No. 99-2082
In the Supreme Court of the United States
SAMUEL LECHUGA, PETITIONER
v.
BRIAN PERRYMAN
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Assistant Attorney General
DONALD E. KEENER
LINDA S. WENDTLAND
SUSAN HOUSER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the district courts' authority to entertain challenges to the
merits of final orders of deportation on petitions for a writ of habeas
corpus was divested by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, including Sections
401(e) and 440(a) of AEDPA (110 Stat. 1268, 1276-1277), which repealed the
Immigration and Nationality Act's former provision for habeas corpus in
8 U.S.C. 1105a(a)(10) (1994) and replaced it with a provision precluding
judicial review of deportation orders entered against aliens convicted of
certain criminal offenses.
2. Whether the Attorney General permissibly concluded that Section 440(d)
of AEDPA (110 Stat. 1277), which made aliens convicted of certain criminal
offenses ineligible for discretionary relief from deportation under 8 U.S.C.
1182(c) (1994), should apply in the cases of aliens whose deportation proceedings
were commenced before the date of AEDPA's enactment.
3. Whether 8 U.S.C. 1182(c) (1994), as amended by Section 440(d) of AEDPA,
violates constitutional principles of equal protection because it precludes
discretionary relief only for aliens convicted of certain offenses who are
placed in deportation proceedings in the United States, and not also aliens
convicted of similar crimes who are placed in exclusion proceedings when
returning from a trip abroad.
In the Supreme Court of the United States
No. 99-2082
SAMUEL LECHUGA, PETITIONER
v.
BRIAN PERRYMAN
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals (Pet. App. 1-2) is unreported, as are
the order of the district court (Pet. App. 3-8), the order of the Board
of Immigration Appeals (Pet. App. 9-11), and the order of the immigration
judge (Pet. App. 12-14).
JURISDICTION
The judgment of the court of appeals was entered on March 1, 2000. On May
24, 2000, Justice Stevens extended the time within which to file a petition
for a writ of certiorari to and including July 3, 2000. The petition for
a writ of certiorari was filed on June 27, 2000. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In 1996, Congress enacted several major changes to the Nation's immigration
laws. 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 restricting and streamlining
the pro-cess of judicial review of their deportation orders. Two enactments
by Congress are pertinent to this case: the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (enacted
Apr. 24, 1996); and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (enacted
Sept. 30, 1996).
a. Before the enactment of AEDPA, an alien lawfully admitted for permanent
residence who was subject to deportation because of a criminal conviction
could 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), see
8 U.S.C. 1101(a)(43) (1994 & Supp. IV 1998), he had not served a term
of imprisonment for that conviction of five years or longer. See 8 U.S.C.
1182(c) (1994).1 If the Attorney General, in the exercise of her discretion,
denied relief from deportation, then the alien could challenge that denial
of relief 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
28 U.S.C. 2341-2351). Under certain circumstances an alien in custody pursuant
to an order of deportation could seek judicial review thereof by filing
a petition for a writ of habeas corpus in district court, pursuant to 8
U.S.C. 1105a(a)(10) (1994) (repealed 1996).
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. First, on April
24, 1996, Congress enacted AEDPA into law. As to substantive eligibility
for relief, Section 440(d) of AEDPA, 110 Stat. 1277, amended Section 1182(c)
to make certain classes of criminal aliens categorically ineligible for
discretionary relief from deportation under that Section-including aliens
who were deportable because they had been convicted of aggravated felonies
or certain controlled substance offenses. See 8 U.S.C. 1251(a)(2)(A)(iii)
and (B)(i) (1994). As to judicial review, Section 401(e) of AEDPA-in a provision
entitled "Elimination of Custody Review by Habeas Corpus"-eliminated
the previous version of 8 U.S.C. 1105a(a)(10) (1994), which had specifically
permitted aliens in custody pursuant to an order of deportation to seek
habeas corpus relief in district court. AEPDA § 401(e), 110 Stat. 1268.
Section 440(a) of AEDPA, 110 Stat. 1276-1277, also enacted an exception
to the general availability of judicial review of deportation orders in
the courts of appeals for the classes of aliens who were disqualified by
Section 440(a) from receiving relief from deportation. Specifically, Section
440(a) of AEDPA replaced the former 8 U.S.C. 1105a(a)(10) with a new Section
1105a(a)(10), which provided that any final order of deportation against
an alien who was deportable for having committed one of the specified offenses
"shall not be subject to review by any court." 110 Stat. 1277.
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 a new form of discretionary relief known as "cancellation of
removal." See IIRIRA § 304(b), 110 Stat. 3009-597; 8 U.S.C. 1229b
(Supp. IV 1998). The cancellation of removal provisions, however, were made
applicable only to aliens 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 provisions in 8 U.S.C. 1105a
(1994) with a new 8 U.S.C. 1252 (Supp. IV 1998), again for cases in which
the administrative proceedings were commenced on or after April 1, 1997.
See IIRIRA § 309(c)(1), 110 Stat. 3009-625.2 Cases in which the administrative
proceedings were commenced prior to April 1, 1997, however, continue to
be governed by 8 U.S.C. 1105a, as amended by AEDPA. See IIRIRA § 309(c)(2),
110 Stat. 3009-626. Congress also enacted special rules for any such cases
in which the final deportation order was 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 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.
b. After the enactment of these changes to the immigration laws, two questions
arose in immigration proceedings about the scope of Section 440(d) of AEDPA,
barring certain criminal aliens from Section 1182(c) relief. First, the
question arose as to whether AEDPA Section 440(d) applies to aliens who
were convicted or placed in deportation proceedings before the enactment
of AEDPA. On June 27, 1996, the Board of Immigration Appeals (BIA) initially
decided that AEDPA Section 440(d) applies to aliens whose deportation proceedings
were initiated before AEDPA was enacted, but that it should not be applied
to any such aliens who had already filed applications for Section 1182(c)
relief before AEDPA's enactment. In re Soriano, Int. Dec. No. 3289 (B.I.A.
June 27, 1996). The Attorney General, exercising her authority under 8 C.F.R.
3.1(h), vacated the BIA's opinion in Soriano and certified for her decision
the question whether AEDPA Section 440(d) applies to aliens who filed applications
for relief before the date of its enactment. On February 21, 1997, the Attorney
General concluded in Soriano that AEDPA Section 440(d) does apply to all
deportation proceedings pending on or commenced after the date of enactment,
including those in which aliens had already submitted applications for Section
1182(c) relief. In re Soriano, Int. Dec. No. 3289 (A.G. Feb. 21, 1997).
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, sought admission to the United States, and were placed
in exclusion proceedings, as well as to criminal aliens in the United States
who were placed 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 AEDPA Section 440(d) bars relief only for
criminal aliens placed in deportation proceedings in the United States.
2. Petitioner is a native and citizen of Mexico who was lawfully admitted
to the United States as a returning permanent resident alien on October
15, 1989. Pet. App. 12. In 1990, he was convicted in federal district court
of possession of cocaine with intent to distribute it and conspiracy to
possess cocaine with intent to distribute it. See United States v. Lechuga,
925 F.2d 1035 (7th Cir. 1991). Those offenses were aggravated felonies under
the INA. See 8 U.S.C. 1101(a)(43)(B) (1994 & Supp. IV 1998).
In 1995, the Immigration and Naturalization Service (INS) commenced deportation
proceedings against petitioner, charging him with deportability based on
his cocaine offenses under 8 U.S.C. 1251(a)(2)(A)(iii) (1994) (conviction
of an aggravated felony) and 8 U.S.C. 1251(a)(2)(B)(i) (1994) (conviction
of a controlled substance offense). See Pet. 11; Pet. App. 12-13. On May
8, 1997, after both AEDPA and IIRIRA had been enacted into law, an immigration
judge (IJ) determined that petitioner was deportable as charged. Id. at
13. The IJ also determined that AEDPA Section 440(d) rendered petitioner
statutorily ineligible for relief from deportation under Section 1182(c).
Ibid. On November 30, 1998, the BIA dismissed petitioner's appeal based
on the Attorney General's decision in Soriano, agreeing with the IJ that
AEDPA Section 440(d) rendered petitioner statutorily ineligible for relief
from deportation under Section 1182(c). Id. at 10-11.
3. Petitioner did not file a petition for review of his deportation order
in the court of appeals. Rather, on January 8, 1999, petitioner filed a
petition for a writ of habeas corpus in the district court, seeking to invoke
that court's purported jurisdiction under the general federal habeas corpus
statute, 28 U.S.C. 2241. Petitioner contended that the Attorney General
had erred in Soriano in concluding that AEDPA Section 440(d) was applicable
to an alien placed in deportation proceedings before AEDPA was enacted,
that such application was impermissibly retroactive in violation of the
Due Process Clause, and that as so applied, AEDPA Section 440(d) violated
equal protection because it barred relief only for deportable aliens, and
not also excludable aliens. Pet. App. 4-5.
On July 2, 1999, the district court dismissed the habeas corpus petition
for lack of jurisdiction. In so ruling, it followed the Seventh Circuit's
decision in LaGuerre v. Reno, 164 F.3d 1035 (1998), cert. denied, 120 S.
Ct. 1157 (2000), which held that, except in certain rare cases where the
alien could not file a petition for review in the court of appeals, the
district courts no longer possess jurisdiction to review by writ of habeas
corpus the merits of final orders of deportation.3 Pet. App. 5-6.
4. The court of appeals summarily affirmed, relying on its decision in LaGuerre.
Pet. App. 1-2. The court of appeals also noted that this case did not present
an exceptional circumstance permitting the district court to exercise habeas
corpus jurisdiction, because petitioner filed his habeas corpus petition
in district court after the court of appeals had decided in LaGuerre that
the district courts did not possess such jurisdiction. Id. at 2.
ARGUMENT
Petitioner seeks to renew his contentions that (1) the district courts have
authority under the general federal habeas corpus statute, 28 U.S.C. 2241,
to review challenges to the merits of final orders of deportation entered
against aliens convicted of certain criminal offenses; (2) Section 440(d)
of AEDPA, enacted by Congress to preclude discretionary relief from deportation
under 8 U.S.C. 1182(c) (1994) for such aliens, does not apply in the cases
of aliens who were placed in deportation proceedings before AEDPA was enacted;
and (3) if Section 440(d) does apply in such cases, then it violates equal
protection because it applies only to aliens placed in deportation proceedings
in the United States and does not apply to aliens returning to the United
States from a trip abroad.4
Petitioner's challenges are closely related to the issues that were presented
in the government's certiorari petitions denied by this Court over a year
ago in Reno v. Goncalves, 526 U.S. 1004 (1999), and Reno v. Navas, 526 U.S.
1004 (1999), as well as the certiorari petitions filed by aliens and denied
by this Court more recently in Palaganas-Suarez v. Greene, 120 S. Ct. 1539
(2000), and LaGuerre v. Reno, 120 S. Ct. 1157 (2000).5 There is no basis
in this case for a different result. Like those cases, this case concerns
only issues of jurisdiction relating to deportation proceedings commenced
before April 1, 1997, the date on which IIRIRA's permanent judicial review
provisions took effect. This case also involves only substantive issues
of eligibility for relief from deportation that arise under 8 U.S.C. 1182(c)
(1994), as amended by AEDPA Section 440(d), which was prospectively repealed
by Congress in IIRIRA. Thus, the issues presented in this case have limited
and diminishing ongoing significance. In addition, petitioner may be eligible
to reapply for administrative relief from deportation under a proposed rule
that has been published for notice and comment by the Attorney General.
Further review is therefore not warranted.
1. Petitioner argues (Pet. 16-19) that this Court should resolve a disagreement
among the courts of appeals as to whether the district courts retain authority
under 28 U.S.C. 2241 to review the merits of final deportation orders. As
petitioner observes, the court of appeals' jurisdictional ruling in this
case (as well as its earlier decision in LaGuerre, on which the decision
below relied) conflicts with decisions of other circuits, which have held
that AEDPA and IIRIRA did not divest the district courts of that authority
under Section 2241.6 The precise jurisdictional issue presented in this
case has only limited future significance, however, because the INA was
comprehensively revised by IIRIRA, which replaced the INA's judicial review
provisions with an entirely new framework in 8 U.S.C. 1252 (Supp. IV 1998).
Among the provisions added by IIRIRA is a new 8 U.S.C. 1252(b)(9) (Supp.
IV 1998), which this Court has described as an "unmistakable 'zipper'
clause" channeling all judicial review of removal orders into the courts
of appeals. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
483 (1999).
Aliens have argued, in cases arising under the new removal provisions of
IIRIRA, that the district courts have authority under Section 2241 to review
challenges to removal orders filed by criminal aliens precluded from seeking
review in the courts of appeals by IIRIRA, see 8 U.S.C. 1252(a)(2)(C) (Supp.
IV 1998). The courts of appeals that have considered that contention have
thus far reached divergent views on the issue.7 This Court may, therefore,
be presented with the opportunity to address the continued availability
of habeas corpus review of removal orders after IIRIRA. This Court's review
of that issue, however, should await a case that arises under the permanent
removal provisions of IIRIRA.8
2. Petitioner also notes (Pet. 15-16) that the courts of appeals have reached
divergent views about the temporal scope of AEDPA Section 440(d). The Seventh
Circuit, in which this case arose, has held that AEDPA Section 440(d) applies
to aliens whose deportation proceedings were commenced before, on, or after
the date of AEDPA's enactment, even if they applied for relief under Section
1182(c) before that date.9 Most circuits, however, have concluded that AEDPA
Section 440(d) does not bar relief for an alien against whom deportation
proceedings were commenced before the date on which AEDPA was enacted.10
The First and Ninth Circuits have also held that AEDPA Section 440(d) would
not apply to an alien who was convicted before AEDPA was enacted, but only
if the alien could show that he pleaded guilty in specific reliance on the
fact that, under the state of the law before AEDPA was enacted, he might
have been eligible for relief under Section 1182(c).11 The Fourth Circuit
has gone still further and held that AEDPA Section 440(d) does not apply
in the case of any alien who pleaded guilty to one of the offenses covered
in that Section and was convicted before AEDPA was enacted.12 The Third,
Fifth, and Tenth Circuits, by contrast, have held that AEDPA Section 440(d)
does apply to aliens who were convicted before AEDPA was enacted but placed
in deportation proceedings after its enactment.13
Despite that disagreement among the courts of appeals, petitioner's challenge
to the application of AEDPA Section 440(d) in his case does not warrant
this Court's review. That contention relates only to the availability of
relief under a provision that Congress has prospectively repealed. Further,
the issue has now been settled in most circuits and the issue is inherently
restricted to transitional cases. This Court has denied review of four other
petitions raising issues concerning the temporal scope of AEDPA Section
440(d). See pp. 9-10, supra.
In addition, the Department of Justice has recently published for notice
and comment a proposed rule responding to the decisions that have rejected
the Attorney General's construction of the temporal scope of AEDPA Section
440(d). See 65 Fed. Reg. 44,476 (2000). That proposed rule would essentially
acquiesce in the determination, by the majority of the circuits, that Congress
intended AEDPA Section 440(d) not to apply in the cases of aliens who were
placed in deportation proceedings before AEDPA was enacted. Id. at 44,478.
The rule would therefore allow an alien who was placed in deportation proceedings
before AEDPA was enacted and was denied Section 1182(c) relief based on
Soriano in a final order of deportation to move to reopen his proceedings
in order to reapply for relief under Section 1182(c). Ibid. The proposed
rule provides a further reason for denial of this petition, because petitioner
may well be eligible to reapply for administrative relief under the rule,
if it is finally issued in substantially the same form; petitioner's deportation
proceedings were commenced before AEDPA was enacted. Meanwhile, we have
been informed by the INS that it has placed an administrative "hold"
on the deportation of aliens who were placed in deportation proceedings
before AEDPA was enacted and have received a final order of deportation,
but who would appear prima facie to be eligible to reapply for relief under
the proposed rule.
3. Petitioner also asserts (Pet. 14) that AEDPA Section 440(d) violates
constitutional equal-protection principles because it applies only to aliens
placed in deportation proceedings in the United States and not also to aliens
placed in exclusion proceedings when they seek to return from abroad. That
contention also does not warrant further review. First, as is true of the
issue of the temporal scope of AEDPA Section 440(d) discussed above, the
equal-protection issue is of minimal prospective importance because Congress
has repealed Section 1182(c), and the claim by its nature concerns only
transitional cases. Second, there is no conflict among the circuits on the
issue; every circuit that has addressed the equal-protection challenge to
Section 440(d) has rejected it.14 Third, petitioner's equal-protection claim
is without merit, for Congress had a rational basis for precluding certain
criminal aliens placed in deportation proceedings in the United States from
obtaining Section 1182(c) relief, even while allowing criminal aliens seeking
to return to the United States from a trip abroad to remain eligible for
such relief. Congress's distinction encourages deportable aliens to leave
the country by providing them with an opportunity to apply for Section 1182(c)
relief in exclusion proceedings if they attempt to return.15
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Assistant Attorney General
DONALD E. KEENER
LINDA S. WENDTLAND
SUSAN HOUSER
Attorneys
AUGUST 2000
1 Although Section 1182(c) by its terms applied only to aliens who had temporarily
proceeded abroad and were returning to their domicile in the United States,
it had 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 of 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 (B.I.A. 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).
2 The new Section 1252 provides for judicial review of all final removal
orders in the courts of appeals. See 8 U.S.C. 1252(a)(1) (Supp. IV 1998)
(incorporating 28 U.S.C. 2341-2351). Section 1252 also carries forward the
preclusion of review in former Section 1105a(a)(10) (as amended by AEDPA
Section 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 several classes of criminal
offenses. 8 U.S.C. 1252(a)(2)(C) (Supp. IV 1998). The new Section 1252(b)(9)
further provides sweepingly 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"--i.e.,
only in the court of appeals, as provided in Section 1252(a)(1). See Reno
v. American-Arab Anti- Discrimination Comm., 525 U.S. 471, 483 (1999).
3 LaGuerre found a narrow exception permitting habeas corpus jurisdiction
in the district court in cases where aliens, through no fault of their own,
could not seek review in the court of appeals. LaGuerre, 164 F.3d at 1040;
see Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999) (habeas corpus jurisdiction
existed where alien, relying on circuit's case law before LaGuerre, had
not filed petition for review in court of appeals but had filed habeas corpus
petition in district court).
4 It is not clear that petitioner has adequately presented for review his
contentions on the merits. The "Question Presented" in the certiorari
petition appears to raise only issues relating to the jurisdiction of the
district courts. See Pet. i. Under this Court's Rule 14.1(a), "[o]nly
the questions set out in the petition, or fairly included therein, will
be considered by the Court." The body of the petition does raise contentions,
albeit in abbreviated fashion, relating to the merits of petitioner's challenge
to his deportation order. See Pet. 14-16.
5 Related contentions about jurisdiction and about the temporal scope and
constitutionality of AEDPA Section 440(d) are also raised in pending certiorari
petitions in Alfarache v. Cravener, No. 99-1789 (filed May 10, 2000); Smith
v. Reno, No. 99-9096 (filed Apr. 12, 2000); De Horta-Garcia v. United States,
No. 99-9140 (filed Apr. 11, 2000); and Almon v. Reno, No. 99-9214 (filed
Apr. 20, 2000).
6 Compare LaGuerre, 164 F.3d at 1040-1041, with Goncalves v. Reno, 144 F.3d
110, 116-126 (1st Cir. 1998), cert. denied, 526 U.S. 1004 (1999); Henderson
v. INS, 157 F.3d 106, 118-122 (2d Cir. 1998), cert. denied sub nom. Reno
v. Navas, 526 U.S. 1004 (1999); Sandoval v. Reno, 166 F.3d 225, 229-238
(3d Cir. 1999); Bowrin v. INS, 194 F.3d 483, 486-491 (4th Cir. 1999); Requena-Rodriguez
v. Pasquarell, 190 F.3d 299, 304-306 (5th Cir. 1999); Pak v. Reno, 196 F.3d
666, 671-674 (6th Cir. 1999); Shah v. Reno, 184 F.3d 719, 722-724 (8th Cir.
1999); Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir. 1999); Jurado-Gutierrez
v. Greene, 190 F.3d 1135, 1142-1147 (10th Cir. 1999), cert. denied sub nom.
Palaganas-Suarez v. Greene, 120 S. Ct. 1539 (2000); and Mayers v. INS, 175
F.3d 1289, 1295-1301 (11th Cir. 1999).
7 The Fifth Circuit has recently concluded that the courts of appeals retain
the authority to entertain both threshold questions going to the scope of
the jurisdictional bar and at least some constitutional challenges to the
alien's removal proceeding, including challenges to the constitutionality
of the INA itself, but that the district courts' authority to entertain
such challenges by habeas corpus has been repealed by the permanent provisions
of IIRIRA. See Lopez-Elias v. Reno, 209 F.3d 788, 791 (2000); Max-George
v. Reno, 205 F.3d 194, 196-202 (2000); Camacho-Marroquin v. INS, 188 F.3d
649, 651-652 (1999). The Third Circuit has held that an alien whose offense
falls within a category covered by the jurisdictional bar of Section 1252(a)(2)(C)
may not raise a constitutional or statutory (retroactivity) challenge to
his order of removal by petition for review in the court of appeals, but
may and must proceed by habeas corpus in the district court. Liang v. INS,
206 F.3d 308, 316-323 (2000). The Ninth Circuit has held that an alien may
raise in a petition for review an argument that he does not fall within
a category covered by the preclusion of review in Section 1252(a)(2)(C),
see Aragon-Ayon v. INS, 206 F.3d 847, 849 (2000), but that an alien who
does fall within such a category may not raise a constitutional challenge
to his removal order by petition for review in the court of appeals, but
may and must proceed by habeas corpus in the district court, see Flores-Miramontes
v. INS, 212 F.3d 1133, 1135-1141 (2000).
8 We also submit that the court of appeals' jurisdictional ruling was correct,
for the reasons set forth at length in our brief in opposition to the certiorari
petition (at 20-23) in LaGuerre v. Reno, supra (No. 99-418). We are providing
petitioner's counsel with a copy of that brief.
9 Turkhan, 188 F.3d at 827; see also LaGuerre, 164 F.3d at 1040-1041.
10 See Goncalves, 144 F.3d at 126-133; Henderson, 157 F.3d at 128-130; Sandoval,
166 F.3d at 241; Pak, 196 F.3d at 675; Shah, 184 F.3d at 724; Magana-Pizano,
200 F.3d at 611; Mayers, 175 F.3d at 1301.
11 See Mattis v. Reno, 212 F.3d 31, 36-41 (1st Cir. 2000); Magana-Pizano,
200 F.3d at 612-613. Petitioner did not plead guilty, but was convicted
after a bench trial. See Lechuga, 925 F.2d at 1037.
12 Tasios v. Reno, 204 F.3d 544, 550-552 (4th Cir. 2000).
13 See DeSousa v. Reno, 190 F.3d 175, 185-187 (3d Cir. 1999); Requena-Rodriguez,
190 F.3d at 306-308; Jurado-Gutierrez, 190 F.3d at 1148-1152.
14 See Almon v. Reno, 192 F.3d 28, 31 (1st Cir. 1999), petition for cert.
pending, No. 99-9214; DeSousa, 190 F.3d at 184-185; Jurado-Gutierrez, 190
F.3d at 1152-1153; Turkhan, 188 F.3d at 828-829; see also LaGuerre, 164
F.3d at 1041. The Ninth Circuit has concluded that AEDPA Section 440(d)
is not limited to deportable aliens and does in fact bar relief under Section
1182(c) for excludable aliens as well. See United States v. Estrada-Torres,
179 F.3d 776, 779 (1999), petition for cert. pending, No. 99-10166. That
decision, however, would afford petitioner no benefit, because in the Ninth
Circuit as well as in the other circuits that have addressed the distinction,
a deportable alien covered by AEDPA Section 440(d) could obtain no relief
under Section 1182(c).
15 We addressed the merits of this equal-protection argument in detail in
our brief in opposition (at 28-29) in LaGuerre, supra (No. 99-418).