jean-Baptiste, arguably dictum, concerning the continued availability (after
enactment of IIRIRA) of district court jurisdiction under 28 U.S.C. 2241.
See Pet. App. 27a-30a (following Jean-Baptiste); Jean-Baptiste, 144 F.3d
at 220 (stating that "§ 2241 habeas review survives the amendments
to the INA enacted by [IIRIRA]"); ibid. (observing that aliens in that
case had not invoked Section 2241 habeas corpus jurisdiction).
9 Respondents also submit (Br. in Opp. 28) that the decision below avoids
constitutional questions raised by the application of Section 440(d) to
pending cases. As we note in our reply brief in Goncalves (98-835 Reply
Br. 9-10 n.8), the Seventh Circuit has already addressed and rejected some
of those constitutional claims in LaGuerre, and it is unlikely that the
courts of appeals will be able to avoid reaching the constitutional questions
entirely. For further discussion of the merits, we refer the Court to our
petition and reply brief in Goncalves (98-835 Pet. 24-29; 98-835 Reply Br.
6-9).