No. 00-1011 

In the Supreme Court of the United States 

DEBORIS CALCANO-MARTINEZ, ET AL., PETITIONERS 

v. 

IMMIGRATION AND NATURALIZATION SERVICE 

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

BRIEF FOR THE RESPONDENT 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

DONALD E. KEENER 
WILLIAM J. HOWARD 

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 jurisdiction on direct petitions for review over 
petitioners’ 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 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 2 

Discussion ........................................................................................ 13 

Conclusion ....................................................................................... 19 

TABLE OF AUTHORITIES 

Cases: 

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

11 

Flores-Miramontes v. INS, 212 F.3d 1133 (9th 

Cir. 2000) ................................................................................. 

14 

Liang v. INS, 206 F.3d 308 (3d Cir. 2000), petition 

for cert. pending sub nom. Rodriguez v. INS, 

No. 00-753 ................................................................................ 

14 

Mahadeo v. Reno, 226 F.3d 3 (1st Cir. 2000), 

petition for cert. pending, No. 00-962 ................................ 

13-14 

Max-George v. Reno, 205 F.3d 194 (5th Cir. 

2000), petition for cert. pending, No. 00-6280 ................... 

14 

Reno v. American-Arab Anti-Discrimination 

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

12 

Richards-Diaz v. Fasano, No. 99-56530, 2000 

WL 1715956 (9th Cir. Nov. 17, 2000) .......................... 

14, 17, 18 

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

1999), cert. denied, 120 S. Ct. 1529 (2000) ......................... 

14 

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

petition for cert. pending, No. 00-767 ........................ 

10, 14, 18 

Yerger, Ex parte, 75 U.S. (8 Wall.) 85 (1868) ...................... 

11 

Statutes: 

Act of Oct. 11, 1996, Pub. L. No. 104-302, § 2, 

110 Stat. 3657 .......................................................................... 5 

(III) 

IV 

Statutes—Continued: Page 

Antiterrorism and Effective Death Penalty Act of 

1996, Pub. L. No. 104-132, 110 Stat. 1214 .......................... 

2 

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

3, 4 

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

3 

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

3 

Controlled Substances Act, 21 U.S.C. 801 et seq.: 

21 U.S.C. 843(b) ................................................................ 

8, 9 

21 U.S.C. 843(d) (Supp. IV 1998) ................................... 

8, 9 

Hobbs Administrative Orders Review Act, 28 U.S.C. 

2341-2351 (1994 & Supp. IV 1998) ...................................... 

3 

Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. No. 104-208, 

Div. C, 110 Stat. 3009-546 .................................................... 

2 

§ 304, 110 Stat. 3009-587 to 3009-593 ............................ 

4 

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

4 

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

4 

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

5 

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

5 

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

5 

§ 309(c), 110 Stat. 3009-625 to 3009-627 ....................... 

5 

Immigration and Nationality Act, 8 U.S.C. 1101 

et seq.: 

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

2 

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

6, 9 

8 U.S.C. 1105a (1994) ....................................................... 

4, 5 

8 U.S.C. 1105a(a) (1994) .................................................. 

3 

8 U.S.C. 1105a(a)(10) (1994) ........................................... 

3, 5 

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

2, 4, 7, 8, 9, 10, 12, 17, 18 

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

2, 3 

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

3 

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

2 

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

4 

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

4 

8 U.S.C. 1229b (Supp. V 1999) ....................................... 4 

V 

Statutes—Continued: Page 

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

4 

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

3 

8 U.S.C. 1251(a)(2)(B) (1994) .......................................... 

3 

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

5 

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

5 

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

5, 10, 11, 

12, 13, 14, 16 
8 U.S.C. 1252(b)(9) (Supp. V 1999) .......................... 

6, 11, 12 

18 U.S.C. 924(c)(2) .................................................................... 

9 

28 U.S.C. 2241 .................................................................. 10, 13, 15 

In the Supreme Court of the United States 

No. 00-1011 

DEBORIS CALCANO-MARTINEZ, ET AL., PETITIONERS 

v. 

IMMIGRATION AND NATURALIZATION SERVICE 

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

BRIEF FOR THE RESPONDENT 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-33a) 
will be reported at 232 F.3d 328. The decisions of the 
Board of Immigration Appeals (Pet. App. 37a-39a, 48a- 
49a, 66a-74a) and the immigration judges (Pet. App. 
34a-36a, 40a-47a, 50a-65a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered 
on September 1, 2000. On November 21, 2000, Justice 
Ginsburg extended the time within which to file a 
petition for a writ of certiorari to and including 
December 30, 2000. The petition for a writ of certiorari 
was filed on December 21, 2000. The jurisdiction of this 
Court is invoked under 28 U.S.C. 1254(1). 

(1) 

2 

STATEMENT 

1. This case involves amendments to the Immi- 
gration and Nationality Act (INA) enacted by Congress 
in 1996. Those changes were designed in large part to 
reduce the opportunities for criminal aliens to obtain 
administrative relief from deportation, and to facilitate 
their removal from the United States by restricting and 
streamlining the process of judicial review of their 
deportation orders. Two enactments by Congress are 
particularly pertinent: the Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 
132, 110 Stat. 1214 (enacted Apr. 24, 1996); and the 
Illegal Immigration Reform and Immigrant Responsi- 
bility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. 
C, 110 Stat. 3009-546 (enacted Sept. 30, 1996). 

a. An alien is deportable from the United States if 
he has been convicted at any time after his admission of 
an “aggravated felony,” as that term is defined in the 
INA (see 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999); 
8 U.S.C. 1101(a)(43) (1994 & Supp. V 1999)), or of an 
offense involving controlled substances (see 8 U.S.C. 
1227(a)(2)(B)(i) (Supp. V 1999)). Before the enactment 
of AEDPA, an alien lawfully admitted for permanent 
residence who was subject to deportation because of a 
criminal conviction could apply to the Attorney General 
for discretionary relief from deportation under 8 U.S.C. 
1182(c) (1994). To be eligible for such relief, the alien 
had to show, among other things, that he had had a 
lawful unrelinquished domicile in this country for seven 
years, and that, if he had been convicted of an aggra- 
vated felony, he had not served a term of imprisonment 
of five years or more. See 8 U.S.C. 1182(c) (1994). 

If the Attorney General denied relief from deporta- 
tion under Section 1182(c), then the alien could chal- 

3 

lenge that denial of relief by filing a petition for review 
of his deportation order in the court of appeals. See 8 
U.S.C. 1105a(a) (1994) (incorporating Hobbs Admini- 
strative Orders Review Act (Hobbs Act), 28 U.S.C. 
2341-2351 (1994 & Supp. IV 1998)). Under certain cir- 
cumstances, an alien in custody pursuant to an order of 
deportation could seek judicial review thereof by filing 
a petition for a writ of habeas corpus in district court, 
pursuant to 8 U.S.C. 1105a(a)(10) (1994). 

b. In 1996, Congress twice restricted both the 
substantive eligibility of criminal aliens for discretion- 
ary relief from deportation and the availability of 
judicial review of criminal aliens’ deportation orders. 
First, on April 24, 1996, Congress enacted AEDPA into 
law. Section 440(d) of AEDPA amended Section 
1182(c) to make certain classes of criminal aliens cate- 
gorically ineligible for discretionary relief from deporta- 
tion under that Section, including aliens convicted of 
aggravated felonies and controlled substance offenses, 
regardless of the duration of the imprisonment actually 
served. See AEDPA § 440(d), 110 Stat. 1277 (referring 
to aliens deportable under 8 U.S.C. 1251(a)(2)(A)(iii) 
and (B) (1994) (now recodified as 8 U.S.C. 1227(a)(2)(A) 
(iii) and (B) (Supp. V 1999))). 

Section 440(a) of AEDPA enacted a related exception 
to the general availability of judicial review of deporta- 
tion orders in the courts of appeals for the same classes 
of aliens. AEDPA Section 440(a) provided that any 
final order of deportation against an alien who was 
deportable for having committed one of the disquali- 
fying offenses enumerated in Section 440(d) “shall not 
be subject to review by any court.” AEDPA § 440(a), 
110 Stat. 1276-1277 (adding a new subsection (a)(10) to 8 
U.S.C. 1105a (1994)). At the same time, Section 401(e) 
of AEDPA, entitled “ELIMINATION OF CUSTODY 

4 

REVIEW BY HABEAS CORPUS,” repealed the previous 
version of subsection (a)(10) of 8 U.S.C. 1105a (1994), 
which had specifically permitted aliens in custody 
pursuant to an order of deportation to seek habeas 
corpus relief in district court. See AEDPA § 401(e), 110 
Stat. 1268. 

c. On September 30, 1996, Congress enacted 
IIRIRA into law. In Section 304 of IIRIRA, Congress 
abolished the old distinction between “deportation” and 
“exclusion” orders, and instituted a new form of pro- 
ceeding, known as “removal.” See 8 U.S.C. 1229, 1229a 
(Supp. V 1999); IIRIRA § 304, 110 Stat. 3009-587 to 
3009-593. Section 304 of IIRIRA also refashioned the 
terms on which an alien found to be subject to removal 
may apply for relief in the discretion of the Attorney 
General. Congress completely repealed old Section 
1182(c). See IIRIRA § 304(b), 110 Stat. 3009-597 
(“Section 212(c) (8 U.S.C. 1182(c)) is repealed.”). In its 
stead, for aliens placed in removal proceedings after 
IIRIRA’s effective date, Congress created a new form 
of discretionary relief, known as cancellation of re- 
moval, with new eligibility terms. See 8 U.S.C. 1229b 
(Supp. V 1999); IIRIRA § 304(a), 110 Stat. 3009-594. 
An alien convicted of any aggravated felony is ineligible 
for discretionary cancellation of removal. See 8 U.S.C. 
1229b(a)(3) (Supp. V 1999). 

Because IIRIRA made sweeping changes to the 
system for removal of aliens, Congress delayed 
IIRIRA’s full effective date and established various 
transition rules. As a general matter, Congress 
directed that most of IIRIRA’s provisions, including 
the new removal procedures, the new provisions for 
cancellation of removal, and the repeal of Section 
1182(c)—all of which were enacted together in Section 
304 of IIRIRA—“shall take effect” on April 1, 1997. 

5 

See IIRIRA § 309(a), 110 Stat. 3009-625. For aliens 
who were placed in deportation or exclusion pro- 
ceedings before that date, Congress provided that most 
of IIRIRA’s amendments would not apply, and that 
such cases instead would generally be governed by pre- 
IIRIRA law, including AEDPA, along with transitional 
rules further restricting judicial review of criminal 
aliens’ deportation orders. See IIRIRA § 309(c), 110 
Stat. 3009-625 to 3009-627, as amended by Act of Oct. 
11, 1996, Pub. L. No. 104-302, § 2, 110 Stat. 3657 (techni- 
cal corrections). 

Congress also recast and streamlined the INA’s pro- 
visions for judicial review of removal orders, in Section 
306 of IIRIRA, 110 Stat. 3009-607. For removal 
proceedings commenced after April 1, 1997, Congress 
repealed altogether the former judicial-review pro- 
visions 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. Congress re- 
placed those judicial-review provisions with the new 8 
U.S.C. 1252 (Supp. V 1999), which reestablished the 
traditional rule 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) (incorporating Hobbs Act). Congress also 
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 committed” various criminal offenses, including 
aggravated felonies and controlled substance offenses. 
See 8 U.S.C. 1252(a)(2)(C) (Supp. V 1999). And 
Congress enacted a new, sweeping jurisdiction-limiting 

6 

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

Judicial review of all questions of law and fact, 
including interpretation and application of consti- 
tutional 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. a. Petitioner Deboris Calcano-Martinez (Calcano) 
is a native and citizen of the Dominican Republic who 
was admitted to the United States as a lawful perma- 
nent resident in 1971. Calcano Certified Administrative 
Record (Calcano C.A.R.) 39-40, 56. On April 24, 
1996, Calcano pleaded guilty in New York state court to 
attempted criminal sale of a controlled substance 
(heroin) in the third degree. On October 9, 1996, she 
was sentenced to an indeterminate term of imprison- 
ment of one to three years for that offense. Id. at 48-53. 
On June 16, 1997, after the general effective date of 
IIRIRA, the INS commenced removal proceedings 
against Calcano based on her heroin conviction. Cal- 
cano C.A.R. 63-66. The Notice to Appear charged that 
Calcano had been convicted of an aggravated felony1 
and a controlled substance offense. Id. at 65. At 
Calcano’s removal hearing, the immigration judge (IJ) 
found that her conviction records established her 
deportabilty on the two grounds that had been charged. 
The IJ also concluded that Calcano was statutorily 

1 The definition of “aggravated felony” in the INA includes 
“illicit trafficking in a controlled substance * * * including a drug 
trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. 
1101(a)(43)(B) (1994). 

7 

ineligible for any form of relief from removal, and 
ordered her removed to the Dominican Republic. Id. at 
30-31; Pet. App. 34a-36a. 

Calcano appealed to the Board of Immigration Ap- 
peals (BIA), where she argued that she was eligible for 
discretionary relief from deportation under former 8 
U.S.C. 1182(c) (1994). The BIA rejected that argument, 
noting that relief under Section 1182(c) is not available 
to any alien placed in removal proceedings after the 
effective date of IIRIRA, which repealed Section 
1182(c), and that Calcano is ineligible for cancellation of 
removal under IIRIRA because of her aggravated 
felony conviction. The BIA therefore dismissed her 
appeal. Calcano C.A.R. 3; Pet. App. 37a-39a. 

b. Petitioner Sergio Madrid is a native and citizen of 
Mexico who entered the United States without immi- 
gration inspection, and, on December 20, 1989, was 
granted lawful permanent resident status. Madrid 
C.A.R. 43-44, 57-58, 71. On September 6, 1994, Madrid 
was convicted in New York state court of selling a 
controlled substance (cocaine), and was sentenced to an 
indeterminate term of between four years and life in 
prison. Id. at 51-54, 56. 

On June 24, 1997, after the general effective date of 
IIRIRA, the INS commenced removal proceedings 
against Madrid based on his cocaine conviction. Madrid 
C.A.R. 58, 70-73. The Notice to Appear charged that 
Madrid had been convicted of an aggravated felony and 
a controlled substance offense. Id. at 72. At his re- 
moval hearing before an IJ, Madrid admitted the 
allegations in the Notice to Appear and conceded his 
removability as charged. He sought, however, to apply 
for relief from deportation under former Section 
1182(c). Id. at 43-45. The IJ ruled that Madrid was 

8 

ineligible for that relief, and ordered him removed to 
Mexico. Id. at 29-35; Pet. App. 40a-47a. 

The BIA dismissed Madrid’s appeal. Madrid C.A.R. 
1-2; Pet. App. 48a-49a. In doing so, it concluded that 
Madrid was not eligible to apply for relief under former 
Section 1182(c), because he had been placed in removal 
proceedings after IIRIRA’s effective date, when Sec- 
tion 1182(c) was repealed. The BIA also ruled that 
Madrid was ineligible for cancellation of removal, 
because of his conviction for an aggravated felony. 
Madrid C.A.R. 2; Pet. App. 48a-49a. 

c. Petitioner Fazila Khan is a native and citizen of 
Guyana who was admitted to the United States on 
September 2, 1987, as a lawful permanent resident. 
Khan C.A.R. 47, 64, 84. On February 13, 1997, after a 
guilty plea, Khan was convicted in the United States 
District Court for the Eastern District of New York on 
one count of unlawful use of a telephone to facilitate the 
distribution of heroin, in violation of 21 U.S.C. 843(b) 
and (d) (1994 & Supp. IV 1998). For that offense, she 
received a sentence of four months’ imprisonment, 
followed by one year of home confinement. Khan 
C.A.R. 60-62. 

On May 13, 1997, after the general effective date of 
IIRIRA, the INS commenced removal proceedings 
against Kahn, charging her with removability for hav- 
ing been convicted of an aggravated felony. Khan 
C.A.R. 6, 84-85. At her removal hearing before an IJ, 
Kahn admitted the factual allegations against her but 
denied that her offense of conviction was an aggravated 
felony. She also sought relief from deportation under 
former Section 1182(c). Id. at 47, 64-65. The IJ ruled 
that Khan was ineligible for relief under Section 1182(c) 
and ordered her deported to Guyana. Id. at 44-57; Pet. 
App. 50a-65a. 

9 

On appeal to the BIA, Khan renewed her contention 
that her offense of conviction was not an aggravated 
felony, and also argued that the IJ erred in finding her 
ineligible for discretionary relief from deportation. The 
BIA rejected both arguments and dismissed her appeal. 
Pet. App. 66a-74a. With respect to the first contention, 
the BIA ruled that Khan’s offense was an aggravated 
felony under the definition set forth at 8 U.S.C. 
1101(a)(43)(B) (1994), which covers “illicit trafficking 
in a controlled substance * * * including a drug 
trafficking crime (as defined in section 924(c) of title 

18).” The BIA noted that 18 U.S.C. 924(c)(2) (1994) in 
turn defines a “drug trafficking crime” as “any felony 
punishable under the Controlled Substances Act (21 
U.S.C. 801 et seq.)”—including Khan’s offense under 21 
U.S.C. 843(b), which is punishable under the federal 
Controlled Substances Act by a term of imprisonment 
of not more than four years (see 21 U.S.C. 843(d) (Supp. 
IV 1998)). Khan C.A.R. 4; Pet. App. 70a-72a. On the 
latter point, the BIA upheld the IJ’s determination that 
Khan was ineligible for discretionary relief from 
removal. Khan C.A.R. 5; Pet. App. 72a-73a. 

3. Petitioners each filed a petition for review in the 
court of appeals, and also filed a petition for a writ of 
habeas corpus in district court. Petitioners contended 
that, notwithstanding Congress’s repeal of Section 
1182(c) of IIRIRA, which became effective before they 
were placed in removal proceedings, they remained 
eligible for relief from deportation under Section 
1182(c), and that Congress’s repeal of that provision 
should not be applied “retroactively” in their removal 
proceedings, which involved convictions entered before 

10 

IIRIRA became effective.2 The court of appeals con- 
solidated the petitions for review and held that, because 
of IIRIRA’s preclusion-of-review provision at 8 U.S.C. 
1252(a)(2)(C) (Supp. V 1999), it lacked jurisdiction over 
the petition for review filed by each petitioner. Pet. 
App. 28a-31a, 33a. The court also ruled, however, that 
petitioners could raise the same challenges to their 
removal orders in district court by petition for a writ of 
habeas corpus. Id. at 21a-28a, 31a-33a. Indeed, the 
same day, the same panel of the court of appeals ruled 
in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), petition 
for cert. pending, No. 00-767, that the district court had 
properly exercised habeas corpus jurisdiction under 28 
U.S.C. 2241 over just 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). 

The court of appeals followed its prior decisions 
arising under AEDPA and the transitional judicial- 
review provisions of IIRIRA (see Pet. App. 10a-15a), 
which had held that the court of appeals was barred 
under similar preclusion-of-review provisions from 
considering any claims raised in direct petitions for 
review filed by aggravated felons (except to the extent 
that such petitions directly challenged the BIA’s con- 
clusion that the alien was removable because of an 
aggravated felony), but that the district courts retained 
habeas corpus jurisdiction to consider challenges to a 

2 Indeed, petitioners 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. Petitioner Khan did not renew 
her contention that her offense of conviction was not an aggra- 
vated felony. 

11 

deportation order that are “purely legal in nature,” id. 
at 32a, including “constitutional challenges and claims 
that the Attorney General misinterpreted the immi- 
gration laws,” id. at 15a. The court of appeals acknowl- 
edged that the Fifth and Eleventh Circuits have held 
that Congress has “eliminated § 2241 habeas juris- 
diction over an alien’s challenge to his or her removal 
proceedings.” Id. at 18a. The court aligned itself (id. at 
21a-22a), however, with the Third and Ninth Circuits, 
which have ruled that “Article III courts continue to 
have habeas jurisdiction under 28 U.S.C. § 2241 over 
legal challenges to final removal orders,” Pet. App. 21a, 
and that it is therefore unnecessary to read any excep- 
tions into Section 1252(a)(2)(C), which “bars [the courts 
of appeals’] jurisdiction over petitions to review re- 
moval orders against aliens convicted of certain 
crimes,” ibid. 

In addition, the court read this Court’s decisions in 
Felker v. Turpin, 518 U.S. 651 (1996), and Ex parte 
Yerger, 75 U.S. (8 Wall.) 85 (1868), 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 congressional intent to repeal the 
habeas jurisdiction granted Article III courts by 28 
U.S.C. § 2241.” Ibid.3 And, the court stated, the 

3 In particular, the court rejected (Pet. App. 24a-26a) the 
government’s reliance on Section 1252(b)(9), which expressly re- 
quires that judicial review of all legal and factual challenges to a 

12 

contrary interpretation would “raise a serious consti- 
tutional question under the Suspension Clause,” id. at 
28a, for it would leave petitioners without a judicial 
forum for their challenge to the BIA’s determination 
that they are ineligible for relief under old Section 
1182(c). 

The court also 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 Constitution. Pet. App. 28a-30a. 
The government had submitted that, on petition for 
review, a court of appeals retains authority to entertain 
substantial constitutional claims, such as constitutional 
challenges to the INA itself, as well as challenges going 
to “jurisdictional facts,” such as whether the petitioner 
“is an alien who is removable by reason of having com- 
mitted a specified criminal offense,” and who there- 
fore falls within the preclusion of review in Section 
1252(a)(2)(C). Id. at 28a. Even assuming that such 
review remains available in the court of appeals, the 
court believed that it would be insufficient to satisfy the 

removal decision be had only in the courts of appeals on petition for 
review of a final removal order. The court acknowledged that this 
Court, in Reno v. American-Arab Anti-Discrimination Committee 
(AADC), 525 U.S. 471 (1999) described Section 1252(b)(9) as an 
“ ‘unmistakable zipper clause’ that channels judicial review of all 
immigration-related decisions and actions to the court of appeals,” 
Pet. App. 25a (quoting AADC, 525 U.S. at 483), but it suggested 
that Congress enacted Section 1252(b)(9) only for the purpose of 
“consolidating all claims that may be brought in removal 
proceedings into one final petition for review of a final order in the 
court of appeals,” id. at 26a, and not to foreclose any other avenue 
by which an alien might challenge his removal order, such as a 
collateral attack in district court by habeas corpus petition. 

13 

Constitution, for, the court believed, “review of statu- 
tory questions similar to the one presented in this case 
has long been deemed essential to ensure that a de- 
tained alien receives full due process of law.” Id. at 30a. 

Finally, the court observed that, “if we were legis- 
lators, rather than judges, we might opt for a statutory 
scheme under which an alien’s constitutional and 
statutory challenges are cognizable in the court of ap- 
peals 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 stream- 
line 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). 

DISCUSSION 

1. Petitioners urge this Court to grant review to 
decide whether, after the comprehensive changes to the 
INA made by AEDPA and IIRIRA, a court of appeals 
on petition for review may entertain challenges to the 
merits of final removal orders, even one going to the 
availability of discretionary relief, notwithstanding 
the broad preclusion of review set forth in 8 U.S.C. 
1252(a)(2)(C) (Supp. V 1999), and if not, whether the 
district courts retain authority under 28 U.S.C. 2241 to 
review such challenges. As petitioners point out, the 
courts of appeals have reached differing conclusions on 
those questions. 

The Fifth and Eleventh Circuits have ruled that Con- 
gress in IIRIRA divested the district courts of author- 
ity to entertain a criminal alien’s challenge to his final 
removal order. See Max-George v. Reno, 205 F.3d 194, 

14 

198-203 (5th Cir. 2000), petition for cert. pending, No. 
00-6280; Richardson v. Reno, 180 F.3d 1311, 1318 (11th 
Cir. 1999), cert. denied, 120 S. Ct. 1529 (2000). By con- 
trast, in addition to the Second Circuit in the decision 
below (Pet. App. 21a-33a) and in St. Cyr (229 F.3d at 
409-410), the First, Third, and Ninth Circuits have 
concluded that the district courts retain such authority. 
See Mahadeo v. Reno, 226 F.3d 3, 7-14 (1st Cir. 2000) 
(holding that district court had habeas corpus juris- 
diction under Section 2241 to consider retroactivity 
challenge), petition for cert. pending, No. 00-962; Liang 

v. INS, 206 F.3d 308, 312-323 (3d Cir. 2000), petition for 
cert. pending sub nom. Rodriguez v. INS, No. 00-753; 
Richards-Diaz v. Fasano, No. 99-56530, 2000 WL 
1715956, at *2 (9th Cir. Nov. 17, 2000) (same). The 
Third and Ninth Circuits have also held, in agreement 
with the court of appeals in this case, that Section 
1252(a)(2)(C) broadly precludes the courts of appeals 
from entertaining challenges to final removal orders 
raised by criminal aliens on direct petition for review, 
including challenges similar to that raised by peti- 
tioners in this case. See Liang, 206 F.3d at 321-323 
(holding that, under Section 1252(a)(2)(C), court of 
appeals lacked jurisdiction on direct petition for review 
to entertain similar retroactivity claim, but that district 
court had jurisdiction to entertain that claim on habeas 
corpus); Flores-Miramontes v. INS, 212 F.3d 1133, 
1135-1136, 1141-1143 (9th Cir. 2000) (holding that, under 
Section 1252(a)(2)(C), court of appeals lacked juris- 
diction to entertain aggravated felon’s contention that 
his removal proceedings violated procedural due pro- 
cess, but that district court could entertain that claim 
on habeas corpus). 

Because of that conflict in the circuits, as well as the 
importance of the issue to the administration of the 

15 

INA, we have filed a petition for a writ of certiorari in 
St. Cyr seeking review of the Second Circuit’s decision 
upholding the district court’s assertion of jurisdiction 
under Section 2241 in that case.4 Petitioners do not 
dispute that the jurisdictional issue presented in St. 
Cyr warrants review, but they argue (Pet. 20) that the 
Court should grant review in this case as well as (or 
instead of) St. Cyr, to ensure that the Court has before 
it a case in which a court of appeals dismissed a petition 
for review for lack of jurisdiction. Petitioners observe 
(Pet. 21) that the court of appeals’ jurisdictional ruling 
in St. Cyr on the continued availability of habeas corpus 
relief under 28 U.S.C. 2241 was predicated on its 
jurisdictional ruling in this case that Congress had ex- 
pressly foreclosed review in the court of appeals to 
aliens such as petitioners who were convicted of aggra- 
vated felonies. 

In our view, the Court would benefit from granting 
review in both this case and in St. Cyr, and consoli- 
dating the cases for briefing and argument. Granting 
review in both cases would ensure that the Court has 
before it both a case that was filed in the district court 
and a case that was filed in the court of appeals, and can 
definitely resolve the question of what court, if any, has 
jurisdiction to review claims such as these. If the Court 
were to grant review in only one case, however, that 
case should be St. Cyr, for two reasons. First, the 
question of district court jurisdiction presented in that 
case has generated a square conflict in the circuits, 

4 In addition to the certiorari petitions filed in St. Cyr, Ma- 
hadeo, Rodriguez, and Max-George, mentioned in the text, related 
jurisdictional issues are also presented by the certiorari petitions 
in Zalawadia v. Reno, No. 00-268; Obajuluwa v. Reno, 00-523; and 
Russell v. Reno, No. 00-5970. 

16 

whereas no court has found jurisdiction in the court of 
appeals to entertain claims such as those advanced by 
petitioners here on a direct petition for review. Second, 
the St. Cyr case would likely bring before the Court the 
question of court of appeals jurisdiction as well as dis- 
trict court jurisdiction, since the Second Circuit con- 
cluded that district court habeas corpus jurisdiction 
must lie precisely because, in its view, review in the 
court of appeals is precluded by 8 U.S.C. 1252(a)(2)(C) 
(Supp. V 1999). By contrast, if the Court were to grant 
review in this case alone and not in St. Cyr, it might 
resolve the issue of the court of appeals’ jurisdiction on 
petition for review without resolving the question of 
district court habeas corpus jurisdiction presented in 
St. Cyr. In particular, the Court might conclude in this 
case that the Second Circuit correctly held that court of 
appeals’ review of petitioners’ claims was precluded by 
Section 1252(a)(2)(C), without determining whether the 
district court had habeas corpus jurisdiction to review 
the claims, or whether, as the government contends, 
neither court has jurisdiction to consider the specific 
claims raised by petitioners in this case and the respon- 
dents in St. Cyr. Thus, the Court might well have to 
revisit the issue in another case arising from a district 
court disposition that squarely presented the issue of 
district court habeas corpus jurisdiction.5 

5 In our response (at 13) to the certiorari petition in Rodriguez 

v. INS, No. 00-753—which, like this case, arises from a court of 
appeals’ (the Third Circuit’s) dismissal for lack of jurisdiction of a 
petition for review filed by an alien who was convicted of an 
aggravated felony—we observed that it was not necessary for the 
Court to grant review in that case as well as St. Cyr because the 
Court could effectively resolve all the jurisdictional issues in St. 
Cyr and would have before it in that case the rationale of the 
Second Circuit’s decision in this case. For the reasons stated in the 

17 

2. In addition, the Court should grant review in 
St. Cyr (as well as this case) because the Second 
Circuit’s ruling on the merits in that case independently 
warrants review. As we explain in our certiorari 
petition (at 27-28) in St. Cyr, the court of appeals 
erroneously ruled in that case that an alien who was 
convicted on a guilty plea of an aggravated felony 
before AEDPA and IIRIRA were enacted, but was 
placed in removal proceedings after IIRIRA’s effective 
date, remains eligible for discretionary relief from 
deportation under 8 U.S.C. 1182(c) (1994), even though 
that provision was repealed by IIRIRA. We also 
explain in our petition (at 28-29) in St. Cyr that the 
Second Circuit’s decision on that point conflicts with 
the decisions of the Seventh and Eleventh Circuits.6 

text, however, we now believe, on further consideration, that the 
Court should grant review both in St. Cyr and in a case in which a 
court of appeals has dismissed a petition for review. If the Court 
agrees, this case presents a better vehicle than Rodriguez for 
considering a petition for direct review. The Second Circuit, unlike 
the Third Circuit, has definitively ruled on the jurisdictional issues 
in both a habeas corpus and a petition-for-review case, and the 
Second Circuit, unlike the Third Circuit, has also definitively re- 
solved the question of the continued availability of relief under 
former Section 1182(c) for aliens convicted before IIRIRA was 
enacted but placed in removal proceedings under IIRIRA. 

6 Since we filed our certiorari petition in St. Cyr, the Ninth 
Circuit has also issued a ruling that is inconsistent with the Second 
Circuit’s decision. In Richards-Diaz, supra, the Ninth Circuit held 
that Congress’s repeal of Section 1182(c) generally applies to all 
aliens placed in removal proceedings after the effective date of 
IIRIRA, regardless of their date of conviction. See 2000 WL 
1715956, at *3-*4. The Ninth Circuit also stated, in so ruling, that 
it found Judge Walker’s dissent to the Second Circuit’s decision on 
the merits in St. Cyr to be “compelling.” Id. at *3. The Ninth 
Circuit also held, however, that “a limited exception to this general 
rule” is available for an alien who can specifically show that he 

18 

The same “retroactivity” claim has been raised by 
dozens of aliens in both petitions for review and habeas 
corpus petitions in the lower federal courts and 
potentially affects the cases of thousands of other aliens 
who were convicted of aggravated felonies before 
AEDPA and IIRIRA were enacted. Because that 
important issue on the merits was reached by the 
Second Circuit in St. Cyr and not in this case, St. Cyr 
most squarely presents that important and widely 
recurring issue. Accordingly, if the Court concludes 
that district courts do have habeas corpus jurisdiction 
to entertain petitioners’ claim that the Attorney 
General may grant them relief under Section 1182(c) 
notwithstanding Congress’s repeal of that provision, 
the Court could then most readily render a prompt and 
definitive resolution of that issue on the merits in St. 
Cyr. And a prompt and definitive judicial resolution of 
that issue is plainly warranted—if, contrary to our 
submission, it is subject to judicial review at all—in 
order to terminate the widespread litigation on the 
issue in the lower courts and to accomplish the expedi- 
tious removal of criminal aliens that Congress so clearly 
intended when it enacted AEDPA and IIRIRA.7 

pleaded guilty before the effective date of IIRIRA in reliance on 
the state of the law at the time, under which he would have been 
eligible for discretionary relief from deportation. Id. at *4. By 
contrast, the Second Circuit ruled broadly in St. Cyr that 
Congress’s repeal of Section 1182(c) cannot be applied to any alien 
who pleaded guilty to a pertinent offense before the enactment of 
IIRIRA, and the Second Circuit has not required a showing that 
the alien specifically relied on the state of the law at the time when 
pleading guilty. See 229 F.3d at 418. 

7 The government’s position, as petitioners note (Pet. 5-6), is 
that neither the court of appeals nor the district court has juris- 

19 

CONCLUSION 

The petition for a writ of certiorari should be 
granted, and the case should be consolidated for 
briefing and oral argument with INS v. St. Cyr, No. 00- 
767. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

DONALD E. KEENER 
WILLIAM J. HOWARD 

Attorneys 

DECEMBER 2000 

diction to review that challenge, and that the “retroactivity” claim 
in any event is without merit.