No. 00-767 

In the Supreme Court of the United States 

IMMIGRATION AND NATURALIZATION SERVICE, 
PETITIONER 

v. 

ENRICO ST. CYR 

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

BRIEF FOR THE PETITIONER 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 
STUART E. SCHIFFER 

Acting Assistant Attorney 

General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 
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 

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

2. Whether the Board of Immigration Appeals properly 
concluded that respondent is not eligible for discretionary 
relief from deportation under former 8 U.S.C. 1182(c) (1994) 
because his removal proceeding was commenced after the 
repeal of Section 1182(c) became effective, even though he 
pleaded guilty and was convicted before that date. 

(I) 

TABLE OF CONTENTS 

Page 

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

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

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

1 

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

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

15 

Argument: 

I. The district court lacked jurisdiction to review 
the merits of respondent’s challenge to the 
final order of removal entered against him ............ 

18 

A. Congress has expressly provided that 
judicial review of final orders of removal 
is available only on petition for review in 

the court of appeals ........................................... 

18 

B. Congress’s withdrawal of district courts’ 
authority to review removal orders does 

not raise constitutional concerns about 
suspension of habeas corpus ............................ 

27 
II. The Attorney General may not grant relief 

from deportation under former 8 U.S.C. 
1182(c) to any alien placed in removal pro- 
ceedings after April 1, 1997 ....................................... 

32 

A. Congress intended that relief under 
former Section 1182(c) not be available to 
any alien placed in removal proceedings 

after April 1, 1997 ............................................... 

33 

B. The inapplicability of Section 1182(c) in 
removal proceedings commenced on or 

after April 1, 1997 does not contravene 
any presumption against retroactivity ............ 

38 
Conclusion ....................................................................................... 50 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) ............. 
49 

American Steel Foundries v. Tri-City Cent. Trades 

Council, 259 U.S. 184 (1921) ........................................... 
42, 43 

Argentine Republic v. Amerada Hess Shipping 

Corp., 488 U.S. 428 (1989) ................................................... 

25 

Brady v. United States, 397 U.S. 742 (1970) ................... 
47-48 

Brownell v. Tom We Shung, 352 U.S. 180 (1956) ............ 
4 

Bugajewitz v. Adams, 228 U.S. 585 (1913) ........................ 
40 

CFTC v. Schor, 478 U.S. 833 (1986) ................................... 
49 

Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 
2000), cert. granted, 121 S. Ct. 849 (2001) ..................... 
13, 18 

Carlson v. Landon, 342 U.S. 524 (1952) ............................ 
40 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

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

15, 48 

Chew Heong v. United States, 112 U.S. 536 
(1884) .................................................................................... 
40, 41 

Chin Yow v. United States, 208 U.S. 8 (1908) ................... 
29 

Duplex Printing Press Co. v. Deering, 
254 U.S. 443 (1921) ................................................................ 
42 

Felker v. Turpin, 518 U.S. 651 (1996) ...................... 
22-23, 24 

Foti v. INS, 375 U.S. 217 (1963) ................. 
3, 4, 5, 19, 22, 42 

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

Galvan v. Press, 347 U.S. 522 (1954) .................................. 
41 

Gegiow v. Uhl, 239 U.S. 3 (1915) ..................................... 
29, 30 

Harisiades v. Shaughnessy, 324 U.S. 580 (1952) .......... 
40, 41 

Heikkila v. Barber, 345 U.S. 229 (1953) ............................ 
4 

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), 
cert. denied, 526 U.S. 1004 (1999) ....................................... 
22 

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ................... 
48 

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) .................... 
39 

INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) ................... 
28 

Jay v. Boyd, 351 U.S. 345 (1956) ......................................... 
28 

Johnson v. Robison, 415 U.S. 361 (1974) ........................... 30 

V 

Cases—Continued: Page 

Kaiser Aluminum & Chem. Corp. v Bonjorno, 
494 U.S. 827 (1990) ................................................................ 
46 

Kleindienst v. Mandel, 408 U.S. 753 (1972) ...................... 
40 

Kwock Jan Fat v. White, 253 U.S. 454 (1920) ............... 
29, 31 

LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998), 
cert. denied, 528 U.S. 1153 (2000) ....................................... 
22 

Land v. Dollar, 330 U.S. 731 (1947) ................................... 
30 

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

32, 33, 36, 38, 39, 40, 42, 45, 47 

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

44 

Lindh v. Murphy, 521 U.S. 320 (1997) ............................... 
35 

Mahler v. Eby, 264 U.S. 32 (1924) ...................................... 
41 

Marcello v. Bonds, 349 U.S. 302 (1955) ............................. 
41 

Martin v. Hadix, 527 U.S. 343 (1999) ................................. 
37 

Miller v. French, 120 S. Ct. 2246 (2000) ............................ 
42 

Mississippi Power & Light Co. v. Moore, 
487 U.S. 354 (1988) ................................................................ 
49 

Ng Fung Ho v. White, 259 U.S. 276 (1922) ............. 
29, 30, 40 

Pennhurst State Sch. & Hosp. v. Halderman, 
465 U.S. 89 (1984) ................................................................... 
29 

Radzanower v. Touche Ross & Co., 426 U.S. 148 
(1976) ........................................................................................ 34 

Reno v. American-Arab Anti-Discrimination 

Comm., 525 U.S. 471 (1999) ........................................ 
20-21, 40 

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) ................... 
4 

Silva, In re, 16 I. & N. Dec. 26 (BIA 1976) .......................... 
3 

Society for the Propagation of the Gospel v. Wheeler, 
22 F. Cas. 756 (C.C.D.N.H. 1814) ........................................ 
45 

Soriano, In re, Interim Dec. No. 3289, 
1996 WL 426888 (A.G. Feb. 21, 1997) ................................. 
7 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 
(1994) ........................................................................................ 29 

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

5, 22 

Swain v. Pressley, 430 U.S. 372 (1977) .......................... 
25, 30 

Tod v. Waldman, 266 U.S. 113 (1924) ................................ 29 

VI 

Cases—Continued: Page 

United States v. Erika, Inc., 456 U.S. 201 (1982) ............ 
20 

United States v. Fausto, 484 U.S. 439 (1988) ................... 
20 

United States ex rel. Accardi v. Shaughnessy, 
347 U.S. 260 (1954) ................................................................ 
29 

United States ex rel. Hintopoulos v. Shaughnessy, 
353 U.S. 72 (1957) ............................................................... 
28, 29 

United States ex rel. Kaloudis v. Shaughnessy, 
180 F.2d 489 (2d Cir. 1950) ............................................... 
28, 40 

Webster v. Doe, 486 U.S. 592 (1988) .................................... 
30 

Weinberger v. Hynson, Westcott & Dunning, Inc., 
412 U.S. 609 (1973) ................................................................ 
31 

Yerger, Ex parte, 75 U.S. (8 Wall.) 85 (1868) ....................... 
23 

Constitution, statutes and regulations: 

U.S. Const.: 

Art. I, § 9, Cl. 2 (Suspension of Habeas Corpus 

Clause) ........................................................................ 

2, 27, 32 

Amend. V (Due Process Clause) ......................................... 
14 

Act of Oct. 11, 1996, Pub. L. No. 104-302, § 2(2), 
110 Stat. 3657 ...................................................................... 
10, 35 

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

§ 401, 110 Stat. 1258 .......................................................... 
37 

§ 401(e), 110 Stat. 1268 ........................................ 
2, 6, 19, 24 

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

§ 440(a), 110 Stat. 1276 ..................................................... 
6, 7 

§ 440(d), 110 Stat. 1277 ........................................ 
6, 8, 12, 43 

Hobbs Administrative Orders Review Act, 28 U.S.C. 
2341 et seq. ............................................................................. 
3, 19 

Illegal Immigration Reform and Immigrant Respon- 
sibility Act of 1996, Pub. L. No. 104-208, Div. C, 
110 Stat. 3009-546 .................................................................. 
2 

Tit. III-A, 110 Stat. 3009-575 ............. 
33, 34, 35, 36, 37, 38 

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

§ 303(a), 110 Stat. 3009-585 ......................................... 8 

VII 

Statutes and regulations—Continued: 
Page 

§ 304, 110 Stat. 3009-587 ...................................... 
8, 9, 13, 

14, 15, 34, 36, 37 
§ 304(b), 110 Stat. 3009-597 ......................................... 

29 

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

§ 308(b)(6), 110 Stat. 3009-615 .................................... 
8 

§ 309, 110 Stat. 3009-625 ............................................ 
2, 36 

§ 309(a), 110 Stat. 3009-625 .......................... 
9, 14, 34, 37 

§ 309(c), 110 Stat. 3009-625 ......................................... 
36 

§ 309(c)(1), 110 Stat. 3009-625 ..................... 
9, 34, 35, 37 

§ 309(c)(2), 110 Stat. 3009-626 .................................... 
35 

§ 309(c)(3), 110 Stat. 3009-626 .................................... 
35 

§ 309(c)(4)(A), 110 Stat. 3009-626 .................... 
10, 26, 35 

Tit. III-B, 110 Stat. 3009-627 ..................................... 
36, 37, 38 

§ 321, 110 Stat. 3009-627 .............................................. 
38 

§ 321(b), 110 Stat. 3009-628 ......................................... 
37 

§ 322, 110 Stat. 3009-628 .............................................. 
38 

§ 322(c), 110 Stat. 3009-629 ......................................... 
37 

§ 324, 110 Stat. 3009-629 .............................................. 
38 

Tit. III-C, 110 Stat. 3009-635 ............................................... 
38 

§ 347, 110 Stat. 3009-638 .............................................. 
38 

Immigration Act of 1917, ch. 29, § 3, 39 Stat. 878 ............... 
44 

8 U.S.C. 136(p) (1925) ............................................................ 
44 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq. ........................................................................................ 
2 

8 U.S.C. 1101(a)(43)(B) ................................................... 
2, 11 

8 U.S.C. 1103(a)(1) (Supp. V 1999) ................................. 
48 

8 U.S.C. 1105a (1994) .................................................... 
10, 19 

8 U.S.C. 1105a(a) (1994) .......................... 
2, 3, 5, 10, 19, 26 

8 U.S.C. 1105a(a)(10) (1994) .................. 
4, 6, 10, 19, 24, 25 

8 U.S.C. 1105a(b) (1994) ...................................... 
4, 10, 25, 26 

8 U.S.C. 1182(a) (1994) ..................................................... 
43 

8 U.S.C. 1182(a)(3) (1994) ................................................ 
43 

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

8 U.S.C. 1225(b) (Supp. V 1999) ..................................... 
2 

8 U.S.C. 1225(b)(1) (Supp. V 1999) ............ 8, 10, 20, 23, 26 

VIII 

Statutes and regulations—Continued: 
Page 

8 U.S.C. 1226 (1994) .......................................................... 
8 

8 U.S.C. 1227(a)(2) (Supp. V 1999) ................................. 
47 

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999) ................. 
2, 6, 9 

8 U.S.C. 1227(a)(4)(A) (Supp. V 1999) ........................... 
47 

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

8 U.S.C. 1228(b)(3) (Supp. V 1999) ................................. 
8 

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

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

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

8 U.S.C. 1229b(a) (Supp. V 1999) ................................... 
2 

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

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

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

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

8 U.S.C. 1252(a) (Supp. V 1999) ...................................... 
23 

8 U.S.C. 1252(a)(1) (Supp. V 1999) .......... 
10, 19, 20, 24, 31 

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

8 U.S.C. 1252(b)(1) (Supp. V 1999) ................................. 
22 

8 U.S.C. 1252(b)(6) (Supp. V 1999) ................................. 
22 

8 U.S.C. 1252(b)(9) (Supp. V 1999) ................ 
11, 20, 24, 31 

8 U.S.C. 1252(e)(2) (Supp. V 1999) ...................... 
8, 10, 20, 

23, 24, 26 
8 U.S.C. 1252b (1994) ........................................................ 

8 

28 U.S.C. 2241 .................................................. 
2, 7, 18, 22, 23, 24 

Conn. Gen. Stat. Ann. § 21a-277(a) (West 1994) ............... 
11, 12 

Reorganization Plan No. V, 54 Stat. 1238 ............................ 
44 

8 C.F.R.: 

Section 3.44 ............................................................................. 

8 

Section 240.12(a) .................................................................... 
42 

Miscellaneous: 

104 Cong. Rec. 17,172 (1958) ................................................... 

5 

107 Cong. Rec. 12,177 (1961) ................................................... 
5 

142 Cong. Rec. (1996): 
pp. 5341-5344 ........................................................................ 37 

p. 5962 .................................................................................. 37 

IX 

Miscellaneous—Continued: Page 

66 Fed. Reg. (2001): 

p. 6436 .................................................................................. 8 

p. 6438 .................................................................................. 8 

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

8 

H.R. 2202, 104th Cong., 2d Sess. (1996) ................................ 
37 

H.R. Conf. Rep. No. 518, 104th Cong., 2d Sess. 
(1996) ........................................................................................ 37 

H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 
(1996) ........................................................................................ 37 

H.R. Rep. No. 1365, 82d Cong., 2d Sess. (1952) ................... 

44 

H.R. Rep. No. 2478, 85th Cong., 2d Sess. (1958) ................. 
5 

H.R. Rep. No. 565, 87th Cong., 1st Sess. (1961) .................. 
5 

H.R. Rep. No. 1086, 87th Cong., 1st Sess. (1961) ................ 
4, 6 

H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1 
(1996) ...................................................................................... 
2, 37 

S. 1664, 104th Cong., 2d Sess. (1996) ..................................... 
37 

S. Rep. No. 352, 64th Cong., 1st Sess. (1916) ....................... 
44 

S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) .................. 
44, 45 

S. Rep. No. 249, 104th Cong., 2d Sess. (1996) ...................... 37 

In the Supreme Court of the United States 

No. 00-767 

IMMIGRATION AND NATURALIZATION SERVICE, 
PETITIONER 

v. 
ENRICO ST. CYR 

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

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-39a) is 
reported at 229 F.3d 406. The opinion of the district court 
(Pet. App. 74a-91a) is reported at 64 F. Supp. 2d 47. The 
decisions of the Board of Immigration Appeals (Pet. App. 
94a-95a) and the immigration judge (Pet. App. 96a-97a) are 
unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
September 1, 2000. The petition for a writ of certiorari was 
filed on November 14, 2000, and was granted on January 12, 
2001. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1). 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

Reprinted in the appendix to the petition for a writ of 
certiorari (Pet. App. 98a-114a) are pertinent provisions of 

(1) 

2 

the Suspension of Habeas Corpus Clause of the United 
States Constitution, Article I, Section 9, Clause 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; Sections 1225(b), 
1229b(a), and 1252 of Title 8, as in effect beginning 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. 1214; Sections 304(b) and 309 of the Illegal Immi- 
gration Reform and Immigrant Responsibility Act of 1996, 
Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546; and Section 
2241 of Title 28, United States Code. 

STATEMENT 

1. Statutory Background. This case concerns compre- 
hensive amendments to the Immigration and Nationality Act 
(INA), 8 U.S.C. 1101 et seq., enacted by Congress in 1996. 
Those changes were designed in large part to 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 judicial 
review of their deportation orders. See generally H.R. Rep. 
No. 469, 104th Cong., 2d Sess. Pt. 1, at 107-108, 120-123, 157- 
161 (1996). Two enactments are particularly pertinent: the 
Antiterrorism and Effective Death Penalty Act of 1996 
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and the 
Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 
3009-546. 

a. Pre-AEDPA Law. An alien convicted of an “aggra- 
vated felony” such as a drug trafficking crime is, and was 
before AEDPA, “deportable” from the United States. 
See 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999); 8 U.S.C. 
1251(a)(2)(A)(iii) (1994); 8 U.S.C. 1101(a)(43)(B). Before 
AEDPA, the Attorney General was authorized to provide 

3 

discretionary relief from deportation to aliens lawfully 
admitted for permanent residence. See 8 U.S.C. 1182(c) 
(1994).1 To be eligible for such relief, the alien had to show 
that he had maintained a lawful unrelinquished domicile in 
this country for seven years. The final sentence of Section 
1182(c) provided, however, that that Section’s first sentence, 
which conferred the discretionary authority on the Attorney 
General, “shall not apply” to an alien who had been convicted 
of an aggravated felony and had served a term of imprison- 
ment of at least five years for such an offense. 8 U.S.C. 
1182(c) (1994). 

Under the INA as in effect before AEDPA, an alien could 
challenge a final deportation order, including the Attorney 
General’s denial of discretionary relief from deportation 
under Section 1182(c), by filing a petition for review of his 
deportation order in the appropriate regional court of 
appeals. See 8 U.S.C. 1105a(a) (1994) (incorporating Hobbs 
Administrative Orders Review Act (Hobbs Act), 28 U.S.C. 
2341 et seq.); Foti v. INS, 375 U.S. 217 (1963). In addition, 
under certain circumstances an alien in custody pursuant to 
an order of deportation could seek judicial review thereof by 
filing a petition for a writ of habeas corpus in district court, 

1 Section 1182(c) provided that “[a]liens lawfully admitted for perma- 
nent residence who temporarily proceeded abroad voluntarily and not 
under an order of deportation, and who are returning to a lawful unrelin- 
quished domicile of seven consecutive years, may be admitted in the dis- 
cretion of the Attorney General” without regard to certain grounds of 
exclusion. 8 U.S.C. 1182(c) (1994). Although Section 1182(c) by its terms 
applied only to permit the admission of certain lawful permanent resident 
aliens who would otherwise be excludable upon returning to the United 
States, the 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 also had to 
be given the opportunity to apply for relief from deportation under Sec- 
tion 1182(c). In the interest of national uniformity, the Attorney General 
acquiesced in that decision. See In re Silva, 16 I. & N. Dec. 26 (BIA 1976). 

4 

pursuant to 8 U.S.C. 1105a(a)(10) (1994). Similarly, 8 U.S.C. 
1105a(b) (1994) permitted judicial review of exclusion orders 
by way of habeas corpus. 

Those provisions for judicial review of deportation and 
exclusion orders had undergone extensive revision as Con- 
gress had sought to balance aliens’ opportunities for judicial 
review with the need to avoid unwarranted delays in 
deportations. From 1917 to 1952, Congress made no express 
provision for judicial review of deportation and exclusion 
orders. This Court ruled that such orders could be reviewed 
by writ of habeas corpus, but only to the extent that judicial 
review was required by the Constitution. See Heikkila v. 
Barber, 345 U.S. 229, 233-234 (1953). 

In the 1950s, however, this Court held that the enactment 
of the Administrative Procedure Act (APA) in 1946 and of 
the INA in 1952 had significantly altered the legal landscape, 
and that Congress had authorized the courts to review the 
merits of deportation and exclusion orders in actions for 
declaratory relief brought in district court under the APA. 
See Shaughnessy v. Pedreiro, 349 U.S. 48 (1955); Brownell v. 
Tom We Shung, 352 U.S. 180 (1956). In 1961, Congress 
reacted to those decisions by revising and streamlining the 
INA’s provisions for judicial review. Congress’s principal 
concern was that aliens had resorted “to repeated judicial 
reviews and appeals for the sole purpose of delaying their 
justified expulsion from this country.” H.R. Rep. No. 1086, 
87th Cong., 1st Sess. 23 (1961). While Congress recognized 
that aliens should be entitled to challenge “the Government’s 
findings of deportability through judicial process,” ibid., 
Congress’s “fundamental purpose * * * was to abbreviate 
the process of judicial review of deportation orders” in order 
to prevent “forestalling departure by dilatory tactics in the 
courts.” Foti, 375 U.S. at 224. 

“The key feature of the congressional plan directed at this 
problem was the elimination of the previous initial step in 

5 

obtaining judicial review—a suit in a District Court–-and the 
resulting restriction of review to Courts of Appeals.” Foti, 
375 U.S. at 225. To that end, Congress established a self- 
contained judicial-review provision in the INA, independent 
and exclusive of the APA. Congress directed that the Hobbs 
Act’s provisions for review in the courts of appeals “shall 
apply to, and shall be the sole and exclusive procedure for, 
the judicial review of all final orders of deportation” under 
the INA, “except” for ten specific qualifications that adapted 
for immigration cases the Hobbs Act’s general provisions 
with respect to time limits, venue, and other procedural 
matters. See 8 U.S.C. 1105a(a) (1994) (emphasis added); 
Stone v. INS, 514 U.S. 386, 393 (1995). 

One of those express exceptions addressed habeas corpus. 
Congress was aware of the concern that a provision for 
exclusive review in the courts of appeals would divest the 
district courts of the authority they had previously exercised 
to review deportation orders by writ of habeas corpus for 
the benefit of aliens held in custody.2 Congress therefore 
included, among the express exceptions to Section 1105a(a)’s 
incorporation of the Hobbs Act exclusive court-of-appeals 
review procedures, a provision that “any alien held in 

2 For example, at an April 24, 1958, hearing of a subcommittee of the 
House Judiciary Committee examining the deportation of William 
Heikkila, Representative Hillings asked whether there is “a possibility 
that maybe legislatively we could have a procedure whereby all of the 
possible points of appeal could be consolidated in one case, and all would 
have to be asserted at one time, otherwise any possible remedy is 
waived.” See No. 85-HJ-T.538, at 21 (Congressional Information Service) 
(lodged with the Clerk). Representative Walter, in response, expressed 
doubts that such a provision would be constitutional because it would deny 
aliens held in custody the opportunity for habeas corpus. Id. at 21-22; see 
also 104 Cong. Rec. 17,172 (1958) (remarks of Rep. Walter); 107 Cong. Rec. 
12,177 (1961) (remarks of Rep. Walter); H.R. Rep. No. 2478, 85th Cong., 2d 
Sess. 6 (1958); H.R. Rep. No. 565, 87th Cong., 1st Sess. 15-16 (1961). 

6 

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

b. AEDPA. In 1996, Congress twice restricted both the 
Attorney General’s authority to grant discretionary relief 
from deportation to criminal aliens and the availability of 
judicial review of criminal aliens’ deportation orders. First, 
on April 24, 1996, Congress enacted AEDPA into law. Sec- 
tion 440(d) of AEDPA amended the final sentence of Section 
1182(c) to provide that the Attorney General’s authority to 
grant relief under Section 1182(c) “shall not apply” to a 
broader class of aliens, including all aliens who were deport- 
able because they had been convicted of aggravated felonies. 
See AEDPA § 440(d), 110 Stat. 1277 (referring to aliens de- 
portable under 8 U.S.C. 1251(a)(2)(A)(iii) (1994) (now recodi- 
fied as 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. V 1999))). 

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

CUSTODY REVIEW BY HABEAS CORPUS,” repealed 8 U.S.C. 
1105a(a)(10) (1994), which had specifically permitted aliens in 
custody pursuant to an order of deportation to seek habeas 
corpus relief in district court. See 110 Stat. 1268. AEDPA 
therefore left in place the exclusive court-of-appeals review 
provision that Congress had enacted in 1961, but eliminated 
the INA’s previous express “preserv[ation]” (H.R. Rep. No. 
1086, supra, at 29) of habeas corpus for aliens held in cus- 
tody. At the same time, Section 440(a) of AEDPA enacted a 
new Section 1105a(a)(10) to provide, for the same classes 
of criminal aliens who had been rendered ineligible for 
relief under Section 1182(c), an exception to the general 

7 

availability of judicial review of deportation orders in the 
courts of appeals. AEDPA Section 440(a) provided that any 
final order of deportation against an alien who was deport- 
able for having committed one of the disqualifying offenses, 
including aggravated felonies, “shall not be subject to review 
by any court.” 110 Stat. 1276-1277. 

On February 21, 1997, the Attorney General concluded in 
In re Soriano, Interim Dec. No. 3289, 1996 WL 426888, that 
the restriction enacted in AEDPA Section 440(d) on the 
Attorney General’s authority to grant discretionary relief 
under 8 U.S.C. 1182(c) (1994) to aggravated felons applied to 
all deportation proceedings pending on or after the date of 
AEDPA’s enactment, including those pending proceedings 
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. The courts 
of appeals divided as to whether (as the government con- 
tended) AEDPA had deprived the district courts of habeas 
corpus jurisdiction to entertain such challenges to final 
deportation orders. The courts of appeals also reached 
varying conclusions about the temporal scope of AEDPA 
Section 440(d). See Pet. 4-5 & nn.3-5. 

The government and several aliens filed certiorari peti- 
tions, asking this Court to decide whether the district courts 
retained habeas corpus jurisdiction after AEDPA to enter- 
tain challenges to deportation orders, and to resolve the 
temporal reach of AEDPA Section 440(d). By that time, 
however, Congress’s intervening enactment of IIRIRA had 
once again recast the legal framework and had reduced the 
prospective importance of cases arising only under AEDPA. 
This Court denied the certiorari petitions that involved only 
the changes to the INA made by AEDPA, remitting to a 

8 

later date related issues in cases also involving IIRIRA. See 
Pet. 6.3 

c. IIRIRA. On September 30, 1996, Congress enacted 
IIRIRA into law. In Section 304(a) of IIRIRA, Congress 
abolished the old distinction between “deportation” and “ex- 
clusion” orders,4 and instituted a new form of proceeding, 
known as “removal.” See 8 U.S.C. 1229, 1229a (Supp. V 
1999); 110 Stat. 3009-587 to 3009-593.5 An alien convicted of 

3 In light of this Court’s denial of certiorari in several cases involving 
the temporal scope of AEDPA Section 440(d) and the remaining conflict in 
the circuits on that issue, the Attorney General recently published a final 
rule that, while not conceding their correctness, acquiesced in the deci- 
sions of those circuits that concluded that AEDPA Section 440(d) does not 
bar the Attorney General from granting relief under Section 1182(c) to an 
alien who had been placed in deportation proceedings before AEDPA was 
enacted. See 66 Fed. Reg. 6436, 6438 (2001) (promulgating new 8 C.F.R. 

3.44). Absent adverse circuit precedent, however, the Attorney General 
will continue to follow AEDPA Section 440(d)’s restriction on his author- 
ity to grant relief under Section 1182(c) in the cases of aliens who were 
placed in deportation proceedings after AEDPA was enacted, even if they 
were convicted before its enactment. See id. at 6443-6444. 

4 IIRIRA also expressly repealed the old INA provisions setting forth 
separate procedures for exclusion and deportation of aliens. See IIRIRA 
§ 303(a), 110 Stat. 3009-585 (amending old 8 U.S.C. 1226), and § 308(b)(6), 
110 Stat. 3009-615 (striking old 8 U.S.C. 1252b). 

5 Congress also enacted special forms of removal proceedings for 
aliens arriving in the United States without valid documentation, see 
8 U.S.C. 1225(b)(1) (Supp. V 1999), and for aliens not admitted for lawful 
permanent residence who are convicted of aggravated felonies, see 
8 U.S.C. 1228(b) (Supp. V 1999). Congress expressly provided for limited 
habeas corpus review in the district courts of immigration officers’ 
expedited-removal decisions under Section 1225(b)(1). See 8 U.S.C. 
1252(e)(2) (Supp. V 1999). For aliens found subject to removal in Section 
1228(b) proceedings, Congress provided a modified version of the general 
court of appeals judicial-review procedures of 8 U.S.C. 1252 (Supp. V 1999) 
(discussed at pp. 10-11, infra), with shortened time limits. See 8 U.S.C. 
1228(b)(3) (Supp. V 1999). 

9 

an aggravated felony is subject to removal. See 8 U.S.C. 
1227(a)(2)(A)(iii) (Supp. V 1999). 

Section 304 of IIRIRA also refashioned the terms on 
which 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. V 1999); IIRIRA § 304(a), 110 Stat. 3009-594 to 3009- 
596. As under Section 1182(c) as amended by AEDPA, how- 
ever, Congress provided that the Attorney General may not 
grant discretionary relief to aliens convicted of an aggra- 
vated felony. 8 U.S.C. 1229b(a)(3), 1229b(b)(1)(C) (Supp. V 
1999). 

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

10 

by Act of Oct. 11, 1996, Pub. L. No. 104-302, § 2(2), 110 Stat. 
3657 (technical correction).6 

Congress recast and streamlined the INA’s provisions 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; see pp. 5-6, supra. In its place, Congress 
enacted the new 8 U.S.C. 1252 (Supp. V 1999), which 
provides that final orders of removal are subject to judicial 
review only on petition for review in the courts of appeals. 
See 8 U.S.C. 1252(a)(1) (Supp. V 1999) (incorporating Hobbs 
Act). Congress enacted no general exception to that pro- 
vision for exclusive review of removal orders in the courts of 
appeals to allow aliens held in custody under a final order of 
removal to seek habeas corpus relief, as it had done in the 
INA before AEDPA repealed 8 U.S.C. 1105a(a)(10) (1994). 
Instead, Congress included, at 8 U.S.C. 1252(e)(2) (Supp. V 
1999), only a much narrower exception that permits a limited 
form of habeas corpus review for aliens arriving at the 
border without valid documentation who were placed in 
expedited-removal proceedings under 8 U.S.C. 1225(b)(1) 
(Supp. V 1999). 

Congress also specifically restricted judicial review of re- 
moval orders entered against criminal aliens by providing 

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

11 

that, “[n]otwithstanding any other provision of law, no court 
shall have jurisdiction to review any final order of removal 
against an alien who is removable by reason of having 
committed” one of various criminal offenses, including aggra- 
vated felonies. See 8 U.S.C. 1252(a)(2)(C) (Supp. V 1999). 
And Congress enacted a new, sweeping jurisdiction-limiting 
provision, 8 U.S.C. 1252(b)(9) (Supp. V 1999), which pro- 
vides: 

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

2. Proceedings Below. 

a. 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. Pet. App. 2a. On March 8, 1996, 
before the enactment of AEDPA and IIRIRA, respondent 
pleaded guilty to, and was convicted in Connecticut state 
court for, the sale of a controlled substance, in violation of 
Conn. Gen. Stat. Ann. § 21a-277(a) (West 1994). Pet. App. 
3a. Under the INA, that offense was an aggravated felony. 
See 8 U.S.C. 1101(a)(43)(B). At the time of respondent’s con- 
viction, which was entered before AEDPA amended Section 
1182(c) to bar discretionary relief for all aggravated felons, 
the Attorney General would not have been barred from 
granting him discretionary relief from deportation under 8 
U.S.C. 1182(c) (1994).7 

7 Respondent was sentenced for that drug-trafficking offense to ten 
years’ imprisonment, with execution suspended after five years. See Cer- 
tified Administrative Record 35. We are informed that, at the time 
respondent was sentenced, he was already serving a separate term of 

12 

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. See Pet. App. 77a. At his hearing 
before an immigration 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 p. 9, 
supra). The IJ denied that application and ordered respon- 
dent removed. Pet. App. 96a-97a. The Board of Immi- 
gration Appeals (BIA) affirmed, concluding that respondent 
was not eligible for Section 1182(c) relief because that form 
of relief “is not available in removal proceedings, which the 
respondent is properly in.” Id. at 95a. 

b. Respondent then filed a petition for a writ of habeas 
corpus in district court. Respondent contended that, even 
though the INS had placed him in removal proceedings 

imprisonment, which had commenced on August 8, 1995, for another drug- 
trafficking crime in violation of Conn. Gen. Stat. Ann. § 21a-277(a) (West 
1994). Respondent’s term of imprisonment for the conviction that formed 
the basis of his charge of removability was made consecutive to his earlier 
term and actually commenced on July 3, 1997. On May 13, 1999, respon- 
dent was released by state authorities on parole and was transferred to 
INS custody. 

At the time of respondent’s conviction, Section 1182(c) barred relief for 
aliens who had served, for an aggravated felony or aggravated felonies, “a 
term of imprisonment of at least 5 years.” 8 U.S.C. 1182(c) (1994). That 
bar by its express terms operated to bar relief only when the alien had 
actually served five years in prison (not including parole time or time in 
INS detention) for aggravated felony offenses, and not when the alien was 
merely subject to a potential prison term of five years or more. Respon- 
dent has not actually served five years in prison for his drug-trafficking 
offenses. Accordingly, he would not have been barred from obtaining 
relief under Section 1182(c), as in effect when he was convicted in March 
1996, merely by the length of his prison term. In AEDPA Section 440(d), 
which was enacted on April 24, 1996, Congress amended Section 1182(c) to 
render it inapplicable to all aggravated felons, regardless of the length of 
the sentence they served. See pp. 6-7, supra. 

13 

under the new provisions of IIRIRA (the propriety of which 
he did not challenge), he remained eligible to be considered 
for discretionary relief from deportation under old Section 
1182(c). 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 former Section 
1182(c). Pet. App. 74a-91a. 

c. The court of appeals affirmed. Pet. App. 1a-39a. 
(i) The court first concluded (Pet. App. 5a-6a), based on 
its decision the same day in Calcano-Martinez v. INS, 232 
F.3d 328 (2d Cir. 2000), cert. granted, 121 S. Ct. 849 (2001) 
(see Pet. App. 40a-73a), that the district court properly exer- 
cised jurisdiction over respondent’s habeas corpus petition. 
As in Calcano, the court held that IIRIRA did not “divest 
[the district] courts of their habeas jurisdiction under 
28 U.S.C. § 2241 to review statutory and constitutional 
challenges to final removal orders when no other avenue for 
judicial review is available.” Pet. App. 6a. Here, the court 
continued, no other avenue of judicial review is available 
because respondent had been convicted of an aggravated 
felony and was therefore barred by 8 U.S.C. 1252(a)(2)(C) 
(Supp. V 1999) from raising his claims by petition for review 
in the court of appeals. Pet. App. 6a; see id. at 48a-73a 
(related holding in Calcano). 
(ii) On the merits, the court held 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 ag- 
gravated felony before IIRIRA’s enactment. Pet. App. 6a- 
32a. 

14 

The court first concluded 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. Pet. App. 14a-22a. It 
rejected the government’s argument that, under the express 
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 cancellation of re- 
moval, must be applied together to aliens placed in removal 
proceedings on or after April 1, 1997. See Pet. App. 16a. 

The court further concluded that applying IIRIRA Sec- 
tion 304’s repeal of Section 1182(c) in the cases of aliens who 
pleaded guilty before IIRIRA was enacted would have “an 
impermissible retroactive effect.” Pet. 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 fac- 
tor the immigration consequences of conviction in deciding 
whether to plead or proceed to trial,” including “the avail- 
ability of discretionary relief from removal.” Id. at 26a-27a 
(brackets and internal quotation marks omitted). Because 
IIRIRA’s repeal of Section 1182(c), in the court’s view, 
would “upset settled expectations were it applied retro- 
actively 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.8 

8 Although the court did not hold that such application would be 
unconstitutional, it did invoke a perceived need to avoid placing IIRIRA 
Section 304 in constitutional doubt. Pet. App. 22a n.6. The court acknowl- 
edged 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, retroactive application of IIRIRA Section 304 would raise a 

15 

(iii) Judge Walker dissented from the court’s ruling on 
the merits. Pet. App. 33a-39a. Stressing IIRIRA’s “compre- 
hensive method of implementation” and Congress’s intent 
that IIRIRA 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.” Id. at 34a-35a. He also concluded that applying 
IIRIRA’s repeal of Section 1182(c) to respondent’s case 
would not conflict with the presumption against retroactivity 
because Section 304 “is not made retroactive merely because 
it applies to convictions for aggravated felonies before that 
time. The past aggravated felony conviction is only the 
prerequisite for the prospective denial of discretionary 
relief.” Id. at 39a. And Judge Walker also 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). 

SUMMARY OF ARGUMENT 

I. A. The court of appeals erred in concluding that the 
district court had authority to review respondent’s challenge 
to his removal order by habeas corpus. That conclusion is 
contrary to Congress’s unmistakable design of the judicial- 
review provisions of the INA, which is to channel all chal- 
lenges to removal orders into the courts of appeals (subject 
to a narrow express exception not implicated in this case). 
The court of appeals’ jurisdictional ruling cannot be recon- 
ciled with the streamlined legislative scheme for judicial 
review of removal orders that Congress has enacted. It also 
ignores the history underlying congressional efforts to mini- 

“profound constitutional question.” Ibid. The court remarked that “[t]he 
Constitution’s safeguard against retroactivity is especially appropriate 
where it protects an unpopular group or individual” (presumably referring 
to aliens). Ibid. 

16 

mize judicial involvement in removal proceedings, including 
Congress’s repeal of a provision of the INA that had pre- 
viously preserved district court review by habeas corpus of 
deportation orders for aliens actually held in custody. And 
the jurisdictional ruling threatens to cause significant delays 
in the removal of criminal aliens from the United States, 
despite Congress’s manifest desire that removal of criminal 
aliens be expedited. The decision finds no support in this 
Court’s decisions to the effect that implied repeal of habeas 
corpus jurisdiction is disfavored, since Congress’s divest- 
ment of the district courts’ authority was express, not 
implied. 

B. The court of appeals further erred insofar as it invoked 
the concern that, because respondent is barred by another 
provision of the INA from presenting his claim to the court 
of appeals, the resulting complete denial of a judicial forum 
for that claim might constitute an unconstitutional suspen- 
sion of habeas corpus. The Constitution does not require a 
judicial forum for respondent’s particular non-constitutional 
claim that he has a right to be considered for discretionary 
relief from deportation under the law as it existed before 
Congress amended the INA in 1996. The Court has repeat- 
edly explained that discretionary relief from deportation is a 
matter of grace and not of right. The Court’s immigration 
decisions arising on habeas corpus also give no indication 
that this kind of claim is within the constitutional core of the 
Great Writ. Indeed, Congress has authorized judicial 
review, even for aggravated felons, of the kinds of claims 
that the Court has in the past indicated must be made 
subject to judicial review. And even if the Constitution does 
require that a forum be available for the kind of claim raised 
by respondent, that forum should be the court of appeals, 
given Congress’s overarching design of the INA’s judicial- 
review provisions. 

17 

II. A. The court of appeals erred in concluding on the 
merits that an alien who pleaded guilty to an aggravated 
felony before AEDPA and IIRIRA were enacted but was 
placed in removal proceedings after IIRIRA’s effective date 
of April 1, 1997, may nonetheless obtain relief from deporta- 
tion under old 8 U.S.C. 1182(c) (1994), which was repealed by 
IIRIRA. That decision finds no support in this Court’s 
retroactivity jurisprudence. Congress has expressly pro- 
vided the temporal scope of IIRIRA’s repeal of old Section 
1182(c), directing that Section 1182(c) have no application in 
any removal proceeding commenced after April 1, 1997, 
regardless of the date of the alien’s offense, plea, or con- 
viction. That conclusion is compelled by the structure and 
design of IIRIRA, which as of April 1, 1997, makes a clear 
break with the deportation and exclusion proceedings of pre- 
IIRIRA law and replaces those proceedings with a com- 
prehensive new framework. 

B. Given Congress’s clear intent that Section 1182(c) 
should have no application in removal proceedings under 
IIRIRA, it is unnecessary to consider whether that repeal 
would have a “retroactive” effect that might implicate the 
presumption against retroactive application of federal stat- 
utes. The court of appeals erred, however, insofar as it 
concluded that the repeal of Section 1182(c) would have an 
impermissible retroactive effect in cases like this one. 
Matters affecting the deportability and relief from deporta- 
tion of aliens are inherently prospective in nature, and 
therefore legislative changes in the conditions on which 
aliens may or may not remain in this country do not 
implicate any presumption against retroactivity. Nor, since 
aliens have no right to discretionary relief from deportation, 
does application of IIRIRA’s repeal of Section 1182(c) impair 
any vested rights. The presumption against retroactivity in 
any event lends no support to the court of appeals’ focus on 
the class of aliens who pleaded guilty, a group that is not 

18 

mentioned in the INA, either before or after its amendment 
by IIRIRA. Finally, even if the temporal scope of IIRIRA’s 
repeal of Section 1182(c) is not clear, the court of appeals 
should have deferred to the Attorney General’s reasonable 
conclusion that that repeal should apply to all removal pro- 
ceedings commenced after April 1, 1997. 

ARGUMENT 

I. THE DISTRICT COURT LACKED JURISDICTION 
TO REVIEW THE MERITS OF RESPONDENT’S 

CHALLENGE TO THE FINAL ORDER OF RE- 
MOVAL ENTERED AGAINST HIM 

A. Congress Has Expressly Provided That Judicial 

Review Of Final Orders Of Removal Is Available 
Only On Petition For Review In The Court Of 
Appeals 

The court of appeals ruled in this case, based on its 
jurisdictional holding in Calcano-Martinez v. INS, 232 F.3d 
328 (2d Cir. 2000), cert. granted, 121 S. Ct. 849 (2001) (see 
Pet. App. 40a-73a), that a criminal alien (like respondent) 
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. V 1999) may nonetheless obtain such 
review by filing a petition for a writ of habeas corpus in 
district court under 28 U.S.C. 2241. Pet. App. 6a. That 
conclusion is incorrect.9 

9 This Court also granted the alien’s petition for a writ of certiorari in 
Calcano to consider the related issue whether a court of appeals has 
jurisdiction, notwithstanding Section 1252(a)(2)(C), to entertain the same 
challenge to the Attorney General’s denial of relief under the former 
Section 1182(c). Oral argument in both cases has been scheduled for April 
24, 2001. Because Calcano concerns only the jurisdictional issue whereas 
this case also presents a challenge to the court of appeals’ ruling on the 
merits, we intend to address the jurisdictional issue further in our brief for 
the respondent in Calcano. 

19 

1. The court of appeals’ jurisdictional ruling is fundamen- 
tally inconsistent with the basic framework for judicial 
review of removal orders. Since 1961, Congress has con- 
sistently prescribed a general requirement that, to prevent 
delays in deportations, such review must proceed in the 
courts of appeals. Foti v. INS, 375 U.S. 217, 224-25 (1963). 
In enacting Section 1105a in 1961, Congress carved out an 
express exception to that general rule that allowed aliens 
actually held in custody under a final order of deportation to 
obtain judicial review thereof by habeas corpus. See 8 
U.S.C. 1105a(a)(10) (1994). But Congress specifically re- 
pealed that exception in Section 401(e) of AEDPA, which is 
entitled “ELIMINATION OF CUSTODY REVIEW BY HABEAS 
CORPUS.” 110 Stat. 1268. Congress had enacted old Section 
1105a(a)(10)’s express exception to preserve access to habeas 
corpus for aliens held in custody, recognizing that without 
such an exception, the self-contained provision in Section 
1105a(a) for exclusive review of deportation orders in the 
courts of appeals under the Hobbs Act would eliminate the 
district courts’ authority to review deportation orders by 
habeas corpus. See pp. 5-6, supra. Thus, when Congress 
repealed Section 1105a(a)(10) in AEDPA, it divested the 
district courts of the limited authority they had exercised 
since the 1961 amendments to review the merits of deporta- 
tion orders, and made the courts of appeals the exclusive 
forum for all challenges to deportation orders. 

When it enacted the new Section 1252 in IIRIRA, Con- 
gress reconfirmed that all judicial review of removal orders 
must be had in the courts of appeals. Section 1252(a)(1) 
provides that “[j]udicial review of a final order of removal 

* * * is governed only by” the Hobbs Act, which channels 
review of agency orders exclusively into the courts of 
appeals. See 28 U.S.C. 2341 et seq. Congress did not provide 
any general exception to that exclusive court-of-appeals 
review provision to allow habeas corpus review at the behest 

20 

of aliens held in custody, as it had provided in 1961. Con- 
gress did, however, include in Section 1252(a)(1) a narrower 
exception to the general requirement of exclusive review in 
the courts of appeals, which is applicable by its terms only to 
“an order of removal without a hearing pursuant to” 8 U.S.C. 
1225(b)(1) (Supp. V 1999). For cases covered by that excep- 
tion (aliens at the border without documentation who are 
placed in expedited-removal proceedings), Section 1252(e)(2) 
provides that “[j]udicial review of any determination made 
under [Section 1225(b)(1)] is available in habeas corpus 
proceedings.” Thus, when Congress wished to provide for 
judicial review of final removal orders in habeas corpus pro- 
ceedings in district court, it expressly so provided in Section 
1252 itself, and its omission of any provision for habeas 
corpus review of any other kind of removal order means that 
such review is barred. Compare United States v. Fausto, 
484 U.S. 439, 448-449 (1988); 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, 
including 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) 
where Congress permitted habeas corpus review (see p. 10, 
supra), 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 de- 
scribed Section 1252(b)(9) in Reno v. American-Arab Anti- 
Discrimination Committee, 525 U.S. 471, 483 (1999) 

21 

(AADC), as an “unmistakable ‘zipper’ clause” that channels 
judicial review to the courts of appeals. See id. at 482 (de- 
scribing a “zipper” clause as one that says “no judicial review 
in [removal] cases unless [Section 1252] provides judicial 
review”). 

Finally, Congress also restricted, to a considerable de- 
gree, judicial review of criminal aliens’ removal orders. Sec- 
tion 1252(a)(2)(C) provides that “[n]otwithstanding any other 
provision of law”—broad language not limited to Section 
1252 or even to 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 his challenge to 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, except 
where Congress has expressly provided otherwise in the 
governing judicial-review provision of the INA itself. There 
is no such exception allowing respondent to obtain judicial 
review of his removal order in habeas corpus proceedings— 
and indeed Congress, even before it enacted IIRIRA, had 
repealed the prior provision for habeas corpus review in 
order to expedite judicial review of deportation orders. Yet 
the court of appeals’ decision leads to the anomalous result 
that criminal aliens may proceed in district courts 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 turns Congress’s scheme on its head. Given 
Congress’s overarching intent in AEDPA and IIRIRA to 
expedite the removal of criminal aliens (see p. 2, supra), it is 
inconceivable that Congress would have intended criminal 
aliens to have greater opportunities for judicial review (and 

22 

delay) of their removal orders than all other aliens. Cf. Foti, 
375 U.S. at 224 (noting Congress’s concern with delays in 
judicial review of removal orders); Stone, 514 U.S. at 399 
(similar). 

10 Indeed, the court of appeals acknowledged in 
Calcano (Pet. App. 72a) that the government’s reading of 
the INA 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.” 

11 

2. The court of appeals nevertheless concluded that Con- 
gress had not acted with sufficient clarity to divest the dis- 
trict courts of their authority to review the merits of re- 
moval orders by habeas corpus. Invoking Felker v. Turpin, 

10 As Congress was aware in both 1961 and 1996, aliens proceeding in 
district court pursuant to 28 U.S.C. 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. V 1999). Also, unlike the INA, Section 2241 does not 
require consolidation of challenges to deportation orders with challenges 
to motions to reopen or reconsider. Cf. 8 U.S.C. 1252(b)(6) (Supp. V 1999); 
Stone, 514 U.S. at 393-394. And, of course, an alien who is unsuccessful in 
district court can appeal to the court of appeals, and thereby obtain 
further delay. 

11 Accord Henderson v. INS, 157 F.3d 106, 119 n.9 (2d Cir. 1998) 
(“Congress clearly meant to streamline judicial review, and it seems 
perverse to find that the new laws actually added a layer of review in the 
district courts that did not generally exist before.”), cert. denied, 526 U.S. 
1004 (1999); LaGuerre v. Reno, 164 F.3d 1035, 1039 (7th Cir. 1998) 
(rejecting aliens’ contention that merits of deportation orders could be 
reviewed on habeas corpus after AEDPA because, under that construc- 
tion, “then Congress accomplished nothing toward its aim of curtailing 
judicial review,” and “[m]aybe less than nothing, if by closing the door to 
review by the courts of appeals Congress simultaneously opened the door 
to review by the district courts followed by review by the courts of 
appeals”), cert. denied, 528 U.S. 1153 (2000). 

23 

518 U.S. 651 (1996), and Ex parte Yerger, 75 U.S. 
(8 Wall.) 85 (1868), for the proposition 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.” Pet. App. 61a; see id. at 62a-63a 
(stressing that IIRIRA “do[es] not explicitly mention a 
repeal of a federal court’s general habeas jurisdiction or 
28 U.S.C. § 2241”). That reasoning is fundamentally flawed. 

In the first place, the court erred in its premise that 
Section 1252 does not mention habeas corpus (“the general 
type of jurisdiction”) by name. Section 1252(e)(2) expressly 
permits a narrow form of judicial review by “habeas corpus” 
in expedited-removal proceedings under Section 1225(b)(1), 
and Section 1252(a)—which prescribes the general rule that 
judicial review is exclusively to be had in the courts of 
appeals—specifically refers to that exception. See pp. 8 n.5, 
10, supra. 

In any event, this case does not involve an implied repeal 
of the district courts’ authority to review removal orders, 
but rather an express withdrawal. 

12 The overwhelming 
conclusion that must be drawn from AEDPA and IIRIRA is 
that a district court may no longer review by habeas corpus 
the Attorney General’s legal conclusions that underlie a 

12 Moreover, Congress has not eliminated all authority in the district 
court to ensure that the removal of an alien is lawful. If, for example, an 
alien contended that no removal order had ever been entered against him 
and that the INS’s efforts to remove him were therefore without warrant, 
a district court would have jurisdiction under 28 U.S.C. 2241 to entertain 
such a contention. Such a challenge would not fall within the scope of the 
exclusive-review provisions of Section 1252(a), which refer only to review 
of removal orders, and the district court would retain authority to ensure 
that the INS’s intended removal of the alien was based on such an order. 

24 

determination, in a removal order, that a particular alien is 
subject to removal. In AEDPA Section 401(e)—a provision 
entitled “ELIMINATION OF CUSTODY REVIEW BY HABEAS 
CORPUS”—Congress expressly repealed the INA’s prior 
exception for habeas corpus review in former 8 U.S.C. 
1105a(a)(10) (1994). See p. 6, supra. And the exclusive, self- 
contained structure of judicial review under Section 1252 
enacted by IIRIRA—requiring that judicial review of 
removal orders be governed “only” by the Hobbs Act’s 
procedures for judicial review in the courts of appeals 
(§ 1252(a)(1)); dictating that judicial review of all legal and 
factual issues arising in removal proceedings be had “only” 
under Section 1252 itself (§ 1252(b)(9)); creating an express 
but very narrow provision for habeas corpus proceedings in 
limited circumstances inapplicable here (§ 1252(a)(1) and 
§ 1252(e)(2)); and precluding judicial review of aggravated 
felons’ removal orders “[n]otwithstanding any other provi- 
sion of law” (§ 1252(a)(2)(C))—demonstrates that a removal 
order such as that entered against respondent may be chal- 
lenged, if at all, only in the courts of appeals under Section 
1252, and not in the district courts under Section 2241. 

Neither Felker nor Yerger holds or even suggests that a 
statutory provision that categorically bars all forms of 
judicial review other than that expressly provided for is 
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 by using the words “habeas corpus” in an 
enactment. In both Felker and Yerger, the statute in ques- 
tion simply did not apply at all to this Court’s habeas corpus 
jurisdiction, either explicitly or in categorical terms that 
necessarily included that jurisdiction. See Felker, 518 U.S. 
at 658-662. Where, as here, there is such a categorical bar, a 
specific reference to habeas corpus or the statute governing 
habeas corpus in the district courts is unnecessary and 

25 

indeed would be redundant. Compare Argentine Republic v. 
Amerada Hess Shipping Corp., 488 U.S. 428, 435-438 (1989). 
Because 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 and may not invoke their habeas corpus 
jurisdiction. See Swain v. Pressley, 430 U.S. 372, 378 (1977). 

The court of appeals also reasoned that Section 1252 does 
not “expressly” supplant district court review of removal 
orders on habeas corpus because “judicial review” (which 
Section 1252 plainly does restrict) has long been understood 
as distinct from “habeas corpus.” Thus, it concluded, 
IIRIRA’s restriction of “judicial review” of removal orders 
to the courts of appeals should not be read to include habeas 
corpus review. The sharp line the court of appeals perceived 
between “judicial review” and “habeas corpus” in the immi- 
gration context simply does not exist, however. Congress 
has long used the term “judicial review” to refer to proceed- 
ings for review of the merits of deportation, exclusion, and 
removal orders in district court by habeas corpus, when it 
deemed such review to be appropriate. 

Thus, when Congress in 1961 acted to preserve habeas 
corpus review for aliens held in custody, it provided that 
“any alien held in custody pursuant to an order of deporta- 
tion may obtain judicial review thereof by habeas corpus 
proceedings.” 8 U.S.C. 1105a(a)(10) (1994) (emphasis added). 
And Congress showed that its choice of language was not 
accidental in old Section 1105a(b), also enacted in 1961, which 
provided the judicial-review scheme for final exclusion 
orders: “Notwithstanding the provisions of any other law, 
any alien against whom a final order of exclusion has been 
made heretofore or hereafter * * * may obtain judicial 
review of such order by habeas corpus proceedings and not 

26 

13 In 
IIRIRA, Congress again used “judicial review” to refer to 
review of the merits of a removal order by habeas corpus in 
district court. For certain expedited-removal orders against 
aliens at the border—i.e., “orders of removal without a hear- 
ing pursuant to [Section 1225(b)(1)]”—Congress provided 
that “[j]udicial review * * * is available in habeas corpus 
proceedings.” 8 U.S.C. 1252(e)(2) (Supp. V 1999) (emphasis 
added). Thus, the court of appeals was wrong to conclude 
that Congress’s exclusive placement of “judicial review” of 
removal orders in the courts of appeals was irrelevant to the 
question whether the district courts retain authority to 
review such orders by habeas corpus. 

Finally, even if the general self-contained scheme enacted 
by Congress in Section 1252 did not make it sufficiently clear 
that Congress had eliminated review of removal orders in 
the district courts, Section 1252(a)(2)(C) unmistakably re- 
quires the conclusion that an aggravated felon like respon- 
dent cannot obtain such review in district court. Under that 
provision, “[n]otwithstanding any other provision of law, no 
court shall have jurisdiction to review any final order of 
removal” against an aggravated felon. Two points are 
salient about Section 1252(a)(2)(C). First, it states that “no 
court” shall have such jurisdiction, not just that the courts of 
appeals shall have no such authority. It thus expressly bars 
the district courts as well as the courts of appeals from 
reviewing respondent’s claim. Second, it bars the courts 
from exercising “review”—not merely “judicial review”—of 

13 When Congress rendered 8 U.S.C. 1105a(b) (1994) inapplicable to 
transition cases under IIRIRA in 1996, it provided that “the action for 
judicial review” of exclusion orders would be governed by the general 
provisions for judicial review of deportation orders in Section 1105a(a)— 
thus confirming its understanding that “judicial review” of an exclusion 
order, when had in the district court, had previously been by habeas 
corpus. See IIRIRA § 309(c)(4)(A), 110 Stat. 3009-626. 

otherwise.” 8 U.S.C. 1105a(b) (1994) (emphasis added). 

27 

removal orders against aggravated felons. Congress’s 
sweeping language requires the conclusion that a criminal 
alien barred from obtaining review of a challenge to his 
removal order in the court of appeals may not obtain the 
very same review in district court. 

B. Congress’s Withdrawal Of District Courts’ Authority 

To Review Removal Orders Does Not Raise Con- 
stitutional Concerns About Suspension Of Habeas 
Corpus 

The court of appeals based its jurisdictional ruling in part 
on a perceived need to avoid a “serious constitutional ques- 
tion” that would supposedly arise under the Suspension 
Clause (U.S. Const. Art. I, § 9, Cl. 2) if no court had author- 
ity to consider respondent’s particular non-constitutional 
“retroactivity” challenge to his removal order. See Pet. App. 
68a. As we have noted (pp. 13, 18, supra), the court of 
appeals concluded in Calcano that it could not review the 
same kind of claim on an alien’s direct petition for review. 
Although we agree with the court of appeals that Section 
1252(a)(2)(C) barred it from entertaining respondent’s claim 
by petition for review, we do not agree that the fact that 
respondent may have no judicial forum for the particular 
non-constitutional claim raised in this case raises constitu- 
tional concerns. The Suspension Clause does not require a 
judicial forum for the claim that the Attorney General has 
the discretionary authority to decline to remove an alien who 
is concededly subject to removal under the INA. 

This Court has never ruled that the Great Writ requires a 
judicial forum for an alien to present the claim that he has a 
“right” to be considered for an exercise of a power that Con- 
gress has placed in the discretion of the Attorney General to 
dispense with the deportation of an alien. To the contrary, 
the Court has described the Attorney General’s discretion- 
ary power to grant a dispensation from deportation as “an 

28 

act of grace” accorded to his “unfettered discretion,” similar 
to “a judge’s power to suspend the execution of a sentence, 
or the President’s to pardon a convict.” INS v. Yueh-Shaio 
Yang, 519 U.S. 26, 30 (1996); see also Jay v. Boyd, 351 U.S. 
345, 354 (1956); United States ex rel. Kaloudis v. Shaugh- 
nessy, 180 F.2d 489, 491 (2d Cir. 1950) (L. Hand, J.). 
Furthermore, even if Section 1182(c) were still theoretically 
applicable in cases like respondent’s, there is no question 
that the Attorney General would have had the authority, in 
light of Congress’s enactment of IIRIRA proscribing for the 
future the grant of discretionary relief to aggravated felons, 
to decide as a matter of policy that all aliens who had been 
convicted of aggravated felonies should not receive relief 
under former Section 1182(c). See United States ex rel. 
Hintopoulos v. Shaughnessy, 353 U.S. 72, 78-79 (1957) (hold- 
ing that, in denying discretionary relief from deportation, 
BIA could take into account policies enacted in the INA in 
1952, even though proceeding was technically controlled by 
Immigration Act of 1917). 

Thus, the particular claim raised in this case is well 
removed from the kinds of claims that this Court has 
indicated in the past had to be made subject to judicial 
review by habeas corpus when that was the only avenue for 
judicial review of deportation orders. While the Court has 
not provided an exhaustive elucidation of the kinds of claims 
that fall within the core of the Great Writ, it has provided 
important insights into the nature of the writ in decisions 
involving the immigration laws before 1952, when that was 
the only available form of judicial review of deportation 
orders. During that period, the Court held that the writ 
could be used to address four kinds of challenges: (1) claims 
that a person alleged to be an alien was in fact a citizen (and 
therefore was not subject to INS jurisdiction at all); 
(2) claims that the alien had been deprived of a fundamen- 
tally fair administrative proceeding; (3) claims that the ad- 

29 

ministrative officer’s finding of deportability was completely 
without supporting evidence; and (4) claims that the alien’s 
case did not fall within one of the statutory categories pro- 
viding for deportation. See Tod v. Waldman, 266 U.S. 113, 
118 (1924); Ng Fung Ho v. White, 259 U.S. 276, 283-284 
(1922); Kwock Jan Fat v. White, 253 U.S. 454, 458 (1920); 
Gegiow v. Uhl, 239 U.S. 3, 9 (1915); Chin Yow v. United 
States, 208 U.S. 8, 11-12 (1908). This case does not fall within 
any of those categories, for respondent concededly is a 
deportable alien and has made no claim that his deportation 
proceeding was lacking in due process. 

14 

Section 1252, moreover, continues to allow judicial review 
for all the kinds of claims mentioned above. Although Sec- 
tion 1252(a)(2)(C) bars the courts from exercising jurisdic- 
tion over many claims raised by aliens who have been found 
removable because of aggravated felony convictions, it does 
not preclude the courts of appeals from examining, on peti- 
tion for review, whether those conditions for preclusion of 

14 During that period, this Court did consider the merits of two cases in 
which an alien proceeding by habeas corpus contended that the Attorney 
General had improperly denied discretionary relief from deportation even 
though the alien was statutorily eligible for such relief. See Hintopoulos, 
supra; United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). 
In Hintopoulos, the Court denied relief, see 353 U.S. at 77-79, and in 
Accardi, the Court granted relief only because of what it found to be 
procedural irregularity in the handling of the case, see 347 U.S. at 266-268. 
The Court did not expressly address the scope of habeas corpus juris- 
diction in either case, and it certainly did not suggest that the Constitution 
required that habeas corpus be available to review the particular non- 
constitutional claims in those cases. The government also did not argue in 
either case that habeas corpus jurisdiction was absent. See Gov’t Br. at 
13, Hintopoulos, supra (No. 205); Gov’t Br. at 14, Accardi, supra (No. 366). 
This Court has never considered itself bound by sub silentio assertions of 
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 
(1994); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119 
(1984). 

30 

review actually apply. Under well-settled principles 
governing preclusion-of-review provisions, when the avail- 
ability of judicial review depends on a particular factual or 
legal conclusion, a court may determine whether that condi- 
tion exists. The doctrine that a court has “jurisdiction to 
determine its jurisdiction,” even when to do so requires it to 
render a decision that bears on the underlying merits, rests 
on that understanding. See Land v. Dollar, 330 U.S. 731, 739 
(1947). Accordingly, a court of appeals presented with a 
petition for review by an alien found removable because of 
an aggravated felony conviction may determine (1) whether 
the person is an alien; (2) whether the alien is removable; and 
(3) whether that ground of removal is one which precludes 
judicial review under the statute. In addition, in light of this 
Court’s jurisprudence directing that Acts of Congress should 
not be read to preclude review of constitutional claims 
absent a clear congressional expression to that effect, see 
Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 
415 U.S. 361, 373-374 (1974), Section 1252(a)(2)(C) need not 
and should not be read to preclude review of substantial 
constitutional claims, such as constitutional challenge to the 
INA itself and claims of fundamental unfairness in a removal 
proceeding. 

That review in the courts of appeals is an “adequate and 
effective” alternative to habeas corpus. See Swain, 430 U.S. 
at 381. The question of alienage is analogous to what the 
Court has referred to as “jurisdictional fact[s]” (including 
questions of alienage and citizenship). Ng Fung Ho, 259 U.S. 
at 284. The determination whether an alien is actually re- 
movable permits the courts of appeals to determine whether 
administrative officers acted within their legal authority in 
ordering the alien removed. See ibid; Gegiow, 239 U.S. at 5. 
And the inquiry whether an alien’s removal proceedings 
comported with basic guarantees of constitutional due pro- 
cess satisfies the Court’s admonition that an alien be per- 

31 

mitted to obtain judicial enforcement of the guarantee that 
“[t]he decision must be after a hearing in good faith, however 
summary.” Kwock Jan Fat, 253 U.S. at 458. 

Finally, even if this Court were to conclude that the 
Constitution does require a judicial forum for respondent’s 
effort to obtain discretionary relief from removal, it would be 
far more appropriate to conclude that Section 1252(a)(2)(C) 
should not be applied to bar that claim in the court of 
appeals—either as a matter of statutory construction or one 
of constitutional imperative—than to hold that the district 
court may entertain that claim under its habeas corpus 
authority. Such a result would be much more consistent 
with Congress’s unmistakable design in IIRIRA, which is to 
bar district court review of such removal orders completely, 
in light of the serious potential for delay of aliens’ removal 
posed by district court proceedings, but to allow at least a 
very limited review of removal orders, even for aggravated 
felons, in the courts of appeals. Cf. Weinberger v. Hynson, 
Westcott & Dunning, Inc., 412 U.S. 609, 631-632 (1973) (“It is 
well established that our task in interpreting separate pro- 
visions of a single Act is to give the Act the most harmoni- 
ous, comprehensive meaning possible in light of the legis- 
lative policy and purpose.”) (internal quotation marks 
omitted). 

Indeed, because Section 1252(a)(1) clearly directs that 
judicial review of removal orders be had, if anywhere, only in 
the courts of appeals, it is independently important to ac- 
complishing Congress’s purpose of expediting judicial review 
that all threshold questions concerning the availability of 
judicial review also be resolved in the courts of appeals, 
rather than in the district courts in the first instance subject 
to appeal to the courts of appeals. That conclusion comports 
with Section 1252(b)(9), which expressly provides that 
“[j]udicial review of all questions of law and fact, including 
interpretation and application of constitutional and statutory 

32 

provisions, arising from any action taken or proceeding 
brought to remove an alien from the United States under 
[the INA] shall be available only in judicial review of a final 
order under this section [1252].” Consistent with that 
provision, all quesitons concerning the “interpretation” and 
“application” of the Suspension Clause and Section 
1252(a)(2)(C)’s preclusion of review “arising from” any 
proceeding to remove a criminal alien from the United 
States should be resolved “only in judicial review of a final 
order under [Section 1252],” rather than in the district court 
on habeas corpus, as occurred in this case. Under any 
permissible reading of the INA, therefore, the district court 
did not have jurisdiction over respondent’s challenge. 

II. THE ATTORNEY GENERAL MAY NOT GRANT 

RELIEF FROM DEPORTATION UNDER FORMER 
8 U.S.C. 1182(c) TO ANY ALIEN PLACED IN 
REMOVAL PROCEEDINGS AFTER APRIL 1, 1997 

If this Court nevertheless concludes that the district court 
properly exercised habeas corpus jurisdiction over respon- 
dent’s challenge to his removal order, the question then 
arises whether the court of appeals erred in ruling that 
IIRIRA’s repeal of Section 1182(c) is not to be applied in the 
case of an alien who, like respondent, pleaded guilty or nolo 
contendere to an offense before IIRIRA was enacted, even if 
that alien was placed in removal proceedings after the 
effective date of IIRIRA. As we now show, that ruling 
represents a manifestly erroneous application of the analysis 
in this Court’s decision in Landgraf v. USI Film Products, 
511 U.S. 244 (1994). In Landgraf, the Court articulated a 
two-step analysis for determining whether a federal statute 
is to be applied to cases arising out of facts occurring before 
the enactment of legislation: 

When a case implicates a federal statute enacted after 
the events in suit, the court’s first task is to determine 

33 

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 statue would have 
retroactive effect, i.e., whether it would impair rights a 
party possessed when he acted, increase a party’s liabil- 
ity for past conduct, or impose new duties with respect 
to transactions already completed. If the statute would 
operate retroactively, our traditional presumption 
teaches that it does not govern absent clear congres- 
sional intent favoring such a result. 

Id. at 280. Both steps of the Landgraf test require the con- 
clusion that, because of IIRIRA’s repeal of Section 1182(c), 
the Attorney General may not apply that provision in any 
removal proceeding commenced on or after April 1, 1997. 

A. Congress Intended That Relief Under Former Section 
1182(c) Not Be Available To Any Alien Placed In 
Removal Proceedings After April 1, 1997 

1. Congress has clearly prescribed that former Section 
1182(c) has no application in any removal proceeding com- 
menced on or after April 1, 1997. In Title III-A of IIRIRA, 
Congress comprehensively revised the relevant provisions of 
the INA: it eliminated the INA’s old “deportation” and “ex- 
clusion” proceedings; it created a new “removal” proceeding; 
it expressly repealed Section 1182(c), which was applicable in 
old deportation and exclusion proceedings; and it adopted 
instead a new form of discretionary relief (cancellation of 
removal) to be applied in new removal proceedings. See pp. 
8-10, supra. All of those changes are plainly to be taken as a 
whole, for the new provisions are intended to be applied 
together. Congress’s comprehensive establishment of a new 
immigration framework shows its intent that, after a 
transition period, the provisions of the old law should no 

34 

longer be applied at all. Cf. Radzanower v. Touche Ross & 
Co., 426 U.S. 148, 154 (1976) (a provision is repealed if “the 
later act covers the whole subject of the earlier one and is 
clearly intended as a substitute”). 

IIRIRA also established a single “title III-A” effective 
date for all the revisions made by Title III-A. Specifically, 
Section 309(a) of IIRIRA provides that, with limited excep- 
tions not applicable to this case, Title III-A and the amend- 
ments made by that subtitle—which include IIRIRA Section 
304’s repeal of Section 1182(c)—“shall take effect” on the 
first day of the first month beginning more than 180 days 
after the enactment of IIRIRA, or April 1, 1997. See 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 are conced- 
edly properly placed in removal proceedings under the new 
statutory provisions enacted by IIRIRA Title III-A may 
nonetheless apply for relief from deportation under Section 
1182(c), despite IIRIRA Section 304’s explicit repeal of that 
form of relief. Congress simply did not fashion any such 
interweaving of old and new parts of the INA. 

Any doubt about the temporal scope of IIRIRA Section 
304’s repeal of former Section 1182(c) is resolved by the 
saving provision in IIRIRA Section 309(c)(1), which 
provides: 

GENERAL RULE THAT NEW RULES DO NOT APPLY.— 

Subject to the succeeding provisions of this subsection, 
in the case of an alien who is in exclusion or deportation 
proceedings before the title III-A effective date— 

(A) the amendments made by this subtitle shall not 
apply, and 

35 

(B) the proceedings (including judicial review there- 
of) shall continue to be conducted without regard to 
such amendments. 

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

15 Congress thus 
focused its attention specifically on the question of which 
cases would be governed, even after the Title III-A effective 
date, by the provisions of the INA that were in effect prior 
to the enactment of IIRIRA. Congress answered that ques- 
tion by providing that, for aliens who were already in 
exclusion or deportation proceedings before that effective 
date, the amendments made by Title III-A (which include 
the repeal of Section 1182(c)) “shall not apply,” and that such 
proceedings “shall continue to be conducted without regard 
to such amendments.” 

16 The application of “normal rules of 
construction” of statutes (Lindh v. Murphy, 521 U.S. 320, 
326 (1997)) compels the conclusion that Congress intended 

15 A technical correction to IIRIRA in Public Law No. 104-302 
amended IIRIRA Section 309(c)(1) to provide that the Title III-A amend- 
ments would not apply to aliens in administrative proceedings “before” 
the effective date, rather than aliens in proceedings “as of ” the effective 
date (as IIRIRA had originally provided). The technical correction makes 
clear that the Title III-A amendments do not apply to aliens whose 
administrative proceedings were completed before April 1, 1997. 

16 In Section 309(c)(4)(A), Congress expressly provided that certain 
parts of Title III-A would apply even to administrative and judicial pro- 
ceedings commenced before April 1, 1997, and in Section 309(c)(2) and (3), 
Congress authorized the Attorney General to elect to apply Title III-A to 
additional administrative proceedings. 110 Stat. 3009-626. Congress did 
not, however, provide anywhere that any parts of IIRIRA Title III-A 
would not apply to any proceedings commenced on or after the Title III-A 
effective date of April 1, 1997. 

36 

the Title III-A amendments, including the repeal of Section 
1182(c), to control all other cases. 

17 

2. In concluding that Congress had not manifested any 
intent about the temporal reach of IIRIRA’s repeal of Sec- 
tion 1182(c), the court of appeals overlooked the compre- 
hensive nature of the revisions to the INA made by Title 
III-A of IIRIRA. As Judge Walker observed (Pet. App. 
37a), “the entirety of the new IIRIRA applies generally to 
[respondent]—indeed, if it did not, he would not be subject 
to removal at all.” The Title III-A effective date therefore 
must be read as governing the entirety of those intertwined 
provisions, including Section 304’s repeal of Section 1182(c). 
The court of appeals also erred in ascribing significance to 
the fact that Congress expressly provided that amendments 
to the INA made by certain other sections of IIRIRA 
(principally in Title III-B) were to be applied to past 
conduct. See Pet. App. 17a-18a. The court concluded that, 
because Congress thus demonstrated that it “knew how to 
explicitly make an IIRIRA provision applicable to ‘convic- 
tions and sentences entered before, on, or after the date of 
the enactment of the Act,’ ” the absence of such language in 
Section 309 indicated that Congress had no intent to do so 
for the amendments made by Title III-A. Id. at 18a (quoting 

17 In Landgraf, the Court declined to ascribe significance to the fact 
that Congress has specifically provided that certain of the amendments 
made by the Civil Rights Act of 1991 would not apply to a very narrow set 
of pending and closed cases. See 511 U.S. at 258-261. The Court found 
those provisions to be of little weight because, among other things, they 
involved “comparatively minor and narrow provisions in a long and com- 
plex statute.” Id. at 258. In IIRIRA, however, Congress plainly focused 
its attention on the issue of transitional cases and specifically identified 
the set of transitional cases in which the new rules would not apply. 
Section 309(c) is not a “minor and narrow provision,” but rather the key 
section addressing transition rules for IIRIRA Title III-A. 

37 

IIRIRA § 321(b), 110 Stat. 3009-628, and IIRIRA § 322(c), 
110 Stat. 3009-629). 

18 

The temporal-scope provisions governing specific amend- 
ments made by Title III-B cast no doubt on the express 
terms of Section 309(a) and (c)(1) that specify the temporal 
applicability of the comprehensive amendments made to the 
INA by Title III-A. Title III-B addresses subjects that are 
entirely different from those treated in Title III-A. 

19 Cf. 
Martin v. Hadix, 527 U.S. 343, 356 (1999) (“Because [the 
sections] address wholly distinct subject matters, the same 
negative inference does not arise from the silence of [one 
section].”). 

Title III-A, for which Congress provided a single express 
effective-date provision, restructured removal proceedings 

18 The court of appeals did not, however, conclude that those other 
provisions of IIRIRA required the negative inference that Congress 
affirmatively intended that IIRIRA Section 304’s repeal of former Section 
1182(c) would not apply to aliens who had previously been convicted of 
criminal offenses. The court acknowledged, in fact, that those other 
provisions “cover distinct subject matters that are too dissimilar to the 
availability of discretionary relief to support a negative inference in favor 
of prospective application of IIRIRA § 304.” Pet. App. 21a n.5. Rather, it 
concluded that the other temporal-scope provisions rendered Congress’s 
intent about the temporal reach of IIRIRA Section 304 ambiguous or 
unclear. Id. at 21a n.5, 22a. 

19 The subtitles also have quite different provenances. The substance 
of Title III-A of IIRIRA was part of H.R. 2202, an immigration bill that 
passed the House of Representatives on March 21, 1996 (142 Cong. Rec. 
5962). Title III-B of H.R. 2202 would have established new procedures for 
the removal of alien terrorists. See id. at 5341-5344; H.R. Rep. No. 469, 
Pt. 1, supra, at 50. Alien-terrorist removal provisions, however, were 
separately enacted into law in AEDPA. See 110 Stat. 1258-1268; H.R. 
Conf. Rep. No. 518, 104th Cong., 2d Sess. 115-116 (1996). Title III-B of 
IIRIRA as eventually enacted was derived in large part from a separate 
Senate bill, S. 1664, Part 5 of which dealt with criminal aliens. See S. Rep. 
No. 249, 104th Cong., 2d Sess. 17-18 (1996); H.R. Conf. Rep. No. 828, 104th 
Cong., 2d Sess. 223-226 (1996). 

38 

into a streamlined process from commencement through the 
hearing on the merits, the grant or denial of cancellation of 
removal, the appeal to the BIA, judicial review, and ulti- 
mately to the physical removal of the alien from the United 
States. Title III-B, on the other hand, enacted miscellaneous 
minor amendments to the INA dealing mostly with criminal 
aliens: Section 321 amended the INA’s definition of 
“aggravated felony” (110 Stat. 3009-627 to 3009-628); Section 
322 amended the definitions of “conviction” and “term of 
imprisonment” (110 Stat. 3009-628 to 3009-629); and Section 
324 amended the punishment for the crime of illegal re- 
entry (110 Stat. 3009-629). 

20 Title III-B has no general effec- 
tive date, and so Congress addressed the temporal scope of 
those provisions individually. The manner in which it did so 
in no way detracts from the distinct and generally applicable 
effective date provisions governing Title III-A. 

Because Congress’s intent is clear that IIRIRA’s repeal of 
Section 1182(c) made that form of relief unavailable in any 
removal proceeding commenced on or after April 1, 1997, the 
Court need proceed no further: If Congress has expressly 
prescribed a statute’s temporal reach, “there is no need to 
resort to judicial default rules.” Landgraf, 511 U.S. at 280. 

B. The Inapplicability Of Section 1182(c) In Removal 

Proceedings Commenced On Or After April 1, 1997 
Does Not Contravene Any Presumption Against 
Retroactivity 

The court of appeals also erred in concluding under the 
second step of the Landgraf analysis that application of 
IIRIRA’s repeal of Section 1182(c) to aliens who pleaded 
guilty before that repeal would contravene the presumption 

20 IIRIRA Section 347, also cited by the court of appeals (Pet. App. 
17a-18a), was enacted in yet another subtitle, Title III-C, and provides for 
the removal of aliens who have illegally voted. See 110 Stat. 3009-638 to 
3009-639. 

39 

against retroactivity. That presumption is not implicated in 
a situation like this, where Congress has withdrawn from an 
official (the Attorney General) a discretionary power to 
grant future relief from the effect of a civil proceeding that 
regulates an alien’s future status and conduct. Moreover, 
the court of appeals’ focus on guilty pleas is particularly 
inappropriate because it is wholly unconnected to the text or 
structure of the INA. 

1. a. This Court has made clear that “[a] statute does not 
operate ‘retrospectively’ merely because it is applied in a 
case arising from conduct antedating the statute’s enact- 
ment,” Landgraf, 511 U.S. at 269, and that, “[e]ven absent 
specific legislative authorization, application of new statutes 
passed after the events in suit is unquestionably proper in 
many situations,” id. at 273. One such “unquestionably 
proper” application is when the statute regulates conduct in 
the future, even when that regulation is based on prior 
events. See id. at 293 n.3 (Scalia, J., concurring in the judg- 
ment) (noting that “the presumption against retroactivity is 
not violated by interpreting a statute to alter the future 
legal effect of past transactions”). 

Removal proceedings present a clear example of such a 
situation, for a new statute may be applied to make an alien 
deportable, or to eliminate his eligibility for relief from 
deportation, without contravening any presumption against 
retroactivity. This Court has long characterized deportation 
proceedings as inherently prospective, in that they concern 
the alien’s right to remain in this country in the future. As 
the Court explained in INS v. Lopez-Mendoza, 468 U.S. 
1032, 1038 (1984), “[t]he deportation hearing looks prospec- 
tively 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, the Court emphasized that, “in all cases, deportation 
is necessary in order to bring to an end an ongoing violation 

40 

of United States law.” 525 U.S. at 491; see also Ng Fung Ho, 
259 U.S. at 280 (“Congress has power to order at any time 
the deportation of aliens whose presence in the country it 
deems hurtful.”). 

The inherently prospective nature of Congress’s specifica- 
tion of the grounds on which an alien may be deported or 
denied relief from deportation is supported by the fact that 
such specifications are exercises of Congress’s plenary 
power, rooted in the Nation’s sovereignty, to determine 
which aliens are welcome here and which are not. 

21 Aliens 
have no entitlement to remain in the United States beyond 
that specifically granted to them by Congress. 

22 Accord- 

21 See Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952) (“The Gov- 
ernment’s power to terminate its hospitality has been asserted and sus- 
tained by this Court since the question first arose.”); see also Kleindienst 

v. Mandel, 408 U.S. 753, 766 (1972) (“Over no conceivable subject is the 
legislative power of Congress more complete than it is over the admission 
of aliens.”) (internal quotations omitted); Carlson v. Landon, 342 U.S. 524, 
534 (1952) (“So long, however, as aliens fail to obtain and maintain citizen- 
ship by naturalization, they remain subject to the plenary power of 
Congress to expel them under the sovereign right to determine what 
noncitizens shall be permitted to remain within our borders.”); Bugajewitz 

v. Adams, 228 U.S. 585, 591 (1913) (“[N]or is the deportation a punish- 
ment; it is simply a refusal by the government to harbor persons whom it 
does not want.”); Kaloudis, 180 F.2d at 490 (“The interest which an alien 
has in continued residence in this country is protected only so far as 
Congress may choose to protect it; Congress may direct that all shall go 
back, or that some shall go back and some may stay; and it may distinguish 
between the two by such tests as it thinks appropriate.”). 

22 That is not to say that Congress could not expressly provide that an 
alien had a right to remain here, such that a subsequent statute should not 
be construed to impair that right. For example, in Chew Heong v. United 
States, 112 U.S. 536 (1884), which the Court discussed in Landgraf (see 
511 U.S. at 271-272), the Court ruled that a statute barring Chinese 
nationals from reentering the United States without a certificate prepared 
when they left this country should not be applied to a Chinese national 
who had left the United States before the act was passed. At that time, a 

41 

ingly, when Congress provides for the deportation of a 
particular class of aliens, it is, “in the exercise of its 
unquestioned right, only seeking to rid the country of 
persons who had shown by their career that their continued 
presence here would not make for the safety or welfare of 
society.” Mahler v. Eby, 264 U.S. 32, 39 (1924) (emphasis 
added). 

23 The regulation of aliens’ “continued presence” here 
does not contravene any presumption against retroactivity. 

treaty between the United States and China gave Chinese nationals “the 
right to go from and return to the United States at pleasure, without 
being subjected to regulations or conditions affecting the substance of that 
right.” 112 U.S. at 539. Crucial to the Court’s decision was the conclusion 
that application of the new statute to an alien who had previously left the 
country would retroactively impair the “rights previously vested” in him. 
See id. at 559. The unusual facts of Chew Heong have no application to 
this case, which involves the more typical situation of the removal of an 
alien who is unquestionably removable because of his conviction of an 
aggravated felony. The application of a new rule barring the Attorney 
General from granting discretionary relief from removal impairs no 
“rights previously vested,” because no alien has a vested right to dis- 
cretionary relief from removal. 

23 For the same reason, the court of appeals’ concern (see Pet. App. 22a 

n.6) that IIRIRA’s repeal of Section 1182(c) must be construed to avoid 
constitutional doubts is ill-founded. This Court has made clear on 
numerous occasions that Congress’s power to alter the bases on which an 
alien may be deported is not constrained by the Constitution’s limitations 
on retroactive lawmaking. See Marcello v. Bonds, 349 U.S. 302, 314 (1955) 
(upholding deportation under 1952 INA of alien convicted in 1938 of 
marijuana violation); Galvan v. Press, 347 U.S. 522, 530-531 (1954) 
(upholding application of 1950 statute requiring deportation of anyone who 
had ever been a member of the Communist Party after entering the 
United States to an alien who had been a Communist only before the 
statute’s enactment); Harisiades, 342 U.S. at 593-596 (similarly upholding 
application of 1940 statute requiring deportation of any person who had 
been a member of the Communist Party, even in the past); Mahler, 264 
U.S. at 34, 39 (upholding deportation under 1920 statute of alien convicted 
in 1918 under the Espionage Act). 

42 

b. IIRIRA’s repeal of the Attorney General’s authority 
to grant relief under Section 1182(c) may also be understood 
as the repeal of a provision that would authorize prospective 
relief, which also does not implicate the presumption against 
retroactivity. See Landgraf, 511 U.S. at 273-274; Miller v. 
French, 120 S. Ct. 2246, 2257 (2000). A grant of relief under 
former Section 1182(c), as well as a grant of cancellation of 
removal today, is in effect a determination by the Attorney 
General that a finding that the alien is removable should not 
be given future effect, in light of all the information available 
to the Attorney General at that particular time. 

24 Such a 
determination must be made “at the time of the hearing.” 
Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464 
(1921). 

The Attorney General’s decision to grant relief from 
deportation also is similar in character to the entry of an 
injunctive order prohibiting the INS from carrying out a 
finding of deportability. As such, Congress’s curtailment of 
the Attorney General’s authority to grant such relief 
resembles a statute curtailing a court’s authority to grant 
prospective injunctive relief. This Court has made clear that 
such a statute must be applied to pending cases, even if the 
request for injunctive relief arises out of conduct in the past. 
See Duplex, 254 U.S. at 464; American Steel Foundries v. 
Tri-City Cent. Trades Council, 257 U.S. 184, 201 (1921). Just 
as a complainant in equity has “no vested right in [an 

24 Although the determination of removability is usually made in the 
same proceeding as the decision whether an alien is entitled to dis- 
cretionary relief (see Foti, 375 U.S. at 223-225), the two matters are 
logically separate, and as a matter of administrative practice, immigration 
judges and the BIA do not pretermit the question whether an alien is 
removable even when they are persuaded that the alien is entitled to 
discretionary relief from removal. See also 8 C.F.R. 240.12(a) (requiring 
that IJ’s order include a finding whether the alien is inadmissible or 
deportable). 

43 

injunctive decree] while it was subject to [appellate] re- 
view,” ibid., so an alien in deportation or removal proceed- 
ings has no vested right in the continued availability of a 
form of discretionary relief that would prevent the INS from 
carrying out in the future a deportation order based on a 
finding of deportability. 

2. More generally, IIRIRA’s repeal of Section 1182(c) 
was not retroactive because it was directed at the Attorney 
General’s power to grant an alien discretionary relief from 
deportation, and was not directed at the alien’s underlying 
conduct that gave rise to his deportation in the first place or 
any supposed right of an alien to obtain or apply for 
discretionary relief. As we have noted, the Court has 
explained on several occasions that the Attorney General’s 
grant of discretionary relief from deportation or removal is 
an act of grace accorded to his unfettered discretion. See pp. 
27-28, supra. The language of Section 1182(c) confirms that 
understanding. Section 1182(c) provided that certain lawful 
permanent resident aliens “may be admitted in the dis- 
cretion of the Attorney General” without regard to various 
provisions of Section 1182(a) that render an alien excludable 
and therefore require the Attorney General to deny admis- 
sion to such an alien. See 8 U.S.C. 1182(a) (1994) (describing 
categories of aliens “who are ineligible to receive visas and 
who shall be excluded from admission into the United 
States”). In addition, Section 1182(c) denied the Attorney 
General the power to admit certain lawful permanent 
resident aliens—such as those excludable on grounds of 
security and terrorist activity, see 8 U.S.C. 1182(c) (first 
sentence) (1994) (referring to 8 U.S.C. 1182(a)(3) (1994)), and 
some or all aggravated felons, see 8 U.S.C. 1182(c) (third 
sentence) (1994) (before and after amendment by AEDPA 
§ 440(d), 110 Stat. 1277). 

The background and legislative history of Section 1182(c) 
similarly show that Congress fashioned that provision as a 

44 

grant of discretionary power, not a right to relief for the 
alien. The predecessor to Section 1182(c), the Seventh 
Proviso to Section 3 of the Immigration Act of 1917 (1917 
Act), ch. 29, 39 Stat. 878, was enacted in response to this 
Court’s decision in Lapina v. Williams, 232 U.S. 78 (1914), 
which held that a statutory ground for exclusion required 
denial of admission to an alien who was returning to a 
domicile in the United States after a trip abroad, even 
though he would not have been deportable had he not left 
the United States. In the 1917 Act, Congress provided that, 
notwithstanding mandatory grounds of exclusion, an alien 
returning to an unrelinquished domicile in the United States 
of seven years after a temporary absence “may be admitted 
in the discretion of the Secretary of Labor, and under such 
conditions as he may prescribe.” 39 Stat. 878; see 8 U.S.C. 
136(p) (1925). 

25 The Senate Report described the proviso’s 
intent as the “humane” one to “permit the readmission to the 
United States (under proper safeguards) of aliens who have 
lived here for a long time and whose exclusion after a 
temporary absence would result in peculiar or unusual 
hardship.” S. Rep. No. 352, 64th Cong., 1st Sess. 6 (1916). 

When Congress comprehensively reexamined the 
Nation’s immigration laws in the early 1950s, it concluded 
that the discretionary power under the Seventh Proviso had 
been abused, and that the authority to waive grounds of 
inadmissibility should be further restricted to cases involv- 
ing lawful permanent resident aliens. See H.R. Rep. No. 
1365, 82d Cong., 2d Sess. 51 (1952); S. Rep. No. 1515, 81st 
Cong., 2d Sess. 382-383 (1950). Noting that under then- 
current law the Attorney General was “empowered to waive 
the grounds of exclusion in the case of an alien returning 
under the specified circumstances even though the alien had 

25 The Secretary of Labor’s authority was transferred to the Attorney 
General in 1939. See Reorganization Plan No. V, 54 Stat. 1238. 

45 

never been lawfully admitted to the United States,” the 
Senate Report concluded that “any discretionary authority 
to waive the grounds for exclusion should be carefully 
restricted to those cases where extenuating circumstances 
clearly require such action and that the discretionary 
authority should be surrounded with strict limitations.” 
Ibid. Congress therefore enacted Section 1182(c) in sub- 
stantially the form which it took for 30 years. Absent from 
the legislative history of Section 1182(c) or its predecessor is 
any indication that Congress intended therein to create a 
“right” in the alien to be considered for relief from deporta- 
tion. 

The fact that Section 1182(c) created a restricted power in 
the Attorney General rather than a right in the alien 
demonstrates that IIRIRA’s repeal of Section 1182(c) was 
not retroactive under the Court’s understanding of that 
concept in Landgraf. The Court there referred to Justice 
Story’s definition of a “retrospective” law as one that “takes 
away or impairs vested rights * * * , imposes a new duty, 
or attaches a new disability, in respect to transactions or 
considerations already past.” 511 U.S. at 269 (quoting 
Society for the Propagation of the Gospel v. Wheeler, 22 F. 
Cas. 756, 767 (C.C.D.N.H. 1814) (No. 13,156)). Congress 
never granted aliens any “vested right” in the form of relief 
authorized under Section 1182(c), because that form of relief 
was discretionary. The repeal also did not impose a “new 
duty” on respondent to leave the United States, as respon- 
dent was deportable well before IIRIRA was enacted. And 
IIRIRA’s repeal of Section 1182(c) also did not attach any 
new disablility “in respect to transactions or considerations 
already past,” because, as we have explained, the grounds 
for removability and availability of discretionary relief set 
forth in the INA regulate the alien’s future right to remain 
in the United States. 

46 

3. The court of appeals’ retroactivity analysis is wrong 
for an additional reason: its determination that the appli- 
cability of IIRIRA’s repeal of Section 1182(c) should turn on 
whether the alien had pleaded guilty before that Section’s 
repeal has no connection whatever to the statute (either 
IIRIRA or the INA more generally). 

The court of appeals 

believed (Pet. App. 24a-26a) that applying the repeal to 
aliens who had pleaded guilty would have a “retroactive 
effect” because those aliens might have entered their guilty 
pleas in reliance on the state of the law at the time, which 
permitted them at least to be considered for relief under 
Section 1182(c); thus, it concluded, the repeal of Section 
1182(c) unsettled their expectations that they might obtain 
such relief (id. at 27a-29a). But the presumption against 
retroactivity explicated in Landgraf does not direct or 
authorize the courts to range at large to determine whether 
past expectations of some kind might be adversely affected 
by the application of a new law. Rather, since retroactivity 
is fundamentally a matter of statutory construction, 

26 the 
pertinent question is whether the past consequence of some 
primary activity directly regulated by the statute is so 
adversely changed that it is appropriate to presume that 
Congress would not have intended that the new law apply. 
Thus, for example, in Landgraf, the Court concluded that 
provisions enacted in the Civil Rights Act of 1991 permitting 
a complaining party to obtain compensatory and punitive 
damages for acts of employment discrimination were retro- 
active because they increased employers’ potential liability 
for discriminatory acts, the precise conduct addressed by 

26 Cf. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 858 

n.3 (1990) (Scalia, J., concurring) (noting that “[t]he application of the pre- 
sumption, like the presumption itself, seeks to ascertain the probable 
legislative intent”). 

47 

both the original (1964) and amended (1991) versions of the 
Civil Rights Act. 511 U.S. at 281-283. 

It does not follow that a particular application of a new 
statute has retroactive effect within the meaning of this 
Court’s cases merely because its operation entails an 
adverse consequence as a result of some past activity, when 
that activity is not itself the basis of regulation under the 
statute. Thus, the court of appeals erred in concluding that 
the repeal of Section 1182(c) would be “retroactive” as 
applied to respondent’s entry of his guilty plea, because 
guilty pleas as such are not the basis of anyone’s removal 
under the INA. The INA does provide in many circum- 
stances that an alien will be deportable if he is convicted of 
an offense, see 8 U.S.C. 1227(a)(2) (Supp. V 1999), and in 
fewer circumstances that an alien will be removable if he has 
committed an offense (whether or not convicted), see 8 
U.S.C. 1227(a)(4)(A) (Supp. V 1999), but it makes no distinc- 
tions at all based on whether an alien has pleaded guilty or 
not guilty. There is therefore no basis in the statute for 
distinguishing, as the court of appeals did, between aliens 
who pleaded guilty and those who did not, in determining 
whether the repeal of Section 1182(c) would contravene the 
presumption against retroactivity. See Pet. App. 25a-26a, 
31a. 

27 

27 The court of appeals’ focus on guilty pleas suggests that, not- 
withstanding its assertion that its ruling was based on the statute and not 
the Constitution (see Pet. App. 22a n.6), the court in effect concluded that 
IIRIRA’s repeal of Section 1182(c) would be unconstitutional as applied to 
aliens who, like respondent, had previously pleaded guilty (but not aliens 
who had been convicted after a trial). But as we have noted, such a ruling 
would run counter to decades of decisions of this Court concluding that 
Congress may apply new statutory grounds for deportation based on past 
conduct without running afoul of constitutional constraints. See 

p. 41 n.23, supra; see also Brady v. United States, 397 U.S. 742, 756-757 

48 

4. Finally, even if it were not sufficiently clear under the 
first and second steps of the Landgraf analysis that Con- 
gress had intended that Section 1182(c) be inapplicable in 
any new removal proceeding commenced under IIRIRA, the 
courts should defer to the BIA’s construction of IIRIRA’s 
provision repealing Section 1182(c). If Congress has left a 
gap in IIRIRA’s revision of the INA, then under standard 
principles of administrative law, that gap is for the Attorney 
General (or here, his delegate, the BIA) to fill, and the courts 
may not set aside his determination unless it is arbitrary, 
capricious, or contrary to law. See Chevron U.S.A. Inc. v. 
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984). 
Deference is particularly appropriate to the Attorney 
General’s interpretation of IIRIRA in light of his particular 
statutory charge in 8 U.S.C. 1103(a)(1) (Supp. V 1999) to 
issue controlling determinations of “all questions of law” 
arising in the administration of the immigration laws. See 
INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). It is also 
supported by weighty considerations of administrative 
practicality. Immigration judges and the BIA should not be 
required to follow two sets of rules in removal proceedings 
involving aliens who entered guilty pleas before IIRIRA— 
one set derived from the Attorney General’s unquestioned 
authority to place an alien such as respondent in removal 
proceedings (rather than deportation proceedings), and 
another derived from the continued operation of a form of 
relief (Section 1182(c)) that applies only to deportation (but 
not removal) proceedings. 

Adherence here to the rule of deference to the Attorney 
General’s reasonable construction of a provision of the INA 
that he administers does not conflict with the presumption 
against retroactivity articulated in the second step of the 

(1970) (discussed at Gov’t Reply Br. in Support of Pet. for Cert. at 9-10 

n.8). 

49 

Landgraf analysis, even though both principles apply when 
Congress’s intent about the temporal applicability of a 
federal statute is not clear. The provisions of the Civil 
Rights Act of 1991 that this Court concluded in Landgraf 
should not be applied retroactively were amendments to the 
Civil Rights Act of 1964 authorizing damages in civil actions. 
Those damages provisions are administered by the courts, 
not a federal agency, and so the courts did not owe deference 
to the agency’s construction of those provisions. Cf. Adams 
Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990). 

Landgraf did not address the circumstance in which a 
federal agency must ascertain the scope of its authority to 
administer a provision as affected by a new law enacted by 
Congress. That determination is very similar to the function 
frequently undertaken by federal agencies when they must 
determine the subject-matter scope of their jurisdiction. 
The courts defer to agencies’ reasonable construction of their 
subject-matter jurisdiction or limits on their authority. See 
CFTC v. Schor, 478 U.S. 833, 844-845 (1986); see also 
Mississippi Power & Light Co. v. Moore, 487 U.S. 354, 380- 
382 (1988) (Scalia, J., concurring in the judgment) (collecting 
cases). In similar fashion, the courts should defer to the 
Attorney General’s reasonable conclusion that he does not 
have authority to apply Section 1182(c) in removal pro- 
ceedings commenced after April 1, 1997. 

50 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 
STUART E. SCHIFFER 

Acting Assistant Attorney 

General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

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

Attorneys 

FEBRUARY 2001