Renteria-Prado v. Pasquarell - Opposition

No. 98-1698

In the Supreme Court of the United States

RICARDO RENTERIA-PRADO, PETITIONER

v.

KENNETH L. PASQUARELL,
DISTRICT DIRECTOR, ETC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
DONALD E. KEENER
ALISON R. DRUCKER
MICHELLE R. SLACK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED
Whether 8 U.S.C. 1252(g) (Supp. III 1997), which
deprives the district courts of jurisdiction over any
claim "arising from the decision or action by the
Attorney General to * * * execute removal orders
against any alien," refers solely to removal orders
entered after April 1, 1997, the general effective date
of the Illegal Immigration Reform and Immigrant Re-
sponsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
Div. C, 110 Stat. 3009-546, or whether it also covers
claims arising out of the execution of exclusion and
deportation orders entered under pre-IIRIRA law.




In the Supreme Court of the United States

No. 98-1698
RICARDO RENTERIA-PRADO, PETITIONER

v.

KENNETH L. PASQUARELL,
DISTRICT DIRECTOR, ETC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW
The order of the court of appeals (Pet. App. 1-6) is
unreported. The opinion of the district court (Pet.
App. 7-10) is also unreported.

JURISDICTION
The judgment of the court of appeals was entered on
February 19, 1999. The petition for a writ of
certiorari was filed on April 22, 1999. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

STATEMENT
1. Petitioner is a native and citizen of Mexico who
first sought admission to the United States on April
15, 1985, presenting an immediate relative immigrant
visa. The examining officer was unable to conclude,
however, that petitioner was "clearly and beyond a
doubt" eligible to enter the U.S. as an immigrant, see
8 U.S.C. 1225(b) (1982). Petitioner gave a sworn
statement that he had paid his spouse, Arlene Vidales,
a United States citizen, $500 to marry him, and had
promised to pay her another $500 after he was
admitted as an immigrant. The Immigration and
Naturalization Service (INS) commenced exclusion
proceedings against petitioner based on his failure to
have a valid unexpired immigrant visa and his having
obtained a visa by fraud or misrepresentation of a
material fact, and paroled him into the country so that
he could attend an exclusion hearing before an
immigration judge (IJ). See Court of Appeals Record
Excerpts (C.A. R.E.) 284-285.
On October 10, 1985, an IJ found petitioner exclud-
able as charged. Although petitioner and Vidales as-
serted at the exclusion hearing that their marriage
was bona fide, the IJ found that testimony to be not
credible, and sustained the INS's allegation that
petitioner and Vidales had entered into a marriage
ceremony for the sole purpose of evading the
immigration laws. C.A. R.E. 298-299. The IJ entered
an order excluding and deporting petitioner from the
United States. C.A. R.E. 293.
Petitioner appealed the IJ's exclusion order to the
Board of Immigration Appeals (BIA). In late 1985,
while his appeal to the BIA was pending, petitioner
left the United States and then entered again unlaw-
fully, without inspection by an immigration official.
On May 7, 1987, petitioner divorced Vidales. On July
11, 1987, he married Emerita Elizalde, a United
States citizen. The couple have two children who are
United States citizens. Pet. 3.
On August 16, 1990, the BIA dismissed petitioner's
appeal, sustaining the IJ's determination that peti-
tioner's previous marriage to Vidales was a sham.
C.A. R.E. 284-289. On December 24, 1990, petitioner's
current spouse petitioned the INS on behalf of peti-
tioner for an immigrant visa. The INS approved that
petition, and forwarded it to the U.S. consulate in
Ciudad Juarez, Mexico. Petitioner traveled to Ciudad
Juarez to meet with a U.S. consular officer. The
consular officer, however, found petitioner
inadmissible under 8 U.S.C. 1182(a)(19) (1988) because
of his previous attempt to immigrate based on a
fraudulent marriage. Petitioner then returned to the
United States without inspection. C.A. R.E. 141-143,
191.
2. On September 30, 1996, Congress enacted into
law the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Pub. L. No. 104-208,
Div. C, 110 Stat. 3009-546. IIRIRA comprehensively
revised the Immigration and Nationality Act (INA),
and in particular abolished the INA's old distinction
between deportation and exclusion proceedings,
replacing them with a new unitary form of
proceeding, known as "removal." See IIRIRA §
304(a), 110 Stat. 3009-587 to 3009-597; 8 U.S.C. 1229a
(Supp. III 1997). IIRIRA also added a new provision to
the INA designed to expedite the removal of aliens
who return illegally to the United States after having
been previously ordered removed. Under that
provision,
[i]f the Attorney General finds that an alien has
reentered the United States illegally after
having been removed or having departed
voluntarily, under an order of removal, the prior
order of removal is reinstated from its original
date and is not subject to being reopened or
reviewed, the alien is not eligible and may not
apply for any relief under this chapter, and the
alien shall be removed under the prior order at
any time after the reentry.
8 U.S.C. 1231(a)(5) (Supp. III 1997). Thus, if an alien
has been ordered removed, leaves the United States
(either voluntarily or pursuant to a warrant of re-
moval), reenters the United States illegally, and is
apprehended in the United States, the Attorney
General need not commence another round of removal
proceedings against the alien, but may simply
reinstate the prior removal order and execute it once
more.
On July 18, 1997, petitioner was apprehended by the
INS. On July 22, 1997, the INS found that petitioner
had reentered the United States after having been
ordered removed and having departed. It therefore
reinstated petitioner's prior exclusion order. C.A.
R.E. 301, 303. Petitioner requested that the INS
initiate full removal proceedings against him under 8
U.S.C. 1229 and 1229a (Supp. III 1997), so that he could
apply for discretionary cancellation of removal under
8 U.S.C. 1229b (Supp. III 1997). The INS declined to
do so.
3. On December 19, 1997, petitioner filed suit in
district court, alleging that the INS had no authority
to remove him from the United States except by
instituting full removal proceedings under Section
1229a. Petitioner argued that Section 1231(a)(5),
which provides for the reinstatement of a prior
removal order against an alien who was ordered
removed, left the country under an order of removal,
and then reentered illegally, permits only for the
reinstatement of removal orders entered after April 1,
1997, the general effective date of IIRIRA, and does
not permit the reinstatement of exclusion or
deportation orders entered before that date. See C.A.
R.E. 206-249.
The government argued that Section 1231(a)(5) does
provide for the reinstatement of pre-IIRIRA
exclusion and deportation orders. The government
pointed out that Section 309(d)(2) of IIRIRA, 110 Stat.
3009-627, expressly provides that, "[f]or purposes of
carrying out the [INA], as amended by [Subtitle A of
Title III of IIRIRA,] * * * any reference in law to an
order of removal shall be deemed to include a
reference to an order of exclusion and deportation or
an order of deportation." Section 1231(a)(5) was added
to the INA by Subtitle A of Title III of IIRIRA. See
IIRIRA § 305(a)(3), 110 Stat. 3009-599.
Therefore, the government argued, Section
1231(a)(5)'s provision for the reinstatement of an
"order of removal" is deemed to include an "order of
exclusion and deportation" entered under pre-IIRIRA
law.
For similar reasons, the government argued that
the district court lacked jurisdiction over petitioner's
claim under 8 U.S.C. 1252(g) (Supp. III 1997), which
was also added to the INA by Subtitle A of Title III of
IIRIRA. See IIRIRA § 306(a)(2), 110 Stat. 3009-612.
Section 1252(g) provides that, in general, the district
courts have no jurisdiction "to hear any cause or
claim * * * arising from the decision or action by
the Attorney General to * * * execute removal
orders against any alien." Moreover, IIRIRA
expressly made Section 1252(g) immediately
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. Therefore, the
government argued, because petitioner's claim arose
out of the decision or action by the Attorney General
to execute the prior exclusion order entered against
him, which under Section 309(d)(2) of IIRIRA was
deemed also to be a "removal" order within the
meaning of the amended INA, the district court
lacked jurisdiction to entertain the claim.
The district court agreed with the government and
dismissed petitioner's complaint. Pet. App. 7-10. The
court first ruled that it lacked jurisdiction over peti-
tioner's claim because of Section 1252(g). The court
explained that, under Section 1252(g), except as other-
wise provided in Section 1252 itself, "no court shall
have jurisdiction on a claim arising from the
execution of removal orders against an alien. As
[petitioner's] present claims arise from a decision to
execute a removal order against him, this [c]ourt's
jurisdiction to review is eliminated." Id. at 8. The
court also concluded (ibid.) that "the exclusion order
was properly reinstated" in any event, and that
petitioner "has no statutory right to be placed in
removal proceedings pursuant to" Sections 1229 and
1229a. The court noted (id. at 8-9) that Congress, in
Section 1231(a)(5), "allowed the INS to reinstate the
order of exclusion as to [petitioner]," and that
Congress further provided in Section 309(d)(2) of
IIRIRA that "for purposes of carrying out the act,
any reference to an order of removal is to be deemed
as including a reference to an order of exclusion. * *
* No further administrative hearing is necessary."
Finally, the court stated that petitioner "received all
due process to which he was entitled." Id. at 9.
The court of appeals affirmed. Pet. App. 1-6. It con-
cluded that Section 1252(g) divested the district court
of jurisdiction to entertain petitioner's challenge to
the reinstatement of his exclusion order. In so
holding, the court of appeals first rejected (id. at 4-5)
petitioner's contention that Section 1252(g)'s bar of
jurisdiction over claims based on the Attorney
General's execution of "removal orders" applies only
to orders of removal entered in removal proceedings
under Section 1229a, as added by IIRIRA, and not also
to orders of exclusion and deportation entered under
pre-IIRIRA law. That argument, the court observed,
is directly contrary to the plain language of Section
309(d)(2) of IIRIRA, which expressly defines the term
"removal order" to include an order of exclusion and
deportation. Id. at 4.
The court then held that petitioner's claim fell
within the scope of Section 1252(g), as it was a
challenge to the execution of the deportation order
against him. Pet. App. 5. Petitioner's goal, the court
noted, "is to invalidate the reinstated removal order
and to require the INS to place him in removal
proceedings so that he can seek relief from the
removal order. His claims are `connected directly and
immediately with a "decision or action by the
Attorney General to . . . execute removal orders."'"
Ibid. (quoting Humphries v. Various Fed. USINS
Employees, 164 F.3d 936, 943 (5th Cir. 1999), and 8
U.S.C. 1252(g) (Supp. III 1997)). Thus, "[b]ecause
[petitioner's] claims arise from a decision to execute
an order of removal, neither the district court nor
this court have [sic] jurisdiction to review his
claims." Ibid.

ARGUMENT

The court of appeals correctly concluded that peti-
tioner's challenge falls within the scope of 8 U.S.C.
1252(g) (Supp. III 1997), which bars jurisdiction
(except as specifically provided elsewhere in Section
1252) over claims arising from "the decision or action
by the Attorney General to * * * execute removal
orders." In addition, the court of appeals' decision is
unpublished, and it does not conflict with any decision
of this Court or any other court of appeals. Further
review is therefore not warranted.
Section 1252(g) precludes the courts, except as
elsewhere provided in Section 1252 itself, from taking
jurisdiction over "any cause or claim * * * arising
from the decision or action by the Attorney General
to * * * execute removal orders against any alien."
At the outset, we note that the only dispute between
the parties about the application of Section 1252(g) to
this case is whether petitioner's exclusion order
constitutes a "removal order[]" within the meaning of
that Section. Petitioner does not dispute in this
Court that the decision by the Attorney General to
reinstate, and thereafter to execute, that exclusion
order constitutes a "decision or action by the
Attorney General to * * * execute" that order. See
also Pet. App. 5 (noting that petitioner's claims are
"connected directly and immediately" with the
Attorney General's decision to execute the exclusion
order against him). Therefore, this case raises no
issue concerning the application of the Court's recent
decision in Reno v. American-Arab Anti-
Discrimination Committee, 119 S. Ct. 936 (1999)
(AADC), which gave a more narrow construction to
the scope of Section 1252(g) than the one advocated by
the government in that case.
Petitioner's argument, rather, is that, because Sec-
tion 1252(g) refers only to the decision of the
Attorney General to execute "removal" orders, it
excludes from the jurisdictional bar claims arising
from her decision to execute an exclusion order
entered before the comprehensive changes to the INA
enacted by IIRIRA took full effect. That argument,
however, is contrary to the plain language of Section
309(d)(2) of IIRIRA, which provides that, for purposes
of carrying out the INA, as amended by Subtitle A of
Title III of IIRIRA (which includes Section 1252(g)),
"any reference in law to an order of removal shall be
deemed to include a reference to an order of exclusion
and deportation or an order of deportation."
Accordingly, the "reference" in Section 1252(g) to
orders of removal, barring jurisdiction over
challenges to the execution of such orders, also
includes orders of exclusion and deportation. And, as
the court of appeals noted (Pet. App. 4), other courts
of appeals have held that Section 1252(g) bars
jurisdiction over challenges to the execution of
deportation orders entered under pre-IIRIRA law,
including those challenges that were pending in the
courts on the date that Section 1252(g) took effect.
See Auguste v. Reno, 152 F.3d 1325, 1329 (11th Cir.
1998); Ramallo v. Reno, 114 F.3d 1210, 1213 (D.C. Cir.
1997), cert. denied, 119 S. Ct. 1139 (1999).
Petitioner attempts to make several textually
based arguments to show that Section 309(d)(2) does
not apply to deportation orders entered before April 1,
1997. Those arguments are without merit. First,
petitioner points out (Pet. 9) that Section 309(a) of
IIRIRA provided that, except as otherwise provided in
that statute, the amendments made by Subtitle A of
Title III of IIRIRA were to take effect on April 1,
1997. See 110 Stat. 3009-625. Therefore, petitioner
argues, Section 309(d)(2)'s "deeming" of removal
orders to include exclusion and deportation orders
applies only to removal orders entered under the new
removal proceedings established by IIRIRA, and to
deportation and exclusion orders entered after April
1, 1997, in proceedings that were opened before that
date. But there is no evident reason why Congress
would have wanted to treat deportation and exclusion
orders entered before April 1, 1997, differently from
those entered after that date, and nothing in IIRIRA
compels the conclusion that Congress intended to
treat those two classes of orders differently for
present purposes.
Even if Section 309(d)(2) did not take effect until
April 1, 1997, nonetheless, once it took effect, its
"deeming" of any reference to removal orders to
include deportation and exclusion orders applied to
bar jurisdiction under Section 1252(g) over challenges
to the execution of all deportation and exclusion
orders, including those that had been previously
entered. Once IIRIRA came into effect on April 1,
1997, Section 1252(g) applied thereafter to all pending
cases, unlike the other subsections of Section 1252,
which applied only to removal proceedings commenced
after that date. See Lalani v. Perryman, 105 F.3d
334, 336 (7th Cir. 1997). Moreover, Congress
expressly provided that Section 1252(g) "shall apply
without limitation to claims arising from all past,
pending, or future exclusion, deportation, or removal
proceedings." IIRIRA § 306(c)(1), 110 Stat. 3009-
612 (emphasis added). Accordingly, after April 1, 1997,
Section 1252(g) barred district court jurisdiction over
all pending cases, including those involving
previously entered deportation and exclusion orders.
Especially since this case was not even filed until
after April 1, 1997, the lower courts correctly
concluded that Section 1252(g) deprived them of
jurisdiction to hear petitioner's challenges.
Petitioner also points out that Congress did not
limit Section 1252(g)'s jurisdictional bar to claims
arising from the decision or action of the Attorney
General to "commence removal proceedings" or
"adjudicate removal cases," but rather barred
jurisdiction over any action to "commence
proceedings" or "adjudicate cases," which he reads as
a specific and pointed de- cision to include pre-IIRIRA
deportation and exclu- sion proceedings and cases.
Therefore, petitioner argues, Congress's use of the
term "removal" only with reference to jurisdiction
over challenges to removal orders has the
significance of limiting the jurisdictional bar to
challenges to removal orders, rather than pre-
IIRIRA exclusion and deportation orders. Pet. 8, 11.
That argument, however, is impossible to square with
the language of Section 306(c)(1), which made Section
1252(g) applicable "without limitation" to claims
arising from all "past, pending, or future exclusion,
deportation, or removal proceedings." Under
petitioner's construction, Section 1252(g) would not
apply to decisions to execute past exclusion orders,
and therefore it would not apply "without limitation"
to all "past * * * exclusion * * * proceedings."
Moreover, Congress's use of the term "removal" in
Section 1252(g) to modify "orders," and not "proceed-
ings" and "cases," is more readily explained in a
different way. As the title of Section 1252 ("Judicial
review of orders of removal") makes clear, the
principal subject matter of that Section is judicial
review over the conduct and outcome of removal
proceedings (including, in Section 1252(g),
deportation and exclusion proceedings). It was
unnecessary for Congress to use the term "removal"
to modify "proceedings" and "cases," because it is
obvious from the context that the terms "proceed-
ings" and "cases" refer, at least principally if not
exclusively, to removal proceedings and cases. The
same would not necessarily have been true, however,
if Congress had not modified "orders" with the term
"removal." In removal proceedings, immigration
judges enter many kinds of orders, including orders
that Congress might not have intended to be covered
by Section 1252(g). See AADC, 119 S. Ct. at 943
(noting that there are "many other decisions or
actions that may be part of the deportation process"
that are not covered by Section 1252(g)); see also, e.g.,
8 C.F.R. 3.19 (IJ power to enter custody and bond
orders). The use of the term "removal" to modify
"orders" makes clear that Section 1252(g) precludes
jurisdiction over challenges to decisions to execute
removal orders, and not necessarily challenges to the
execution of every order that an IJ enters in the
course of a removal proceeding. (Of course, other
doctrines, such as the prohibition against judicial
review of interlocutory orders entered by
administrative agencies, presumably would preclude
review of most such orders until after the entry of a
final removal order.)
Petitioner further observes (Pet. 22-23) that, al-
though Congress in IIRIRA generally replaced the
terms "deportation" and "exclusion" with the term
"removal" (reflecting the general replacement of
deportation and exclusion proceedings by removal
proceedings), in a few places Congress retained the
term "deportation" but added "removal" as well. See
8 U.S.C. 1101(g), 1182(d)(12)(A), 1326(a) (Supp. III
1997). Therefore, petitioner argues, Congress's use
of the term "removal" should generally be read to
have the meaning only of removal proceedings and
orders, and not also deportation and exclusion
proceedings and orders.
The isolated instances in which Congress retained
"deportation" but also added "removal," however, are
also explained in a different way. Section 309(d)(2),
which deems all references to "an order of removal"
to include a reference to an order of deportation or
exclusion, applies to the INA as amended by Subtitle
A of Title III of IIRIRA. See IIRIRA § 309(d), 110
Stat. 3009-627 ("[f]or purposes of carrying out the
[INA], as amended by this subtitle"). The three
examples in the INA to which petitioner refers,
where Congress retained use of "deportation," were
not substantively amended by Subtitle A of Title III of
IIRIRA. Section 1101(g) of Title 8 was not amended
at all by IIRIRA, except for the new reference to
removal orders. Section 1182(d)(12)(A) of Title 8 was
added to the INA by Section 345(a) of IIRIRA, which
falls outside Subtitle A of Title III, see 110 Stat. 3009-
638, as does Section 324(a) of IIRIRA, which amended
8 U.S.C. 1326, see 110 Stat. 3009-629. Congress may
have concluded that, because those provisions of the
INA were not amended by Subtitle A of Title III,
references to an order of "removal" in those
provisions might not be "deemed" to include an order
of deportation by operation of Section 309(d)(2).
Therefore, Congress might well have concluded that a
separate reference to an order of deportation was
necessary to ensure that the provisions applied to
orders of deportation entered before IIRIRA took full
effect on April 1, 1997, as well as orders of removal
entered after that date.

CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
DONALD E. KEENER
ALISON R. DRUCKER
MICHELLE R. SLACK
Attorneys

JUNE 1999