No. 00-1011 

In the Supreme Court of the United States 

DEBORIS CALCANO-MARTINEZ, ET AL., PETITIONERS 

v. 

IMMIGRATION AND NATURALIZATION SERVICE 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

BRIEF FOR THE RESPONDENT 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

DONALD E. KEENER 
WILLIAM J. HOWARD 
ERNESTO H. MOLINA 
JAMES A. O’BRIEN III 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the court of appeals correctly concluded that, 
under 8 U.S.C. 1252(a)(2)(C) (Supp. V 1999), it lacked juris- 
diction on direct petitions for review over petitioners’ non- 
constitutional challenges to their final removal orders, but 
that the district court had habeas corpus jurisdiction to 
entertain those challenges under 28 U.S.C. 2241. 

(I) 

TABLE OF CONTENTS 

Page 

Statement ........................................................................................ 1 

1. Statutory background .................................................. 

1 

a. Pre-1952 law ........................................................... 
1 

b. The 1952 and 1961 Acts ........................................ 
3 

c. AEDPA ................................................................... 6 

d. IIRIRA .................................................................... 

8 

2. Proceedings below ........................................................ 
11 

Summary of argument .................................................................. 
14 

Argument: 

I. Congress has precluded judicial review of 

petitioners’ non-constitutional challenges to 

their removal orders ..................................................... 

17 

A. In Section 1252(a)(2)(C) of Title 8, Congress 

has precluded judicial review of petitioners’ 

challenges in the court of appeals ....................... 

18 

B. Congress has also divested the district 

courts of authority to review the merits 

of petitioners’ removal orders ............................. 

25 

II. The preclusion of review of petitioners’ challenges 

to their removal orders is constitutional .................. 
31 

A. Preclusion of judicial review of a non- 
constitutional claim that the Attorney 

General has and should exercise discretion 

to waive deportation is not a suspension of 

habeas corpus ......................................................... 

31 

B. Neither the Due Process Clause nor Article 

III requires a judicial forum for petitioners’ 

non-constitutional claims ..................................... 

42 

III. If judicial review of petitioners’ challenges is con- 
titutionally required, that review should proceed 

in the court of appeals, not in the district court ...... 
48 

Conclusion ........................................................................................ 50 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Bakelite Corp., Ex parte, 279 U.S. 438 (1929) .................... 

46 

Boggin, Ex parte, 104 Eng. Rep. 484 (K.B. 1811) .............. 

36 

Bollman, Ex parte, 8 U.S. (4 Cranch) 75 (1807) ................. 

40 

Brownell v. Tom We Shung, 352 U.S. 180 (1956) ............. 

4 

Buscemi, In re, 19 I. & N. Dec. 628 (B.I.A. 1988) .............. 

6 

Califano v. Westcott, 443 U.S. 76 (1979) ............................ 

48 

Carlson v. Landon, 342 U.S. 524 (1952) ............................ 

43 

CFTC v. Schor, 478 U.S. 833 (1986) ................................... 

47 

Chambers’s Case, 79 Eng. Rep. 746 (K.B. 1629) ................ 

34 

Chicago, Milwaukee & St. Paul Ry. v. Minnesota, 

134 U.S. 418 (1890) ................................................................ 

44 

Chin Yow v. United States, 208 U.S. 8 (1908) .................. 

42 

Crowell v. Benson, 285 U.S. 22 (1932) .............................. 

47 

Darnel’s Case (1627), 3 State Trials 1 (1816) ...................... 

34 

Dessalernos v. Savoretti, 356 U.S. 269 (1958) .................. 

40 

Felker v. Turpin, 518 U.S. 651 (1996) ................. 

12, 29, 30, 40 

Fong Yue Ting v. United States, 149 U.S. 698 

(1893) ........................................................................................ 38 

Foti v. INS, 375 U.S. 217 (1963) .......................................... 

5, 48 

Francis v. INS, 532 F.2d 268 (2d Cir. 1976) ..................... 

4 

G.A., In re, 7 I. & N. Dec. 274 (B.I.A. 1956) ........................ 

4 

Galvan v. Press, 347 U.S. 522 (1954) .................................. 

24 

Gegiow v. Uhl, 239 U.S. 3 (1915) ....................................... 

41-42 

Goldswain’s Case, 96 Eng. Rep. 711 (C.P. 1778) ........... 

36, 37 

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............. 

25 

Heckler v. Mathews, 465 U.S. 728 (1984) ........................... 

48 

Heikkila v. Barber, 345 U.S. 229 (1953) ............. 

3, 27, 28, 37, 

38, 39, 40 

Hetley v. Boyer, 79 Eng. Rep. 287 (K.B. 1613) ............. 
35, 36 

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ............... 

44 

ICC v. Brimson, 154 U.S. 447 (1894) ................................. 

45 

INS v. Chadha, 462 U.S. 919 (1983) ................................... 

2 

INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) ................... 

32 

Jay v. Boyd, 351 U.S. 345 (1956) .......................... 32, 39, 40, 43 

V 

Cases—Continued: Page 

Johnson v. Robison, 415 U.S. 361 (1974) ........................... 

23 

Kwock Jan Fat v. White, 253 U.S. 454 (1920) ................... 

41 

Land v. Dollar, 330 U.S. 731 (1947) ................................... 

22 

Lapina v. Williams, 232 U.S. 78 (1914) ............................. 

2 

Lonchar v. Thomas, 517 U.S. 314 (1996) ........................... 

40 

Mahler v. Eby, 264 U.S. 32 (1924) ..................................... 

25 

Marcello v. Bonds, 349 U.S. 302 (1955) ......................... 

24, 25 

Marin, In re, 16 I. & N. Dec. 581 (B.I.A. 1978) .................. 

6 

McCardle, Ex parte, 73 U.S. (6 Wall.) 318 (1867) .............. 

40 

McKesson Corp. v. Division of Alcoholic Beverages 

& Tobacco, 496 U.S. 18 (1990) ............................................ 

45 

Murray’s Lessee v. Hoboken Land & Improvement 

Co., 59 U.S. (18 How.) 272 (1856) .................................. 

46, 47 

Ng Fung Ho v. White, 259 U.S. 276 (1922) ........................ 

41 

Nguyen v. INS, 208 F.3d 528 (5th Cir.), cert. 

granted, 121 S. Ct. 29 (2000) ............................................... 

23 

Nishimura Ekiu v. United States, 142 U.S. 651 

(1892) ........................................................................................ 3 

Northern Pipeline Constr. Co. v. Marathon Pipe 

Line Co., 458 U.S. 50 (1982) ............................................ 

46, 47 

Pennhurst State Sch. & Hosp. v. Halderman, 

465 U.S. 89 (1984) ................................................................... 

39 

Phillips v. Commissioner, 283 U.S. 589 (1931) ................ 

44 

Reno v. American-Arab Anti-Discrimination 

Comm., 525 U.S. 471 (1999) ................................................ 

49 

Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999), 

cert. denied, 529 U.S. 1036 (2000) ................................... 

23, 24 

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) ................... 

4 

Silva, In re, 16 I. & N. Dec. 26 (B.I.A. 1976) ...................... 

4 

Singh v. Reno, 182 F.3d 504 (7th Cir. 1999) ...................... 

24 

Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 

2000) ......................................................................................... 23 

Soriano, In re, Interim Dec. No. 3289, 1996 WL 

426888 (A.G. Feb. 21, 1997) .................................................. 7 

VI 

Cases—Continued: Page 

St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), cert. 

granted, 121 S. Ct. 848 (2001) .......................................... 

12, 25 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 

(1998) ........................................................................................ 39 

Stone v. INS, 514 U.S. 386 (1995) ............................... 

5, 48, 49 

Tang Tun v. Edsell, 223 U.S. 673 (1912) .......................... 

42 

The Case of Pressing Mariners (1743), 18 State 

Trials 1323 (1816) ................................................................... 

42 

The Japanese Immigrant Case, 189 U.S. 86 (1903) .......... 

43 

Thomas v. Union Carbide Agric. Prods. Co., 

473 U.S. 568 (1985) ............................................................ 

46, 47 

Tod v. Waldman, 266 U.S. 113 (1924), modified, 

266 U.S. 547 (1925) ................................................................ 

41 

United States v. Pennsylvania Indus. Chem. Corp., 

411 U.S. 655 (1973) ................................................................ 

37 

United States ex rel. Accardi v. Shaughnessy, 

347 U.S. 260 (1954) ................................................................ 

39 

United States ex rel. Kaloudis v. Shaughnessy, 

180 F.2d 489 (2d Cir. 1950) ................................................... 

32 

United States ex rel. Mensevich v. Tod, 264 U.S. 

134 (1924) ................................................................................. 

42 

Watkins, Ex parte, 32 U.S. (7 Pet.) 568 (1833) ............... 

41, 42 

Webster v. Doe, 486 U.S. 592 (1988) .................................... 

23 

Weinberger v. Salfi, 422 U.S. 749 (1975) ............................ 

23 

Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) ............................ 

23 

Yerger, Ex parte, 75 U.S. (8 Wall.) 85 (1869) .................. 

12, 29 

Constitution, statutes and regulation: 

U.S. Const.: 

Art. I, § 9 (Suspension Clause) ................................ 

12, 15, 31, 

37, 38, 39, 41 

Art. III ................................................. 
15, 16, 31, 42, 45, 46, 47 
§ 1 ......................................................................................... 

45 

Amend. V (Due Process Clause) ........... 
15, 16, 31, 42, 43, 45 

Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1085 ..................... 
3 

Act of June 28, 1940, ch. 439, § 20, 54 Stat. 672 ................... 2 

VII 

Statutes and regulation—Continued: 
Page 

Act of Oct. 11, 1996, Pub. L. No. 104-302, § 2, 
110 Stat. 3657 .......................................................................... 
10 

Administrative Procedure Act, 5 U.S.C. 701 et seq.: 
5 U.S.C. 701(a)(1) (§ 10) .................................................... 
27, 28 

5 U.S.C. 703 ............................................................................. 
29 

Antiterrorism and Effective Death Penalty Act of 
1996, Pub. L. No. 104-132, 110 Stat. 1214 .......................... 
1 

§ 401(e), 110 Stat. 1268 ................................................... 
7, 26 

§ 440(a), 110 Stat. 1276-1277 ........................................... 
8 

§ 440(d), 110 Stat. 1277 ..................................................... 
6, 7 

Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385: 
14 Stat. 385 .............................................................................. 
41 

14 Stat. 385-386 ...................................................................... 
40 

Hobbs Administrative Orders Review Act, 
28 U.S.C. 2341 et seq. ............................................................. 
5 

Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. No. 104-208, 
Div. C, 110 Stat. 3009-546 .................................................... 

1 
Tit. III-A, 110 Stat. 3009-575 .......................................... 
9 

§ 304, 110 Stat. 3009-587 .............................................. 
8, 9 

§ 304(a), 110 Stat. 3009-587 to 3009-593 .................... 
8 

§ 304(a), 110 Stat. 3009-594 to 3009-596 .................... 
9 

§ 304(b), 110 Stat. 3009-597 ......................................... 
8 

§ 306, 110 Stat. 3009-607 .............................................. 
10 

§ 306(b), 110 Stat. 3009-612 ......................................... 
10 

§ 309(a), 110 Stat. 3009-625 ......................................... 
9 

§ 309(c), 110 Stat. 3009-625 .......................................... 
9-10 

§ 309(c)(4)(A), 110 Stat. 3009-626 ............................... 
9 

Immigration Act of 1907, ch. 1134, 34 Stat. 898: 
§ 2, 34 Stat. 899 ....................................................................... 
2 

§ 25, 34 Stat. 906-907 ............................................................. 
3 

Immigration Act of 1917, ch. 29, 39 Stat. 874: 
§ 3, 39 Stat. 878 ..................................................................... 
2, 33 

§ 17, 39 Stat. 887 .................................................................... 
3 

§ 19(a), 39 Stat. 889 ................................................................ 
27 

Immigration Act of 1990, Pub. L. No. 101-649, 
§ 511(a), 104 Stat. 5052 .......................................................... 6 

VIII 

Statutes and regulation—Continued: 
Page 

Immigration and Nationality Act of 1952, ch. 477, 
66 Stat. 163 (8 U.S.C. 1101 et seq.) ...................................... 
1, 3 

8 U.S.C. 1101(a)(43) (1994 & Supp. V 1999) ................. 
6 

8 U.S.C. 1101(a)(43)(B) ..................................................... 
11 

8 U.S.C. 1105a (1994) ................................................ 
9, 10, 29 

8 U.S.C. 1105a(a) (1994) ......................................... 
5, 6, 9, 26 

8 U.S.C. 1105a(a)(10) (1994) ............................... 
6, 7, 10, 27 

8 U.S.C. 1105a(b) (1994) ................................................. 
9, 27 

8 U.S.C. 1182(c) (1994) ............................................. 
passim 

8 U.S.C. 1225(b)(1) (Supp. V 1999) ........................ 
8, 10, 30 

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999) ..................... 
7, 8, 

19, 22, 24 
8 U.S.C. 1227(a)(2)(B) (Supp. V 1999) ........................... 

22 

8 U.S.C. 1227(a)(2)(B)(i) (Supp. V 1999) ....................... 
24 

8 U.S.C. 1228(b) (Supp. V 1999) ..................................... 
8 

8 U.S.C. 1229 (Supp. V 1999) .......................................... 
8 

8 U.S.C. 1229a (Supp. V 1999) ........................................ 
8 

8 U.S.C. 1229b (Supp. V 1999) ..................................... 
9, 18 

8 U.S.C. 1229b(a)(3) (Supp. V 1999) ............................... 
9 

8 U.S.C. 1229b(b)(1)(C) (Supp. V 1999) ......................... 
9 

8 U.S.C. 1251(a)(2)(A)(iii) (1994) .................................... 
6-7 

8 U.S.C. 1252 (Supp. V 1999) ........ 
8, 10, 11, 18, 26, 29, 30 

8 U.S.C. 1252(a) (Supp. V 1999) ........................... 

14, 27, 50 

8 U.S.C. 1252(a)(1) (Supp. V 1999) ...................... 
10, 27, 29 

8 U.S.C. 1252(a)(2) (Supp. V 1999) ................................. 
18 

8 U.S.C. 1252(a)(2)(B) (Supp. V 1999) ....................... 
18, 35 

8 U.S.C. 1252(a)(2)(C) (Supp. V 1999) ................... 
passim 

8 U.S.C. 1252(b)(1) (Supp. V 1999) ................................. 
49 

8 U.S.C. 1252(b)(6) (Supp. V 1999) ................................. 
49 

8 U.S.C. 1252(b)(9) (Supp. V 1999) ................ 
11, 17, 29, 49 

8 U.S.C. 1252(e)(2) (Supp. V 1999) ....................... 
8, 10, 27 

Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81: 
1 Stat. 81-82 ............................................................................ 
40 

1 Stat. 82 .................................................................................. 
41 

Rev. Stat. §§ 751-766 (1875) .................................................... 
40 

8 U.S.C. 136(p) (1925) ............................................................... 
2 

28 U.S.C. 2241 ................................................ 
7, 12, 29, 30, 48, 49 

8 C.F.R. 3.44 ............................................................................... 7 

IX 

Miscellaneous: Page 

1 William Blackstone, Commentaries on the Laws of 

England (1765) (facsimile ed. 1979) .................................. 
35 

Maxwell Cohen, Habeas Corpus Cum Causa—The 

Emergence of the Modern Writ—I, 18 Can. B. Rev. 
10 (1940) ................................................................................... 

34 
142 Cong. Rec. (1996): 

p. 7349 ...................................................................................... 

21 

p. 10,052 ................................................................................... 
21 

Developments in the Law—Federal Habeas Corpus, 
83 Harv. L. Rev. 1038 (1970) ............................................... 
34 

William F. Duker, A Constitutional History of 

Habeas Corpus (1980) ........................................................... 

34 

66 Fed. Reg. (2001): 

p. 6436 .................................................................................... 

7 

p. 6438 .................................................................................... 
7 

pp. 6443-6444 .......................................................................... 
7 

H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1 
(1996) ........................................................................................ 
1, 17 

H.R. Rep. No. 1086, 87th Cong., 1st Sess. (1961) ................ 
5, 6, 

8, 29 

H.R. Rep. No. 1365, 82d Cong., 2d Sess. (1952) ................... 
3 
Jonathan L. Hafetz, Note, The Untold Story of 

Noncriminal Habeas Corpus and the 1996 Immigra- 
tion Acts, 107 Yale L.J. 2509 (1998) ................. 

34, 35, 36, 37 

9 W.S. Holdsworth, A History of English Law 
(1926) .................................................................................... 
34, 35 

1 James S. Liebman & Randy Hertz, Federal 

Habeas Corpus Practice and Procedure (3d ed. 
1998) ......................................................................................... 40 

Lewis Mayers, The Habeas Corpus Act of 1867: The 

Supreme Court as Legal Historian, 33 U. Chi. L. 
Rev. 31 (1965) ......................................................................... 
41 

Dallin H. Oaks, Habeas Corpus in the States—1776- 
1865, 32 U. Chi. L. Rev. 243 (1965) .................................... 
35 

Dallin H. Oaks, Legal History in the High Court— 

Habeas Corpus, 64 Mich. L. Rev. 451 (1966) ................... 

34 

Opinion on the Writ of Habeas Corpus, 97 Eng. 

Rep. 29 (H.L. 1758) ................................................................ 35 

X 

Miscellaneous—Continued: Page 

S. Rep. No. 249, 104th Cong., 2d Sess. (1996) ...................... 
21 

S. Rep. No. 352, 64th Cong., 1st Sess. (1916) ....................... 
2 

S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) ...................... 
3 

Senate Judiciary Comm. Tr. of Proceedings 
(Mar. 14, 1996) .................................................................... 
19, 20 

R.J. Sharpe, The Law of Habeas Corpus (1976) ................ 
34 

William C. Van Vleck, The Administrative Control 
of Aliens (1932) ...................................................................... 
2 

Robert S. Walker, The Constitutional and Legal 

Development of Habeas Corpus as the Writ of 
Liberty (1960) ......................................................................... 34 

In the Supreme Court of the United States 

No. 00-1011 

DEBORIS CALCANO-MARTINEZ, ET AL., PETITIONERS 

v. 
IMMIGRATION AND NATURALIZATION SERVICE 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

BRIEF FOR THE RESPONDENT 

STATEMENT 

1. Statutory Background. This case concerns amend- 
ments to the Immigration and Nationality Act (INA), 
8 U.S.C. 1101 et seq., enacted by Congress in 1996. Those 
changes were designed in large part to eliminate the 
opportunities that criminal aliens had under prior law to 
obtain administrative relief from deportation, and to 
facilitate their removal from the United States by restricting 
and streamlining judicial review of their deportation orders. 
See generally H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1, 
at 107-108, 120-123, 157-161 (1996). Two enactments are par- 
ticularly pertinent: the Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 
1214, and the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 
Div. C, 110 Stat. 3009-546. 

a. Pre-1952 Law. From 1875 to 1917, after a period of 
unrestricted immigration, Congress enacted a series of laws 
providing for the exclusion and deportation of certain classes 
of aliens whose presence in the United States was deemed 

(1) 

2 

contrary to the national interest. See generally William C. 
Van Vleck, The Administrative Control of Aliens 3-16 
(1932). At first, exclusion and deportation of aliens within 
one of those classes was mandatory, and Congress provided 
administrative officials with very little discretion over the 
admission of aliens.1 

In 1917, Congress expanded the classes of excludable 
aliens, but also gave Executive officials the discretion to 
admit certain excludable aliens. Van Vleck, supra, at 13-14, 
34-35. In particular, in the Seventh Proviso to Section 3 of 
the Immigration Act of 1917 (1917 Act), ch. 29, 39 Stat. 878, 
Congress provided that, notwithstanding otherwise manda- 
tory grounds of exclusion, an alien returning to an unrelin- 
quished domicile in the United States of seven years after a 
temporary absence might be admitted “in the discretion of ” 
the responsible official, “under such conditions as he may 
prescribe.” Ibid.; see 8 U.S.C. 136(p) (1925). The Proviso’s 
“humane” intent was to “permit the readmission to the 
United States (under proper safeguards) of aliens who have 
lived here for a long time and whose exclusion after a 
temporary absence would result in peculiar or unusual 
hardship.” S. Rep. No. 352, 64th Cong., 1st Sess. 6 (1916).2 

The immigration laws from 1891 to 1952 made no express 
provision for judicial review of exclusion and deportation or- 
ders, and indeed indicated an intent to restrict judicial re- 

1 For example, in the Immigration Act of 1907 (1907 Act), ch. 1134, § 2, 
34 Stat. 899, Congress allowed officials to exercise discretion to exclude or 
admit children under 16 years of age unaccompanied by a parent. See Van 
Vleck, supra, at 10-11. Congress did not provide officials with any explicit 
authority to suspend deportation of an alien until 1940. See id. at 134-138; 
Act of June 28, 1940, ch. 439, § 20, 54 Stat. 672; INS v. Chadha, 462 U.S. 
919, 933 (1983). 

2 The Seventh Proviso was enacted in response to Lapina v. 
Williams, 232 U.S. 78 (1914), which held that a statutory ground for 
exclusion required denial of admission to an alien who was returning to a 
domicile in the United States after a brief trip abroad, even though that 
alien would not have been deportable had he not left the United States. 

3 

view by providing that all decisions of immigration officers 
regarding exclusion and deportation would be “final.”3 This 
Court held, however, that aliens were entitled to limited re- 
view of the validity of their deportation and exclusion orders 
by writ of habeas corpus. See, e.g., Nishimura Ekiu v. 
United States, 142 U.S. 651, 660 (1892) (alien ordered ex- 
cluded was “entitled to a writ of habeas corpus to ascertain 
whether the restraint is lawful”); see also Heikkila v. Bar- 
ber, 345 U.S. 229, 233-234 (1953) (holding that, after enact- 
ment of Administrative Procedure Act (APA) in 1946, aliens 
were not entitled to APA review of deportation orders, but 
could obtain more limited review by habeas corpus). 

b. The 1952 and 1961 Acts. The Immigration and Nation- 
ality Act of 1952, ch. 477, 66 Stat. 163, brought significant 
changes pertinent here to the Nation’s immigration laws. 
Congress concluded that the Attorney General’s discretion- 
ary power to admit excludable aliens under the Seventh 
Proviso had been abused, and that the authority to waive 
grounds of inadmissibility should be further restricted to 
cases involving lawful permanent resident aliens. See 
S. Rep. No. 1515, 81st Cong., 2d Sess. 382-383 (1950); H.R. 
Rep. No. 1365, 82d Cong., 2d Sess. 51 (1952). Noting that 
under then-current law the Attorney General was “empow- 
ered to waive the grounds of exclusion in the case of an alien 
returning under the specified circumstances even though the 
alien had never been lawfully admitted to the United 
States,” the House Report concluded that “any discretionary 
authority to waive the grounds for exclusion should be 
carefully restricted to those cases where extenuating cir- 
cumstances clearly require such action and that the discre- 
tionary authority should be surrounded with strict limita- 
tions.” Ibid. Congress thus enacted a new provision 
authorizing the Attorney General to waive exclusion of such 

3 See 1917 Act, § 17, 39 Stat. 887; 1907 Act, § 25, 34 Stat. 906-907; Act 
of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1085. 

4 

aliens, Section 1182(c) of Title 8, in substantially the form 
that it took for 30 years.4 

Like previous immigration acts, the 1952 INA made no 
express provision for judicial review of exclusion and depor- 
tation orders. In the 1950s, however, this Court held that 
the enactment of the APA and the INA had significantly 
altered the legal landscape, and that Congress had author- 
ized the district courts to review the merits of deportation 
and exclusion orders in actions for declaratory relief brought 
under the APA, in addition to the more limited review 
available in habeas corpus proceedings. See Shaughnessy v. 
Pedreiro, 349 U.S. 48 (1955); Brownell v. Tom We Shung, 352 
U.S. 180 (1956). 

In 1961, Congress reacted to those decisions by enacting 
streamlined provisions for judicial review under the INA. 
Congress’s principal concern was that aliens had resorted “to 
repeated judicial reviews and appeals for the sole purpose of 
delaying their justified expulsion from this country.” H.R. 

4 Section 1182(c) provided that “[a]liens lawfully admitted for perma- 
nent residence who temporarily proceeded abroad voluntarily and not 
under an order of deportation, and who are returning to a lawful unrelin- 
quished domicile of seven consecutive years, may be admitted in the dis- 
cretion of the Attorney General” without regard to certain grounds of 
exclusion. 8 U.S.C. 1182(c) (1994). Although Section 1182(c) by its terms 
applied only to permit the admission of certain lawful permanent resident 
aliens who would otherwise be excludable upon returning to the United 
States, the Board of Immigration Appeals (BIA) ruled in 1956 that the 
Attorney General was authorized under that provision to grant relief to an 
alien placed in deportation (rather than exclusion) proceedings who had 
previously taken a temporary trip abroad and had returned and been 
admitted to the United States to resume an unrelinquished domicile of 
seven years. See In re G.A., 7 I. & N. Dec. 274 (B.I.A. 1956). In Francis 

v. INS, 532 F.2d 268 (1976), the Second Circuit further ruled, as matter of 
equal protection, that in light of In re G.A., deportable aliens who had not 
departed from the United States and who had seven years’ unrelinquished 
domicile in this country also had to be given the opportunity to apply for 
relief from deportation under Section 1182(c). In the interest of national 
uniformity, the Attorney General acquiesced in that decision. See In re 

Silva, 16 I. & N. Dec. 26 (B.I.A. 1976). 

5 

Rep. No. 1086, 87th Cong., 1st Sess. 23 (1961). While Con- 
gress determined at that time that aliens should be entitled 
to challenge “the Government’s findings of deportability 
through judicial process,” ibid., Congress’s “fundamental 
purpose * * * was to abbreviate the process of judicial 
review of deportation orders” in order to prevent “fore- 
stalling departure by dilatory tactics in the courts.” Foti v. 
INS, 375 U.S. 217, 224 (1963). 

“The key feature of the congressional plan directed at this 
problem was the elimination of the previous initial step in 
obtaining judicial review—a suit in a District Court—and 
the resulting restriction of review to Courts of Appeals.” 
Foti, 375 U.S. at 225. To that end, Congress established a 
self-contained judicial-review provision in the INA, inde- 
pendent and exclusive of the general provisions of the APA. 
That provision incorporated by reference the procedures for 
exclusive review of certain orders in the courts of appeals 
under the Hobbs Administrative Orders Review Act (Hobbs 
Act), see 28 U.S.C. 2341 et seq., and directed that the Hobbs 
Act procedures “shall apply to, and shall be the sole and 
exclusive procedure for, the judicial review of all final orders 
of deportation” under the INA. 8 U.S.C. 1105a(a) (1994) 
(emphasis added). 

Section 1105a(a)’s incorporation of the Hobbs Act proce- 
dures was subject to ten express “except[ions]” that adapted 
for immigration cases the Hobbs Act’s general provisions, 
establishing distinct rules with respect to time limits, venue, 
and other procedural matters. See 8 U.S.C. 1105a(a) (1994); 
Stone v. INS, 514 U.S. 386, 393 (1995). One of those express 
exceptions addressed habeas corpus. Congress was aware of 
the concern that a provision for exclusive review in the 
courts of appeals would divest the district courts of the 
authority they had previously exercised to review deporta- 
tion orders by writ of habeas corpus for the benefit of aliens 
held in custody. See Gov’t Br. at 5 & n.2, INS v. St. Cyr (No. 
00-767) (hereinafter St. Cyr Gov’t Br). Congress therefore 

6 

included, among the express exceptions to Section 1105a(a)’s 
incorporation of the Hobbs Act exclusive court-of-appeals 
review procedures, a provision that “any alien held in cus- 
tody pursuant to an order of deportation may obtain judicial 
review thereof by habeas corpus proceedings.” 8 U.S.C. 
1105a(a)(10) (1994). That provision, the committee report 
explained, “clearly specifie[d] that the right to habeas corpus 
[was] preserved to an alien in custody under a deportation 
order. In that fashion, [Congress] except[ed] habeas corpus 
from the language which elsewhere declare[d] that the 
procedure prescribed for judicial review in circuit courts 
shall be exclusive.” H.R. Rep. No. 1086, supra, at 29. 

c. AEDPA. On April 24, 1996, Congress enacted 
AEDPA into law. Section 440(d) of AEDPA amended Sec- 
tion 1182(c) to provide that the Attorney General’s authority 
to grant discretionary relief under Section 1182(c) “shall not 
apply” to a broad class of criminal aliens, including all aliens 
who were deportable because they had been convicted of an 
“aggravated felony,” as defined by the INA (at 8 U.S.C. 
1101(a)(43) (1994 & Supp. V 1999)).5 See AEDPA § 440(d), 
110 Stat. 1277 (referring to aliens deportable under 8 U.S.C. 

5 In 1990, Congress barred the Attorney General from granting dis- 
cretionary relief under Section 1182(c) to any alien who was convicted of 
an aggravated felony offense and had served a term of imprisonment of at 
least five years for that offense. See Immigration Act of 1990, Pub. L. No. 
101-649, § 511(a), 104 Stat. 5052. AEDPA Section 440(d) extended that 
bar to any alien convicted of an aggravated felony, regardless of the length 
of the term of imprisonment. Even before Congress enacted those 
statutory restrictions on the Attorney General’s authority under Section 
1182(c), however, the BIA had held that aliens (such as petitioners here) 
found removable based on a serious crime such as a “serious drug offense, 
particularly one relating to the trafficking or sale of drugs,” would have to 
demonstrate “unusual or outstanding equities” as a threshold matter in 
order to be considered for discretionary relief under Section 1182(c). See 
In re Buscemi, 19 I. & N. Dec. 628, 633-634 (B.I.A. 1988); In re Marin, 16 

I. & N. Dec. 581, 586 (B.I.A. 1978). 

7 

1251(a)(2)(A)(iii) (1994) (now recodified as 8 U.S.C. 
1227(a)(2)(A)(iii) (Supp. V 1999))).6 

Section 401(e) of AEDPA, entitled “ELIMINATION OF 

CUSTODY REVIEW BY HABEAS CORPUS,” repealed 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. See 110 Stat. 1268. AEDPA 
therefore left in place the exclusive court-of-appeals review 
provision that Congress had enacted in 1961, while eliminat- 
ing the INA’s previous express exception to that exclusive 

6 Congress did not expressly state in AEDPA whether Section 440(d) 
barred the Attorney General from granting relief under Section 1182(c) to 
aliens who had already been convicted and whose deportation proceedings 
were already pending when AEDPA was enacted. On February 21, 1997, 
the Attorney General concluded in In re Soriano, Interim Dec. No. 3289, 
1996 WL 426888, that AEDPA Section 440(d)’s restriction on the Attorney 
General’s authority applied to all deportation proceedings pending on or 
after the date of AEDPA’s enactment, including those pending proceed- 
ings in which aliens had already submitted applications for relief. Numer- 
ous aliens challenged that conclusion in the federal courts, usually seeking 
to invoke the district courts’ general habeas corpus jurisdiction under 
28 U.S.C. 2241. The courts of appeals divided as to whether (as the 
government contended) AEDPA had deprived the district courts of 
habeas corpus jurisdiction to entertain such challenges to final deportation 
orders. The courts of appeals also reached varying conclusions about the 
temporal applicability of AEDPA Section 440(d). This Court denied 
several certiorari petitions raising those issues. See generally Pet. at 4-6, 

INS v. St. Cyr, supra (No. 00-767). 

In light of the Court’s denial of certiorari in those cases and the 
remaining conflict in the circuits on that issue, the Attorney General 
recently published a final rule that, while not conceding their correctness, 
acquiesced on a nationwide basis in the rule adopted by those circuits that 
concluded that AEDPA Section 440(d) does not bar the Attorney General 
from granting discretionary relief under Section 1182(c) to an alien who 
had been placed in deportation proceedings before AEDPA was enacted. 
See 66 Fed. Reg. 6436, 6438 (2001) (promulgating new 8 C.F.R. 3.44). 
Absent adverse circuit precedent, however, the Attorney General will 
continue to follow AEDPA Section 440(d)’s restriction on his authority to 
grant relief under Section 1182(c) in the cases of aliens who were placed in 
deportation proceedings after AEDPA was enacted, even if they were 
convicted before its enactment. See id. at 6443-6444. 

8 

jurisdiction that “preserved” (H.R. Rep. No. 1086, supra, at 

29) review by habeas corpus for aliens held in custody. At 
the same time, Section 440(a) of AEDPA enacted a new Sec- 
tion 1105a(a)(10) to provide, for the same classes of criminal 
aliens who had been rendered ineligible for relief under 
Section 1182(c), an exception to the general availability of 
judicial review of deportation orders in the courts of appeals. 
AEDPA Section 440(a) provided that any final order of 
deportation against an alien who was deportable for having 
committed one of the disqualifying offenses, including aggra- 
vated felonies, “shall not be subject to review by any court.” 
110 Stat. 1276-1277. 

d. IIRIRA. On September 30, 1996, Congress enacted 
IIRIRA into law. In Section 304 of IIRIRA, Congress abol- 
ished the old distinction between “deportation” and 
“exclusion” orders, and instituted a new form of proceeding, 
known as “removal.” See 8 U.S.C. 1229, 1229a (Supp. V 
1999); IIRIRA § 304(a), 110 Stat. 3009-587 to 3009-593.7 An 
alien convicted of an aggravated felony is subject to removal. 
See 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999). 

Section 304 of IIRIRA also refashioned the terms on 
which the Attorney General, in his discretion, may grant 
relief to an alien found to be subject to removal. Congress 
completely repealed old Section 1182(c). See IIRIRA 
§ 304(b), 110 Stat. 3009-597 (“Section 212(c) (8 U.S.C. 

7 Congress also enacted special forms of removal proceedings for 
aliens arriving in the United States without valid documentation, see 
8 U.S.C. 1225(b)(1) (Supp. V 1999), and for aliens not admitted for lawful 
permanent residence who are convicted of aggravated felonies, see 
8 U.S.C. 1228(b) (Supp. V 1999). Congress expressly provided for limited 
judicial review in the district courts by habeas corpus of immigration 
officers’ expedited-removal decisions under Section 1225(b)(1). See 
8 U.S.C. 1252(e)(2) (Supp. V 1999). For aliens found subject to removal in 
Section 1228(b) proceedings, Congress provided a modified version of the 
general court of appeals judicial-review procedures of 8 U.S.C. 1252 (Supp. 
V 1999) (discussed at pp. 10-11, infra), with shortened time limits. See 
8 U.S.C. 1228(b) (Supp. V 1999). 

9 

1182(c)) is repealed.”). In its stead, Congress created a new 
form of discretionary relief, known as “cancellation of 
removal,” with new eligibility terms. See 8 U.S.C. 1229b 
(Supp. V 1999); IIRIRA § 304(a), 110 Stat. 3009-594 to 3009- 
596. As under Section 1182(c) as amended by AEDPA, 
however, Congress provided that the Attorney General may 
not grant discretionary relief to an alien who has been 
convicted of an aggravated felony. 8 U.S.C. 1229b(a)(3), 
1229b(b)(1)(C) (Supp. V 1999). 

Because IIRIRA made sweeping changes to the system 
for removal of aliens, Congress delayed IIRIRA’s full effec- 
tive date and established various transition rules. As a gen- 
eral matter, Congress provided that most of IIRIRA’s 
provisions, including the new removal procedures and the 
corresponding repeal of Section 1182(c) along with its re- 
placement by the new provisions for cancellation of removal 
—all of which were enacted together in Section 304 of 
IIRIRA—would take effect on April 1, 1997. See IIRIRA 
§ 309(a), 110 Stat. 3009-625. For aliens who were placed in 
old deportation or exclusion proceedings before April 1, 
1997, Congress expressly provided that the amendments 
made by Title III-A of IIRIRA (including IIRIRA Section 
304’s repeal of former Section 1182(c)) would not apply, and 
that such cases instead would generally be governed by the 
pre-IIRIRA provisions of the INA (as amended by AEDPA) 
as well as by transitional rules further restricting judicial 
review under 8 U.S.C. 1105a (1994).8 See IIRIRA § 309(c), 

8 Congress also provided in IIRIRA that aliens subject to exclusion 
orders in the transition period would no longer have access to the pro- 
vision of Section 1105a(b) formerly allowing judicial review of their 
exclusion orders by habeas corpus (see pp. 4-5, supra). Instead, Congress 
provided that “the action for judicial review” of exclusion orders would be 
governed by the general provisions, including the transition rules, for 
judicial review of deportation orders in the courts of appeals under Section 
1105a(a). See IIRIRA § 309(c)(4)(A), 110 Stat. 3009-626. 

10 

110 Stat. 3009-625 (amended by Act of Oct. 11, 1996, Pub. L. 
No. 104-302, § 2, 110 Stat. 3657 (technical correction)). 

In Section 306 of IIRIRA, Congress recast and stream- 
lined the INA’s provisions for judicial review of removal 
orders. For removal proceedings commenced after April 1, 
1997, Congress repealed altogether the former judicial- 
review provisions of 8 U.S.C. 1105a (1994), which, before 
AEDPA, had (at subsection (a)(10)) expressly made the writ 
of habeas corpus available to aliens held in custody. IIRIRA 
§ 306(b), 110 Stat. 3009-612; see pp. 5-6, supra. In its place, 
Congress enacted the new 8 U.S.C. 1252 (Supp. V 1999), 
which provides that final orders of removal are subject to 
judicial review only on petition for review in the courts of 
appeals. See 8 U.S.C. 1252(a)(1) (Supp. V 1999) (incorporat- 
ing Hobbs Act). Congress enacted no general exception to 
that provision for exclusive review of removal orders in the 
courts of appeals to allow aliens held in custody under a final 
order of removal to seek habeas corpus relief, as it had done 
in the INA before AEDPA repealed 8 U.S.C. 1105a(a)(10) 
(1994). Instead, Congress included, at 8 U.S.C. 1252(e)(2) 
(Supp. V 1999), only a much narrower exception that permits 
a limited form of habeas corpus review for aliens who arrive 
at the border without valid documentation and were placed 
in expedited-removal proceedings under 8 U.S.C. 1225(b)(1) 
(Supp. V 1999). 

Congress also specifically restricted judicial review of 
removal orders entered against criminal aliens by providing 
that, “[n]otwithstanding any other provision of law, no court 
shall have jurisdiction to review any final order of removal 
against an alien who is removable by reason of having com- 
mitted” one of various criminal offenses, including aggra- 
vated felonies. See 8 U.S.C. 1252(a)(2)(C) (Supp. V 1999). 
And Congress enacted a new, sweeping jurisdiction-limiting 

11 

provision, 8 U.S.C. 1252(b)(9) (Supp. V 1999), which pro- 
vides: 

Judicial 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., Section 1252]. 

2. Proceedings Below. 

a. Each petitioner is an alien who was convicted of an 
aggravated felony offense (specifically, a drug-trafficking 
crime, see 8 U.S.C. 1101(a)(43)(B) (1994)) before IIRIRA’s 
general effective date of April 1, 1997, and who was placed in 
removal proceedings and charged with removability based 
on that aggravated-felony conviction after April 1, 1997. 
Each petitioner sought in removal proceedings to apply for 
discretionary relief from deportation under former Section 
1182(c). In each case, the Board of Immigration Appeals 
(BIA) concluded that petitioners were not eligible for dis- 
cretionary relief from removal, because (a) IIRIRA had 
repealed Section 1182(c) as of April 1, 1997, and had made 
relief under that Section unavailable for any alien placed in 
removal proceedings on or after that date, and (b) aliens such 
as petitioners who were convicted of aggravated felonies are 
not eligible to be considered for discretionary relief under 
IIRIRA’s provision for cancellation of removal. See Pet. 
App. 37a-39a, 48a-49a, 72a-73a. 

b. Petitioners filed petitions for review of their final 
removal orders in the court of appeals. Petitioners con- 
tended that they remained eligible for relief from deporta- 
tion under Section 1182(c) because (they argued) Congress’s 
repeal of that provision should not be applied “retroactively” 
in their removal proceedings, which were based on 

12 

convictions entered before IIRIRA became effective.9 The 
court of appeals held that it lacked jurisdiction over the 
petitions for review because of 8 U.S.C. 1252(a)(2)(C) (Supp. 
V 1999), which precludes judicial review of a final removal 
order entered against an alien who is removable because of 
an aggravated felony conviction. Pet. App. 28a-31a, 33a. 
The court also ruled (id. at 21a-28a, 31a-33a), however, that 
the district court would have authority to review the same 
challenges to petitioners’ removal orders under the general 
federal habeas corpus statute, 28 U.S.C. 2241. 

10 

The court of appeals read Felker v. Turpin, 518 U.S. 651 
(1996), and Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869), to 
hold that “a court cannot presume that a congressional 
enactment effects a repeal of a jurisdictional statute when it 
does not explicitly mention the jurisdictional statute or the 
general type of jurisdiction by name,” Pet. App. 22a, and 
more particularly that “Congress must explicitly mention 
§ 2241 or general habeas jurisdiction to repeal it,” id. at 23a. 
The court found “nothing in IIRIRA’s permanent provisions 
that constitutes a sufficiently clear statement of congres- 
sional intent to repeal the habeas jurisdiction granted 
Article III courts by 28 U.S.C. § 2241.” Ibid. And, the court 
stated, the contrary interpretation would “raise a serious 
constitutional question under the Suspension Clause” of 
Article I, Section 9, id. at 28a, for it would leave petitioners 
without a judicial forum for their challenge to the BIA’s 

9 Petitioners also argued that the repeal of Section 1182(c) could not 
be applied to any criminal conduct that occurred before IIRIRA was 
enacted. See Pet. 17. 

10 Indeed, on the same day, the same panel of the court of appeals ruled 
in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), cert. granted, 121 S. Ct. 848 
(2001), that the district court had properly exercised habeas corpus 
jurisdiction under 28 U.S.C. 2241 over such a challenge (see 229 F.3d at 
409-410), and that Congress’s repeal of Section 1182(c) was not to be 
applied to an alien who had pleaded guilty to an aggravated felony offense 
before IIRIRA was enacted (see id. at 410-421). 

13 

determination that they are ineligible for relief under former 
Section 1182(c). 

The court rejected the government’s argument that, even 
if the district courts could not review the merits of final 
removal orders by habeas corpus, the courts of appeals 
would retain sufficient authority to review final removal 
orders, on direct petitions for review, to satisfy the Consti- 
tution. Pet. App. 28a-30a. The government had submitted 
that, on a petition for review filed by an alien found remov- 
able because of an aggravated felony conviction, a court of 
appeals retains authority to decide issues going to the 
application of the jurisdictional bar in Section 1252(a)(2)(C) 
—i.e., whether the petitioner “is an alien who is removable 
by reason of having committed a specified criminal offense” 
—as well as substantial constitutional challenges to the final 
removal order, which Section 1252(a)(2)(C) should not be 
construed to preclude. Even assuming that such review re- 
mains available in the court of appeals, the court suggested 
that it would be insufficient to satisfy the Constitution, for, 
the court stated, “review of statutory questions similar to 
the one presented in this case has long been deemed 
essential to ensure that a detained alien receives full due 
process of law.” Id. at 30a. 

Finally, the court observed that, “if we were legislators, 
rather than judges, we might opt for a statutory scheme 
under which an alien’s constitutional and statutory chal- 
lenges are cognizable in the court of appeals pursuant to a 
petition for review,” for such a scheme “would eradicate 
habeas corpus’s duplicative review of legal questions in the 
district court and the court of appeals and serve Congress’s 
goal to streamline judicial review.” Pet. App. 32a. But, the 
court stated (ibid.), “[a]lthough this interpretation may 
represent sound legislative policy, * * * we do not read 
IIRIRA or our prior cases to permit such review under” 
Section 1252(a)(2)(C). 

14 

SUMMARY OF ARGUMENT 

I. A. Congress has precluded all judicial review of peti- 
tioners’ contention that they are eligible for discretionary 
relief from deportation under former 8 U.S.C. 1182(c) (1994). 
Petitioners were properly found removable based on their 
convictions for aggravated-felony offenses. Accordingly, al- 
though removal orders are generally subject to review ex- 
clusively by petition for review in the court of appeals, under 
8 U.S.C. 1252(a) (Supp. V 1999), such review of petitioners’ 
contentions is precluded by 8 U.S.C. 1252(a)(2)(C) (Supp. V 
1999), which provides that no court may review a removal 
order entered against an alien who is removable because of 
an aggravated-felony conviction. The text and legislative 
history of Section 1252(a)(2)(C) make clear that Congress 
intended to preclude petitions for review by aggravated 
felons to the maximum extent possible. Congress did not bar 
the courts of appeals from ensuring that the alien subject to 
the removal order is in fact an alien and is removable 
because of an aggravated-felony conviction, but those 
matters are undisputed here. Congress also did not bar the 
courts of appeals from considering substantial constitutional 
challenges to aggravated felons’ removal orders, but no such 
challenge is presented here. 

B. Congress has also precluded the district courts from 
reviewing challenges to aggravated felons’ removal orders 
by habeas corpus or otherwise. Congress’s unmistakable 
intent in the judicial-review provisions of the Immigration 
and Nationality Act is to channel all challenges to removal 
orders into the courts of appeals (subject to a narrow 
express exception not implicated in this case). The court of 
appeals’ ruling that petitioners’ challenges could proceed in 
district court cannot be reconciled with the streamlined 
legislative scheme for judicial review of removal orders that 
Congress has enacted. It also ignores the history underlying 
congressional efforts to minimize judicial involvement in 

15 

removal proceedings, including Congress’s repeal of a 
provision of the INA that had previously preserved district 
court review by habeas corpus of deportation orders for 
aliens actually held in custody. 

II. A. Congress’s preclusion of review of petitioners’ 
claims does not violate the Suspension Clause of Article I, 
Section 9, the Due Process Clause, or Article III. The 
constitutional guarantee of habeas corpus in the Suspension 
Clause does not extend to judicial review of claims that an 
alien is eligible for discretionary relief from deportation. 
This Nation’s immigration laws have traditionally treated 
such discretionary relief as a matter of grace and not of 
right, and have fashioned laws to grant such relief as crea- 
tions of power in the Attorney General, not vesting of rights 
in the individual alien. And while English common law 
courts before 1789 did review on habeas corpus contentions 
that a custodian had no legal authority to detain a petitioner, 
that review did not extend to contentions that the custodian, 
although vested with legal authority over the petitioner, 
nonetheless should exercise his discretion to dispense with 
the petitioner’s custody and detention. 

Nor do this Court’s decisions establish that such review is 
required by the Suspension Clause. Petitioners rely on the 
fact that this Court stated that, under pre-1952 immigration 
law, Congress had reduced judicial review to the minimum 
scope permissible under the Constitution, and yet during 
that period the Court also considered on habeas corpus 
proceedings claims that the Attorney General had failed 
properly to exercise his discretion to consider applications 
for discretionary relief from deportation. But the Court did 
not hold that the writ of habeas corpus required review of 
such contentions, nor did it hold that the Suspension Clause 
required that such review be available as a constitutional 
matter. Such a holding, moreover, would have been a con- 
siderable extension of the writ from its common law scope 
preserved by the Suspension Clause, and the Court’s habeas 

16 

corpus decisions under pre-1952 law were under a habeas 
corpus statute that was and is much broader than the 
common law writ. Moreover, the kinds of challenges to 
exclusion and deportation orders that the Court did state 
were reviewable by habeas corpus—claims that the person 
subject to the order is not an alien or is not removable, that 
the removal proceedings were wanting in due process, or 
that the removal order was totally lacking in evidentiary 
foundation—may still be raised on petition for review. 

B. Judicial review of petitioners’ claims is not required by 
the Due Process Clause. Although removal proceedings 
themselves must be fundamentally fair to satisfy the Due 
Process Clause, absent a contention that a removal proceed- 
ing was not fundamentally fair, due process does not require 
judicial supervision of removal orders. While due process 
may require judicial review of the outcome of an administra- 
tive proceeding when that proceeding itself was not con- 
sistent with the fundamental requirements of due process, 
that is not the case here. Due process prerequisites to 
imprisonment are also inapposite to immigration proceed- 
ings, given the significant difference between the two 
sanctions. 

Nor does Congress’s preclusion of judicial review of peti- 
tioners’ claims contravene Article III’s vesting of the judicial 
power of the United States in the federal judiciary. Con- 
gress may assign controversies between the government and 
private individuals over public rights to an administrative 
adjudicator without review by an Article III court. The 
right of an alien to enter or remain in the United States is 
plainly such a public right. 

III. If the Court concludes that judicial review of peti- 
tioners’ claims is required by the Constitution, then that 
review should proceed in the court of appeals, not the 
district court. Review in the court of appeals would be much 
more consistent with Congress’s intent in the judicial-review 
provisions of the INA since 1961, which is to minimize delays 

17 

in deportations and to streamline judicial review by channel- 
ing removal cases into the courts of appeals. Congress has 
long acted on the understanding that district court review of 
removal orders presents a significant danger of unwarranted 
delay in the execution of removal orders. That under- 
standing was reinforced in 1996 when Congress enacted 
8 U.S.C. 1252(b)(9) (Supp. V 1999), which expressly requires 
that all questions of law and fact arising out of removal pro- 
ceedings be heard only in the courts of appeals on petition 
for review. Section 1252(b)(9) therefore precludes district 
court review, even if some judicial review is required by the 
Constitution. 

ARGUMENT 

I. CONGRESS HAS PRECLUDED JUDICIAL REVIEW 
OF PETITIONERS’ NON-CONSTITUTIONAL CHAL- 
LENGES TO THEIR REMOVAL ORDERS 

Congress’s comprehensive revision of the INA’s judicial- 
review provisions in IIRIRA resulted from its concern that 
pre-IIRIRA law had been ineffective in securing the prompt 
deportation of criminal aliens. See generally H.R. Rep. No. 
469, supra, Pt. 1, at 118-126. Congress adopted a two- 
pronged approach to prevent delays in the removal of crimi- 
nal aliens after completion of the administrative proceedings. 
First, Congress dramatically restricted the authority of the 
courts of appeals to review removal orders entered against 
aggravated felons and other criminal aliens. The courts of 
appeals’ authority with respect to such aliens extends only to 
ensuring that the person seeking review indeed falls within a 
class of removable aliens and that the alien’s removal pro- 
ceeding was consistent with the Constitution. Second, 
Congress completely eliminated the district courts’ authority 
to review any removal orders on habeas corpus. The result 
is that Congress has allowed aliens found removable because 
of an aggravated felony conviction to pursue one, limited 
opportunity for judicial review of the removal order, and 

18 

only in the court of appeals. The scope of that limited review 
does not extend to petitioners’ non-constitutional challenge 
to the BIA’s conclusion that the Attorney General may not 
grant them discretionary relief under former Section 1182(c). 

That result is precisely what Congress intended. When 
Congress enacted IIRIRA’s permanent provisions, it simul- 
taneously restricted judicial review for the specified classes 
of criminal aliens and unambiguously barred the Attorney 
General from granting discretionary relief to those very 
same aliens by repealing the former Section 1182(c) and 
excluding them from eligibility for cancellation of removal 
under the new 8 U.S.C. 1229b (Supp. V 1999). See St. Cyr 
Gov’t Br. 32-49. Those two measures were part of a single, 
comprehensive package of provisions in IIRIRA that were 
designed to speed the removal of criminal aliens. Congress 
would have seen no need whatsoever to preserve an avenue 
for those aliens to obtain judicial review under IIRIRA of a 
statutory question concerning their eligibility for discretion- 
ary relief because Congress itself had supplied the answer to 
that very question in other provisions of IIRIRA. 

A. In Section 1252(a)(2)(C) Of Title 8, Congress Has 

Precluded Judicial Review Of Petitioners’ Challenges 

In The Court Of Appeals 

1. In Section 1252, as added to the INA by IIRIRA, 
Congress carried forward the pre-IIRIRA rule that final 
orders of removal are subject to judicial review only in the 
courts of appeals pursuant to the Hobbs Act’s exclusive- 
review procedures, except as specifically provided other- 
wise. See p. 10, supra. In Section 1252(a)(2), Congress also 
enacted stringent limitations on the scope of review that the 
courts of appeals may exercise over such removal orders. 
Congress provided, for example, that “no court shall have 
jurisdiction to review” any decision of the Attorney General 
specified by the INA to be within his discretion (excepting 
decisions regarding asylum). See 8 U.S.C. 1252(a)(2)(B) 

19 

(Supp. V 1999). Similarly, and pertinent here, Congress 
provided: 

Notwithstanding any other provision of law, no court 
shall have jurisdiction to review any final order of 
removal against an alien who is removable by reason of 
having committed a criminal offense covered in section 

* * * 1227(a)(2)(A)(iii), (B), (C), or (D) of this title[.] 

8 U.S.C. 1252(a)(2)(C) (Supp. V 1999). That provision di- 
rectly covers petitioners’ cases. They were each found 
removable by reason of having committed a criminal offense 
“covered in” Section 1227(a)(2)(A)(iii), the INA provision 
making removable any alien convicted of an aggravated 
felony. 

The legislative history of Section 1252(a)(2)(C) makes 
abundantly clear that Congress intended to cut off, to the 
maximum extent possible, judicial review for aliens found 
removable because of an aggravated felony conviction. Sec- 
tion 1252(a)(2)(C) originated in an amendment to a pending 
immigration bill offered by Senator Abraham at a markup 
session on March 14, 1996. At that session, Senator 
Abraham first stated that, under then-current law, aliens 
found deportable based on a criminal conviction could delay 
their deportation by “go[ing] back into the court system and 

* * * hav[ing] those final adjudications by the Board of 
Immigration Appeals reviewed throughout the entire judi- 
cial process.” Sen. Judiciary Comm. Tr. of Proceedings 19 
(Mar. 14, 1996) (lodged with the Clerk). Senator Abraham 
then explained the effect of his amendment as follows: 

What we propose in this amendment is to end the pro- 
cess following the appeal to the Board of Immigration 
Appeals. The Board obviously is specialized in this area. 
It understands, and we believe, we have full confidence it 
will protect and balance properly the rights of the de- 
portable alien. And we believe that by ending the appeal 
process at that point we will make it more feasible for 

20 

the Department of Justice to deport those criminal aliens 
who otherwise go back into society, commit additional 
crimes, end up back in the prison system, and in our 
judgment really should instead be replaced by people 
who want to be in this country and play by the rules. 

Id. at 19-20. In response to an objection by Senator Kennedy 
that, under the amendment, “the right to appeal is elimi- 
nated altogether,” id. at 21, Senator Abraham stated: 

There has been plenty of review. There has been full 
review of the entire criminal proceeding and the entire 
criminal case afforded to the non-citizen who has violated 
the law. That whole process is reviewable. And once 
that conviction is upheld, the criminal alien becomes 
deportable. The only thing—there are very few issues 
left then to be determined. Simply a deportation hearing 
determines, Is this the person who committed the 
crimes? Is there some sort of valid basis to conclude 
otherwise? There is a process for that. 

The notion of tying up the court system and protracting 
the process and permitting criminal aliens to stay, in my 
judgment, is one of the real serious problems we have 
right now. 

Id. at 23. 

11 In response to questions from Senators Simpson 
and Hatch as to whether, once the final order of deportation 
was entered, “there would be no further review,” Senator 
Abraham stated, “That is right.” Id. at 24. The Committee 
adopted the Abraham amendment by a 12-6 vote. Id. at 28. 

11 Senator Abraham’s explanation that judicial review is unnecessary 
because there will be very little to be decided in the administrative 
removal proceedings concerning an alien who had been convicted of an 
aggravated felony confirms the understanding that such an alien would be 
ineligible for discretionary relief from removal and therefore would not be 
in a position to interject issues concerning such relief into the proceedings. 

21 

See also S. Rep. No. 249, 104th Cong., 2d Sess. 14, 27-28 
(1996); id. at 40 (additional views of Sen. Abraham). 

On the Senate floor, Senator Abraham explained the 
effect of his amendment in sweeping terms: 

In short, once the criminal alien had exhausted all 
appeals available under the criminal laws, the criminal 
alien would still have the full deportation administrative 
provisions to protect him, that is, a deportation hearing 
and the ability to appeal any order of deportation to the 
Board of Immigration Appeals, but that would end the 
process as opposed to triggering a return to the court 
system. That will be positive because it will mean the 
actual deportation of more criminal aliens and the freeing 
up of the court system from many of these frivolous 
lawsuits. 

* * * * * 

These reforms would not affect any of the aliens’ due 
process protections on the underlying criminal offense. 
Aliens would still be entitled to the lengthy appellate and 
habeas corpus review, just like U.S. citizens. But abuses 
of the appeals process would stop there and not continue 
on through the deportation provisions themselves. 

142 Cong. Rec. 7349 (1996). 

12 

2. Especially in light of Senator Abraham’s explanations 
of the effect of his amendment, the only reasonable construc- 
tion of Section 1252(a)(2)(C) is that it prohibits the courts 
from reviewing challenges to removal orders entered against 

12 See also 142 Cong. Rec. at 10,052 (statement of Sen. Abraham, 
explaining that his amendment would “end judicial review for orders of 
deportation entered against these criminal aliens,” but noting that he 
would have preferred an even more sweeping provision that would have 
eliminated appeals to the BIA, because “[w]hile we have eliminated judi- 
cial review for orders of deportation entered against most criminal aliens, 
we have not eliminated their capacity to request repetitive administrative 
review of the deportation order”). 

22 

aliens convicted of aggravated felonies. Even so, Section 
1252(a)(2)(C) does not operate to preclude all judicial consid- 
eration of issues raised by removal orders entered against 
such aliens. The preclusion of judicial review in Section 
1252(a)(2)(C) operates only when the person seeking to 
invoke the jurisdiction of the courts is “an alien who is 
removable by reason of having committed a criminal offense 
covered in” various sections of the INA—such as Section 
1227(a)(2)(A)(iii) (making deportable aliens convicted of 
aggravated felonies) and Section 1227(a)(2)(B) (making de- 
portable aliens convicted of controlled-substance offenses). 
Thus, as a precondition to concluding that it lacks jurisdic- 
tion over a petition for review, the court of appeals must 
determine whether (a) the person seeking to invoke the 
jurisdiction of the courts actually is an alien, (b) the alien is 
removable, and (c) the ground of removal is one that pre- 
cludes judicial review under the statute—i.e., whether the 
basis of the alien’s removal is one of the specified classes of 
criminal offenses, such as an aggravated felony or a 
controlled-substance offense, that triggers the preclusion of 
judicial review. 

The court of appeals’ determination whether it has juris- 
diction over the case (i.e., whether its jurisdiction has been 
precluded by Section 1252(a)(2)(C)) may require it to rule on 
issues that also go to the underlying merits of the removal 
order entered against the alien. Under well-settled princi- 
ples governing preclusion-of-review provisions, however, 
when the availability of judicial review depends on a par- 
ticular factual or legal conclusion, a court may determine 
whether that condition exists. The doctrine that a court has 
“jurisdiction to determine its jurisdiction,” even when to do 
so requires it to render a decision that bears on the underly- 
ing merits, rests on that understanding. See Land v. Dollar, 
330 U.S. 731, 739 (1947). 

Thus, for example, if the BIA concluded that an alien is 
removable because he was convicted of an aggravated felony 

23 

or a controlled-substance offense, but the court of appeals 
then concludes that the offense of which the alien was con- 
victed does not fall within the INA’s statutory definition of 
an aggravated felony or a controlled-substance offense, then 
the court of appeals’ jurisdiction over the case is not 
precluded by Section 1252(a)(2)(C). The court may proceed 
to review the removal order on the merits and may vacate 
the order if it determines that the alien is not actually re- 
movable or that the order is defective for some other reason. 
See Ye v. INS, 214 F.3d 1128 (9th Cir. 2000); Solorzano- 
Patlan v. INS, 207 F.3d 869 (7th Cir. 2000); see also 
Richardson v. Reno, 180 F.3d 1311, 1316 (11th Cir. 1999), 
cert. denied, 529 U.S. 1036 (2000). Similarly, if the person 
seeking review of his removal order argues that he is 
actually a citizen, the court of appeals has jurisdiction to 
resolve that threshold issue. See Nguyen v. INS, 208 F.3d 
528, 531 (5th Cir.), cert. granted, 121 S. Ct. 29 (2000). 

In addition, we do not understand Section 1252(a)(2)(C) as 
precluding a court of appeals from reviewing substantial con- 
stitutional challenges to an alien’s removal order, even if the 
BIA has found the alien to be removable based on a criminal 
conviction referred to in that Section. Although the preclu- 
sion of review in Section 1252(a)(2)(C) has a broad reach, we 
believe it is appropriate to interpret it in light of this Court’s 
jurisprudence directing that Acts of Congress should not be 
construed to preclude review of constitutional claims absent 
a clear congressional expression to that effect. See Webster 

v. Doe, 486 U.S. 592, 603 (1988); Weinberger v. Salfi, 422 U.S. 
749, 762 (1975); Johnson v. Robison, 415 U.S. 361, 366-374 
(1974). Notwithstanding Section 1252(a)(2)(C)’s categorical 
language, neither the text nor the legislative history of that 
provision adverts specifically to preclusion of review of con- 
stitutional claims, and so the courts of appeals retain author- 
ity to consider such claims. Thus, a court of appeals would 
not be precluded from reviewing an alien’s contention that a 
provision of the INA defining a particular offense as an 

24 

“aggravated felony,” or rendering the alien removable based 
on a conviction for that offense, is unconstitutional. Nor, in 
our view, would the court of appeals be precluded from re- 
viewing a substantial contention that the immigration judge 
(IJ) or the BIA had not observed fundamental guarantees of 
due process before concluding that the alien was removable 
based on a conviction for such an offense. See Singh v. Reno, 
182 F.3d 504, 509-510 (7th Cir. 1999); Richardson, 180 F.3d 
at 1316 n.5. 

3. Petitioners’ challenges to their removal orders at issue 
here do not fall within the limited scope of authority to 
review removal orders entered against criminal aliens that 
the courts of appeals retain after IIRIRA. Petitioners do 
not contest the BIA’s conclusions that they are aliens who 
are removable based on a conviction for a criminal offense 
that triggers the preclusion of review in Section 
1252(a)(2)(C). They do not challenge the constitutionality of 
the statutory provisions, 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i) 
(Supp. V 1999), that render them removable for having been 
convicted of an aggravated felony or controlled-substance 
offense. They do not contend that the administrative pro- 
ceedings before the IJ and the BIA that resulted in the entry 
of final removal orders against them were fundamentally 
unfair. And they have not argued in this Court that Con- 
gress was prohibited by the Constitution from rendering 
them ineligible for discretionary relief from removal, and any 
such contention would be baseless, in light of a long line of 
decisions of this Court holding that Congress’s power to 
alter the basis on which an alien may be deported is not 
constrained by the Constitution’s limitations on retroactive 
lawmaking. 

13 A fortiori, no substantial constitutional claim 

13 See Marcello v. Bonds, 349 U.S. 302, 314 (1955) (upholding deporta- 
tion under 1952 INA of alien convicted in 1938 of marijuana violation); 
Galvan v. Press, 347 U.S. 522, 530-531 (1954) (upholding application of 
1950 statute requiring deportation of anyone who had ever been a member 
of the Communist Party after entering the United States to an alien who 

25 

could arise here, given that petitioners were clearly deport- 
able when they committed, pleaded guilty to, and were con- 
victed of, their offenses, and the only change in the law that 
they resist is IIRIRA’s repeal of Section 1182(c), which with- 
drew from the Attorney General the authority to grant them 
discretionary relief from deportation. 

In sum, petitioners are aliens; they are removable; and 
their removal orders are based on convictions for aggravated 
felonies. The court of appeals therefore properly concluded 
that Section 1252(a)(2)(C) divested it of jurisdiction to 
review petitioners’ challenges to their removal orders on 
petition for review. 

B. Congress Has Also Divested The District Courts Of 

Authority To Review The Merits Of Petitioners’ 

Removal Orders 

Although the court of appeals ruled that it could not 
entertain petitioners’ non-constitutional challenges to their 
removal orders on direct petitions for review, it also held 
that Congress had not divested the district court of its 
authority to review such a challenge under its general 
habeas corpus jurisdiction. Indeed, in the companion case of 
St. Cyr v. INS, 229 F.3d 406, 409-410 (2d Cir. 2000), cert. 
granted, 121 S. Ct. 848 (2001), the court of appeals ruled that 
the district court had properly exercised its habeas corpus 
jurisdiction to review such a challenge. As we have 
explained in our brief (at 18-27) for the petitioner in St. Cyr, 
that ruling is in error. 

The court’s conclusion that aliens 

may challenge their removal orders in district court is 
contrary to Congress’s unmistakable design of the judicial- 
review provisions of the INA, which is to channel all 

had been a Communist only before the statute’s enactment); Harisiades v. 
Shaughnessy, 342 U.S. 580, 593-596 (1952) (similarly upholding application 
of 1940 statute requiring deportation of any person who had been a mem- 
ber of the Communist Party, even in the past); Mahler v. Eby, 264 U.S. 32, 
34, 39 (1924) (upholding deportation under 1920 statute of alien convicted 
in 1918 under the Espionage Act); see also St. Cyr Gov’t Br. 39-41. 

26 

challenges to removal orders into the courts of appeals. In 
Section 401(e) of AEDPA (see id. at 19) and in the new 
judicial-review provisions enacted in IIRIRA (see id. at 19- 

21), Congress eliminated the district courts’ authority to 
review final removal orders on habeas corpus, and required 
that such review be had, if at all, only in the courts of appeals 
on petition for review—subject only to one express and very 
narrow exception (which is inapplicable here) for aliens 
without documentation who are stopped at the border and 
placed in expedited-removal proceedings there (see id. at 

20). We refer the Court to the discussion of that issue in our 
brief in St. Cyr, and add the following points: 

1. Petitioners argue (Br. 17) that Section 1252(a)(2)(C) by 
its terms restricts only “judicial review” of aggravated 
felons’ removal orders and need not be read also to prevent 
the courts from reviewing those removal orders by “habeas 
corpus,” which, petitioners maintain, is a concept entirely 
separate from that of “judicial review.” That argument 
ignores the text of Section 1252(a)(2)(C) itself as well as the 
text and structure of both Section 1252 as a whole and its 
predecessor, 8 U.S.C. 1105a(a) (1994). 

As an initial matter, the preclusion of review in Section 
1252(a)(2)(C) does not even use the term—“judicial review” 
—that petitioners insist is a term of art that implicitly 
excludes habeas corpus. Rather it provides broadly that “no 
court shall have jurisdiction to review” a removal order 
entered against an alien who is removable by reason of 
having committed one of the specified criminal offenses. 
Section 1252(a)(2)(C) thus prohibits any court (not just the 
court of appeals) from reviewing in any manner (not only by 
“judicial review”) removal orders entered against aggra- 
vated felons. See St. Cyr Gov’t Br. 26-27. 

In any event, petitioners’ argument that Congress used 
the term “judicial review” in a manner that excludes habeas 
corpus is refuted by numerous features of Section 1252 and 
its predecessor. Section 1252(a)(2)(C) is placed within Sec- 

27 

tion 1252(a), which provides (at Section 1252(a)(1)) that 
“[j]udicial review of a final order of removal * * * is gov- 
erned only” by the procedures of the Hobbs Act, which 
require such review to proceed in the courts of appeals. As 
we explain in our brief (at 25-27) in St. Cyr, that incor- 
poration of the Hobbs Act’s exclusive-review provisions for 
“judicial review” of administrative orders necessarily pre- 
cludes district court review of removal orders, by habeas 
corpus or otherwise. The INA, at least since 1961, has 
consistently treated “habeas corpus” as one of the forms of 
“judicial review” of removal orders that might be available. 

14 

Accordingly, in light of Congress’s consistent usage in the 
immigration laws, a categorical prohibition in the INA 
against “judicial review” of removal orders against aggra- 
vated felons necessarily encompasses a prohibition against 
review of such orders by habeas corpus. 

Petitioners’ reliance (Br. 20-22) on Heikkila v. Barber, 345 
U.S. 229 (1953), to establish that “judicial review,” as used in 
IIRIRA’s amendments to the INA, does not include habeas 
corpus is wide of the mark. In Heikkila, the Court held that 
a challenge to a deportation order could not proceed under 
the APA, in light of Section 10 of the APA (now codified at 5 
U.S.C. 701(a)(1)), which established an exception to the 
APA’s general right of review when “statute[s] preclude[] 
judicial review.” The statute that the Court held to preclude 
judicial review was Section 19(a) of the Immigration Act of 
1917, which made the decision of the Attorney General 

14 In 1961, for example, Congress provided that “any alien held in cus- 
tody pursuant to an order of deportation may obtain judicial review 
thereof by habeas corpus proceedings.” 8 U.S.C. 1105a(a)(10) (1994) 
(emphasis added); see also 8 U.S.C. 1105a(b) (1994) (alien subject to a final 
order of exclusion “may obtain judicial review of such order by habeas 
corpus proceedings and not otherwise”) (emphasis added). In IIRIRA 
itself, Congress provided that one narrow class of aliens, those placed in 
expedited-removal proceedings at the border, could obtain “judicial 
review” of their removal orders in habeas corpus proceedings. 8 U.S.C. 
1252(e)(2)(Supp. V 1999). See St. Cyr Gov’t Br. 25-27. 

28 

“final” as to deportation orders and had been held to bar 
judicial examination of the validity of a deportation order 
except by habeas corpus. 345 U.S. at 231-236. The Court 
concluded that the 1917 Act did indeed “preclud[e] judicial 
review,” within the meaning of Section 10 of the APA, even 
though some judicial testing of the validity of the deporta- 
tion order remained available on habeas corpus and so “the 
finality of [the] administrative decision [was not] absolute.” 
Id. at 235-236. 

Heikkila held that a total bar to judicial scrutiny of an ad- 
ministrative order was not necessary to find a “preclu[sion]” 
of judicial review under the APA. And Heikkila did assume 
that, in determining whether a statute “preclud[es] judicial 
review,” within the meaning of the APA, Congress meant 
the courts to compare the scope of review that remains 
available under a statute that allows only limited scrutiny to 
the full scope of “judicial review” that would otherwise be 
available under the APA. 

15 But it does not follow that every 
time that Congress uses the term “judicial review,” it nec- 
essarily excludes habeas corpus from its scope. 

As we have explained (pp. 5-6, 27, supra), Congress in 
1961 enacted a self-contained mechanism for judicial review 
of deportation orders that specifically included habeas 
corpus in some circumstances and expressly identified such 
access to habeas corpus in those circumstances as “judicial 
review.” Moreover, Congress understood the 1961 amend- 
ments to the INA, including the provisions for habeas corpus 
review, to “implement[] and appl[y]” Section 10 of the APA, 
which provided that “[t]he form of proceeding for judicial 
review shall be any special statutory review proceeding 
relevant to the subject matter in any court specified by 

15 See Heikkila, 345 U.S. at 236 (“To review those requirements under 
the Constitution, whatever the intermediate formulation of their consti- 
tuents, is very different from applying a statutory standard of review, e.g., 
deciding ‘on the whole record’ whether there is substantial evidence to 
support administrative findings of fact under § 10(e).”). 

29 

statute.” See H.R. Rep. No. 1086, supra, at 11, 27. Indeed, 
Section 10 of the APA, now codified at 5 U.S.C. 703, also 
provided that the form of proceeding for “judicial review” 
under the APA may be any applicable form of legal action, 
including “actions for * * * writs of * * * habeas 
corpus.” 

16 

Thus, when Congress provided in Section 1252(a)(1) that 
“[j]udicial review of a final order of removal” shall be had 
only in the court of appeals, see 8 U.S.C. 1252(a)(1) (Supp. V 
1999), it precluded district court review of removal orders by 
habeas corpus. That conclusion is confirmed by 8 U.S.C. 
1252(b)(9) (Supp. V 1999), which provides that “[j]udicial 
review of all questions of law and fact, including interpre- 
tation and application of * * * statutory provisions” arising 
out of a removal order, “shall be available only” in a pro- 
ceeding for review brought in the court of appeals under 
Section 1252 itself. (Emphasis added.) Section 1252(b)(9) 
therefore necessarily precludes a district court on habeas 
corpus from reviewing the questions of law petitioners seek 
to raise here regarding the application of former Section 
1182(c) to their cases. And when Congress further provided 
in Section 1252(a)(2)(C) that, “[n]otwithstanding any other 
provision of law,” “no court” shall “review” removal orders 
entered against aggravated felons, it barred such review by 
both the courts of appeals, on petitions for review under Sec- 
tion 1252 itself, and the district courts, whether on habeas 
corpus under 28 U.S.C. 2241 or otherwise. 

16 Indeed, Congress made clear that Section 1105a was intended to 
create “a single, separate, statutory form of judicial review of administra- 
tive orders for the deportation and exclusion of aliens from the United 
States.” H.R. Rep. No. 1086, supra, at 22 (emphasis added). The refer- 
ence to “exclusion” of aliens is significant, because, as explained above 
(p. 27 note 14, supra), the 1961 amendments to the INA provided that 
“judicial review” of exclusion orders should proceed only by habeas 
corpus. Congress thus plainly understood habeas corpus review of exclu- 
sion orders to be a form of “judicial review of administrative orders.” 

30 

2. Relying on Felker v. Turpin, 518 U.S. 651 (1996), and 
Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869), petitioners fur- 
ther argue (Br. 17-18) that, to divest the district courts of 
their authority to review a deportation order by habeas cor- 
pus, Congress must expressly mention “habeas corpus” (or 
perhaps 28 U.S.C. 2241), and that Congress did not do so in 
IIRIRA. In fact, however, Congress did expressly mention 
habeas corpus in IIRIRA. In Section 1252, Congress author- 
ized the district courts to review removal orders by habeas 
corpus, but only in the case of aliens who are stopped at the 
border without documentation and placed in expedited- 
removal proceedings under 8 U.S.C. 1225(b)(1) (Supp. V 
1999). See p. 8 note 7, p. 24 note 27, supra. Congress thus 
specified exactly the kinds of removal orders that may be 
reviewed by habeas corpus, and necessarily precluded 
review of any other removal orders by the same means. 
Moreover, neither Felker nor Yerger holds that Congress 
must use the words “habeas corpus” or “Section 2241” to 
preclude review by those means, when such preclusion of 
review is the unmistakable conclusion that must be drawn 
from Congress’s statutory scheme. Felker and Yerger held 
that, when Congress specifically divested this Court of its 
appellate jurisdiction to review habeas corpus proceedings 
but did not expressly address (either by explicit mention of 
habeas corpus or in categorical terms that included habeas 
corpus) the Court’s original jurisdiction to entertain habeas 
corpus petitions—which jurisdiction was based in a separate 
statutory provision—the Court would not read the restric- 
tion in the former statutory source of jurisdiction to reach 
over into the latter by implication. See Felker, 518 U.S. at 
660-661 (explaining that this Court’s original and appellate 
jurisdiction in habeas corpus matters are based in different 
statutes). In IIRIRA, by contrast, Congress has placed all 
of the courts’ authority to review removal orders in one 
place, Section 1252, and has made clear as a categorical 
matter in that very same place that all such review must 

31 

proceed only in the courts of appeals, except as otherwise 
provided in Section 1252 itself. See pp. 10-11, supra. The 
necessary conclusion from that categorical preclusion is that 
a district court may not review the merits of a final order of 
removal, whether by habeas corpus or otherwise. 

II. THE PRECLUSION OF REVIEW OF PETITIONERS’ 
CHALLENGES TO THEIR REMOVAL ORDERS IS 
CONSTITUTIONAL 

Petitioners argue (Br. 22-42) that the Constitution re- 
quires a judicial forum for their contention that the Attorney 
General may grant them discretionary relief from deporta- 
tion under former Section 1182(c). In particular, they con- 
tend that a congressional preclusion of judicial review of that 
question would violate the Suspension of Habeas Corpus 
Clause of Article I, Section 9, the Due Process Clause of the 
Fifth Amendment, and Article III. Those contentions are 
without merit. As we now show, the Constitution does not 
prohibit Congress from committing to the Attorney General 
the authority to determine whether, as a categorical matter, 
certain classes of aliens should be eligible for discretionary 
relief from deportation. 

A. Preclusion Of Judicial Review Of A Non-Constitutional 

Claim That The Attorney General Has And Should 

Exercise Discretion To Waive Deportation Is Not A 

Suspension Of Habeas Corpus 

1. Petitioners place primary reliance (Br. 29-34) on the 
Suspension Clause, which, they contend, requires the avail- 
ability of judicial review of any statutory as well as constitu- 
tional issue arising in connection with an alien’s removal 
from the United States. Petitioners argue (ibid.) that, at 
English common law before 1789, the writ of habeas corpus 
was available to review the legality of an individual’s deten- 
tion. Accordingly, they contend, a provision that deprives 
the courts of authority to adjudicate a statutory question 
bearing on the deprivation of an alien’s liberty would con- 

32 

stitute a “suspen[sion]” of the “Privilege of the Writ of 
Habeas Corpus,” in violation of Article I, Section 9. 

The fundamental flaw in that argument is that petitioners 
are unquestionably removable based on their aggravated- 
felony convictions and are seeking the exercise of the 
Attorney General’s power to grant discretionary relief from 
deportation. Indeed, this Court has described the Attorney 
General’s discretionary power to grant a dispensation from 
deportation as “an act of grace” accorded to his “unfettered 
discretion,” similar to “a judge’s power to suspend the execu- 
tion of a sentence, or the President’s to pardon a convict.” 
INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996); see also Jay 

v. Boyd, 351 U.S. 345, 354 (1956); United States ex rel. 
Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950) 
(L. Hand, J.). Moreover, although in this case the BIA 
determined as a matter of statutory construction that these 
petitioners were ineligible for relief under Section 1182(c), 
the Attorney General (or the BIA) could also have exercised 
discretion to determine as a matter of policy that—in light of 
Congress’s increasingly restrictive treatment of aliens con- 
victed of aggravated felonies and its preclusion of cancella- 
tion of removal for such aliens in IIRIRA—no alien who was 
convicted of such an aggravated felony should receive relief 
under Section 1182(c), whether or not he was theoretically 
eligible for such relief under that statute. 

17 

In addition, as we have explained in our brief (at 43-45) in 
St. Cyr, the language and history of former Section 1182(c) 
make clear that Congress framed that provision, not as a 
“right” on the part of the alien to seek or obtain relief from 
deportation, but rather as an authorization to the Attorney 
General to grant such dispensation when he believed it was 

17 See Yang, 519 U.S. at 31 (statutory eligibility for discretionary relief 
from deportation “in no way limits the considerations that may guide the 
Attorney General in exercising her discretion to determine who, among 
those eligible, will be accorded grace”). 

33 

justified by the alien’s circumstances. Section 1182(c) pro- 
vided that certain lawful permanent resident aliens “may be 
admitted in the discretion of the Attorney General” without 
regard to various provisions of Section 1182(a) that render 
an alien excludable and therefore require the Attorney 
General to deny admission to such an alien. The predecessor 
to Section 1182(c), the Seventh Proviso to Section 3 of the 
1917 Act, was similarly framed in terms of the immigration 
authorities’ discretion to waive exclusion of aliens in light of 
humanitarian circumstances. See p. 2, supra. Absent from 
the background and legislative history of Section 1182(c) and 
its predecessor is any indication that Congress intended 
therein to create a “right” in the alien to be considered for 
relief from deportation. 

Thus, this is not a case in which the courts are called upon 
to determine whether the Attorney General has no author- 
ity to detain an individual—the paradigm of the cases in 
which English common law courts granted habeas corpus. 
See pp. 33-34, infra. The Attorney General unquestionably 
has legal authority to detain and remove petitioners, for they 
have been properly found to be removable under standards 
set forth in congressional enactments. 

2. A review of English common law cases does not 
support a conclusion that a writ of habeas corpus would issue 
in the circumstance where, as in this case, an official had 
statutory authorization to detain the individual seeking relief 
but that individual contended that the official was not 
properly exercising his discretionary power to determine 
whether the individual should be released. Analyses of the 
common law origins of the writ of habeas corpus vary 
considerably in their treatments of that subject, but most 
writers agree that the writ acquired its classic form in the 
17th century, during the struggle for power between Charles 
I and Parliament. Before that time, common law courts had 
used the writ principally to protect their jurisdiction against 
incursions from other courts, and would not issue the writ 

34 

when the return showed that the petitioner was confined by 
order of the monarch or the Privy Council. 

18 After Darnel’s 
Case (1627), 3 State Trials 1 (1816), in which the Court of 
King’s Bench declined to issue the writ when the return 
showed that the prisoner was held by special command of 
the monarch, Parliament proposed and Charles I accepted 
the Petition of Right, which abolished the monarch’s power 
to imprison by special command without showing cause. 

19 

And following Chambers’s Case, 79 Eng. Rep. 746 (K.B. 
1629), in which the King’s Bench declined to issue the writ 
for the benefit of a prisoner committed by the Star Chamber 
on the ground that the Star Chamber was itself a high court 
of justice, Parliament passed the Habeas Corpus Act of 1641, 
which abolished the Star Chamber and set forth the basic 
principles for issuance of the writ. The 1641 Act provided 
that, when an individual detained by order of the monarch or 
Privy Council sought the writ of habeas corpus, the 
custodian was required by return to “certify the true cause 
of such * * * imprisonment, and thereupon the court * * * 
shall proceed to examine and determine whether the cause of 
such commitment appearing upon the return be just and 
legal, or not.” 

20 

The 1641 Act only established, however, that common law 
courts could require a custodian to demonstrate that he had 

18 See William F. Duker, A Constitutional History of Habeas Corpus 
33-43 (1980); 9 W.S. Holdsworth, A History of English Law 112-113 (1926); 
Jonathan L. Hafetz, Note, The Untold Story of Noncriminal Habeas 
Corpus and the 1996 Immigration Acts, 107 Yale L.J. 2509, 2521 (1998); 
Dallin H. Oaks, Legal History in the High Court—Habeas Corpus, 64 
Mich. L. Rev. 451, 460 (1966); Robert S. Walker, The Constitutional and 

Legal Development of Habeas Corpus as the Writ of Liberty 47-76 (1960). 

19 See Maxwell Cohen, Habeas Corpus Cum Causa—The Emergence 
of the Modern Writ—I, 18 Can. B. Rev. 10, 38-40 (1940); Duker, supra, at 
45; R. J. Sharpe, The Law of Habeas Corpus 9-13 (1976). 

20 Duker, supra, at 47 (quoting 1641 Act); see also Developments in the 
Law-–Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1044 (1970); 
9 Holdsworth, supra, at 115; Sharpe, supra, at 15. 

35 

21 The 1641 
Act did not provide, and English decisions before 1789 did 
not hold, that the writ would issue on an allegation that 
officials were improperly exercising or declining to exercise 
their discretion to waive or dispense with their legal author- 
ity to detain the prisoner. Although it has been suggested 
that common law courts would issue the writ on a showing of 
abuse of official discretion, see Jonathan L. Hafetz, Note, 
The Untold Story of Noncriminal Habeas Corpus and the 
1996 Immigration Acts, 107 Yale L.J. 2509, 2524, 2530, 2534 
(1998), the evidence cited for that suggestion is quite thin. 

22 

some basis in law to hold the detained person. 

For example, in Hetley v. Boyer, 79 Eng. Rep. 287 (K.B. 
1613), in which the King’s Bench ordered the release of a 
prisoner who had been confined by the Commissioners of 
Sewers, apparently in retaliation for his having previously 
brought a successful action challenging the commissioners’ 
assessment, the court ordered Hetley’s release on the 

21 See 1 William Blackstone, Commentaries on the Laws of England 
132-133 (1765) (facsimile ed. 1979) (“To make imprisonment lawful, it must 
either be, by process from the courts of judicature, or by warrant from 
some legal officer, having authority to commit to prison; which warrant 
must be in writing, under the hand and seal of the magistrate, and express 
the causes of the commitment, in order to be examined into (if necessary) 
upon a habeas corpus.”); 9 Holdsworth, supra, at 120 (noting that, during 
House of Lords’ examination of habeas corpus in 1758, the judges in- 
formed the Lords that on habeas corpus the court was “concerned, not 
with the truth of the return, but with its sufficiency in point of law to 
justify a detention”); Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 
29, 42 (1758) (Wilmot, J., advising the House of Lords that a prisoner 
would not be discharged “in case the facts averred in the return to a writ 
of habeas corpus, are sufficient in point of law to justify the restraint”); 
Dallin H. Oaks, Habeas Corpus in the States—1776-1865, 32 U. Chi. L. 
Rev. 243, 244-245 (1965) (“At common law * * * the use of the Great 
Writ against official restraints was simply to ensure that a person was not 
held without formal charges.”). 

22 Petitioners specifically do not argue that discretionary determina- 
tions must be subject to review on habeas corpus (see Br. 24-25), and 
8 U.S.C. 1252(a)(2)(B) (Supp. V 1999) expressly forecloses all judicial 
review of most such actions. 

36 

ground that that confinement was unjustified and was “in 
direct opposition to the authority and judgment of this 
Court” in the prior action. Id. at 287. Although the court 
reiterated its finding in the prior action that the assessment 
was invalid because it was intended to punish one person in 
the village, it did not issue the writ because the confinement 
was an abuse of discretion, but rather because it defied the 
court’s prior judgment. 

In Ex parte Boggin, 104 Eng. Rep. 484 (K.B. 1811), in 
which the legality of a sailor’s impressment was at issue, the 
court referred in a footnote to a prior case before the court, 
involving one Chalacombe, in which the petitioner had con- 
tended that he had been impressed in contravention of 
Admiralty policy against impressment of persons in the coal 
and coasting trades. Id. at 484 n.(a)2. The Admiralty in 
Chalacombe’s case argued that the writ should not issue 
because the Admiralty’s policy not to impress such persons 
was a matter of “grace and favour,” and not of right. 
Although the court directed the Admiralty to state its 
justification for its confinement of Chalacombe in a return to 
the writ, Lord Chief Justice Ellenborough also observed 
that, “[c]onsidering it merely as a question of discretion, is it 
not more fit that this should stand over for the consideration 
of the Admiralty, to whom the matter ought to be 
disclosed?” Ibid. (Because the Admiralty later decided in its 
discretion to release Chalacombe, the matter was never 
decided by the court. Ibid.) 

23 

23 Goldswain’s Case, 96 Eng. Rep. 711 (C.P. 1778) (cited at Hafetz, 
supra, at 2525 n.117) involved a bargeman who was impressed by order of 
the Admiralty while he was ferrying timber to the royal timber-yard 
under “the faith of a protection from the Navy Board,” effectively grant- 
ing him immunity from impressment during that service. Ibid. Although 
Goldswain did not have a statutory immunity from impressment, the court 
suggested that the case involved bad faith on the part of the Admiralty 
(and perhaps an attempt by the Admiralty to obtain a court test of the 
authority of the Navy Board to grant such protection), warned the Admi- 
ralty that it would consider discharging Goldswain because of that appar- 

37 

The absence of cases testing officials’ discretion to confine, 
or dispense with confinement of, a prisoner may reflect the 
fact that “[t]he concept of ‘discretion’ was not well developed 
at common law.” Hafetz, supra, at 2534. For that very rea- 
son, however, lawyers familiar with the common law in 1789 
would not have understood that the writ would issue based 
on an allegation that an official had improperly declined to 
exercise his discretion not to act on his unquestioned legal 
authority to take an individual into custody. Petitioners’ 
claim to habeas corpus, therefore, has no root in the soil of 
English common law. 

3. Petitioners also argue (Br. 22-29) that judicial review 
of their challenges to their removal orders is compelled by 
the Suspension Clause because (a) this Court stated in 
Heikkila that Congress, in pre-1952 immigration statutes, 
had made administrative decisions “nonreviewable to the 
fullest extent possible under the Constitution,” 345 U.S. at 
234-235, and yet (b) during the operation of those pre-1952 
statutes, courts sometimes reviewed aliens’ claims that ad- 
ministrative officials had erred in finding them ineligible for 
discretionary relief from deportation. Therefore, petitioners 
argue, because the courts considered those claims on habeas 
corpus, judicial review to that extent must have been consti- 
tutionally compelled, and so elimination of the opportunity 
for judicial review of such claims would be unconstitutional. 
Petitioners’ reliance on the dictum in Heikkila is flawed 
for several reasons. 

24 First, Heikkila itself involved a consti- 

ent bad faith, and suggested that the Admiralty reconsider the propriety 
of its impressment of Goldswain. Id. at 712. The Admiralty, taking the 
court’s hint, decided to release Goldswain. Id. at 713. Goldswain’s Case 
did not involve a charge of abuse of an official’s discretion not to take an 
individual into custody, but rather a violation of the principle that indivi- 
duals may rely on official assurances that their conduct is legally protected 
—a “traditional notion[] of fairness” in our justice system. Cf. United 

States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 674 (1973). 

24 The language in Heikkila relied on by petitioners was unnecessary 
to the holding of that case, which was that aliens could not seek judicial 

38 

tutional challenge to a provision that made membership in 
the Communist Party per se a ground for deportation. 
345 U.S. at 230. A three-judge court dismissed the case, and 
this Court affirmed on the ground that the validity of the 
deportation order entered against Heikkila under that 
provision could be tested only on habeas corpus, and not in 
an action under Section 10 of the APA. The Court reasoned 
that the finality provision of the 1917 Act precluded judicial 
review within the meaning of the APA. See id. at 232-237. 
The claim in Heikkila therefore fell squarely within the 
traditional scope of habeas corpus, because it challenged the 
constitutionality of the statute under which the alien was 
ordered deported and restrained of his liberty. The decision 
therefore lends no support to petitioners’ argument that the 
Suspension Clause requires review on habeas corpus of their 
non-constitutional claim concerning discretionary relief 
from deportation. Indeed, in describing the scope of habeas 
corpus, the Court stated that, “[r]egardless of whether or 
not the scope of inquiry on habeas corpus has been ex- 

review of their deportation orders under the APA, but were remitted to 
the more restrictive remedies of habeas corpus proceedings. See 345 U.S. 
at 233-235. Although, as we explain in the text, the Court relied on the 
fact that the scope of judicial review under the APA was significantly 
broader than the review available in habeas corpus proceedings, see id. at 
236, that would have been true even if the review available on habeas 
corpus was in turn broader than the scope of review required by the 
Constitution itself. 

Amicus ABA observes (Br. 12-13) that, in Fong Yue Ting v. United 
States, 149 U.S. 698, 713 (1893), the Court stated that “[t]he power to 
exclude or to expel aliens” is subject to exclusive legislative and executive 
control, “except so far as the judicial department has been authorized by 
treaty or by statute, or is required by the paramount law of the Consti- 
tution, to intervene.” That case, however, did not involve the scope of the 
writ of habeas corpus. Moreover, the question in this case is not whether 
(as the Court suggested in Fong Yue Ting) some judicial review of depor- 
tation orders is required by the Constitution; rather it is whether the 
Constitution requires judicial review specifically of determinations about 
an alien’s eligibility for discretionary relief from deportation—a matter 
that was not at issue in Fong Yue Ting. 

39 

panded, the function of the courts has always been limited to 
the enforcement of due process requirements.” Id. at 236. 
“To review those requirements under the Constitution,” the 
Court continued, “whatever the intermediate formulation of 
their constituents, is very different from applying a statu- 
tory standard of review” under the APA. Ibid. 

Second, even if Congress did, in the pre-1952 immigration 
statutes, limit judicial review to the constitutional minimum 
required by the Suspension Clause, it does not follow that 
the Court must now conclude that, in every case in which the 
Court considered a legal issue on habeas corpus under those 
statutes, review of that issue on habeas corpus was constitu- 
tionally compelled—especially if the Court did not address in 
such a case either the scope of its habeas corpus jurisdiction 
or the scope of judicial review required by the Constitution. 
For example, petitioners cite (Br. 25) United States ex rel. 
Accardi v. Shaughnessy, 347 U.S. 260 (1954), as the instance 
in which the Court held on habeas corpus that the BIA failed 
to exercise its own discretion in ruling on an application for 
discretionary relief and reversed the denial on that ground. 
But the Court reversed the lower courts’ summary denial of 
the writ in Accardi only because of allegations of a deliber- 
ate circumvention of established procedures and prejudg- 
ment by the BIA in the case. See id. at 266-269. The Court 
did not undertake to delineate the scope of the writ of habeas 
corpus, and it certainly did not state that habeas corpus 
review in that case was compelled by the Constitution. This 
Court has never considered itself bound by such sub silentio 
assertions of jurisdiction. See Steel Co. v. Citizens for a 
Better Env’t, 523 U.S. 83, 91 (1998); Pennhurst State Sch. & 
Hosp. v. Halderman, 465 U.S. 89, 119 (1984). 

25 

25 Petitioners also cite (Br. 25) Jay v. Boyd, supra, as a case in which 
the Court ruled that the alien had a “right to a ruling on [his] eligibility” 
for discretionary relief from deportation. Jay is inapposite for several rea- 
sons. First, the Court once again did not address the scope of review by 
habeas corpus that may be required by the Suspension Clause. Second, no 

40 

Third, although this Court’s immigration decisions under 
pre-1952 law do not expressly state the source of the courts’ 
authority to grant habeas corpus, that authority was pre- 
sumably the Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 
385-386; see Rev. Stat. §§ 751-766 (1875). 

26 The scope of 
review authorized by the 1867 Act, however, was much 
broader than that authorized by Congress’s original provi- 
sion for habeas corpus in the Judiciary Act of 1789, ch. 20, 
§ 14, 1 Stat. 81-82. 

27 Whereas the 1867 Act authorized the 
courts to grant the writ “in all cases where any person may 
be restrained of his or her liberty in violation of the con- 

issue was presented in that case concerning the alien’s statutory eligibility 
for discretionary relief; the BIA found in that case that Jay was eligible 
for relief, and Jay did not challenge any aspect of that determination. Id. 
at 352-353. Rather, Jay challenged the BIA’s exercise of its discretion to 
deny him relief based on confidential information, and the Court rejected 
that challenge. Id. at 353-356. Third, although the Court described the 
applicable statutory provisions as providing a right to a ruling on eligibil- 
ity, it did not suggest that every provision of an immigration statute that 
confers on the Attorney General the discretionary power to grant dispen- 
sation from deportation must be held to confer a personal right of the sort 
that the Constitution requires the courts to review on habeas corpus-– 
even where, as here, Congress has in the very same law foreclosed judicial 
review of such a claim. Indeed, the fact that Congress has precluded 
judicial review of petitioners’ claim here is a powerful indication that it did 
not intend to confer such a right in the first place. Finally, although Jay v. 
Boyd technically arose on habeas corpus proceedings (see id. at 347), it 
was governed by the INA of 1952, which allowed much more extensive 
review of immigration decisions than had been the case in habeas corpus 
proceedings under pre-1952 law. See Heikkila, 345 U.S. at 236. (Simi- 
larly, Dessalernos v. Savoretti, 356 U.S. 269 (1958), cited by amicus ABA 
(Br. 21), is inapposite because that case also arose under the INA of 1952.) 

26 The Court has long understood its authority to grant habeas corpus 
to rest in statutory enactments. See Ex parte Bollman, 8 U.S. (4 Cranch) 
75, 93 (1807); Lonchar v. Thomas, 517 U.S. 314, 324, 326 (1996). 

27 See Felker, 518 U.S. at 659 (noting that “Congress greatly expanded 
the scope of federal habeas corpus in 1867”); Ex parte McCardle, 73 U.S. 
(6 Wall.) 318, 325-326 (1867) (observing of 1867 Act that “[i]t is impossible 
to widen this jurisdiction”); 1 James S. Liebman & Randy Hertz, Federal 
Habeas Corpus Practice and Procedure 47-48 (3d ed. 1998) (discussing 
1867 Act’s widening of scope of habeas corpus). 

41 

stitution, or any treaty or law of the United States,” 14 Stat. 
385, the 1789 Act provided only that federal judges had 
“power to grant writs of habeas corpus for the purpose of an 
inquiry into the cause of commitment.” 1 Stat. 82. The 1789 
Act thus echoed the common law and the 1641 Act in 
requiring only an inquiry into whether the custodian had 
some legal basis for the detention of the petitioner. 

28 The 
1789 Act, nearly contemporaneous with the ratification of 
the Constitution, is presumably the more reliable indicator of 
the Framers’ understanding of the minimum scope of judicial 
review required by the Suspension Clause. Thus, even if 
this Court did, under pre-1952 law, construe the Habeas Cor- 
pus Act of 1867 to reach claims like those presented by peti- 
tioners here, it would not follow that the Suspension Clause 
required a judicial forum for such claims. 

Fourth, as we have explained in our brief in St. Cyr (at 28- 

29), in its pre-1952 decisions, this Court held that four kinds 
of challenges could be raised on habeas corpus: (1) claims 
that a person alleged to be an alien was in fact a citizen; (2) 
claims that the alien’s case did not fall within one of the 
statutory categories providing for deportation or exclusion 
claims; (3) claims that the alien had been deprived of a fun- 
damentally fair administrative proceeding; and (4) claims 
that the administrative officer’s finding of deportability was 
completely without supporting evidence and was therefore 
violative of due process. 

29 This case does not fall within any 

28 See Lewis Mayers, The Habeas Corpus Act of 1867: The Supreme 
Court as Legal Historian, 33 U. Chi. L. Rev. 31, 47 (1965) (noting that, 
before 1867, “[t]he sole question before the court was the formal legality of 
the detention”); see also Ex parte Watkins, 32 U.S. (7 Pet.) 568, 573-574, 
577-579 (1833) (granting habeas corpus because petitioner was invalidly 
detained for nonpayment of fine pursuant to civil process, but also holding 
that writ could not be granted based on petitioner’s contention that fine 
imposed was unconstitutionally excessive). 

29 See, e.g., Tod v. Waldman, 266 U.S. 113, 118 (1924), modified, 266 
U.S. 547 (1925); Ng Fung Ho v. White, 259 U.S. 276, 283-284 (1922); Kwock 
Jan Fat v. White, 253 U.S. 454, 458 (1920); Gegiow v. Uhl, 239 U.S. 3, 9 

42 

of those categories, for petitioners concededly are removable 
aliens and have made no claim that their removal 
proceedings were fundamentally unfair. Moreover, IIRIRA 
permits judicial review of all four kinds of challenges. As we 
have explained (pp. 22-23, supra), even under Section 
1252(a)(2)(C), the court of appeals has jurisdiction to deter- 
mine whether a petitioner challenging a removal order is an 
alien and whether he is removable. We have also explained 
(pp. 23-24, supra) that Section 1252(a)(2)(C) should not be 
read to preclude review of substantial constitutional chal- 
lenges to removal orders. Accordingly, IIRIRA affords the 
full scope of judicial review that this Court’s pre-1952 deci- 
sions held were required to be heard on habeas corpus. 

B. Neither The Due Process Clause Nor Article III Re- 
quires A Judicial Forum For Petitioners’ Non- 
Constitutional Claims 

1. Petitioners argue (Br. 34-38) that the Due Process 
Clause requires a judicial forum for consideration of their 

(1915); Tang Tun v. Edsell, 223 U.S. 673, 681 (1912); Chin Yow v. United 
States, 208 U.S. 8, 11-12 (1908). All of this Court’s decisions cited by peti- 
tioners at Br. 22-24 fall into one of those four categories, with the possible 
exception of United States ex rel. Mensevich v. Tod, 264 U.S. 134 (1924). 
In that case, the petitioner alleged that his warrant of deportation was 
invalid because it provided for his deportation to “Poland, the country 
whence he came,” pursuant to the 1917 Act’s provision authorizing depor- 
tation of aliens “to the country whence they came.” See id. at 136. The 
petitioner contended that, because he had resided in a province of Russia 
before his emigration to the United States (there having been no sover- 
eign state of Poland at the time of his emigration), a warrant ordering his 
deportation to Poland as “the country whence he came” was a nullity. The 
claim, although rejected by the Court on the merits, was cognizable on 
habeas corpus because it contended that the process pursuant to which the 
petitioner was detained was invalid. Cf. Watkins, 32 U.S. (7 Pet.) at 577- 
579 (holding that prisoner could not be detained for collection of fine after 
return-day pursuant to civil process of capias ad satisfaciendum); The 
Case of Pressing Mariners (1743), 18 State Trials 1323-1325 (1816) 
(charging jury that attempted impressment of merchant seaman was 
invalid because warrant required that impressment be executed by cap- 
tain or lieutenant, neither of whom was present during attempt). 

43 

contentions that the Attorney General erred in finding them 
ineligible for discretionary relief from deportation. That 
contention finds no basis in this Court’s immigration deci- 
sions. Indeed, the Court long ago settled the matter to the 
contrary: 

Now, it has been settled that the power to exclude or 
expel aliens belonged to the political department of the 
Government, and that the order of an executive officer, 
invested with the power to determine finally the facts 
upon which an alien’s right to enter this country, or 
remain in it, depended, was due process of law, and no 
other tribunal, unless expressly authorized by law to do 
so, was at liberty to re-examine the evidence on which he 
acted, or to controvert its sufficiency. 

The Japanese Immigrant Case, 189 U.S. 86, 100 (1903) 
(internal quotation marks and citations omitted); see also 
Carlson v. Landon, 342 U.S. 524, 537 (1952) (“No judicial 
review is guaranteed by the Constitution.”). The Court has 
stated that the removal proceeding itself must comport with 
constitutional due process, and that judicial intervention 
may be warranted under the “paramount law of the Con- 
stitution” to correct departures from that constitutional 
guarantee of fundamental fairness. See ibid. But the Court 
has not held that judicial review of non-constitutional 
challenges to removal orders is required by the Due Process 
Clause when (as in this case) the removal proceeding itself 
was fundamentally fair. Much less has the Court required 
judicial supervision as a constitutional matter when the 
challenge, as here, is to the Attorney General’s determina- 
tion about discretionary relief from deportation, which is 
“manifestly not a matter of right under any circumstances, 
but rather is in all cases a matter of grace.” Jay v. Boyd, 351 
U.S. at 354. 

Thus, the Due Process Clause does not prevent Congress 
from committing to the Attorney General the authority to 

44 

make the final determination whether an alien is eligible for 
discretionary relief from removal. The tradition of commit- 
ting immigration decisions to administrative officials, the 
consistency of removal proceedings with due process, and 
the discretionary nature of relief from removal all distin- 
guish this case from those in which, petitioners contend (Br. 
36-39), this Court has stated that judicial review is required 
as a matter of due process. In Honda Motor Co. v. Oberg, 
512 U.S. 415 (1994), for example, the Court concluded that 
due process requires judicial review of the amount of puni- 
tive damages awards to ensure that such awards are not 
grossly excessive. That case, however, depended on two 
crucial factors: first, that the Constitution also prohibits 
grossly excessive punitive damages (id. at 420), and second, 
that punitive damages are assessed through the judicial 
system, by a jury award. Thus, if the judiciary did not have 
the power to review juries’ punitive damages awards, no 
institution would be available to enforce the constitutional 
guarantee against excessive damages. See id. at 432-433. 

In Chicago, Milwaukee & St. Paul Railway Co. v. Minne- 
sota, 134 U.S. 418, 458 (1890), and Phillips v. Commissioner, 
283 U.S. 589, 595-598 (1931), the Court stated that due pro- 
cess required judicial review of administrative determina- 
tions about the reasonableness of common carriers’ trans- 
portation rates and tax deficiency assessments, respectively. 
In those cases, however, the crucial factor was that the 
administrative procedures themselves were summary and 
did not provide an opportunity for a hearing on a disputed 
factual issue, a fundamental requisite of due process. 

30 

30 See Chicago, Milwaukee, 134 U.S. at 457 (noting that, before the 
state commission, “[n]o hearing is provided for, no summons or notice to 
the company before the commission has found what it is to find and 
declared what it is to declare, no opportunity provided for the company to 
introduce witnesses before the commission, in fact, nothing which has the 
semblance of due process of law”); Phillips, 283 U.S. at 595 (permitting 
tax collection by summary administrative procedure provided that an 

45 

Accordingly, those cases simply establish variants of the 
core due process requirement of notice and a hearing before 
the final deprivation of a property interest. 

They do not 

suggest that the Due Process Clause requires judicial review 
of non-constitutional challenges to an administrative deter- 
mination if, as here, the administrative proceeding itself is 
fundamentally fair. 

In ICC v. Brimson, 154 U.S. 447 (1894), the Court upheld 
a provision of the Interstate Commerce Act that authorized 
the ICC to obtain judicial enforcement of its orders requiring 
the attendance of witnesses and the production of documents 
in investigations against a challenge that such enforcement 
devolved upon the federal courts tasks that were outside 
their authority under Article III, and also stated (id. at 485) 
that, under the Due Process Clause, the ICC would not have 
authority to enforce its orders by imprisonment on its own. 
Imprisonment, however, may well be a unique sanction that 
requires some kind of judicial hearing. But even though 
removal is undoubtedly a severe sanction, this Court has 
never likened it to imprisonment, and the full panoply of due 
process requirements applicable to criminal prosecutions 
have never been required in removal proceedings. See, e.g., 
Marcello v. Bonds, 349 U.S. 302, 311 (1955) (upholding con- 
duct of deportation proceedings by special inquiry officer 
who was subject to supervision and control of INS officials). 
A fortiori, those requirements do not apply to the manner 
for granting discretionary relief from removal. 

2. Petitioners also contend (Br. 38-42) that Congress’s 
preclusion of judicial review of their claims violates Article 
III, Section 1’s commitment of the “judicial Power of the 
United States” to the federal judiciary. This Court has long 
made clear, however, that Congress may assign exclusive re- 

opportunity for judicial review follows). Cf. McKesson Corp. v. Division 
of Alcoholic Beverages & Tobacco, 496 U.S. 18, 37 (1990) (holding that, in 
the unusual context of tax collection, a State may collect taxes by sum- 
mary procedure provided that a full due process remedy is later available). 

46 

sponsibility for resolving controversies between the federal 
government and individuals involving “public rights” to tri- 
bunals lacking the attributes of Article III courts and 
officers without the salary and tenure protections of Article 
III judges. See Thomas v. Union Carbide Agric. Prods. Co., 
473 U.S. 568, 583 (1985); Ex parte Bakelite Corp., 279 U.S. 
438, 458 (1929); Murray’s Lessee v. Hoboken Land & Im- 
provement Co., 59 U.S. (18 How.) 272, 284 (1856). In particu- 
lar, when a matter is one that could be conclusively resolved 
by the Legislative and Executive Branches, the Constitution 
also permits Congress to commit the matter to an adversary 
determination by officers other than Article III judges. See 
Union Carbide, 473 U.S. at 589; Bakelite, 279 U.S. at 452- 
453; cf. Northern Pipeline Constr. Co. v. Marathon Pipe 
Line Co., 458 U.S. 50, 68 (1982) (plurality opnion). That is 
precisely the situation here. Congress could have, in the 
exercise of its constitutional powers over immigration, ex- 
pressly provided in haec verba that no alien placed in 
removal proceedings on or after April 1, 1997 would be 
eligible for relief under Section 1182(c), regardless of the 
date of his conviction; or it could have provided that no 
aggravated felon whatever should receive such relief, 
regardless of the date of conviction; or it could have pro- 
vided, as it did before 1917, that no alien should receive dis- 
cretionary relief from removal at all. The fact that the BIA 
was required to engage in some interpretation of Congress’s 
enactments to conclude that aliens placed in removal pro- 
ceedings under IIRIRA may not receive relief under former 
Section 1182(c) does not mean that an Article III court must 
be available to review that conclusion. 

Petitioners suggest (Br. 38-39) that, while this Court has 
allowed Congress to assign initial adjudication of a contro- 
versy to a non-Article III actor, it has done so only on the 
understanding that some form of Article III judicial review 
of those determinations would follow. That reading of this 
Court’s cases is simply incorrect. The Court has emphasized 

47 

the availability of ultimate Article III review when the 
matter committed to initial administrative decision-making 
involved private rights (especially private state-law rights) 
that traditionally would have been submitted to the courts 
for resolution. 

31 As the Court has explained, heightened 
Article III concerns are presented when Congress attempts 
to “withdraw from judicial cognizance any matter which, 
from its nature, is the subject of a suit at the common law, or 
in equity, or admiralty” (Murray’s Lessee, 59 U.S. (18 How.) 
at 284), because those are the cases that the Framers would 
have understood to require judicial resolution. Cf. Northern 
Pipeline, 458 U.S. at 90 (Rehnquist, J., concurring in the 
judgment) (Article III requires judicial resolution of “the 
traditional actions at common law tried by the courts at 
Westminster in 1789”). No such contention can be made 
here, for there was no tradition at English common law of 
judicial resolution of the rights of aliens to enter or remain in 
the country. 

32 Accordingly, Article III does not require a 
judicial forum for resolution of petitioners’ non-constitutional 
claims concerning discretionary relief from removal. 

31 See CFTC v. Schor, 478 U.S. 833, 854 (1986) (“[W]here private, com- 
mon law rights are at stake, our examination of the congressional attempt 
to control the manner in which those rights are adjudicated has been 
searching.”); Crowell v. Benson, 285 U.S. 22, 51-52 (1932); cf. Northern 
Pipeline, 458 U.S. at 80-82 (plurality opinion) (noting distinction between 
state-law and federal-law rights). 

32 In addition, as was the case in Union Carbide, the statute at issue 
here “limits but does not preclude review of the * * * proceeding by an 
Article III court.” 473 U.S. at 592. Judicial review remains available to 
ensure that the Attorney General acts within the scope of his statutory 
authority in determining that an alien is removable, and that the alien’s 
removal proceedings are conducted according to constitutional require- 
ments of due process. Cf. ibid. 

48 

III. IF JUDICIAL REVIEW OF PETITIONERS’ CHAL- 
LENGES IS CONSTITUTIONALLY REQUIRED, 

THAT REVIEW SHOULD PROCEED IN THE 
COURT OF APPEALS, NOT IN THE DISTRICT 
COURT 

If the Court concludes, contrary to our submission, that 
the Constitution requires judicial review of petitioners’ non- 
constitutional challenges to their removal orders, then that 
review should proceed in the court of appeals on petition for 
review, and not in the district court on habeas corpus. This 
Court has explained that, when a statute has been held un- 
constitutional, a court should adopt the remedy that is most 
consistent with Congress’s overall objectives. See Califano 

v. Westcott, 443 U.S. 76, 89-90 (1979); cf. Heckler v. Mathews, 
465 U.S. 728, 739 n.5 (1984). Review in the court of appeals 
would be much more consistent with Congress’s unmistak- 
able design in IIRIRA, which is to bar district court review 
of removal orders completely, but to allow at least a very 
limited review of removal orders, even for aggravated 
felons, in the courts of appeals. See pp. 18-31, supra; St. Cyr 
Gov’t Br. 31-32. 

Review in the court of appeals is more consistent with 
Congress’s objectives than district court review for at least 
two reasons. First, since 1961, the judicial-review provisions 
of the INA have been predicated on Congress’s concern that 
the deportation of aliens was often subject to unwarranted 
delay because of the process of judicial review, and that 
review in the court of appeals would expedite and streamline 
that process and accordingly reduce such delays. See Stone, 
514 U.S. at 399-400; Foti, 375 U.S. at 224-225; pp. 4-5, supra. 
Review in district court on habeas corpus under 28 U.S.C. 
2241, however, affords aliens significant opportunities for 
delays in the execution of their removal orders. Section 2241 
contains no express time limit on the filing of a petition for a 
writ of habeas corpus, in contrast with the strict time limits 

49 

governing the exclusive-review procedures of the INA, see 
8 U.S.C. 1252(b)(1) (Supp. V 1999). Also, unlike the INA, 
Section 2241 does not require consolidation of challenges to 
deportation orders with challenges to motions to reopen or 
reconsider. Cf. 8 U.S.C. 1252(b)(6) (Supp. V 1999); Stone, 514 
U.S. at 393-394. And, of course, an alien who is unsuccessful 
in district court can appeal to the court of appeals, and 
thereby obtain further delay. 

Second, Congress reinforced its preference for judicial 
review in the court of appeals in IIRIRA when it enacted 
Section 1252(b)(9), which provides 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 [the INA] shall be 
available only in judicial review of a final order under this 
section [1252].” The Court has described that provision as 
an “unmistakable ‘zipper’ clause” channeling judicial review 
to the courts of appeals. Reno v. American-Arab Anti- 
Discrimination Comm., 525 U.S. 471, 483 (1999). Petition- 
ers’ challenges to their removal orders fall squarely within 
that zipper clause. Their claims that they are eligible for 
relief under former Section 1182(c) involve the “interpre- 
tation” of “statutory provisions,” and also “aris[e] from an[] 
action taken or proceeding brought to remove [them] from 
the United States.” Id. at 481. Indeed, petitioners’ chal- 
lenges to the constitutionality of Congress’s preclusion of 
review of their non-constitutional claims are covered as well 
by the zipper clause, because those challenges involve the 
interpretation of “constitutional provisions” arising out of an 
action to remove them from the United States. Thus, 
Section 1252(b)(9) provides the rule for a remedy in this case: 
Any challenge to a removal order for which judicial review is 
required must proceed only in the court of appeals, pursuant 

50 

to the Hobbs Act’s exclusive-review procedures incorpo- 
rated by Section 1252(a). 

33 

CONCLUSION 

The judgment of the court of appeals should be affirmed 
insofar as it dismissed the petitions for review, but modified 
to provide that the dismissal is with prejudice to the filing of 
a petition for a writ of habeas corpus in the district court. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

DONALD E. KEENER 
WILLIAM J. HOWARD 
ERNESTO H. MOLINA 
JAMES A. O’BRIEN III 

Attorneys 

MARCH 2001 

33 Petitioners have argued (Br. 2, 42-43) that the Constitution requires 
only that such review be available in some federal court, not that it be 
available in district court in the first instance.