No. 00-767 

In the Supreme Court of the United States 

IMMIGRATION AND NATURALIZATION SERVICE, 
PETITIONER 

v. 

ENRICO ST. CYR 

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

REPLY BRIEF FOR THE PETITIONER 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

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

TABLE OF CONTENTS 

Page 

A. Jurisdiction ............................................................................. 
1 

B. Merits ....................................................................................... 
10 

TABLE OF AUTHORITIES 

Cases: 

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

4 

Brady v. United States, 397 U.S. 742 (1970) ..................... 

19 

Bugajewitz v. Adams, 228 U.S. 585 (1913) ........................ 

18 

Calcano-Martinez v. INS, cert. granted, 

121 S. Ct. 849 (2001) .............................................................. 

3 

Chew Heong v. United States, 112 U.S. 536 (1884) ......... 

18 

Daneshvar v. Chauvin, 644 F.2d 1248 (8th Cir. 

1981) ......................................................................................... 7 

De Osorio v. INS, 10 F.3d 1034 (4th Cir. 1993) ................. 

15 

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

4, 5 

Galaviz-Medina v. Wooten, 27 F.3d 487 (10th Cir. 

1994), cert. denied, 513 U.S. 1086 (1995) ........................... 

7 

Garay v. Slattery, 23 F.3d 744 (2d Cir. 1994) ................... 

7 

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

17 

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. 

denied, 526 U.S. 1004 (1999) ................................................ 

9 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ................... 

12 

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ................... 

17 

Kansas v. Hendricks, 521 U.S. 346 (1997) ........................ 

19-20 

Knowlton v. Moore, 178 U.S. 41 (1900) .............................. 

8 

Landgraf v. USI Film Prods., 511 U.S. 244 

(1994) ................................................................... 

11, 16, 18, 19, 20 

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

17 

Martin v. Hadix, 527 U.S. 343 (1999) ................................ 

14 

Orozco v. INS, 911 F.3d 539 (11th Cir. 1990) .................... 

8 

Reno v. American-Arab Anti-Discrimination 

Comm., 525 U.S. 471 (1999) .......................................... 1, 13, 17 

(I) 

II 

Cases—Continued: Page 

Reno v. Goncalves, 526 U.S. 1004 (1999) ........................... 

9 

Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 

1995) ......................................................................................... 15 

Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 

1996) ......................................................................................... 15 

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

9 

Sotelo Mondragon v. Ilchert, 653 F.2d 1254 

(9th Cir. 1980) ......................................................................... 

8 

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

6 

Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999) ...... 

9 

United States v. Fisher, 6 U.S. (2 Cranch) 358 

(1805) ........................................................................................ 8 

United States v. Palmer, 16 U.S. (3 Wheat.) 610 

(1818) ........................................................................................ 8 

United States ex rel. Marcello v. District Director, 

634 F.2d 964 (5th Cir. 1981) ................................................ 

7, 8 

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

4 

Constitution and statutes: 

U.S. Const. Art. III .................................................................. 

4 

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 

§ 7342, 102 Stat. 4469 ............................................................ 

15 

Antiterrorism and Effective Death Penalty Act 

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

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

5, 7, 8 

§ 440, 110 Stat. 1276 .............................................................. 

14 

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

9 

Hobbs Adminstrative Orders Review Act, 

28 U.S.C. 2341 et seq. ............................................................. 

1 

Illegal Immigration Reform and Immigrant 

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

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

11, 12, 13, 14, 15 

§ 301(b)(3), 110 Stat. 3009-578 .................................. 
14 

§ 301(c)(2), 110 Stat. 3009-579 ................................... 
14 

§ 304, 110 Stat. 3009-587 ......................................... 11, 13, 16 

§ 304(a), 110 Stat. 3009-587 ....................................... 12 

III 

Statutes—Continued: Page 

§ 305, 110 Stat. 3009-597 ............................................. 
12 

§ 306, 110 Stat. 3009-607 ............................................ 
11 

§ 306(a), 110 Stat. 3009-607 ....................................... 
13 

§ 306(c)(1), 110 Stat. 3009-612 ................................... 
13 

§ 306(d), 110 Stat. 3009-612 ....................................... 
14 

§ 309, 110 Stat. 3009-625 ............................................ 
13 

§ 309(a), 110 Stat. 3009-625 ....................................... 
11, 12 

§ 309(c), 110 Stat. 3009-625 ....................................... 
11, 12 

§ 309(c)(1), 110 Stat. 3009-625 ................................... 
12 

§ 309(c)(2), 110 Stat. 3009-626 ................................... 
12 

§ 309(c)(3), 110 Stat. 3009-626 ................................... 
12 

§ 309(c)(4), 110 Stat. 3009-626 ................................... 
13 

§ 309(c)(5), 110 Stat. 3009-627 ................................... 
13 

Tit. III-B, 110 Stat. 3009-627 .......................................... 
14, 15 

§ 321, 110 Stat. 3009-627 to 3009-628 ....................... 
15, 16 

Immigration Act of 1990, Pub. L. No. 101-649, 
§ 511(b), 104 Stat. 5052 ......................................................... 
15 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq.: 
8 U.S.C. 1105a(a) (1994) .............................................. 
5, 6, 7, 8 

8 U.S.C. 1105a(a)(10) (1994) ....................................... 
5, 6, 7, 8 

8 U.S.C. 1182(c) (1994) ......... 
2, 10, 11, 14, 15, 16, 18, 19, 20 

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

1, 3 

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999) .................... 
17 

8 U.S.C. 1252 (Supp. V 1999) ......................................... 
1, 2, 5 

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

8 U.S.C. 1252(a)(1) (Supp. V 1999) ................................ 
1, 3 

8 U.S.C. 1252(a)(2)(C) (Supp. V 1999) .......................... 
2, 3, 9 

8 U.S.C. 1252(b)(9) (Supp. V 1999) ................................ 
1, 2 

8 U.S.C. 1252(e)(2) (Supp. V 1999) ................................ 
1, 2, 3 

8 U.S.C. 1252(g) (Supp. V 1999) .................................... 
13 

8 U.S.C. 1254 (1994) ......................................................... 
10 

28 U.S.C. 2241 ....................................................................... 
2, 4, 7, 8 

Miscellaneous: 

141 Cong. Rec. 15,069 (1995) ................................................... 

20 

142 Cong. Rec. 7349 (1996) ..................................................... 
3, 4 

142 Cong. Rec. S11,886 (daily ed. Sept. 30, 1996) ................ 
20 

142 Cong. Rec. S12,295 (daily ed. Oct. 3, 1996) .................... 20 

IV 

Miscellaneous—Continued: Page 

H.R. 9182, 84th Cong., 2d Sess. (1956) ................................. 
6 

H.R. 11167, 85th Cong., 2d Sess. (1958) ............................... 
6 

H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 
(1996) ........................................................................................ 11 

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

10, 11 

S. Rep. No. 249, 104th Cong., 2d Sess. (1996) ...................... 
3 

Lamar Smith & Edward Grant, Immigration 

Reform: Seeking the Right Reasons, 28 St. Mary’s 
L.J. 883 (1997) ......................................................................... 10-11 

REPLY BRIEF FOR THE PETITIONER 

A. Jurisdiction. 

1. Congress has directed that “[j]udicial review of a final 
order of removal * * * is governed only” by the exclusive 
court-of-appeals review provisions of the Hobbs Admini- 
strative Orders Review Act (Hobbs Act), 28 U.S.C. 2341 
et seq. See 8 U.S.C. 1252(a)(1) (Supp. V 1999) (emphasis 
added). That rule, channeling all review of all final removal 
orders into the courts of appeals, is subject to only one nar- 
row exception, not applicable here, which expressly identi- 
fies “habeas corpus” as the means of “judicial review” for 
cases falling within that exception. See 8 U.S.C. 1252(a)(1) 
and (e)(2) (Supp. V 1999) (referring to removal orders under 
8 U.S.C. 1225(b)(1) (Supp. V 1999)). The clear import of 
Section 1252(a) is that—subject to that single exception—the 
validity of a final order of removal may be tested in the 
courts, if at all, only in a court of appeals, and only pursuant 
to the Hobbs Act’s procedures, as modified by Section 1252. 
Congress has thereby precluded district court review of final 
removal orders, by habeas corpus or otherwise. 

That conclusion is confirmed by 8 U.S.C. 1252(b)(9) (Supp. 
V 1999), which this Court in Reno v. American-Arab Anti- 
Discrimination Committee (AADC), 525 U.S. 471, 483 
(1999), described as an “unmistakable ‘zipper’ clause,” 
ibid.—i.e., a clause that says “no judicial review in [removal] 
cases unless [Section 1252] provides judicial review,” id. at 
482. See Opening Br. 20-21. Respondent argues (Br. 17), 
however, that in AADC the Court did not comment on the 
“analytically distinct” question of whether Section 1252(b)(9) 
repealed habeas corpus jurisdiction for those situations in 
which there is no review in the courts of appeals. The 
question of the availability of review in a district court 
(whether by habeas corpus or otherwise) is not, however, 
analytically distinct from the channeling function of Section 

(1) 

2 

1252(b)(9); it is, rather, at the core of the problem to which 
Section 1252(b)(9) is addressed. The very purpose of Section 
1252(b)(9), as its sweeping language establishes, is to make 
clear that judicial review of any issue arising out of a 
removal proceeding is available, if at all, only in a court of 
appeals on petition for review, which necessarily precludes 
review in the district courts (by habeas corpus or otherwise). 
Section 1252(b)(9) provides that “all questions of law and 
fact, including interpretation and application of * * * 
statutory provisions, arising from any action taken or 
proceeding brought to remove an alien from the United 
States * * * shall be available only in judicial review of a 
final order under this section [i.e., Section 1252]” (emphasis 
added). That language necessarily precludes district court 
review of the issue of statutory interpretation raised by 
respondent—whether the Attorney General properly denied 
him discretionary relief under former 8 U.S.C. 1182(c) (1994). 
And because 8 U.S.C. 1252(a)(2)(C) (Supp. V 1999) provides 
that, “[n]otwithstanding any other provision of law, no court 
shall have jurisdiction to review any final order of removal 
against” an aggravated felon, judicial review of that question 
is also unavailable in the courts of appeals.1 

Respondent argues (Br. 10-11) that Section 1252 does not 
expressly mention the general habeas corpus statute, 28 
U.S.C. 2241, and so should not be read to preclude review of 
removal orders under that statute. But Congress did refer 
specifically to habeas corpus in Section 1252(e)(2), where it 
provided that, for removal orders entered in expedited- 

1 Because Section 1252(a)(2)(C) says that “no court” shall have juris- 
diction, that Section independently bars district court review in this case. 
And because Section 1252(a)(2)(C) applies “[n]otwithstanding any other 
provision of law” (emphasis added), it applies “notwithstanding” 28 U.S.C. 
2241’s provision for habeas corpus review—even if we assume, arguendo, 
that the other provisions of Section 1252 discussed above are insufficient 
to preclude district court review here. 

3 

removal proceedings under Section 1225(b)(1), “[j]udicial 
review * * * is available in habeas corpus proceedings.” 
8 U.S.C. 1252(e)(2) (Supp. V 1999). Congress thus specified 
the only circumstance in which “judicial review” of removal 
orders by habeas corpus is authorized, and it reconfirmed 
that point by making that circumstance an express exception 
to the otherwise flat rule of Section 1252(a)(1) requiring all 
“judicial review” to be had only in the courts of appeals. 

Contrary to respondent’s suggestion (Br. 10-11) that Con- 
gress did not focus on the consequences of precluding judicial 
review of aggravated felons’ removal orders, the legislative 
history of Section 1252(a)(2)(C) makes clear that Congress 
fully anticipated that such orders would not be reviewable 
in court. See Gov’t Br. at 18-21, Calcano-Martinez v. INS, 
No. 00-1011 (hereinafter Gov’t Calcano Br.). Section 
1252(a)(2)(C) originated in an amendment offered in com- 
mittee by Senator Abraham, which was intended to “end the 
process” once a final removal order was entered by the 
Board of Immigration Appeals. See id. at 21. Senator 
Abraham stated on the Senate floor that his amendment 
would “end judicial review for orders of deportation entered 
against these criminal aliens while maintaining the right to 
administrative review.” 142 Cong. Rec. 7349 (1996); accord 
S. Rep. No. 249, 104th Cong., 2d Sess. 14, 27 (1996) (provision 
“eliminates” judicial review); id. at 40 (additional views of 
Sen. Abraham). And he explained that aggravated felons 
would have full access to habeas corpus to challenge their 
underlying criminal convictions, but would not have any 
right of judicial review of the final orders of removal 
subsequently entered on the basis of such convictions: 

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 

4 

abuses of the appeals process would stop there and not 
continue on through the deportation provisions them- 
selves. 

142 Cong. Rec. at 7349. Senator Abraham thus made clear 
that, under his amendment, the only “habeas corpus review” 
aliens would thenceforth have would be review of the 
criminal convictions that formed the basis for their removal 
orders, and not the removal orders themselves. 

2. Respondent relies (Br. 11) on Felker v. Turpin, 518 
U.S. 651 (1996), and Ex parte Yerger, 75 U.S. (8 Wall.) 85 
(1869), to argue that the district courts must retain habeas 
corpus jurisdiction over a particular kind of claim unless 
Congress states in haec verba that the courts’ jurisdiction 
under 28 U.S.C. 2241 over that claim has been precluded. 
Neither decision supports that proposition. Both cases in- 
volved statutes that restricted this Court’s statutory author- 
ity to review by appeal or certiorari decisions of the lower 
federal courts denying a writ of habeas corpus. See Felker, 
518 U.S. at 659-661. In both cases, however, Congress had 
not also restricted the Court’s separate statutory authority 
to entertain habeas corpus petitions filed directly in this 
Court.2 In Felker and Yerger, the Court declined to read 
Congress’s restriction in the former statutory source of its 
jurisdiction over into the latter by implication.3 

2 Although referred to as “original” petitions, such petitions are for 
purposes of Article III of the Constitution an exercise of the Court’s 
appellate jurisdiction over lower courts’ decisions denying habeas corpus 
petitions. See Felker, 518 U.S. at 659-661; id. at 667 n.1 (Souter, J., 
concurring); Yerger, 75 U.S. (8 Wall.) at 97-98; Ex parte Bollman, 8 U.S. (4 
Cranch) 75, 100 (1807) (Court’s authority under Judiciary Act of 1789 to 
issue writ of habeas corpus was appellate in nature). 

3 Contrary to respondent’s suggestion (Br. 11 n.5), neither Felker nor 
Yerger involved a categorical, across-the-board statutory preclusion of all 
jurisdiction (or all habeas corpus jurisdiction) over the kind of claim that 
the petitioner sought to raise in those cases. Thus, the Court asserted 

5 

By contrast, in IIRIRA, Congress placed all of the courts’ 
authority to review removal orders in one place, Section 
1252, and made clear as a categorical matter in that very 
same place that all such review must proceed only in the 
court of appeals, except as otherwise provided in Section 
1252 itself. No “implication” is necessary to conclude that 
district court jurisdiction to review removal orders (by ha- 
beas corpus or otherwise) has been precluded. 

3. Even before it enacted IIRIRA, Congress had elimi- 
nated the district courts’ jurisdiction to review deportation 
orders on habeas corpus when it enacted Section 401(e) of 
the Antiterrorism and Effective Death Penalty Act of 1996 
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1268. See Opening 
Br. 26; Gov’t Calcano Br. 19. AEDPA Section 401(e), en- 
titled “ELIMINATION OF CUSTODY REVIEW BY HABEAS 
CORPUS,” repealed former 8 U.S.C. 1105a(a)(10) (1994), 
which had expressly preserved the writ of habeas corpus for 
aliens held in custody under deportation orders. 
Respondent maintains (Br. 12-15) that former Section 
1105a(a)(10) was not necessary to preserve habeas corpus re- 
view, because Section 1105a(a) by itself, without subsection 
(a)(10), would not have ousted that jurisdiction. But the 
text of Section 1105a(a), without subsection (a)(10), plainly 
would have ousted all district court jurisdiction, for Section 
1105a(a) provided that the “sole and exclusive” avenue for 
review of deportation orders was by petition for review in 
the court of appeals. Indeed, subsection (a)(10), which pre- 
served habeas corpus in district court for aliens actually held 
in custody, was one of a number of express “except[ions]” to 

jurisdiction over Felker’s original habeas corpus petition (see p. 4 n.2, 
supra) because Congress had precluded the Court’s jurisdiction only with 
respect to review by appeal or certiorari, and not over original petitions. 
For that reason, while the Court dismissed the certiorari petition for want 
of jurisdiction, it denied the “petition for an original writ of habeas corpus” 
on the merits. 518 U.S. at 665. 

6 

the general rule that judicial review was governed by the 
Hobbs Act, see Stone v. INS, 514 U.S. 386, 393 
(1995)—thereby making clear on the face of the statute that 
the general rule would have governed in the absence of that 
“except[ion].” The legislative history, moreover, confirms 
that subsection (a)(10) was enacted in response to concerns 
that Section 1105a(a) otherwise would have unconstitution- 
ally suspended habeas corpus. See Opening Br. 5-6.4 

4 Respondent argues (Br. 13-14) that Congress’s principal purpose in 
enacting Section 1105a(a) was to eliminate judicial review of exclusion and 
deportation orders by declaratory judgment action brought under the 
Administrative Procedure Act (APA), and that Congress did not intend 
to eliminate aliens’ access to habeas corpus. We of course do not suggest 
that Congress in 1961 intended to eliminate aliens’ access to habeas 
corpus; rather our point is that Congress enacted Section 1105a(a)(10) 
precisely because it did not intend to eliminate such access, and because 
Section 1105a(a), without subsection (a)(10), would have had that effect. 

In arguing to the contrary, respondent notes (Br. 14 n.7) that, although 
Representative Walter had, at a hearing in April 1958, expressed concern 
that legislation providing for exclusive review of all claims arising out 
of deportation orders in one proceeding might be unconstitutional because 
it would not leave habeas corpus available (see Opening Br. 5 n.2), he 
introduced a bill in May 1958 that provided for exclusive review of 
deportation orders in the courts of appeals, without an express exception 
for habeas corpus. It is not clear why his bill did not contain such an ex- 
press exception, but he was aware (as his comment at the 1958 hearing 
referring to the President’s proposed legislation demonstrates) that the 
Eisenhower Administration had already proposed legislation that would 
have occupied the field of judicial review of deportation orders. That 
legislation would have provided that, “[n]otwithstanding the provisions of 
the [APA] or any other law,” the district courts would have had 
jurisdiction to review challenges to deportation orders “only as provided 
in this subsection,” and would also have expressly preserved habeas 
corpus review for aliens held in custody. See H.R. 9182, 84th Cong., 2d 
Sess. § 203(a)(1) (1956); H.R. 11167, 85th Cong., 2d Sess. § 29 (1958). 
Representative Walter may well have expected that the approaches of the 
two bills would be melded, which is exactly what happened. 

7 

Respondent suggests (Br. 16 & n.9) that when Congress 
repealed Section 1105a(a)(10) in AEDPA Section 401(e), 
Congress might have intended only to clarify that the 
district court’s habeas corpus jurisdiction to review deporta- 
tion orders would thenceforth rest only on 28 U.S.C. 2241 
itself, and not also on Section 1105a(a)(10) (which, respon- 
dent suggests, might have provided broader review than 28 
U.S.C. 2241). But the case law predating AEDPA does not 
suggest any significant confusion in the courts on whether 
habeas corpus jurisdiction to review deportation orders 
arose under Section 1105a(a)(10), 28 U.S.C. 2241, or both.5 
The courts of appeals that engaged in a reasoned discussion 
of the issue either indicated that the district court’s habeas 
corpus jurisdiction arose under Section 1105a(a)(10),6 or 
recognized that, even if 28 U.S.C. 2241 were the source of 
the district court’s jurisdiction, Section 1105a(a)(10) pre- 
served that jurisdiction in light of Section 1105a(a)’s other- 
wise unqualified language requiring review of all deportation 
orders to be in the courts of appeals.7 No court of appeals 

5 There was disagreement in the courts of appeals about the kinds of 
challenges to final deportation orders that might be raised in the district 
courts on habeas corpus, as opposed to direct review of a deportation 
order in the court of appeals. Compare Daneshvar v. Chauvin, 644 F.2d 
1248, 1250 (8th Cir. 1981) (habeas corpus available only to review denial of 
stay of deportation, and not merits of deportation order), with United 
States ex rel. Marcello v. District Director, 634 F.2d 964, 971 (5th Cir. 
1981) (plenary review of merits of deportation order available on habeas 
corpus), and Galaviz-Medina v. Wooten, 27 F.3d 487, 491 (10th Cir. 1994) 
(only limited review of merits of deportation order on habeas corpus), cert. 
denied, 513 U.S. 1086 (1995). To the extent that AEDPA Section 401(e)’s 
repeal of Section 1105a(a)(10) might be seen as resolving that conflict, it 
did so by eliminating district court review altogether. 

6 Galaviz-Medina, 27 F.3d at 489-491; Marcello, 634 F.2d at 966-970. 

7 Garay v. Slattery, 23 F.3d 744, 745 (2d Cir. 1994) (noting that “[t]he 
second avenue for judicial review of a deportation proceeding is provided 

8 

held that a district court had habeas corpus jurisdiction to 
review the merits of a deportation order only 28 U.S.C. 
Section 2241, without regard to the preservation of habeas 
corpus in Section 1105a(a)(10).8 

Especially against this 
background of the clear text of Section 1105a(a) and the 
case law construing it, the obvious purpose and effect of 
Congress’s enactment of AEDPA Section 401(e)—which 
amended Section 1105a(a) by “striking” subsection (a)(10)— 
were to terminate the availability of habeas corpus review 
that subsection (a)(10) had theretofore preserved. If there 
could be any remaining doubt on that score, however, it is 
removed by the heading of AEDPA Section 401(e), which 
confirms that that Section accomplished the “ELIMINATION” 
of review by habeas corpus.9 

in [Section 1105a(a)(10)]” but citing a case referring to habeas corpus 
jurisdiction under 28 U.S.C. 2241). 

8 In Sotelo Mondragon v. Ilchert, 653 F.2d 1254 (9th Cir. 1980), cited 
by respondent (Br. 16 n.9), the court first stated (653 F.2d at 1255) that 
“[t]he district court had jurisdiction to review the deportation order under 
[then] 8 U.S.C. § 1105a(a)(9) and 28 U.S.C. § 2241,” but subsequently noted 
(653 F.2d at 1256) that the court of appeals had exclusive jurisdiction to 
review deportation orders “unless the review is had by habeas corpus 
under § 1105a(a)(9).” In Orozco v. INS, 911 F.2d 539 (11th Cir. 1990), also 
cited by respondent (Br. 16 n.9), the court stated that “[c]hallenges to 
deportation proceedings are cognizable under 28 U.S.C. § 2241,” see 911 
F.2d at 541 (citing Marcello, supra), but did not address the relation 
between that provision and Section 1105a(a)(10). Moreover, that 
statement by the court is not inconsistent with our submission, which is 
that the express exception in Section 1105a(a)(10) was necessary to 
preserve that habeas corpus jurisdiction, in light of the opening paragraph 
of Section 1105a(a). 

9 See United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) 
(“Where the mind labours to discover the design of the legislature, it 
seizes every thing from which aid can be derived; and in such case the title 
claims a degree of notice, and will have its due share of consideration.”); 
see also Knowlton v. Moore, 178 U.S. 41, 65 (1900); United States v. 
Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818). 

9 

4. Respondent argues (Br. 18-19) that our submission 
that Congress has required all judicial review of removal 
orders to proceed only in the courts of appeals, and not at all 
in the district courts, is at odds with the position taken by 
the government in briefs in opposition to certiorari petitions 
presenting a similar issue arising under AEDPA Section 
440(a), 110 Stat. 1276-1277—which, like Section 1252(a)(2)(C) 
(added later by IIRIRA), precluded judicial review of chal- 
lenges to deportation orders by aggravated felons. In those 
opposition briefs, however, we did not argue that the district 
courts would have had jurisdiction over habeas corpus peti- 
tions filed by the petitioner aliens; rather, we pointed out 
that the courts of appeals had not yet addressed that issue, 
because the aliens in those cases had filed only petitions for 
review, and not habeas corpus petitions. We subsequently 
argued in this Court that, in both AEDPA and IIRIRA, 
Congress had required that all challenges to deportation 
orders proceed only in the courts of appeals. See Pet. at 14- 
24, Reno v. Goncalves, 526 U.S. 1004 (1999) (No. 98-835). 

10 

10 Respondent suggests (Br. 10 n.4) that, if judicial review of the claim 
he raises would have been available in the court of appeals, it would be 
unfair to close the district court to his challenge now because, when he 
filed his habeas corpus petition, Second Circuit precedent indicated that a 
challenge to a deportation order against an aggravated felon that did not 
involve the alien’s deportability could proceed only in the district court, 
and not in the court of appeals. That Second Circuit decision involved not 
the permanent provisions for judicial review of removal orders under 
IIRIRA, but rather AEDPA and IIRIRA’s transition rules for judicial 
review of old deportation orders. Henderson v. INS, 157 F.3d 106 (1998), 
cert. denied, 526 U.S. 1004 (1999). 

Should the Court conclude, however, that it would have authority to 
reach the merits of respondent’s challenge in this case arising on habeas 
corpus in the district court, even though Congress has generally precluded 
that avenue of judicial review, and that for reasons of fairness it would be 
appropriate to do so, cf. Turkhan v. Perryman, 188 F.3d 814, 822 (7th Cir. 
1999); Singh v. Reno, 182 F.3d 504, 510-511 (7th Cir. 1999), the Court 

10 

B. Merits. 

1. When Congress enacted IIRIRA, it effectuated a “fun- 
damental re-orientation of immigration policy.” H.R. Rep. 
No. 469, 104th Cong., 2d Sess. Pt. 1, at 110 (1996). Congress 
was convinced that the pre-IIRIRA system of administra- 
tive and judicial review had failed to accomplish the deporta- 
tion of numerous criminal aliens, see id. at 118-120, and that 
aliens had also abused opportunities to seek discretionary 
relief from deportation, see id. at 121-122. In IIRIRA, 
Congress started anew. It eliminated the old deportation 
and exclusion proceedings and replaced them with “a single, 
streamlined ‘removal proceeding’ ” (id. at 158). 

It also 

eliminated both relief under old 8 U.S.C. 1182(c) (1994) and 
“suspension of deportation” under old 8 U.S.C. 1254 (1994) 
and replaced them with the new “cancellation of removal” 
provisions, with tightened restrictions on the Attorney 
General’s authority to grant relief (see H.R. Rep. No. 469, 
Pt. 1, supra, at 231-232). One of IIRIRA’s principal authors 
aptly described these new provisions as a “complete restruc- 
turing” of the Immigration and Nationality Act (INA). See 
Lamar Smith & Edward Grant, Immigration Reform: 

should reject that challenge on the merits (for the reasons given in our 
opening brief at 32-49 and in this reply brief at 10-20) and should therefore 
reverse the judgment of the court of appeals. Respondent suggests (Br. 
10 n.4) that the Court remand this case to the court of appeals to decide 
whether his claim should be entertained notwithstanding the general pre- 
clusion of district court review. Because of the importance of the merits 
question in this case if it is subject to judicial review at all, we urge the 
Court to decide whether the question may be appropriately addressed in a 
district court habeas corpus proceeding in the circumstances of this case. 
If the Court were to conclude that the merits issue can be addressed in 
this case, the Court could then resolve it and thereby put an end to 
litigation of that question in the lower courts. 

11 

Seeking the Right Reasons, 28 St. Mary’s L.J. 883, 915 
(1997). 

11 

Respondent maintains, however (Br. 31-32), that this 
“complete restructuring” should be applied to his case only 
piecemeal. Respondent does not dispute that it was entirely 
proper for the INS to commence removal proceedings 
against him under post-IIRIRA law. He nonetheless argues 
that the Attorney General must apply to his case one pro- 
vision of prior law that was repealed by IIRIRA, Section 
1182(c), despite Congress’s clear intent to “replace” Section 
1182(c) by IIRIRA’s new provision for cancellation of re- 
moval. See H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 
213 (1996). That contention is contrary to the categorical 
rules Congress laid down for applying the amendments made 
by Title III-A of IIRIRA. 

Section 309(a) of IIRIRA, 110 Stat. 3009-625, establishes a 
generally applicable effective date for Title III-A, specifying 
(with certain exceptions inapplicable here) that Title III-A 
and the amendments made by it “shall take effect” on the 
first day of the month beginning more than 180 days from 
the date of enactment of IIRIRA (April 1, 1997), which 
Section 309(a) refers to as the “title III-A effective date.” 
Respondent contends that the mere specification of an effec- 
tive date of a new law does not mean that it applies to con- 
duct that occurred before that effective date. See Br. 28 
(citing Landgraf v. USI Film Prods., 511 U.S. 244, 257, 259 
(1994)). Section 309(a) does not, however, stand alone. Sec- 
tion 309(c) makes clear that the operative event for purposes 
of applying its effective date is the date on which admini- 
strative proceedings are instituted against the alien. Section 

11 See also H.R. Rep. No. 469, Pt. 1, supra, at 230-233 (summarizing 
changes made to administrative proceedings under the INA by IIRIRA 
Section 304); id. at 237-238 (changes made to judicial-review provisions of 
the INA by IIRIRA Section 306). 

12 

309(c)(1) states that, subject to certain exceptions in suc- 
ceeding provisions of Section 309(c), in the case of an alien 
who is in exclusion or deportation proceedings as of the “title 
III-A effective date,” “(A) the amendments made by this 
subtitle shall not apply, and (B) the proceedings (including 
judicial review thereof) shall continue to be conducted with- 
out regard to such amendments.” 110 Stat. 3009-625. It 
follows that the amendments made by Title III-A do apply to 
aliens against whom administrative proceedings were insti- 
tuted on or after the Title III-A effective date. 

Respondent asserts (Br. 29-30) that this rule established 
by Sections 309(a) and (c)(1) for determining the application 
of Title III-A governs only the new “procedural” rules in 
Section 304(a) of IIRIRA. That assertion is contrary to the 
text of both Section 309(a), which establish a generally ap- 
plicable “title III-A effective date,” and Section 309(c)(1), 
which specifies the category of cases to which all of “the 
amendments made by this subtitle” (not merely “procedural” 
amendments or amendments contained in Section 304(a)) 
“shall not apply”—namely, cases commenced before that 
effective date. That assertion also is contrary to this Court’s 
understanding of Title III-A’s effective date provisions. In 
INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999), this Court 
relied upon Sections 309(a) and (c) in concluding that the 
substantive statutory provisions governing withholding of 
removal that were enacted in Section 305 of IIRIRA were 
inapplicable in a case in which administrative proceedings 
were commenced before April 1, 1997. 

12 

12 Respondent also asserts (Br. 32) that Congress “likely did not in- 
tend” that the application of the amendments made by IIRIRA would 
depend on when the INS decided to institute proceedings against an alien. 
Respondent’s assertion that Congress would not have intended to make 
the applicability of the new statutory provisions turn on an administrative 
determination is refuted by Sections 309(c)(2) and (3) of IIRIRA, 110 Stat. 
3009-626, which expressly confer on the Attorney General the option to 

13 

Furthermore, as Judge Walker observed in dissent below, 
the “awkward statutory patchwork” that would result from 
the piecing together of old and new provisions that re- 
spondent proposes “reveals Congress could not have in- 
tended” such a conclusion. Pet. App. 37a. The far more 
sensible reading of IIRIRA—and the one dictated by the 
text of Section 309 and the structure of Title III-A as a 
whole—is that Congress intended that all aspects of the 
comprehensive and interrelated revisions made by Title 
III-A would be applied together in all removal proceedings 
commenced on or after Title III-A’s date, and that none of 
them would be applied in any proceedings commenced before 
that date, except where Congress expressly so provided, as it 
did in a few instances. 

13 Because that intent is clear, 
Congress was not required (as respondent evidently main- 
tains, see Br. 23-26) to state in haec verba that “the repeal of 
Section 1182(c) shall apply in all cases commenced under the 
Title III-A amendments, regardless of the date of the alien’s 
conviction,” in order to accomplish that result. 

2. Respondent notes (Br. 24-27) that Congress expressly 
provided that certain provisions in separate titles of IIRIRA 
that turn on an alien’s conduct or conviction are to be applied 

proceed under the INA as amended by Title III-A of IIRIRA even in 
cases that were commenced prior to the general Title III-A effective date 
and that otherwise would be governed by pre-IIRIRA law. 

13 See, e.g., IIRIRA § 306(c)(1), 110 Stat. 3009-612 (providing that new 
8 U.S.C. 1252(g) (Supp. V 1999), added by IIRIRA Section 306(a), “shall 
apply without limitation to claims arising from all past, pending, or future 
exclusion, deportation, or removal proceedings”; see AADC, 525 U.S. at 
477); IIRIRA § 309(c)(4), 110 Stat. 3009-626 (directing application of cer- 
tain transition rules for judicial review of final deportation and exclusion 
orders entered more than 30 days after enactment of IIRIRA); IIRIRA 
§ 309(c)(5), 110 Stat. 3009-627 (directing that new “stop-time” rule termin- 
ating period of continuous physical presence for eligibility for suspension 
of deportation, added by IIRIRA Section 304, be applied to cases com- 
menced “before, on, or after the date of the enactment” of IIRIRA). 

14 

regardless of the date of that conduct or conviction, and finds 
significance in the fact that Congress made no such express 
statement about the repeal of Section 1182(c). Even the 
court of appeals realized, however, that no negative infer- 
ence could be drawn from those widely varying provisions in 
other titles of IIRIRA about Congress’s intent as to the tem- 
poral applicability of the repeal of Section 1182(c) in Title 
III-A. See Pet. App. 21a n.5. As we have explained 
(Opening Br. 37 & n.19), the other provisions of IIRIRA on 
which respondent relies had different origins in the legis- 
lative process and address widely disparate subject matters, 
and so no negative inference can be drawn from the absence 
of a similar express provision in IIRIRA Section 304. Cf. 
Martin v. Hadix, 527 U.S. 343, 356 (1999). 

14 

Moreover, the other titles of IIRIRA in which those 
provisions appear do not establish an integrated, compre- 
hensive framework similar to that established by Title 
III-A’s enactment of the new removal procedures. Congress 
therefore would not necessarily have expected that the 
courts would have treated (for example) the provisions in 
Title III-B as an integral whole, in the way that it plainly 
anticipated the courts would treat all the provisions of 
Title III-A. Because there is no specific provision directing 

14 Respondent notes (Br. 27 n.22) that three provisions in Title III-A 
are governed by specific temporal-scope provisions. Two of those pro- 
visions, however, create exceptions to the otherwise broad rule that all of 
Title III-A is to be applied together to all cases commenced after its effec- 
tive date, and thus reinforce our submission that the rest of Title III-A is 
to be applied together. See IIRIRA § 301(b)(3), 110 Stat. 3009-578 (period 
of alien’s previous unlawful presence in United States before Title III-A’s 
effective date is excluded in determining whether alien is inadmissible); 
IIRIRA § 301(c)(2), 110 Stat. 3009-579 (proof requirements of provisions 
making admissible battered women and children not applicable if alien 
first arrived in United States before effective date). The third provision, 
IIRIRA Section 306(d), 110 Stat. 3009-612, addressed transition cases in- 
volving the application of AEDPA Section 440 to criminal aliens. 

15 

the temporal applicability of Title III-B, Congress under- 
standably found it prudent to be especially precise about the 
temporal applicability of particular provisions in Title III-B. 
For example, Congress may well have explicitly provided 
that the expanded definition of “aggravated felony” enacted 
in Title III-B (see IIRIRA § 321, 110 Stat. 3009-627 to 3009- 
628) is to be applied regardless of the date of the alien’s con- 
viction in order to avoid litigation (with attendant delay) 
over the question whether the application of the expanded 
definition in immigration proceedings implicates the pre- 
sumption against retroactivity (or whether, as we have 
argued, matters relating to the removability of an alien are 
inherently prospective in nature). 

15 By contrast, as Section 
309 confirms, Congress clearly intended that all of the 
amendments made by Title III-A, including IIRIRA Section 
304’s repeal of old Section 1182(c), are to be applied together 
in all removal proceedings commenced on or after April 1, 

15 Congress in 1988 made a conviction for an aggravated felony a 
ground of deportability (see Anti-Drug Abuse Act of 1988, Pub. L. No. 
100-690, § 7342, 102 Stat. 4469) and in 1990 barred the Attorney General 
from granting relief under Section 1182(c) to aliens who had been con- 
victed of aggravated felonies and had served at least five years in prison 
for such offenses (see Immigration Act of 1990, Pub. L. No. 101-649, § 511, 
104 Stat. 5052). Several aliens who were convicted of offenses before 
those enactments argued that those changes in the law should not be 
applied to their cases because such application would contravene the 
presumption against retroactivity. The courts of appeals rejected those 
contentions, ruling under the second step of the Landgraf analysis that 
changes in the bases on which an alien may be deported or denied dis- 
cretionary relief from deportation are inherently prospective and thus do 
not have a retroactive effect within the meaning of Landgraf. See 
Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996); Samaniego-Meraz 

v. INS, 53 F.3d 254, 256 (9th Cir. 1995); De Osorio v. INS, 10 F.3d 1034, 
1042 (4th Cir. 1993). By making the expanded definition of aggravated 
felony in IIRIRA expressly applicable to past convictions, Congress may 
have simply intended to avoid similar litigation over the temporal appli- 
cability of that new definition. 

16 

1997. There was therefore no need for Congress to address 
further the temporal scope of specific amendments made by 
Section 304. 

16 

3. Because it is clear that Congress deprived the 
Attorney General of authority to grant relief under Section 
1182(c) to any alien placed in removal proceedings on or 
after April 1, 1997, there is no need for the Court to address 
whether that restriction on the Attorney General’s authority 
is “retroactive,” within the meaning of the Court’s decision 
in Landgraf, 511 U.S. at 280, when applied to cases like this. 
If the Court reaches that issue, it should conclude that that 
restriction presents no retroactivity concerns, even as ap- 
plied in the cases of aliens who pleaded guilty before 
IIRIRA was enacted. As we have explained (Opening Br. 
37-41), the Nation’s immigration laws have always operated 
on the premise that those laws regulate an alien’s future 
status and eligibility to remain in the United States, in light 
of Congress’s most recent determination about the classes of 
aliens whose ongoing presence in the United States is 
beneficial or contrary to the national interest. While 
statutory provisions rendering an alien removable or 
ineligible for discretionary relief from removal may turn on 
an alien’s past conduct, those provisions do not operate as 

16 In addition, Congress’s significant expansion of the definition of 
“aggravated felony” in IIRIRA Section 321, and its express command that 
that definition be applied to prior convictions, seriously undermine respon- 
dent’s submission (Br. 32-33) that Congress could not have expected that 
its repeal of Section 1182(c) in IIRIRA Section 304 would result in the 
removal of numerous aliens who otherwise might not have been removed. 
Congress was obviously aware that, by defining crimes as aggravated felo- 
nies that were not so categorized before IIRIRA, it was rendering many 
aliens subject to removal who were not previously removable, even 
though their criminal convictions became final before IIRIRA. And that 
is true even if the alien had pleaded guilty before IIRIRA was enacted 
and had at that time expected that his criminal conviction would not 
render him removable. 

17 

punishment for that conduct, but rather establish that the 
aliens’ continued presence here is contrary to the public 
interest. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 
(1984); Mahler v. Eby, 264 U.S. 32, 39 (1924). 

17 

Respondent argues (Br. 47) that this Court’s decisions up- 
holding the constitutional power of Congress to alter the 
bases on which aliens may be deported are irrelevant to the 
statutory question whether such alterations are “retro- 
active” under Landgraf. Respondent overlooks the funda- 
mental reasons why this Court has upheld Congress’s power 
to change the status of classes of aliens. As the Court has 
explained, “any policy toward aliens is vitally and intricately 
interwoven with contemporaneous policies” with respect to 
other nations and immigration as a whole. Harisiades v. 
Shaughnessy, 342 U.S. 580, 588-589 (1952) (emphasis added). 
When Congress determines that a class of aliens not pre- 
viously removable should thenceforth be subject to removal, 

17 We have also noted (Opening Br. 39-40) that, in AADC, 525 U.S. at 
491, the Court stated that, “in all cases, deportation is necessary in order 
to bring to an end an ongoing violation of United States law,” thus re- 
affirming that removal constitutes an evaluation of the alien’s future right 
to be in the United States, not a punishment for his past conduct. Re- 
spondent argues (Br. 45 n.36) that that observation by the Court in AADC 
is inapposite here because respondent was a lawful permanent resident 
(LPR) alien who was entitled to remain here until ordered removed. For 
several reasons, that submission is incorrect. First, two of the respon- 
dents in AADC were LPRs, see 525 U.S. at 474, and so the Court must 
have understood its observation to refer to LPRs as well as other aliens. 
Second, the Court specifically stated in AADC that “in all cases” deporta- 
tion brings a continuing violation to an end. Id. at 491. Third, the 
continuing presence in the United States of an LPR alien who is remov- 
able because he is an aggravated felon is no less an “ongoing violation of 
United States law” than is the continuing presence here of a non-LPR 
alien who has overstayed his visa or gained entry without proper doc- 
umentation. “Any alien who is convicted of an aggravated felony at any 
time after admission is deportable,” 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 
1999), and so his presence in the United States violates federal law. 

18 

it is acting not to punish those aliens for past conduct but 
rather to carry out its evaluation of the current national 
interest in immigration. And when Congress requires “the 
deportation of aliens whose presence in the country it deems 
hurtful,” its action is not “a punishment; it is simply a refusal 
by the Government to harbor persons whom it does not 
want.” Bugajewitz v. Adams, 228 U.S. 585, 591 (1913). 

18 

Respondent maintains (Br. 34-39), however, that the 
application of IIRIRA’s repeal of Section 1182(c) to his case 
would be “retroactive” because it would impair his “reason- 
able reliance” and “settled expectations” when he pleaded 
guilty that he would remain eligible to apply for relief from 
deportation. That argument misconceives the inquiry that 
the courts undertake in determining whether a statute is to 
be applied based on events that predate its enactment. 
“[T]he court must ask whether the new provision attaches 
new legal consequences to events completed before its enact- 
ment.” Landgraf, 511 U.S. at 269-270. A critical assumption 
underlying a conclusion of statutory interpretation that a 
statute is “retroactive” must be that the statute actually 
regulates the past events in question, and not “merely [that] 
it draws upon antecedent facts for its operation.” Id. at 270 

n.24 (internal quotation marks omitted). IIRIRA, however, 
does not regulate, or “attach[] new legal consequences” to a 

18 Contrary to respondent’s contention (Br. 45-46), Chew Heong v. 
United States, 112 U.S. 536 (1884), does not stand for the proposition that 
a change in the grounds for removal (much less discretionary relief from 
removal) triggers a presumption against retroactivity. As we explain in 
our opening brief (at 40-41 n.22), the Court’s decision in that case turned 
on the fact that the alien had a vested treaty right to return to the United 
States without being subjected to regulations that would impair the 
substance of that right. The typical removal case involves no such vested 
right derived from an independent source. Compare Opening Br. 43-46; 

p. 20, infra (explaining that Congress has never framed the opportunity 
for relief under Section 1182(c) as a “right” of the alien). 

19 

guilty plea as such, or in the sense that phrase was used in 
Landgraf. 

First, neither IIRIRA nor the INA more generally men- 
tions guilty pleas as a basis for any treatment of the alien, 
and such pleas in any event are the product of tactical judg- 
ments in litigation, see Brady v. United States, 397 U.S. 742, 
756-757 (1970), not the sort of primary conduct to which re- 
troactivity analysis might apply in other settings. 

19 While 
respondent might have had a hope that he would be granted 
relief in the Attorney General’s discretion, he manifestly had 
no right to such relief, especially in light of the serious na- 
ture of his offenses. See Gov’t Calcano Br. 6 n.5 (noting that 
aliens convicted of drug-trafficking crimes could not, under 
BIA case law, obtain Section 1182(c) relief unless they 
showed “unusual or outstanding equities”). 

Second, the Court has made clear that “[a] statute does 
not operate ‘retrospectively’ merely because it is applied in a 
case arising from conduct antedating the statute’s enactment 

* * * or upsets expectations based in prior law.” Landgraf, 
511 U.S. at 269 (citation omitted); see, e.g., Kansas v. 

19 Respondent intimates that IIRIRA’s repeal of Section 1182(c) would 
be retroactive if that repeal were applied in the case of any alien who com- 
mitted an aggravated felony (or perhaps was convicted of an aggravated 
felony) before IIRIRA’s enactment, whether or not the alien pleaded 
guilty. See Br. 37 (arguing that an alien “is entitled to notice of a change 
in immigration liability resulting from his behavior,” including “the 
deportation consequences of criminal convictions”). No court of appeals, 
however, has endorsed that broad proposition, and even the court of 
appeals in this case squarely rejected the notion that “barring eligibility 
for discretionary relief on the basis of pre-enactment criminal conduct—as 
opposed to a plea going to the guilt of a deportable crime—constitutes an 
impermissible retroactive application of a statute.” Pet. App. 25a. The 
court noted that it would “border on the absurd to argue” that these aliens 
might have decided not to commit their crimes if they had known, not only 
that they would be subject to removal, but they would be ineligible for 
discretionary relief from removal, upon conviction. Ibid. 

20 

Hendricks, 521 U.S. 346, 370-371 (1997) (new statute pro- 
viding for involuntary commitment of person previously con- 
victed of sexually violent offense who has a mental abnor- 
mality and is dangerous to community not “retroactive” 
because it operates on the basis of the person’s current suit- 
ability to be in the community). The possibility of being 
granted discretionary relief under Section 1182(c), we have 
noted (Opening Br. 43-46), was never framed as a right of the 
alien but rather as a power of the Attorney General to be 
exercised in his unfettered discretion, and Congress has now 
limited that power. The “relevant activity” that IIRIRA’s 
repeal of Section 1182(c) “regulates” is the decision of the 
Attorney General whether to grant relief under that pro- 
vision, not the criminal conduct or conviction of an alien who 
might apply for that relief. 

20 The power to grant relief from 
removal must inevitably be exercised in the future, and it 
is the prospective exercise of that power that Congress has 
regulated and restricted in IIRIRA. Accordingly, applica- 
tion of IIRIRA’s repeal of the Attorney General’s power to 
grant relief under Section 1182(c) in respondent’s removal 
proceeding is not “retroactive” under Landgraf. 

* * * * * 

For the foregoing reasons, and for those set forth in our 
opening brief, the judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

20 See Landgraf, 511 U.S. at 291 (Scalia, J., concurring in the judg- 
ment); see also 142 Cong. Rec. S11,886 (daily ed. Sept. 30, 1996) (Sen. 
Abraham) (purpose of restriction and elimination of Section 1182(c) relief 
in AEDPA and IIRIRA was to end perceived abuses by immigration 
judges in too freely granting relief); id. at S12,295 (daily ed. Oct. 3, 1996) 
(Sens. Hatch and Abraham) (same); 141 Cong. Rec. 15,069 (1995) (Sen. 
Kennedy) (parallel provision in AEDPA “virtually eliminates the 
Attorney General’s flexibility to grant discretionary relief from deporta- 
tion for long-term permanent residents convicted of lesser crimes”). 

21 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

APRIL 2001