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 

REPLY BRIEF FOR THE PETITIONER 

SETH P. WAXMAN 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

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

Cir. 2000) ................................................................................. 
3 

Brady v. United States, 397 U.S. 742 (1970) ..................... 
10 

Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 
2000), petition for cert. pending, No. 00-1011 ................... 
3 

DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999) .................. 
8 

Galindo-Del Valle v. Attorney General, 213 F.3d 594 
(11th Cir. 2000), petition for cert. pending, 
No. 00-362 ................................................................................ 
7 

Hughes Aircraft Co. v. United States ex rel. 

Schumer, 520 U.S. 939 (1997) ............................................. 

9 

INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) ................... 
4 

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

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

8 

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ......... 
8, 9 

Matter of Marin, 16 I.&N. Dec. 581 (B.I.A. 1978) ............. 
10 

Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000), 
petition for cert. pending, No. 00-6280 .............................. 
2 

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

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

Reno v. American-Arab Anti-Discrimination Com- 
mittee, 525 U.S. 471 (1999) .................................................. 
5 

Requena-Rodriguez v. Pasquarell, 190 F.3d 299 
(5th Cir. 1999) ......................................................................... 
8 

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

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

6 

Richardson v. Reno, 180 F.3d 1311 (11th Cir. 
1999), cert. denied, 120 S. Ct. 1529 (2000) ......................... 
2 

Russell v. Reno, No. 99-10084 (11th Cir. May 9, 2000), 
3 

petition for cert. pending, No. 00-5970 .............................. 
3 

Vargas-Gonzalez v. INS, 647 F.2d 457 (5th Cir. 
1981) ......................................................................................... 6 

(I) 

II 

Statutes: Page 

Antiterrorism and Effective Death Penalty Act of 1996, 

Pub. L. No. 104-132, 110 Stat. 1214 et seq. ........................ 
5 

§ 440(d), 110 Stat. 1277 ..................................................... 
8 

Illegal Immigration Reform and Immigrant 

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

1 
Immigration and Nationality Act, 8 U.S.C. 1101 
et seq.: 
8 U.S.C. 1182(c) (1994) ............................. 

4, 5, 6, 7, 8, 9, 10 

8 U.S.C. 1182(h) (1994 & Supp. V 1999) ....................... 
3 

8 U.S.C. 1229b (Supp. V 1999) ....................................... 
6 

8 U.S.C. 1229b(a) (Supp. V 1999) .................................. 
6 

8 U.S.C. 1229b(d)(1) (Supp. V 1999) ............................. 
6 

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

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

28 U.S.C. 2241 ............................................................................ 1, 2 

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 

REPLY BRIEF FOR THE PETITIONER 

1. Jurisdiction. Respondent concedes (Br. in Opp. 14) 
that the jurisdictional ruling of the Second Circuit in this 
case—holding that the district court had habeas corpus 
jurisdiction under 28 U.S.C. 2241 to review the merits of 
respondent’s challenge to his final removal order—conflicts 
with decisions of the Fifth and Eleventh Circuits, which hold 
that, in the permanent judicial-review provisions of the 
Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 et 
seq. (IIRIRA), Congress has precluded the district courts 
from entertaining challenges to final removal orders on 
habeas corpus. Respondent argues (Br. in Opp. 14-15), how- 
ever, that this conflict among the circuits does not warrant 
review because it merely extends a similar division of 
authority concerning judicial review under the transitional 
rules of IIRIRA, which this Court previously declined to 

(1) 

2 

review. See Pet. 6; Br. in Opp. 9. Respondent ignores the 
critical distinction between transitional rules and permanent 
rules. The Court may well have declined to review those 
earlier decisions precisely because they involved only 
IIRIRA’s transitional rules. By contrast, the division of 
authority on jurisdiction under the permanent rules at issue 
in this case will extend indefinitely into the future unless it is 
resolved by this Court. 

Respondent also argues (Br. in Opp. 15-16) that the Fifth 
and Eleventh Circuits’ decisions do not squarely conflict 
with the decision of the Second Circuit in this case because 
those decisions denied district court jurisdiction for claims 
that could have been raised on a petition for review to the 
court of appeals, while the claim in this case for which the 
Second Circuit permitted district court review could not 
have been raised on petition for review as a result of the 
preclusion of review in 8 U.S.C. 1252(a)(2) (Supp. V 1999) for 
claims raised by criminal aliens. Neither the Fifth Circuit 
nor the Eleventh Circuit, however, so qualified its juris- 
dictional ruling; both ruled broadly that Congress had 
completely precluded the district courts from reviewing 
removal orders under 28 U.S.C. 2241.1 Both courts have also 
relied on those broad rulings to hold in subsequent cases that 
the same bar to district court habeas corpus review applied 
to an alien whose claim could not be entertained by the court 

1 See Max-George v. Reno, 205 F.3d 194, 199 (5th Cir. 2000) (“Accord- 
ingly, we hold that IIRIRA’s permanent provisions eliminate § 2241 
habeas corpus jurisdiction for those cases that fall within § 1252(a)(2) 
(C).”), petition for cert. pending, No. 00-6280; Richardson v. Reno, 180 
F.3d 1311, 1315 (11th Cir. 1999) (“IIRIRA precludes § 2241 habeas 
jurisdiction over an alien’s petition challenging his removal proceedings 
and detention pending removal proceedings. * * * [IIRIRA’s permanent 
rules] constitute a sufficiently broad and general limitation on federal 
jurisdiction to preclude § 2241 jurisdiction over challenges to removal 
orders, removal proceedings, and detention pending removal.”), cert. 
denied, 120 S. Ct. 1529 (2000). 

3 

of appeals under Section 1252(a)(2).2 The Seventh Circuit 
has also concluded that IIRIRA divested the district courts 
of their authority to review removal orders by habeas cor- 
pus. See Morales-Ramirez v. Reno, 209 F.3d 977, 980 (7th 
Cir. 2000). And the Second Circuit, in the companion case to 
the decision below in this case, recognized that its juris- 
dictional ruling conflicts with the decisions of the Fifth and 
Eleventh Circuits. See Pet. App. 57a-59a. The conflict in the 
circuits is therefore well developed and warrants this 
Court’s review. 

Respondent suggests (Br. in Opp. 18-19) that, because the 
court of appeals in this case relied on and applied its juris- 
dictional decision in the companion case of Calcano-Martinez 

v. INS, 232 F.3d 328 (2d Cir. 2000), petition for cert. pending, 
No. 00-1011, the Court should grant review in Calcano 
rather than (or in addition to) this case to resolve the inter- 
twined issues of court of appeals and district court juris- 
diction over aliens’ challenges to final removal orders. For 
the reasons set forth in our response (at 15-17) to the 
petition in Calcano, we submit that the Court should grant 
review in both Calcano and this case, so that the Court will 
have before it a case filed in the district court as well as a 
case filed in the court of appeals, and will also have before it 
the court of appeals’ jurisdictional analysis in both settings. 

2 See Perez v. Reno, 227 F.3d 294 (5th Cir. 2000) (alien who was barred 
by 8 U.S.C. 1252(a)(2)(B) (Supp. V 1999) from challenging on petition for 
review denial of eligibility for waiver of inadmissibility under 8 U.S.C. 
1182(h) (1994 & Supp. V 1999) also could not present that challenge on 
habeas corpus); Russell v. Reno, No. 99-10084 (11th Cir. May 9, 2000), slip 
op. 2 (per curiam) (relying on Richardson to hold that district court lacked 
habeas corpus jurisdiction over alien’s challenge to his removal order), 
petition for cert. pending, No. 00-5970; see also Alanis-Bustamante v. 
Reno, 201 F.3d 1303, 1307 n.8 (11th Cir. 2000) (noting that, in Richardson, 
the Eleventh Circuit held that “under the permanent provisions of 
IIRIRA, an alien may not seek habeas review of any aspect of his re- 
moval”). 

4 

As respondent observes, the jurisdictional issues in the two 
cases are closely related, but resolution of the jurisdictional 
issue in one case would not necessarily dictate a particular 
outcome in the other case. Review in both cases would allow 
the Court to resolve definitively whether (and if so, where) 
an alien convicted of an aggravated felony may present a 
challenge to a final removal order. 

2. Merits. Respondent contends (Br. in Opp. 20-21) that 
the court of appeals’ decision does not warrant review be- 
cause it merely applied the Court’s settled retroactivity jur- 
isprudence in this particular context. The correct application 
of retroactivity principles in the immigration context, how- 
ever, is a matter of very substantial importance to the 
proper administration of the Immigration and Nationality 
Act (INA). None of this Court’s four most recent retro- 
activity decisions cited by respondent (id. at 20) addressed 
any issue involving immigration cases. Moreover, rather 
than applying settled principles, the Second Circuit’s ruling 
on the merits diverges from a long line of this Court’s cases 
holding that Congress may expand the bases on which an 
alien may be deported, or be denied relief from deportation, 
without running afoul of retroactivity principles, as Judge 
Walker observed in his dissent below (Pet. App. 33a-34a; see 
Pet. 27-28).3 

3 Respondent does not challenge the Attorney General’s 
determination that he is removable from the United States. He contends 
only that the Attorney General erred in concluding that discretionary 
relief from deportation under 8 U.S.C. 1182(c) (1994) is not available to 
him because that Section has been repealed. Even when it was in effect, 
however, Section 1182(c) conferred no substantive or individual rights on 
an alien. Rather, it conferred a discretionary power on the Attorney 
General to relieve an alien of the consequences of his ongoing violation of 
the law. As with other grants of discretionary authority under the INA, 
the exercise of such authority is an “act of grace,” like “the President’s 
power to pardon a convict.” INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 
(1996). 

5 

If the ruling on the merits is permitted to stand, the 
Second Circuit’s decision that a statutorily-imposed restric- 
tion on the Attorney General’s authority to grant discretion- 
ary relief from removal is “retroactive” if applied to the case 
of an alien who was convicted before the restriction was 
enacted will have potentially broad consequences for Con- 
gress’s ability to adjust the terms on which criminal aliens, 
among others, may be removed. This Court has never 
viewed such adjustments to raise any concern about retro- 
activity. Indeed, as the Court recently noted in Reno v. 
American-Arab Anti-Discrimination Committee, 525 U.S. 
471, 491 (1999), removal of an alien according to the terms of 
a statute setting forth the categories of aliens whose 
presence in this country Congress has deemed to be contrary 
to the national interest is intended “to bring to an end an 
ongoing violation of United States law,” not to impose 
punishment for a prior act. 

Respondent also maintains (Br. in Opp. 21-23) that the 
decision below has limited significance because it potentially 
provides relief only to aliens who pleaded guilty to a criminal 
offense before April 24, 1996, the effective date of the Anti- 
terrorism and Effective Death Penalty Act of 1996, Pub. L. 
No. 104-132, 110 Stat. 1214 et seq. (AEDPA), and will be re- 
leased from incarceration before the end of 2001 (because 
even before AEDPA, aggravated felons could not obtain 
relief from deportation under 8 U.S.C. 1182(c) (1994) if they 
had served five years in prison for the aggravated felony 
offense). Even that set of aliens, however, is very large. As 
this Court is well aware, the vast majority of criminal cases 
in this country are resolved by guilty plea; and as we point 
out in the certiorari petition (at 29-30), in just the first 
year in which IIRIRA was effective, the Executive Office 
for Immigration Review adjudicated 13,000 removal cases 
involving aggravated felons. The potential number of aliens 
affected by this issue, therefore, may well exceed 50,000. 
Moreover, the issue of the continued availability of relief 

6 

under former Section 1182(c) potentially affects even aliens 
who are not aggravated felons, because several of the terms 
of eligibility for relief under IIRIRA’s discretionary 
cancellation-of-removal provision, 8 U.S.C. 1229b (Supp. V 
1999), are more strict than were the terms of eligibility 
under former Section 1182(c).4 

Respondent acknowledges (Br. in Opp. 23-24) that the 
decision below is inconsistent with the decision of the Ninth 
Circuit in Richards-Diaz v. Fasano, No. 99-56530, 2000 WL 
1715956 (Nov. 17, 2000), which held generally (id. at *3-*4) 
that aliens who were convicted (even upon a guilty plea) of 
an aggravated felony before AEDPA was enacted are not 
eligible for relief under former Section 1182(c) if they were 
placed in removal proceedings after IIRIRA became effec- 

4 For example, before AEDPA, a lawful permanent resident alien 
could obtain relief from deportation under Section 1182(c) if he had had a 
lawful unrelinquished domicile in this country of seven years, see 8 U.S.C. 
1182(c) (1994), and the courts had held that the period that an alien spent 
in deportation proceedings should be counted towards that seven-year 
eligibility requirement, see, e.g., Vargas-Gonzalez v. INS, 647 F.2d 457, 
458 (5th Cir. 1981). Under IIRIRA, by contrast, to obtain cancellation of 
removal, a legal permanent resident alien must show both that he had 
been lawfully admitted for permanent residence in the United States for 
five years and that he had resided continuously here for seven years. See 
8 U.S.C. 1229b(a) (Supp. V 1999). In addition, the alien’s period of con- 
tinuous residence is deemed to have ended whenever the alien committed 
a criminal offense rendering him removable or was served with a notice to 
appear commencing removal proceedings. See 8 U.S.C. 1229b(d)(1) (Supp. 
V 1999). The latter restriction in particular has been quite significant in 
rendering ineligible for cancellation of removal even aliens who were 
convicted of offenses that were not aggravated felonies and who would 
have been eligible for relief under former Section 1182(c). A petition 
involving one such alien is presently before the Court. See Zalawadia v. 
Reno, No. 00-268. In our response to that petition (at 11-12), we informed 
the Court that Congress was considering a bill that would have 
ameliorated the effect of that restriction for aliens who were convicted 
before IIRIRA became effective. We are informed, however, that 
Congress adjourned without passing that legislation. 

7 

tive. But respondent attempts to minimize that division of 
authority by pointing out that the Ninth Circuit recognized a 
“limited exception” to that general rule for an alien who 
could show that he pleaded guilty in specific reliance on the 
state of the law at the time, under which he would have been 
eligible for relief under Section 1182(c). Id. at *4. The 
Second Circuit, however, ruled much more broadly that all 
aliens who had pleaded guilty to the disqualifying offenses 
before AEDPA and IIRIRA were enacted remained eligible 
for relief under Section 1182(c), whether or not they had 
acted in specific reliance on their eligibility for discretionary 
relief from deportation. The Ninth Circuit, moreover, 
expressly endorsed the reasoning of Judge Walker’s dissent 
from the Second Circuit’s ruling in this case. Id. at *3-*4. 

In addition, as we point out in the certiorari petition (at 
28-29), the decision below on the merits cannot be squared 
with the Seventh Circuit’s decision in Morales-Ramirez v. 
Reno, supra, or the Eleventh Circuit’s decision in Galindo- 
Del Valle v. Attorney General, 213 F.3d 594 (2000), petition 
for cert. pending, No. 00-362. Respondent seeks to distin- 
guish those cases on the ground that they presented consti- 
tutional challenges to the unavailability of relief under 
Section 1182(c). See Br. in Opp. 25 n.22. In each of those 
cases, however, the predicate for the court of appeals’ ruling 
was that Section 1182(c) had been repealed in its entirety 
with respect to aliens, like respondent, who had pleaded 
guilty prior to IIRIRA and had been placed in removal pro- 
ceedings on or after April 1, 1997. See Morales-Ramirez, 
209 F.3d at 978, 981, 983; Galindo-Del Valle, 213 F.3d at 596, 
598-599. Accordingly, respondent’s efforts to avoid the in- 
consistency between the decision below and the decisions in 
Morales-Ramirez and Galindo-Del Valle are unavailing. 

The decision below also cannot be reconciled with de- 
cisions of the Third, Fifth, and Tenth Circuits holding that 
aliens who were convicted of aggravated felonies before 
AEDPA was enacted but who were placed in deportation 

8 

proceedings after AEDPA’s enactment (but before the 
effective date of IIRIRA’s permanent provisions) are barred 
by Section 440(d) of AEDPA, 110 Stat. 1277, from obtaining 
relief from deportation under Section 1182(c).5 A fortiori, in 
those circuits, aliens who were placed in removal pro- 
ceedings after the effective date of IIRIRA’s permanent 
provisions (which altogether repealed Section 1182(c)) are 
not eligible for relief under Section 1182(c). Moreover, the 
Third, Fifth, and Tenth Circuits in those cases all concluded, 
under the second step of the framework of this Court’s 
decision in Landgraf v. USI Film Products, 511 U.S. 244, 
280 (1994), that Congress’s restriction in AEDPA Section 
440(d) on the availability of discretionary relief from 
deportation for criminal aliens had no retroactive effect, 
because the enactment was intended to affect the alien’s 
future status with regard to the legality of his continuing 
presence in the United States, not to impose punishment for 
past conduct, and therefore had only prospective effect 
within the meaning of this Court’s retroactivity decisions.6 
In the decision below, by contrast, the Second Circuit 
concluded that a statutory restriction on the future avail- 
ability of discretionary relief from deportation does have a 
“retroactive effect” within the meaning of this Court’s 
decision in Landgraf. See Pet. App. 22a-32a. It follows, 
therefore, that the Third, Fifth, and Tenth Circuits would 
disagree with the Second Circuit’s rationale as well as its 
ultimate decision in this case, because those circuits would 
conclude that Congress’s outright repeal of former Section 
1182(c) with respect to aliens placed in removal proceedings 

5 See Pet. 5-6 n.4 (discussing DeSousa v. Reno, 190 F.3d 175, 185-187 
(3d Cir. 1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 307-308 
(5th Cir. 1999); and Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1149-1152 
(10th Cir. 1999), cert. denied, 120 S. Ct. 1539 (2000)). 

6 See DeSousa, 190 F.3d at 187; Requena-Rodriguez, 190 F.3d at 308; 
Jurado-Gutierrez, 190 F.3d at 1150-1152. 

9 

after April 1, 1997, had no retroactive effect on those aliens 
who would otherwise have been eligible for relief under that 
provision. 

Nor is there merit to respondent’s contention (Br. in Opp. 

26) that the Second Circuit’s decision is supported by 
Hughes Aircraft Co. v. United States ex rel. Schumer, 520 
U.S. 939, 946-951 (1997), where the Court held that juris- 
dictional statutes are subject to the presumption against 
retroactive application of federal statutes that was arti- 
culated in the second step of the Landgraf analysis. Al- 
though Hughes held that jurisdictional statutes establishing 
forums in which new causes of action may be heard are, like 
other statutes, subject to the presumption against retro- 
activity (see id. at 951), Hughes did not alter the test, set 
forth in Landgraf, for determining whether a statute is 
actually retroactive.7 As we have explained (p. 4, supra; Pet. 

27), legislative changes in the bases on which aliens may be 
removed affect prospectively the aliens’ future status in the 
United States. It follows a fortiori that changes in the bases 
on which an alien may be granted discretionary relief from 
removal also affect only a form of prospective relief and do 
not trigger retroactivity analysis under Landgraf. The court 
of appeals therefore erred in concluding that Congress’s 
repeal of Section 1182(c) had retroactive effect.8 

7 See Landgraf, 511 U.S. at 273 (“When the intervening statute 
authorizes or affects the propriety of prospective relief, application of the 
new provision is not retroactive.”); cf. id. at 293 (Scalia, J., concurring in 
the judgment) (“Since the purpose of prospective relief is to affect the 
future rather than remedy the past, the relevant time for judging its 
retroactivity is the very moment at which it is ordered.”). 

8 Nor is the application to respondent of Congress’s repeal of Section 
1182(c) retroactive or fundamentally unfair merely because respondent 
pleaded guilty at a time when he would have remained eligible for relief 
under Section 1182(c) notwithstanding his conviction. This Court has 
observed that guilty pleas are often made in the face of considerable 
uncertainty, and that “judgments may be made that in light of later events 

10 

Finally, review is warranted on the court of appeals’ rul- 
ing on the merits in this case to bring to an end the burgeon- 
ing litigation in the lower courts over the continued avail- 
ability of relief under former Section 1182(c) for aliens placed 
in removal proceedings after that provision was repealed by 
Congress. As we note in the certiorari petition (at 29-30), 
dozens of aliens have already challenged their removal 
orders contending that they are eligible for discretionary 
relief under Section 1182(c), and thousands of other aliens 
are potentially affected by the issue and may challenge their 
removal orders in court. A delay in the definitive resolution 
of this issue will inevitably postpone the removal of criminal 
aliens, especially those convicted of aggravated felonies, who 
were among the principal objects of Congress’s efforts to 
provide for expeditious removal. 

* * * * * 

For the foregoing reasons, and for those stated in the 
petition, the petition for a writ of certiorari should be 
granted. The Court should also grant the petition in 
Calcano-Martinez v. INS, No. 00-1011, and the two cases 
should be consolidated for briefing and oral argument. 

Respectfully submitted. 

seem improvident, although they were perfectly sensible at the time.” 
Brady v. United States, 397 U.S. 742, 756-757 (1970). Nor, indeed, does a 
guilty plea voluntarily made become defective merely because later 
developments in the law indicate that the plea “rested on a faulty 
premise.” Id. at 757. An alien defendant who pleads guilty to an offense 
that may render him subject to deportation does not obtain vested rights 
in the state of the law at the time that may not be altered by Congress. 
Indeed, an alien such as respondent, who was convicted of a narcotics- 
trafficking offense, could have had no assurance whatsoever that he would 
have received discretionary relief from deportation under Section 1182(c) 
even if he had remained eligible to apply for such relief. See Matter of 
Marin, 16 I. & N. Dec. 581, 585-586 (B.I.A. 1978) (requiring alien convicted 
of narcotics trafficking offense to show “unusual or outstanding equities” 
in order to obtain relief under Section 1182(c)). 

11 

SETH P. WAXMAN 

Solicitor General 

DECEMBER 2000