No. 00-767 

In the Supreme Court of the United States 

IMMIGRATION AND NATURALIZATION SERVICE, 
PETITIONER 

v. 

ENRICO ST. CYR 

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

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
DAVID W. OGDEN 

Assistant Attorney General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 
STEPHEN C. ROBINSON 
DONALD E. KEENER 
ALISON R. DRUCKER 
ERNESTO H. MOLINA 
JAMES K. FILAN, JR. 

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

QUESTIONS PRESENTED 

Respondent, an alien found removable because of his 
criminal conviction for an aggravated felony (a drug traffick- 
ing crime), applied for discretionary relief from removal. 
The Board of Immigration Appeals (BIA) concluded that he 
was ineligible for discretionary relief under 8 U.S.C. 1182(c) 
(1994) because that provision had been repealed. Respon- 
dent filed a petition for a writ of habeas corpus in district 
court under 28 U.S.C. 2241, contending that Congress’s 
repeal of Section 1182(c) did not apply to his conviction, 
which was entered before Section 1182(c) was repealed, even 
though his removal proceedings were commenced after the 
repeal became effective. The lower courts agreed and 
granted habeas corpus. 

The questions presented are: 

1. Whether the district court had habeas corpus juris- 
diction over respondent’s challenge to his final removal 
order. 

2. Whether the BIA properly concluded that respondent 
is not eligible for discretionary relief under Section 1182(c) 
because his removal proceeding was commenced after the 
repeal of Section 1182(c) became effective. 

(I) 

TABLE OF CONTENTS 

Page 

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

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

Constitutional and statutory provisions involved ................... 

2 

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

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

2 

a. Pre-AEDPA law ...................................................... 
2 

b. AEDPA ..................................................................... 3 

c. IIRIRA ...................................................................... 

7 

2. Proceedings below .......................................................... 
9 

Reasons for granting the petition ............................................... 
17 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Adenji v. Perryman, No. 00-5375 (Oct. 30, 2000) ............ 
6 

Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th 

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

20 

Alfarache v. Cravener, 121 S. Ct. 46 (2000) ...................... 
6 

Bowrin v. INS, 194 F.3d 483 (4th Cir. 1999) ..................... 
5 

Bugajewitz v. Adams, 228 U.S. 585 (1913) ........................ 
28 

Calcano-Martinez v. Reno, Nos. 98-4033 et al., 
2000 WL 1336611 (2d Cir. Sept. 1, 2000) ........................... 
10 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council Inc., 467 U.S. 837 (1984) .................................... 

17, 28 

De Horta-Garcia v. United States, 121 S. Ct. 82 
(2000) ........................................................................................ 6 

DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999) .................. 

6 

Felker v. Turpin, 518 U.S. 651 (1996) ................................ 
12 

Finlay v. INS, 210 F.3d 556 (5th Cir. 2000) ...................... 
20 

Flores-Miramontes v. INS, 212 F.2d 1133 (9th 

Cir. 2000) ................................................................................. 19 

(III) 

IV 

Cases—Continued: Page 

Foti v. INS, 375 U.S. 217 (1963) ...................................... 
21, 23 

Francis v. INS, 532 F.2d 268 (2d Cir. 1976) ..................... 
3 

Galindo-Del Valle v. Attorney General, 213 F.3d 
594 (11th Cir. 2000), petition for cert. pending, 
No. 00-362 ................................................................................ 
29 

Galvan v. Press, 347 U.S. 522 (1954) .................................. 
28 

Garnica-Vasquez v. Reno, 210 F.3d 558 (5th Cir. 
2000) ......................................................................................... 20 

Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), 
cert. denied, 526 U.S. 1004 (1999) ....................................... 

5, 6 

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............. 
28 

Heikkila v. Barber, 345 U.S. 229 (1953) ............................ 
21 

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), 
cert. denied, 526 U.S. 1004 (1999) ....................................... 
5, 6 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ................... 
28 

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ................... 
27 

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

Jay v. Boyd, 351 U.S. 345 (1956) ......................................... 
26 

Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th 

Cir. 1999), cert. denied, 120 S. Ct. 1539 (2000) ................. 

5, 6 

LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998), 
cert. denied, 120 S. Ct. 1157 (2000) ................................... 
5, 6 

Landgraf v. USI Film Products, 511 U.S. 244 
(1994) ........................................................................................ 15 

Lechuga v. Perryman, 121 S. Ct. 299 (2000) ..................... 

6 

Liang v. INS, 206 F.3d 308 (3d Cir. 2000) ......................... 
19 

Mahadeo v. Reno, 226 F.3d 3 (1st Cir. 2000) .................... 
19 

Mahler v. Eby, 264 U.S. 32 (1924) ...................................... 
28 

Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 
1999) ......................................................................................... 5 

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

28 

Mattis v. Reno, 212 F.3d 31 (1st Cir. 2000) ....................... 
5 

Max-George v. Reno, 205 F.3d 194 (5th Cir. 
2000), petition for cert. pending, No. 00-6280 ................... 19 

V 

Cases—Continued: Page 

Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999) ................. 
5 

Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 
2000) ......................................................................................... 28 

Pak v. Reno, 196 F.3d 666 (6th Cir. 1999) ......................... 

5 

Perez v. Reno, 227 F.3d 294 (5th Cir. 2000) ...................... 
20 

Reno v. American-Arab Anti-Discrimination 

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

12, 22, 27 

Requena-Rodriguez v. Pasquarell, 190 F.3d 299 
(5th Cir. 1999) ......................................................................... 
5, 6 

Richardson v. Reno, 180 F.3d 1311 (11th Cir. 
1999), cert. denied, 120 S. Ct. 1529 (2000) ....................... 
20 

Russell v. Reno, 216 F.3d 1091 (11th Cir. 
2000), petition for cert. pending, No. 00-5970 ................... 
20 

Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999) ................. 
5 

Shah v. Reno, 184 F.3d 719 (8th Cir. 1999) ....................... 
5 

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) ................... 
21 

Smith v. Reno, 121 S. Ct. 81 (2000) .................................... 
6 

Soriano, In re, Interim Dec. No. 3289, 1996 WL 
426888 (A.G. Feb. 21, 1997) .................................................. 
4 

Stone v. INS, 514 U.S. 386 (1995) .................................... 
21, 24 

Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000) .................... 
5 

Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 
1999) ......................................................................................... 6 

United States v. Erika, Inc., 456 U.S. 201 (1982) ............ 

22 

United States v. Fausto, 484 U.S. 439 (1987) ................... 
22 

Yerger, Ex parte, 75 U.S. (8 Wall.) 85 (1868) ...................... 
12 

Constitution, statutes and regulation: 

U.S. Const.: 

Art. I, § 9, Cl. 2 (Suspension Clause) ................ 

2, 25, 26, 98a 

Amend. V (Due Process Clause) ......................................... 
16 

Act of Oct. 11, 1996, § 2, 110 Stat. 3657 ................................. 
8 

Antiterrorism and Effective Death Penalty Act of 
1996, Pub. L. No. 104-132, 110 Stat. 1214 .......................... 
2 

§ 401(e), 110 Stat. 1268 .............................. 2, 4, 21, 24, 110a 

VI 

Statutes and regulation—Continued: 
Page 

§ 440, 110 Stat. 1276 ................................................ 
2, 4, 110a 

§ 440(a), 110 Stat. 1276 ..................................................... 
4 

§ 440(d), 110 Stat. 1277 ........................................ 
3, 5, 6, 29 

Hobbs Administrative Orders Review Act, 28 U.S.C. 
2341-2351 (1994 & Supp. IV 1998) .................................... 
3, 21 

Illegal Immigration Reform and Immigrant 

Responsibility Act of 1966, Pub. L. No. 104-208, 
Div. C, 110 Stat. 3009-546 .............................................. 

2, 110a 
§§ 301-308, 110 Stat. 3009-575 ........................................ 
14 

§ 304, 110 Stat. 3009-575 ....................................... 
passim 

§ 304(b), 110 Stat. 3009-597 ............................... 
2, 10, 112a 

§ 306, 110 Stat. 3009-607 ............................................... 
8 

§ 306(b), 110 Stat. 3009-612 .......................................... 
8 

§ 308(b)(6), 110 Stat. 3009-615 ...................................... 
7 

§ 309, 110 Stat. 3009-625 ......................................... 
2, 112a 

§ 309(a), 110 Stat. 3009-625 ............................ 
8, 14, 15, 27 

§ 309(c), 110 Stat. 3009-625 ........................................... 
8 

§ 321, 110 Stat. 3009-627 ............................................... 
15 

§ 322, 110 Stat. 3009-628 ............................................... 
15 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq. (1994 & Supp. IV 1998): 
8 U.S.C. 1101(a)(43) ......................................................... 
3 

8 U.S.C. 1101(a)(43)(B) .................................................... 
9 

8 U.S.C. 1103(a)(1) (Supp. IV 1998) .............................. 
28 

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

8 U.S.C. 1105a(a) (1994) ........................... 
2, 3, 21, 98a, 99a 

8 U.S.C. 1105a(a)(10) (1994) .......................... 
3, 4, 8, 22, 24 

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

8 U.S.C. 1225(b) (Supp. IV 1998) ........................... 
2, 101a 

8 U.S.C. 1225(b)(1) (Supp. IV 1998) ............................ 
7, 22 

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 1998) .................. 
4 

8 U.S.C. 1228(b) (Supp. IV 1998) ................................... 
7 

8 U.S.C. 1229 (Supp. IV 1998) ........................................ 
7 

8 U.S.C. 1229a (Supp. IV 1998) ...................................... 
7 

8 U.S.C. 1229b (Supp. IV 1998) ................................... 7, 10 

VII 

Statutes and regulation—Continued: 
Page 

8 U.S.C. 1229b(a) (Supp. IV 1998) ........................... 
2, 105a 

8 U.S.C. 1229b(a)(3) (Supp. IV 1998) ............................ 
7 

8 U.S.C. 1229b(b)(1)(C) (Supp. IV 1998) ...................... 
7 

8 U.S.C. 1251(a)(2)(A)(iii) (1994) ................................... 
4 

8 U.S.C. 1252 (Supp. IV 1998) ........ 
2, 8, 9, 22, 23, 25, 105a 

8 U.S.C. 1252(a)(1) (Supp. IV 1998) ............... 

8, 21, 22, 25 

8 U.S.C. 1252(a)(2)(C) (Supp. IV 1998) ...................... 
8, 11, 

12, 13, 19, 23, 25 
8 U.S.C. 1252(b)(1) (Supp. IV 1998) ........................ 

22, 24 

8 U.S.C. 1252(b)(6) (Supp. IV 1998) ............................ 
24 

8 U.S.C. 1252(b)(9) (Supp. IV 1998) ............. 
8, 12, 22, 25 

8 U.S.C. 1252(e)(2) (Supp. IV 1998) .......................... 
7, 22 

8 U.S.C. 1252b (1994) ..................................................... 
7 

28 U.S.C. 2241 (1994 & Supp. IV 1998) ......................... 
passim 

8 C.F.R. 3.14(a) .......................................................................... 
9 

Miscellaneous: 

65 Fed. Reg. 44,478 (2000) ....................................................... 

6 

H.R. Rep. No. 1086, 87th Cong., 1st Sess. (1961) ................ 21 

In the Supreme Court of the United States 

No. 00-767 

IMMIGRATION AND NATURALIZATION SERVICE, 
PETITIONER 

v. 
ENRICO ST. CYR 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the Immigration and 
Naturalization Service, respectfully petitions for a writ of 
certiorari to review the judgment of the United States Court 
of Appeals for the Second Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App. 1a-39a)1 is not 
yet reported. The opinion and judgment of the district court 
(App. 74a-93a) are reported at 64 F. Supp. 2d 47. The deci- 
sions of the Board of Immigration Appeals (App. 94a-95a) 
and the immigration judge (App. 96a-97a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
September 1, 2000. The jurisdiction of this Court is invoked 
under 28 U.S.C. 1254(1). 

1 “App.” refers to the separately bound appendix to this petition. 

(1) 

2 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

Reprinted in an appendix to this petition (App. 98a-114a) 
are pertinent provisions of the Suspension of Habeas Corpus 
Clause of the United States Constitution, Art. I, § 9, Cl. 2; 
Sections 1105a(a) and 1182(c) of Title 8, United States Code, 
as in effect before April 24, 1996; Sections 1105a(a) and 
1182(c) of Title 8, as amended effective April 24, 1996; Sec- 
tions 1225(b), 1229b(a), and 1252 of Title 8, as in effect begin- 
ning April 1, 1997; Sections 401(e) and 440 of the 
Antiterrorism and Effective Death Penalty Act of 1996, Pub. 
L. No. 104-132, 110 Stat. 1268, 1276 (enacted Apr. 24, 1996); 
Sections 304(b) and 309 of the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996, Pub. L. No. 104- 
208, Div. C, 110 Stat. 3009-597, 3009-625 (enacted Sept. 30, 
1996); and Section 2241 of Title 28, United States Code. 

STATEMENT 

1. Statutory Background. 

This case presents questions about the application and, 
potentially, the constitutionality of several major changes to 
the Nation’s immigration laws 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 pro- 
cess 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 Responsibility Act of 1996 (IIRIRA), Pub. L. No. 
104-208, Div. C, 110 Stat. 3009-546 (enacted Sept. 30, 1996). 

a. Pre-AEDPA Law. Before the enactment of AEDPA, 
an alien lawfully admitted for permanent residence who was 
subject to deportation because of a criminal conviction could 

3 

apply to the Attorney General for discretionary relief from 
deportation under 8 U.S.C. 1182(c) (1994). To be eligible for 
such relief, the alien had to show that he had had a lawful 
unrelinquished domicile in this country for seven years, and 
that, if his conviction was for an “aggravated felony,” as 
defined in the Immigration and Nationality Act (INA) (see 8 
U.S.C. 1101(a)(43) (1994)), he had not served a term of 
imprisonment of five years or longer for that conviction. See 
8 U.S.C. 1182(c) (1994).2 If the Attorney General, in the 
exercise of her discretion, denied relief from deportation, 
then the alien could challenge that denial of relief by filing a 
petition for review of his deportation order in the court of 
appeals. See 8 U.S.C. 1105a(a) (1994) (incorporating Hobbs 
Administrative Orders Review Act (Hobbs Act), 28 U.S.C. 
2341-2351 (1994 & Supp. IV 1998)). Under certain circum- 
stances an alien in custody pursuant to an order of deporta- 
tion 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. AEDPA. In 1996, Congress twice restricted both the 
substantive eligibility of criminal aliens for discretionary 
relief from deportation and the availability of judicial review 
of criminal aliens’ deportation orders. First, on April 24, 
1996, Congress enacted AEDPA into law. Section 440(d) of 
AEDPA amended Section 1182(c) to make certain classes of 
criminal aliens categorically ineligible for discretionary relief 
from deportation under that Section—including aliens who 
were deportable because they had been convicted of aggra- 

2 Although Section 1182(c) by its terms applied only to aliens who had 
temporarily proceeded abroad and were returning to their domicile in the 
United States, the Second Circuit held in Francis v. INS, 532 F.2d 268 
(1976), that deportable aliens who had not departed from the United 
States and who had seven years’ unrelinquished domicile in this country 
must also be given the opportunity to apply for relief from deportation 
under Section 1182(c). The Attorney General acquiesced in that decision. 

4 

vated felonies. See AEDPA § 440(d), 110 Stat. 1277 (refer- 
ring to 8 U.S.C. 1251(a)(2)(A)(iii) (1994) (now recodified as 8 
U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 1998))). 

Section 440(a) of AEDPA enacted a related exception to 
the general availability of judicial review of deportation 
orders in the courts of appeals for the same classes of aliens. 
Section 440(a) provided that any final order of deportation 
against an alien who was deportable for having committed 
one of the disqualifying offenses, including aggravated felo- 
nies, “shall not be subject to review by any court.” 110 Stat. 
1276-1277 (adding a new 8 U.S.C. 1105a(a)(10)). At the same 
time, Section 401(e) of AEDPA, entitled “ELIMINATION OF 
CUSTODY REVIEW BY HABEAS CORPUS,” repealed the 
previous version of 8 U.S.C. 1105a(a)(10) (1994), which had 
specifically permitted aliens in custody pursuant to an order 
of deportation to seek habeas corpus relief in district court. 
See 110 Stat. 1268. 

On February 21, 1997, the Attorney General concluded in 
In re Soriano, Interim Dec. No. 3289, 1996 WL 426888, that 
the bar to granting discretionary relief under 8 U.S.C. 
1182(c) (1994) that was enacted in AEDPA Section 440(d) 
applied to all deportation proceedings pending on the date of 
AEDPA’s enactment, including those in which aliens had 
already submitted applications for relief. Numerous aliens 
challenged that conclusion in the federal courts, usually 
seeking to invoke the district courts’ general habeas corpus 
jurisdiction under 28 U.S.C. 2241 to review their deportation 
orders. The courts of appeals divided as to whether the 
district courts retained habeas corpus jurisdiction to 
entertain such challenges to final orders of deportation, or 
whether (as the government contended) AEDPA had 
deprived the district courts of such jurisdiction and instead 
provided that, to the extent any judicial review of deporta- 
tion orders might remain available for aliens convicted of 
aggravated felonies, the courts of appeals had exclusive 

5 

authority to entertain such challenges.3 The courts of 
appeals also reached varying conclusions about the temporal 
scope of AEDPA Section 440(d).4 

3 The majority of the circuits concluded that, after AEDPA, the dis- 
trict courts retained habeas corpus jurisdiction to entertain statutory and 
constitutional challenges to deportation orders against criminal aliens. 
See Goncalves v. Reno, 144 F.3d 110, 118-126 (1st Cir. 1998), cert. denied, 
526 U.S. 1004 (1999); Henderson v. INS, 157 F.3d 106, 118-122 (2d Cir. 
1998), cert. denied, 526 U.S. 1004 (1999); Sandoval v. Reno, 166 F.3d 225, 
229-238 (3d Cir. 1999); Bowrin v. INS, 194 F.3d 483, 486-489 (4th Cir. 
1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999); 
Pak v. Reno, 196 F.3d 666, 670-673 (6th Cir. 1999); Shah v. Reno, 184 F.3d 
719, 722-724 (8th Cir. 1999); Magana-Pizano v. INS, 200 F.3d 603, 607-609 
(9th Cir. 1999); Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1142-1147 (10th 
Cir. 1999), cert. denied, 120 S. Ct. 1539 (2000); Mayers v. INS, 175 F.3d 
1289, 1295-1300 (11th Cir. 1999). The Seventh Circuit, by contrast, con- 
cluded that AEDPA barred district courts from exercising that jurisdic- 
tion. See LaGuerre v. Reno, 164 F.3d 1035, 1040-1041 (1998), cert. denied, 
120 S. Ct. 1157 (2000). 

4 The First, Second, Third, Sixth, Eighth, Ninth, and Eleventh Cir- 
cuits concluded that AEDPA Section 440(d) did not bar relief under 
8 U.S.C. 1182(c) (1994) for aliens whose deportation proceedings were 
commenced before AEDPA was enacted. See Goncalves, 144 F.3d at 126- 
133; Henderson, 157 F.3d at 129-130; Sandoval, 166 F.3d at 241; Pak, 196 
F.3d at 675-676; Shah, 184 F.3d at 724; Magana-Pizano, 200 F.3d at 611; 
Mayers, 175 F.3d at 1301-1304. The Fourth Circuit held that AEDPA 
Section 440(d) did not bar relief for an alien who pleaded guilty to one of 
the offenses covered in that Section and was convicted before AEDPA 
was enacted, even if that alien was placed in deportation proceedings after 
AEDPA’s enactment. See Tasios v. Reno, 204 F.3d 544, 550-552 (4th Cir. 
2000). The Second Circuit agreed with that conclusion in the decision 
below in this case. App. 31a-32a. The First and Ninth Circuits held that, 
although AEDPA Section 440(d) generally barred relief for aliens 
convicted before AEDPA was enacted but placed in proceedings after its 
enactment, it would not bar relief if an alien could show that he pleaded 
guilty in specific reliance on the fact that, under the state of the law before 
AEDPA was enacted, he might have been eligible for relief under Sec- 
tion 1182(c). See Mattis v. Reno, 212 F.3d 31, 37 (1st Cir. 2000); Magana- 
Pizano, 200 F.3d at 612-613. The Third, Fifth, and Tenth Circuits, by 

6 

The government and several aliens filed petitions for a 
writ of certiorari, asking this Court to decide whether the 
district courts retained habeas corpus jurisdiction after 
AEDPA to entertain challenges to deportation orders and to 
resolve the temporal reach of AEDPA Section 440(d). In the 
interim, however, Congress had enacted another sweeping 
change to the INA, in IIRIRA. The IIRIRA carried for- 
ward and recast from AEDPA the preclusion of judicial 
review in cases involving aggravated felons and also refash- 
ioned the statutory scheme governing discretionary relief, 
including the bar to relief for aggravated felons. Accord- 
ingly, this Court denied review of the petitions raising issues 
arising only under AEDPA, remitting to a later date related 
issues in cases arising under IIRIRA.5 This is such a case. 

contrast, held that AEDPA Section 440(d) did bar relief for aliens who 
were convicted before AEDPA was enacted but were placed in deporta- 
tion proceedings after its enactment. DeSousa v. Reno, 190 F.3d 175, 185- 
187 (3d Cir. 1999); Requena-Rodriguez, 190 F.3d at 307-308; Jurado- 
Gutierrez, 190 F.3d at 1149-1152. And the Seventh Circuit held that 
AEDPA Section 440(d) barred relief even for aliens who were already in 
deportation proceedings when AEDPA was enacted. Turkhan v. Perry- 
man, 188 F.3d 814, 827 (7th Cir. 1999); LaGuerre, 164 F.3d at 1040-1041. 

In light of that conflict in the circuits, as well as this Court’s denial of 
certiorari in several cases presenting the temporal scope of AEDPA Sec- 
tion 440(d), the Attorney General recently issued for notice and comment 
a proposed rule that would acquiesce in the decisions of those circuits that 
have concluded that AEDPA Section 440(d) does not bar relief for an alien 
who was placed in deportation proceedings before AEDPA was enacted. 
See 65 Fed. Reg. 44,478 (2000). The Attorney General would still apply 
AEDPA Section 440(d), however, absent adverse circuit precedent, to 
aliens who were placed in deportation proceedings after AEDPA was 
enacted, even if they were convicted before its enactment. Ibid. 

5 See Adeniji v. Perryman, No. 00-5375 (Oct. 30, 2000); Lechuga v. 
Perryman, 121 S. Ct. 299 (2000); Alfarache v. Cravener, 121 S. Ct. 46 
(2000); Smith v. Reno, 121 S. Ct. 81 (2000); De Horta-Garcia v. United 
States, 121 S. Ct. 82 (2000); Palaganas-Suarez v. Greene, 120 S. Ct. 1539 
(2000); LaGuerre v. Reno, 120 S. Ct. 1157 (2000); Reno v. Navas, 526 U.S. 
1004 (1999); Reno v. Goncalves, 526 U.S. 1004 (1999). 

7 

c. IIRIRA. On September 30, 1996, Congress enacted 
IIRIRA into law. In Section 304 of IIRIRA, Congress abol- 
ished the old distinction between “deportation” and “exclu- 
sion” orders,6 and instituted a new form of proceeding, 
known as “removal.” See 8 U.S.C. 1229, 1229a (Supp. IV 
1998); 110 Stat. 3009-587 to 3009-593.7 As before, an alien 
convicted of an aggravated felony is subject to removal. See 
8 U.S.C. 1227(a)(2)(A)(iii) (Supp. IV 1998). 

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, 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. 
IV 1998); 110 Stat. 3009-594. As under AEDPA, Congress 
provided that aliens convicted of aggravated felonies are 
ineligible for discretionary relief. 8 U.S.C. 1229b(a)(3), 
1229b(b)(1)(C) (Supp. IV 1998). 

Because IIRIRA made sweeping changes to the system 
for removal of aliens, Congress delayed IIRIRA’s full effec- 
tive date and established various transitional rules. As a 
general matter, Congress provided that most of IIRIRA’s 
provisions, including the new removal procedures, the new 

6 IIRIRA also expressly repealed the old INA provisions setting forth 
the administrative procedures for deportation of aliens. See IIRIRA 
§ 308(b)(6), 110 Stat. 3009-615 (striking old 8 U.S.C. 1252b (1994)). 

7 Congress also enacted special forms of removal proceedings for 
aliens arriving in the United States without valid documentation, see 
8 U.S.C. 1225(b)(1) (Supp. IV 1998), and for aliens not admitted for legal 
permanent residence who are convicted of aggravated felonies, see 
8 U.S.C. 1228(b) (Supp. IV 1998). Congress provided for limited habeas 
corpus review in the district courts of immigration officers’ removal 
decisions under Section 1225(b)(1). See 8 U.S.C. 1252(e)(2) (Supp. IV 
1998); see also pp. 21-22, infra. 

8 

provisions for cancellation of removal, and the repeal of Sec- 
tion 1182(c)—all of which were enacted together in Section 
304 of IIRIRA—would take effect on April 1, 1997. See 
IIRIRA § 309(a), 110 Stat. 3009-625. For aliens who were 
placed in deportation or exclusion proceedings 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, as amended by Pub. L. No. 104-302, § 2, 
110 Stat. 3657 (technical correction). 

Congress also recast and streamlined the INA’s provi- 
sions for judicial review of removal orders, in Section 306 of 
IIRIRA. For removal proceedings commenced after April 1, 
1997, Congress repealed altogether the former judicial- 
review provisions of 8 U.S.C. 1105a (1994), which, before 
AEDPA, had (at subsection (a)(10)) expressly made the writ 
of habeas corpus available to aliens held in custody. IIRIRA 
§ 306(b), 110 Stat. 3009-612. In its stead, Congress enacted 
the new 8 U.S.C. 1252 (Supp. IV 1998), 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. IV 1998) (incorporat- 
ing 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 com- 
mitted” one of various criminal offenses, including an aggra- 
vated felony. See 8 U.S.C. 1252(a)(2)(C) (Supp. IV 1998). 
And Congress enacted a new, sweeping jurisdiction-limiting 
provision, 8 U.S.C. 1252(b)(9) (Supp. IV 1998), which pro- 
vides: 

9 

Judicial review of all questions of law and fact, includ- 
ing interpretation and application of constitutional and 
statutory provisions, arising from any action taken or 
proceeding brought to remove an alien from the United 
States under this subchapter shall be available only in 
judicial review of a final order under this section [i.e., 
Section 1252]. 

2. Proceedings Below. 

a. Respondent is a native and citizen of Haiti who was 
admitted to the United States as a lawful permanent resi- 
dent on June 17, 1986. On March 8, 1996, before the enact- 
ment of AEDPA and IIRIRA, respondent pleaded guilty in 
Connecticut state court to the sale of a controlled substance. 
App. 3a. Under the INA, that offense constituted “illicit 
trafficking in a controlled substance,” and was therefore an 
aggravated felony. See 8 U.S.C. 1101(a)(43)(B). 

In 1997, after IIRIRA took effect, the Immigration and 
Naturalization Service (INS) commenced removal proceed- 
ings against respondent, charging him with removability 
based on his drug offense.8 At his hearing before an immi- 
gration judge (IJ), respondent sought to apply for relief from 
deportation under former 8 U.S.C. 1182(c) (1994), which had 
been repealed as of April 1, 1997 (see pp. 7-8, supra). The IJ 
denied that application and ordered respondent removed to 
Haiti. App. 96a-97a. The BIA affirmed, concluding that 
respondent was not eligible for Section 1182(c) relief because 
that form of relief “is not available in removal proceedings, 

8 The district court noted that the INS issued the Notice to Appear on 
April 10, 1997, served that Notice on respondent on July 10, 1997, and filed 
the Notice with the immigration court on July 23, 1997. App. 78a. The 
Attorney General’s regulations provide that a removal proceeding is com- 
menced when a charging document such as the Notice to Appear is filed 
with the immigration court by the INS. 8 C.F.R. 3.14(a). In any event, all 
three dates followed the full effective date of IIRIRA, and so respondent’s 
proceeding was plainly commenced after IIRIRA took effect. 

10 

which respondent is properly in. Section [1182(c)] was re- 
pealed by section 304(b) of [IIRIRA] * * * and was re- 
placed with cancellation of removal under * * * 8 U.S.C. 
§ 1229b. The respondent is statutorily ineligible for cancella- 
tion of removal as his criminal conviction constitutes an 
aggravated felony.” App. 95a. 

b. Respondent then filed a petition for a writ of habeas 
corpus in district court. Respondent contended that, not- 
withstanding the repeal of the former Section 1182(c) and 
the fact that he was placed in removal proceedings under the 
new provisions of IIRIRA, rather than in deportation pro- 
ceedings under the pre-IIRIRA provisions of the INA, he 
remains eligible to be considered for discretionary relief 
under Section 1182(c), and that the repeal of that provision 
was not to be applied “retroactively” to his case, which 
involves a criminal conviction entered before IIRIRA took 
effect. The government argued that the district court lacked 
habeas corpus jurisdiction to review the final order of 
removal, and in the alternative defended on the merits the 
BIA’s decision holding respondent ineligible for relief under 
former Section 1182(c). The district court held that it had 
jurisdiction, ruled against the government on the merits, and 
granted habeas corpus, directing the BIA to entertain 
respondent’s application for relief under the repealed 
Section 1182(c). App. 74a-93a. 

c. The court of appeals affirmed. App. 1a-39a. 
(i) The court first concluded (App. 5a-6a), based on its 
decision issued the same day in Calcano-Martinez v. Reno, 
Nos. 98-4033 et al., 2000 WL 1336611 (see App. 40a-73a), that 
the district court properly exercised jurisdiction over 
respondent’s habeas corpus petition. As the court in this 
case summarized its holding in Calcano, IIRIRA did not 
“divest [the district] courts of their habeas jurisdiction under 
28 U.S.C. § 2241 to review statutory and constitutional chal- 
lenges to final removal orders when no other avenue for judi- 

11 

cial review is available.” App. 6a. Here, the court continued, 
no other avenue of judicial review existed because respon- 
dent was convicted of an aggravated felony and was there- 
fore barred by 8 U.S.C. 1252(a)(2)(C) (Supp. IV 1998) from 
raising his claims by petition for review in the court of 
appeals. Ibid. 

In Calcano, the same panel of the court of appeals ruled 
that, because of Section 1252(a)(2)(C), it lacked jurisdiction 
over direct petitions for review filed by three aliens, also 
convicted of aggravated felonies and found ineligible by the 
BIA for discretionary relief on that basis, raising the same 
retroactivity claim raised by respondent in this case. App. 
48a-73a. The court followed prior decisions (see App. 48a- 
54a) holding that the courts of appeals were barred from 
considering any claims raised in direct petitions for review 
for review filed by aggravated felons, except to the extent 
that such petitions directly challenged the BIA’s conclusion 
that the alien was removable because of an aggravated 
felony conviction, since that question determined whether 
the preclusion of removal in Section 1252(a)(2)(C) applies. 
See p. 12, infra.9 But the court further held that the district 
courts retained habeas corpus jurisdiction to consider claims 
that are “purely legal in nature,” including “constitutional 
challenges and claims that the Attorney General misinter- 
preted the immigration laws.” App. 54a. 

The court of appeals acknowledged in Calcano that the 
Fifth and Eleventh Circuits have held that Congress has 
“eliminated § 2241 habeas jurisdiction over an alien’s chal- 
lenge to his or her removal proceedings.” App. 57a. The 
court aligned itself (App. 59a-61a), however, with the Third 
and Ninth Circuits, which have ruled that “Article III courts 

9 Respondent does not raise any such claim in this case: he does not 
contest that he is an alien, that he was properly found by the IJ and the 
BIA to be removable, and that the offense for which he was found 
removable was properly classified as an aggravated felony. 

12 

continue to have habeas jurisdiction under 28 U.S.C. § 2241 
over legal challenges to final removal orders,” App. 60a, and 
that it is therefore unnecessary to read any exceptions into 
Section 1252(a)(2)(C), which “bars [the courts of appeals’] 
jurisdiction over petitions to review removal orders against 
aliens convicted of certain crimes,” App. 61a. 

In addition, the court in Calcano read this Court’s deci- 
sions 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 can- 
not 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,” App. 61a, and more particularly that “Congress 
must explicitly mention § 2241 or general habeas jurisdiction 
to repeal it,” App. 62a. The court found “nothing in 
IIRIRA’s permanent provisions that constitutes a suffi- 
ciently clear statement of congressional intent to repeal the 
habeas jurisdiction granted Article III courts by 28 U.S.C. 
§ 2241.” App. 62a. 

10 And, it stated, the contrary interpre- 
tation would “raise a serious constitutional question under 
the Suspension Clause,” App. 68a, for it would leave respon- 

10 In particular, the court rejected (App. 64a-68a) the government’s 
reliance on Section 1252(b)(9), which expressly requires that judicial 
review of all legal and factual challenges to a removal decision be available 
only in the courts of appeals on review of a final removal order. The court 
acknowledged that this Court in Reno v. American-Arab Anti-Discrimi- 
nation Committee (AADC), 525 U.S. 471 (1999), characterized 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,” App. 65a (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,” App. 66a, 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 

dent without a judicial forum for his challenge to the BIA’s 
determination that it may not grant him relief under the 
repealed Section 1182(c). 

Calcano 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 Consti- 
tution. App. 68a-69a. The government had submitted that, 
on petition for review, a court of appeals retains authority to 
entertain substantial constitutional claims, such as constitu- 
tional 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 committed 
a specified criminal offense,” and who therefore falls within 
the preclusion of review in Section 1252(a)(2)(C). App. 68a. 
Even assuming that such review remains available in the 
court of appeals, the court believed that it would be insuffi- 
cient to satisfy the Constitution, for, it stated, “review of 
statutory questions similar to the one presented in this case 
has long been deemed essential to ensure that a detained 
alien receives full due process of law.” App. 71a. 

The Calcano panel noted finally that, “if we were legisla- 
tors, 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 appeals pursuant to 
a petition for review,” for such a scheme “would eradicate 
habeas corpus’s duplicative review of legal questions in the 
district court and the court of appeals and serve Congress’s 
goal to streamline judicial review.” App. 72a. But, the court 
stated (App. 72a-73a), “[a]lthough this interpretation may 
represent sound legislative policy, * * * we do not read 
IIRIRA or our prior cases to permit such review under” 
Section 1252(a)(2)(C). 

14 

(ii) On the merits, the court of appeals held (App. 6a-32a) 
that the repeal of Section 1182(c) by IIRIRA Section 304 
could not be applied to an alien who pleaded guilty or nolo 
contendere to an aggravated felony before IIRIRA’s enact- 
ment. In reaching that conclusion, the court purported to 
apply (App. 13a) the two-step analysis set forth in Landgraf 

v. USI Film Products, 511 U.S. 244, 280 (1994), for deter- 
mining whether a federal statute applies to pre-enactment 
conduct: 

When a case implicates a federal statute enacted after 
the events in suit, the court’s first task is to determine 
whether Congress has expressly prescribed the statute’s 
proper reach. If Congress has done so, of course, there is 
no need to resort to judicial default rules. When, how- 
ever, the statute contains no such express command, the 
court must determine whether the new statute would 
have retroactive effect, i.e., whether it would impair 
rights a party possessed when he acted, increase a 
party’s liability for past conduct, or impose new duties 
with respect to transactions already completed. If the 
statute would operate retroactively, our traditional pre- 
sumption teaches that it does not govern absent clear 
congressional intent favoring such a result. 

App. 13a. 

The court first concluded, under the first prong of Land- 
graf, that Congress had not made clear whether the repeal of 
Section 1182(c) by IIRIRA Section 304 was to be applied to 
aliens who were convicted before Section 304’s effective 
date. App. 14a-22a. It rejected the government’s argument 
that, under the general “effective date” provision in IIRIRA 
Section 309(a), 110 Stat. 3009-625, all of the new rules added 
by Sections 301-308 of IIRIRA, including IIRIRA Section 
304’s repeal of Section 1182(c) and its substitution of can- 
cellation of removal, must be applied together to aliens 
placed in removal proceedings on or after April 1, 1997. The 

15 

court found that submission contrary to this Court’s state- 
ment in Landgraf (511 U.S. at 257) that an “effective date” 
provision does not dictate a statute’s application to pre- 
enactment conduct. App. 16a. Although the court acknowl- 
edged that IIRIRA Section 309(a) is “arguably more direct 
than a typical effective date provision,” it concluded that 
Section 309(a) “is not precise enough to mandate retroactive 
application of IIRIRA § 304 under the first step of the 
Landgraf inquiry.” Ibid. 

11 

The court then concluded, under the second step of the 
Landgraf analysis, that applying Section 304 in the cases of 
aliens who pleaded guilty before IIRIRA was enacted would 
have “an impermissible retroactive effect.” App. 25a. 
Focusing on “the decision to enter a guilty plea to a crime 

* * * that qualifies the alien for removal under the 
immigration laws,” the court agreed with respondent that 
“an alien charged with a crime making him eligible for 
deportation would factor the immigration consequences of 
conviction”—including “the availability of discretionary 
relief from removal”—“in deciding whether to plead or pro- 
ceed to trial.” App. 26a-27a (brackets and internal quotation 

11 The court also contrasted (App. 17a-18a) Section 304 with other 
provisions in a different subtitle of IIRIRA (especially Sections 321 and 
322), where Congress had expressly provided that the amendments were 
to be applied to convictions entered before the statute’s enactment. The 
court rejected, however, respondent’s contention that those other pro- 
visions’ express directives required the court to conclude by negative 
inference that Section 304 applies only to post-enactment conduct. Those 
other provisions, the court stated, were “too dissimilar to the availability 
of discretionary relief to support a negative inference in favor of prospec- 
tive application of IIRIRA § 304.” App. 21a n.5. In addition, the court 
stated, although the effective date provision in IIRIRA Section 309(a) did 
not dictate Section 304’s application to pre-enactment conduct, it did “ren- 
der [c]ongressional intent ambiguous.” Ibid. Thus, the court “decline[d] 
to infer from this lack of guidance that Congress intended IIRIRA § 304 to 
apply only prospectively and [held] that Congress’s intent as to the sec- 
tion’s temporal reach is ambiguous.” Ibid. 

16 

marks omitted). The court further remarked that, before 
AEDPA and IIRIRA were enacted, “an alien’s reliance on 
the possibility of receiving a waiver of deportation was 
reasonable because there was a strong possibility that he or 
she would receive relief.” App. 28a. Thus, the court main- 
tained, under pre-AEDPA and pre-IIRIRA law, an alien 
charged with a deportable crime would “only decide to 
concede guilt to a crime that renders him or her removable 
in order to be eligible to apply for relief from removal,” 
whereas “[u]nder the law today, this settled expectation is 
upset dramatically.” App. 29a. Because Section 304 of 
IIRIRA, in the court’s view, would “upset settled expecta- 
tions were it applied retroactively to pre-enactment guilty 
pleas [and] * * * would attach new legal consequences to 
[an alien’s] guilty plea to a removal crime,” it would “have an 
impermissible retroactive effect” in such cases. Ibid. 

12 

(iii) Judge Walker dissented from the court’s ruling on 
the merits, and concluded that Congress had expressly pre- 
scribed that all of IIRIRA Section 304, including its repeal of 
Section 1182(c), is to be applied in any removal proceeding 
commenced after IIRIRA’s general effective date of April 1, 
1997. App. 33a-39a. He noted that such application raises no 
constitutional concern, for “Congress may effect such 
changes to require removal of an alien who would not have 
been subject to removal before the changes became effec- 

12 Although the court did not expressly conclude that such application 
would be unconstitutional, it did invoke a perceived need to avoid placing 
IIRIRA Section 304 in constitutional doubt. App. 22a n.6. The court 
acknowledged that the Due Process Clause of the Fifth Amendment 
places only “a narrow limit on Congress’s power” to enact retrospective 
legislation, but, it stated, application of IIRIRA Section 304 to aliens con- 
victed on the basis of pre-IIRIRA guilty plea would raise a “profound 
constitutional question.” Ibid. The court remarked that “the Constitu- 
tion’s safeguard against retroactivity is especially appropriate where it 
protects an unpopular group or individual” (presumably referring to 
aliens). Ibid. 

17 

tive,” and “may alter the requirements for continued resi- 
dence in this country.” App. 33a-34a. He then found it “clear 
on the face of the statute” that Congress had repealed Sec- 
tion 1182(c) relief for aliens placed in removal proceedings 
after IIRIRA took effect. App. 34a. Stressing IIRIRA’s 
“comprehensive method of implementation” and Congress’s 
intent that it be “a complete break from the past,” he con- 
cluded that “Congress intended the whole of IIRIRA’s 
permanent provisions to apply to every alien as of April 1, 
1997.” App. 34a-35a. The majority’s contrary ruling, Judge 
Walker submitted, created an “awkward statutory patch- 
work” (App. 37a) because it gave respondent “access to a 
waiver of deportation hearing under [Section 1182(c)] that 
was part and parcel of a statutory scheme that no longer 
exists” (ibid.). He also concluded that applying Section 304 
to respondent’s case would not conflict with the presumption 
against retroactivity because Section 304 “is not made ret- 
roactive merely because it applies to convictions for aggra- 
vated felonies before that time. The past aggravated felony 
conviction is only the prerequisite for the prospective denial 
of discretionary relief.” App. 39a. Judge Walker further 
stated (ibid.) that, even if the temporal scope of Section 304 
were ambiguous, he would defer to the BIA’s construction of 
it under Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 842-843 (1984). 

REASONS FOR GRANTING THE PETITION 

The court of appeals has erroneously decided two issues of 
broad significance for the administration of the Nation’s 
immigration laws. First, it has concluded that criminal aliens 
found removable because of an aggravated felony conviction 
in proceedings commenced under IIRIRA may invoke the 
habeas corpus jurisdiction of the district courts under 28 
U.S.C. 2241 to challenge the merits of their removal orders 
on constitutional and statutory grounds. That decision 
conflicts directly with the decisions of two other courts of 

18 

appeals. The decision also cannot be squared with the 
structure of judicial review of removal orders that Congress 
has enacted, and could lead to significant delays in the 
removal of criminal aliens from the United States, despite 
Congress’s particular concern that removal of criminal aliens 
be expedited. Resolution of the proper forum for challenges 
to removal orders is profoundly important to the orderly 
administration of the Nation’s immigration laws after 
IIRIRA. 

Second, the court of appeals has concluded that aliens con- 
victed of aggravated felonies before AEDPA and IIRIRA 
were enacted but placed in removal proceedings after 
IIRIRA took effect may still obtain relief from removal 
under old 8 U.S.C. 1182(c) (1994)—even though Section 
1182(c) was repealed by IIRIRA when IIRIRA took effect. 
That decision is manifestly wrong. It proceeds from a mis- 
understanding of IIRIRA Section 304, which comprehen- 
sively replaced the old system of deportation, including pro- 
ceedings for discretionary relief, with a wholly new system 
of removal, with its own, different eligibility criteria for 
discretionary cancellation of removal. It also relies on a mis- 
apprehension of the presumption against retroactive applica- 
tion of federal statutes, which has no operation in this 
removal context. And the decision cannot be squared with 
other appellate decisions recognizing that former Section 
1182(c) no longer applies in removal proceedings under 
IIRIRA. The court of appeals’ reading of IIRIRA Section 
304, if not reversed, could affect the removal proceedings of 
many criminal aliens who were convicted of criminal offenses 
before AEDPA and IIRIRA were enacted but who have not 
yet been charged with removal because they have not 
completed their prison terms. 

19 

1. a. The court of appeals’ central jurisdictional ruling in 
this case and in Calcano 

13 is that a criminal alien who is 
precluded from obtaining judicial review of his removal 
order in the court of appeals because of 8 U.S.C. 
1252(a)(2)(C) (Supp. IV 1998) may nontheless obtain judicial 
review by filing a petition for a writ of habeas corpus in 
district court under 28 U.S.C. 2241. App. 6a. That holding 
conflicts directly with the decisions of two other courts of 
appeals, as the court below acknowledged in Calcano (see 
App. 57a-59a). 

14 In Max-George v. Reno, 205 F.3d 194 (2000), 
petition for cert. pending, No. 00-6280, the Fifth Circuit, 
upholding the dismissal of an alien’s habeas corpus petition 
filed in district court, held that “IIRIRA eliminates § 2241 
jurisdiction” for aggravated felons seeking to challenge their 
removal orders, and that “[t]he clear language of IIRIRA’s 
permanent rules force[s] an alien to raise all potential issues 
regarding his deportation at one place and time: a petition 
for review filed in the court of appeals.” 205 F.3d at 198; see 
id. at 199 (“IIRIRA’s permanent provisions eliminate § 2241 

13 Because the court of appeals dismissed the aliens’ petitions for 
review in Calcano and the government was therefore nominally the 
prevailing party in that case, we have not sought review of that decision in 
this Court. The court’s reasoning in Calcano, however, was the basis for a 
decision adverse to the government in this case. 

14 The Second Circuit’s decision is consistent, however, with decisions 
of the First, Third, and Ninth Circuits. 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 over similar “retroactivity” challenge); Liang v. 
INS, 206 F.3d 308, 315-323 (3d Cir. 2000) (holding that, because of 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 the claim on habeas corpus); Flores- 
Miramontes v. INS, 212 F.2d 1133, 1135-1136, 1141-1143 (9th Cir. 2000) 
(holding that, because of Section 1252(a)(2)(C), court of appeals lacked 
jurisdiction to entertain aggravated felon’s contention that his removal 
proceedings violated procedural due process, but that district court could 
entertain that claim on habeas corpus). 

20 

habeas corpus jurisdiction for those cases that fall within 
§ 1252(a)(2)(C).”). 

15 Similarly, in Richardson v. Reno, 180 
F.3d 1311 (1999), cert. denied, 120 S. Ct. 1529 (2000), the 
Eleventh Circuit held (id. at 1315) that “IIRIRA precludes 
§ 2241 habeas jurisdiction over an alien’s petition challenging 
his removal proceedings,” and that IIRIRA “constitute[s] a 
sufficiently broad and general limitation on federal jurisdic- 
tion to preclude § 2241 jurisdiction over challenges to re- 
moval orders, removal proceedings, and detention pending 
removal.” 

16 Certiorari is warranted to resolve this impor- 
tant jurisdictional issue, which potentially affects thousands 
of criminal aliens who may seek to file petitions for review or 
for habeas corpus to challenge their removal orders. Those 
aliens, the government, and the courts should know defini- 
tively whether aliens may challenge their removal orders in 
district court under Section 2241, or whether they must pre- 
sent any challenges only in the court of appeals. 

15 The Fifth Circuit has relied on its decision in Max-George in sub- 
sequent cases to order the dismissal of habeas corpus petitions brought by 
aliens in district court. See Perez v. Reno, 227 F.3d 294 (2000); Garnica- 
Vasquez v. Reno, 210 F.3d 558 (2000); Finlay v. INS, 210 F.3d 556 (2000). 

16 As we pointed out in our brief in opposition (at 21-23) in Richardson, 
that case did not actually involve an alien’s challenge to a final removal 
order, but rather involved an alien’s challenge to his detention pending the 
BIA’s final decision in his removal proceeding. The Richardson court’s 
conclusion that IIRIRA had precluded habeas corpus jurisdiction over 
challenges to final removal orders was, however, a necessary predicate for 
its conclusion that it also lacked jurisdiction over challenges to detention 
pending the final removal decision. See 180 F.3d at 1314-1317. In 
addition, the Eleventh Circuit has since relied on its decision in Richard- 
son to conclude that a district court lacked habeas corpus jurisdiction over 
an aggravated felon’s challenge to his final removal order. See Russell v. 
Reno, No. 99-10084 (11th Cir. May 9, 2000), slip op. 2 (per curiam), petition 
for cert. pending, No. 00-5970; see also Alanis-Bustamante v. Reno, 201 
F.3d 1303, 1307 (11th Cir. 2000) (stating that, “under the permanent pro- 
visions of IIRIRA, § 2241 habeas jurisdiction over removal cases no longer 
exists”) (footnote omitted). 

21 

b. The court of appeals’ jurisdictional ruling is fundamen- 
tally at odds with the basic framework of Congress’s legisla- 
tion for judicial review of removal orders. Since 1961, Con- 
gress has consistently provided that such review should 
proceed only in the courts of appeals, in order to prevent 
delays in deportations. 

17 Although Congress had also ex- 
pressly provided, in old Section 1105a(a)(10), that aliens 
actually held in custody could obtain limited judicial review 
by habeas corpus, Congress repealed even that provision in 
Section 401(e) of AEDPA, entitled “ELIMINATION OF CUS- 
TODY REVIEW BY HABEAS CORPUS.” 110 Stat. 1268. That 
repeal divested the district courts of authority to review the 
merits of final deportation orders on habeas corpus, and 
made the courts of appeals the exclusive forum for all 
challenges to deportation orders. 

In IIRIRA, Congress confirmed that all judicial review of 
removal orders must be had in the courts of appeals. In 
Section 1252(a)(1), Congress provided that “[j]udicial review 
of a final order of removal * * * is governed only by” the 
Hobbs Act, 28 U.S.C. 2341-2351, which channels review of 
agency orders into the courts of appeals. Congress did not 

17 In 1961, Congress enacted 8 U.S.C. 1105a(a), which provided that the 
court of appeals review procedures of the Hobbs Act “shall be the sole and 
exclusive procedure for[] the judicial review of all final orders of deporta- 
tion.” Congress enacted Section 1105a(a) because it was dissatisfied with 
the bifurcated system of review that resulted from this Court’s decisions 
in Heikkila v. Barber, 345 U.S. 229 (1953), and Shaughnessy v. Pedreiro, 
349 U.S. 48 (1955), permitting aliens to proceed in district court. See H.R. 
Rep. No. 1086, 87th Cong., 1st Sess. 22, 27-28 (1961). As this Court 
observed in Foti v. INS, 375 U.S. 217, 224 (1963), “[t]he fundamental pur- 
pose behind [placing exclusive review in the courts of appeals] was to 
abbreviate the process of judicial review of deportation orders in order to 
frustrate certain practices which had come to the attention of Congress, 
whereby persons subject to deportation were forestalling departure by 
dilatory tactics in the courts”. See also Stone v. INS, 514 U.S. 386, 399 
(1995). 

22 

provide any general exception for habeas corpus review at 
the behest of aliens held in custody, as it had provided before 
AEDPA in former 8 U.S.C. 1105a(a)(10) (1994). Signifi- 
cantly, moreover, Section 1252(a)(1) contains an express ex- 
ception from its general provision for exclusive review in the 
courts of appeals only for “an order of removal without a 
hearing pursuant to” 8 U.S.C. 1225(b)(1) (Supp. IV 1998). 
For cases covered by that exception, Section 1252(e)(2) pro- 
vides that “[j]udicial review of any determination made 
under [Section 1225(b)(1)] is available in habeas corpus pro- 
ceedings.” Thus, when Congress intended in IIRIRA to 
provide for judicial review of final removal orders in habeas 
corpus proceedings in district court, it expressly so provided 
in Section 1252 itself. Congress’s omission of any provision 
for habeas corpus review of any other kind of removal order 
necessarily means that such review is barred. See United 
States v. Fausto, 484 U.S. 439, 448-449 (1987); United States 

v. Erika, Inc., 456 U.S. 201, 208 (1982). 
Furthermore, to ensure that the specified procedures for 
judicial review in Section 1252 would not be circumvented, 
Congress enacted Section 1252(b)(9), which provides sweep- 
ingly: “Judicial review of all questions of law and fact, in- 
cluding interpretation and application of constitutional and 
statutory provisions, arising from any action taken or pro- 
ceeding 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 
itself].” Section 1252(b)(9) confirms that, except for the nar- 
row circumstance, expressly mentioned in Section 1252(a)(1) 
itself, where Congress permitted habeas corpus review, the 
court of appeals review procedures of Section 1252 are the 
exclusive ones available to aliens seeking to challenge their 
removal orders. Indeed, this Court described Section 
1252(b)(9) in Reno v. American-Arab Anti-Discrimination 
Committee (AADC), 525 U.S. 471, 483 (1999), as an “unmis- 

23 

takable ‘zipper’ clause” that channels judicial review to the 
courts of appeals. 

Finally, Congress also restricted, to a considerable de- 
gree, judicial review of criminal aliens’ removal orders. 
Section 1252(a)(2)(C) provides that, “[n]otwithstanding any 
other provision of law”—broad language not limited to Sec- 
tion 1252 or even the INA—“no court shall have jurisdiction 
to review any final order of removal against” an aggravated 
felon. The court of appeals’ ruling that respondent could 
obtain review in the district court of the final order of 
removal against him is flatly inconsistent with that ban. 

These consistent and successive enactments show that 
Congress has required that judicial review of deportation 
orders be had, if at all, only in the courts of appeals. The 
court of appeals in this case, however, concluded that Con- 
gress has not acted with sufficient clarity to prevent aliens 
from challenging their removal orders in the district courts 
under Section 2241. The result of the court of appeals’ 
decision is that criminal aliens may proceed in district court 
under Section 2241 to test the validity of their removal 
orders, whereas all other aliens must file petitions for review 
in the court of appeals, pursuant to the traditional exclusive- 
review procedures. That result not only frustrates Con- 
gress’s intent that review of criminal aliens’ deportation pro- 
ceedings be streamlined and limited; it turns Congress’s 
scheme on its head—as the court of appeals acknowledged in 
Calcano. See App. 72a (agreeing that government’s reading 
“would eradicate habeas corpus’s duplicative review of legal 
questions in the district court and the court of appeals and 
serve Congress’s goal to streamline judicial review”). It is 
scarcely conceivable that Congress would have intended 
criminal aliens to have greater opportunities for judicial 
review (and delay) of their removal orders than all other 
aliens. Cf. Foti v. INS, 375 U.S. 217, 224 (1963) (noting 

24 

Congress’s concern with delays in judicial review of removal 
orders); Stone v. INS, 514 U.S. 386, 399 (1995) (similar). 

18 

c. The court of appeals’ jurisdictional decision also pro- 
ceeds from a misplaced reliance on two canons of statutory 
interpretation. First, invoking this Court’s decisions in 
Felker and Yerger, holding that implied repeals of habeas 
corpus jurisdiction are not favored, the court stated in 
Calcano that it could not “presume” that Congress had 
divested district courts of their authority to review removal 
orders given that Congress had not “explicitly mention[ed] 
the jurisdictional statute [28 U.S.C. 2241] or the general type 
of jurisdiction by name.” App. 61a; see App. 62a-63a (stress- 
ing that IIRIRA “do[es] not explicitly mention a repeal of a 
federal court’s general habeas jurisdiction or 28 U.S.C. 
§ 2241”). 

This case, however, does not involve an assertion of 
“implied” repeal of habeas corpus jurisdiction. In AEDPA 
Section 401(e), Congress expressly repealed the INA’s prior 
provision for habeas corpus review in 8 U.S.C. 1105a(a)(10) 
(1994). See p. 4, supra. In IIRIRA, Congress also expressly 
provided that judicial review of a final removal order may be 
had “only” in the court of appeals, subject only to a narrow 
exception allowing judicial review in habeas corpus proceed- 
ings for a confined set of cases that does not encompass this 
case. See pp. 21-22, supra. Neither Felker nor Yerger inti- 
mates, much less holds, that such statutory provisions are 

18 Aliens proceeding in district court pursuant to Section 2241 have 
markedly greater opportunities for delay than those proceeding directly in 
the courts of appeals. Section 2241 contains no express time limit on the 
filing of a petition for a writ of habeas corpus, in contrast with the strict 
time limits governing the exclusive-review procedures of the INA, see 
8 U.S.C. 1252(b)(1) (Supp. IV 1998). Also, unlike the INA, Section 2241 
does not require consolidation of challenges to deportation orders with 
challenges to motions to reopen or reconsider. Cf. 8 U.S.C. 1252(b)(6) 
(Supp. IV 1998). And, of course, an alien who is unsuccessful in district 
court can appeal to the court of appeals, and thereby obtain further delay. 

25 

ineffective to bar review on habeas corpus, and that the only 
way in which Congress can divest the district courts of 
authority under Section 2241 is by referring to that specific 
statute or using the words “habeas corpus” in an enactment. 
Rather, if Congress’s intent is clear that another statutory 
scheme provides the exclusive means by which an alien’s 
removal order may be tested, the courts must give effect to 
that determination. Here, the entire, self-contained struc- 
ture of judicial review that Congress has erected in Section 
1252—requiring that judicial review of removal orders be 
governed “only” by the court of appeals review procedures 
(Section 1252(a)(1)); precluding judicial review of aggravated 
felons’ removal orders “[n]otwithstanding any other provi- 
sion of law” (Section 1252(a)(2)(C)); dictating that judicial 
review of all legal and factual issues arising in removal 
proceedings be had “only” under Section 1252 itself (Section 
1252(b)(9)); and creating an express but very narrow provi- 
sion for certain habeas corpus proceedings (pp. 21-22, 
supra)—demonstrates that a removal order may be chal- 
lenged only in the courts of appeals under Section 1252, and 
not also in the district courts under Section 2241. 

The court of appeals also perceived a need to avoid a 
serious constitutional question that would supposedly arise 
under the Suspension Clause, U.S. Const. Art. I, § 9, Cl. 2, if 
no federal court had authority to consider respondent’s 
particular challenge to his removal order. See App. 68a. We 
agree with the court of appeals that Section 1252(a)(2)(C) 
bars it from entertaining the claim advanced by respondent 
in this case, namely, that the repeal of old Section 1182(c) 
does not apply to his case. Nor, as we have explained, could 
that claim be presented to the district court. The with- 
drawal of the courts’ authority to hear that particular claim, 
however, raises no constitutional concerns, for that claim 
does not fall within the scope of the habeas corpus remedy 
preserved by the Suspension Clause. Respondent has not 

26 

contended that the Attorney General lacks authority to 
remove him, nor has he contested that he was properly found 
removable based on his aggravated felony conviction. 
Rather, he argues that the BIA erred in concluding that it 
could not grant him discretionary relief from a concededly 
proper removal. 

This Court has never held that such a claim of error is 
within the constitutional core of the Great Writ that must be 
preserved under the Suspension Clause. To the contrary, 
the Court has described the Attorney General’s discretion- 
ary power to grant a dispensation from deportation as an 
“act of grace,” similar to “a judge’s power to suspend the 
execution of a sentence, or the President’s to pardon a 
convict.” INS v. Yang, 519 U.S. 26, 30 (1996); see also Jay v. 
Boyd, 351 U.S. 345, 354 (1956). The court of appeals there- 
fore erred in suggesting that the Suspension Clause would 
be violated if respondent is not afforded a judicial forum for 
review of his claim, and its misplaced concern should not 
have led it to conclude that Section 2241 remains available as 
a vehicle for presentation of that claim. 

2. a. Certiorari is also warranted to review the court of 
appeals’ decision on the merits that aliens who pleaded 
guilty to aggravated felonies before AEDPA’s enactment, 
but were placed in removal proceedings under IIRIRA, re- 
main eligible for discretionary relief from deportation under 
the repealed Section 1182(c). That ruling represents a mani- 
festly erroneous application of both steps of the Landgraf 
test for determining the temporal reach of a federal statute. 
It also conflicts with this Court’s settled jurisprudence that 
Congress may alter the bases on which aliens are to be 
removed without implicating constitutional retroactivity 
concerns. 

First, under the first Landgraf step, Congress has clearly 
prescribed that old Section 1182(c) has no application in any 
removal proceeding commenced on or after April 1, 1997. In 

27 

Section 304 of IIRIRA, Congress comprehensively revised 
the INA: it eliminated the INA’s old “deportation” and 
“exclusion” proceedings; it repealed Section 1182(c), which 
was applicable in such proceedings; it created a new 
“removal” proceeding; and it created a new form of discre- 
tionary relief (cancellation of removal). IIRIRA also 
established the same effective date for all of those changes 
made by Section 304, which are plainly to be taken as a 
whole. See IIRIRA § 309(a), 110 Stat. 3009-625. IIRIRA’s 
effective date thus marks a caesura, after which a new 
statutory framework is to be applied. The court of appeals’ 
decision, however, creates a hybrid form of proceeding, in 
which aliens who concededly are properly placed in removal 
proceedings under the new statutory provisions enacted by 
IIRIRA Section 304 may nonetheless apply for relief from 
deportation, despite IIRIRA Section 304’s repeal of that 
form of relief. Congress simply did not fashion any such 
interweaving of old and new parts of the INA. 

The court of appeals also erred in concluding, under the 
second Landgraf step, that application of IIRIRA’s repeal of 
Section 1182(c) to aliens who pleaded guilty before that 
repeal would contravene the presumption against retroactiv- 
ity. That conclusion is contrary to this Court’s longstanding 
understanding of deportation proceedings as inherently 
prospective, in that they concern the alien’s ongoing right to 
remain here. As the Court explained in INS v. Lopez- 
Mendoza, 468 U.S. 1032, 1038 (1984), “[t]he deportation hear- 
ing looks prospectively to the respondent’s right to remain in 
this country in the future. Past conduct is relevant only 
insofar as it may shed light on the respondent’s right to 
remain.” Similarly, in AADC, supra, the Court emphasized 
that, “in all cases, deportation is necessary in order to bring 
to an end an ongoing violation of United States law.” 525 
U.S. at 491. Thus, as Judge Walker observed in dissent 
below (App. 33a-34a), Congress has frequently altered the 

28 

categories of aliens who may continue to reside in the United 
States, and this Court has consistently upheld Congress’s 
power to do so against constitutional objection. 

19 And as 
Judge Walker also noted (App. 39a), even if it were not 
sufficiently clear under the first step of the Landgraf analy- 
sis that Congress had intended IIRIRA Section 304’s repeal 
of former Section 1182(c) to apply to all new removal pro- 
ceedings commenced under IIRIRA, the courts should defer 
to the Attorney General’s definitive construction of the tem- 
poral scope of that repeal under standard principles of ad- 
ministrative law, see Chevron U.S.A. Inc. v. Natural Re- 
sources Defense Council, Inc., 467 U.S. 837, 842-843 (1984), 
and the Attorney General’s particular statutory charge to 
issue controlling constructions of the INA, see INS v. 
Aguirre-Aguirre, 526 U.S. 415, 424 (1999); 8 U.S.C. 
1103(a)(1) (Supp. IV 1998). 

b. The court of appeals’ decision on the merits cannot be 
squared with decisions of other courts of appeals recognizing 
that all of IIRIRA Section 304, including its repeal of Section 
1182(c), applies in all removal proceedings commenced after 
IIRIRA became effective. In Morales-Ramirez v. Reno, 209 
F.3d 977 (7th Cir. 2000), an alien was served with a notice of 
exclusion proceedings before AEDPA’s enactment but was 
not actually placed in removal proceedings until after 
IIRIRA’s effective date; he contended that the INS violated 
his due process rights by proceeding against him in removal 
proceedings, in which he was ineligible for cancellation of 
removal because of his aggravated felony conviction, rather 
than in old exclusion proceedings, in which he could have 
applied for relief under old Section 1182(c). The Seventh 
Circuit rejected that contention, concluding that, because the 

19 See Marcello v. Bonds, 349 U.S. 302, 314 (1955); Galvan v. Press, 347 
U.S. 522, 530-531 (1954); Harisiades v. Shaughnessy, 342 U.S. 580, 593-596 
(1952); Mahler v. Eby, 264 U.S. 32, 39 (1924); Bugajewitz v. Adams, 228 
U.S. 585, 591 (1913). 

29 

INS did not file the charging document with the immigration 
court until after IIRIRA became effective, the alien was 
never placed in pre-IIRIRA exclusion proceedings (see p. 9 

n.8, supra), and so he had “no protected interest in retaining 
the ability guaranteed by [Section 1182(c)] to apply for dis- 
cretionary waiver of exclusion.” Id. at 983. 

Similarly, in Galindo-Del Valle v. Attorney General, 213 
F.3d 594 (11th Cir. 2000), petition for cert. pending, No. 00- 
362, an alien convicted of an aggravated felony before 
AEDPA was enacted, but placed in removal proceedings 
after IIRIRA became effective, challenged as unconstitu- 
tional the BIA’s alleged application of AEDPA Section 
440(d) in his case to bar him from relief under old Section 
1182(c). The court of appeals held that Galindo-Del Valle 
lacked standing to make that contention because “the INS 
did not commence proceedings against Galindo-Del Valle 
until after IIRIRA’s permanent rules had repealed former 
[Section 1182(c)] in its entirety,” and “AEDPA § 440(d) was 
not applied to Galindo-Del Valle to bar [Section 1182(c)] 
relief because [Section 1182(c)] had been repealed.” 213 F.3d 
at 598. Both the Seventh and Eleventh Circuits have there- 
fore relied on their (correct) understanding of the temporal 
scope of IIRIRA Section 304 to reject constitutional claims 
by aliens placed in post-IIRIRA removal proceedings that 
they should have been allowed to apply for relief under 
former Section 1182(c). 

c. The issue of the temporal scope of IIRIRA’s repeal of 
former Section 1182(c) is of considerable importance in the 
Attorney General’s administration of the INA. More than 50 
other aliens have already challenged their removal orders in 
the lower courts on grounds similar to those raised by 
respondent. Moreover, the impact of the court of appeals’ 
decision is potentially enormous. We have been informed by 
the Executive Office for Immigration Review (EOIR), the 
separate entity within the Justice Department that adjudi- 

30 

cates immigration cases, that in just the first year after 
IIRIRA became effective, EOIR decided about 13,000 
removal cases involving aliens convicted of aggravated 
felonies. Many of those aliens were likely convicted before 
AEDPA was enacted. Now they—along with thousands of 
other criminal aliens who have been or in the future will be 
placed in removal proceedings—may seek to challenge their 
removal orders on the ground that they should have been 
allowed to apply for relief under former Section 1182(c). 
Accordingly, if the Court concludes that the district court 
properly exercised habeas corpus jurisdiction over respon- 
dent’s challenge to his removal order, the Court should de- 
finitively resolve whether relief remains available under 
former Section 1182(c) to aliens such as respondent who 
were placed in removal proceedings after IIRIRA Section 
304 became effective, notwithstanding Congress’s express 
repeal of Section 1182(c) upon the effective date of IIRIRA’s 
new removal procedures. 

CONCLUSION 

The petition for a writ of certiorari should be granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
DAVID W. OGDEN 

Assistant Attorney General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 
STEPHEN C. ROBINSON 
DONALD E. KEENER 
ALISON R. DRUCKER 
ERNESTO H. MOLINA 
JAMES K. FILAN, JR. 

Attorneys 

NOVEMBER 2000