Sandoval v. Reno

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

1-27-1999

Sandoval v. Reno

Precedential or Non-Precedential:

Docket 98-1099

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Filed January 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1099* and 98-1547*

REYNALDO SANDOVAL,

Petitioner/Appellee

v.

JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER,

COMMISSIONER OF THE IMMIGRATION AND

NATURALIZATION SERVICE, IMMIGRATION AND

NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE;

AND J. SCOTT BLACKMAN, ACTING DISTRICT DIRECTOR

OF THE IMMIGRATION AND NATURALIZATION SERVICE,

Respondents/Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Nos. 97-cv-07298 and 98-cv-02218)

District Court Judge: Hon. Edward N. Cahn, Chief Judge

No. 98-3214

REYNALDO SANDOVAL,

Petitioner

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

_________________________________________________________________

*Nos. 98-1099 and 98-1547 were consolidated for all purposes.

On Petition for Review of an Order of

the Board of Immigration Appeals

(A90 562 282)

Argued September 28, 1998

Before: SLOVITER, SCIRICA and ALITO, Circuit Judges

(Filed January 26, 1999)

Frank W. Hunger

Assistant Attorney General

Christopher C. Fuller

Senior Litigation Counsel

Michael P. Lindemann

Assistant Director

Madeline Henley (Argued)

United States Department of Justice

Washington, D.C. 20044

Attorneys for

Respondents/Appellants

Lee Gelernt (Argued)

Lucas Guttentag

Cecillia Wang

American Civil Liberties Union

Immigrants' Rights Project

New York, N.Y. 10004-2400

Steven A. Morley (Argued)

Bagia & Morley

Philadelphia, PA 19106

Attorneys for Appellee/Petitioner

2

Lenni B. Benson

New York Law School

New York, N.Y. 10013

Jeffrey A. Heller

Seton Hall University School of Law

Newark, N.J. 07102

Attorneys for Amici Law Professors

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

INTRODUCTION

In 1996, the 104th Congress passed, and the President

signed into law, two bills that made sweeping changes in

the immigration laws: the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110

Stat. 1214 (1996), and the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.

104-208, 110 Stat. 3009 (1996). This case concerns the

effect of these statutes on the jurisdiction of a district court

to issue a writ of habeas corpus sought by an alien because

of a decision by the Immigration and Naturalization Service

("INS") to deport the alien by reason of his having

committed a criminal act listed in IIRIRA.

In the case before us, the District Court granted in part

Reynaldo Sandoval's petition for a writ of habeas corpus.

The Attorney General, the INS, the INS Commissioner, and

the Acting Regional Director of the INS (collectively "the

government") appeal from the District Court's exercise of

jurisdiction under 28 U.S.C. S 2241 and from its

subsequent decision on the merits. Sandoval's brief as

appellee is supported by an amicus brief filed by a group of

twenty-three law professors urging affirmance of the

District Court.

3

The jurisdictional question is whether, in enacting

AEDPA and IIRIRA, Congress stripped the district courts of

habeas jurisdiction over deportation proceedings, an

inquiry that could implicate the Suspension Clause of the

Constitution. If the District Court had jurisdiction, we will

have to decide a question of statutory interpretation:

whether AEDPA S 440(d), a statutory change that occurred

while Sandoval's case was pending and that makes aliens

who have been found guilty of drug offenses ineligible for

discretionary relief under S 212(c) of the Immigration and

Nationality Act ("INA"), 8 U.S.C. S 1182 (Supp. 1996)

(repealed effective April 1, 1997), applies to Sandoval. Only

if AEDPA S 440(d) does apply to Sandoval would we need to

reach his argument that the provision violates equal

protection by precluding deportable aliens who have been

convicted of certain crimes from obtaining S 212(c) relief but

not precluding excludable aliens who are otherwise

identically situated from obtaining that relief, an issue not

reached by the District Court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Sandoval, a citizen of Mexico, entered the United States

without inspection in 1986. In 1987, he was granted

temporary resident status as a Special Agricultural Worker

under the amnesty program set up by the Immigration

Reform and Control Act of 1986 S 302, 8 U.S.C.S 1160.

Pursuant to the amnesty program, he was granted Lawful

Permanent Resident status in 1990. Accordingly, Sandoval

was entitled to remain in the country, and eventually

qualify for citizenship, provided that he did not commit an

act subjecting him to deportation. In 1993, Sandoval was

convicted in a state court of marijuana possession, which

conviction subjected him to deportation under INA

S 241(a)(2)(B)(I), 8 U.S.C. S 1251(a)(2)(B)(1) (current version

at 8 U.S.C. S 1227(a)(2)(B)(I)).

The deportation hearing was held on June 14, 1994.

Sandoval requested a four-month stay, apparently because

at the end of that four months he would have completed

4

seven years as a legal immigrant, a prerequisite for

eligibility for discretionary relief under INA S 212(c). Section

212(c), as it stood at the time, granted the Attorney General

discretion to admit an otherwise deportable alien if the

alien had established lawful domicile for seven or more

years; the provision barred such relief where the alien had

committed two or more crimes of moral turpitude, but did

not then foreclose discretionary relief in cases where the

alien was deportable solely for having committed a drug

offense. The Immigration Judge ("IJ") denied the stay and

ruled that (1) Sandoval was deportable, and (2) he had not

met the seven-year lawful domicile requirement for

eligibility for discretionary relief. Sandoval then appealed

this decision to the Board of Immigration Appeals ("BIA").

While Sandoval's appeal was pending, Congress passed

AEDPA. Section 440(d) of that Act amended INA S 212(c) so

as to make discretionary relief unavailable to those aliens

who have been convicted of, inter alia, any of the drug

offenses set forth in INA S 241(a)(2)(B)(I). On July 16, 1997,

the BIA dismissed Sandoval's appeal, noting that AEDPA's

amendment of S 212(c) rendered Sandoval "statutorily

ineligible for section 212(c) relief." In doing so, the BIA cited

the Attorney General's ruling that AEDPA's revision of

S 212(c) applies to pending cases. See Matter of Soriano,

Interim Decision 3289 (A.G. Feb. 21, 1997). The BIA's

decision rendered Sandoval's deportation order

administratively final on July 16, 1997. Because Sandoval

had attained seven years of domicile before his deportation

order became final, the statutory residency requirement has

been met and is no longer an issue in this case. See 8

C.F.R. S 3.2(c)(1). Consequently, the amendment to S 212(c)

effected by AEDPA is the only ground for statutory

ineligibility advanced by the government.

In October, Sandoval filed a motion with the BIA,

requesting that the INS reopen his case. He also requested

a stay of deportation from the District Director, which was

denied. On December 1, 1997, Sandoval filed a petition for

a writ of habeas corpus in the United States District Court

for the Eastern District of Pennsylvania. His petition argued

that AEDPA's change to S 212(c) does not apply to cases

pending on the date of enactment (and therefore that the

5

Soriano decision was incorrect). He also argued that AEDPA

S 440(d) violates equal protection. The government moved to

dismiss for lack of jurisdiction.

The District Court ruled that it had habeas jurisdiction

under 28 U.S.C. S 2241, reasoning that the relevant

provisions of AEDPA and IIRIRA did not effect a repeal of

S 2241 in deportation cases. The court proceeded to rule on

the merits of the petition and held that AEDPA S 440(d)

does not apply to cases that were pending when the statute

was enacted. Employing the principles set forth in Landgraf

v. USI Film Prods., 511 U.S. 244 (1994), and elaborated in

Lindh v. Murphy, 521 U.S. 320 (1997), the District Court

held that Congress expressed its intent not to apply

S 440(d) to pending cases. In so doing, the court did not

reach any constitutional issue relating to habeas

jurisdiction or the equal protection challenge to AEDPA

S 440(d). Consequently, the District Court granted

Sandoval's petition in part, ordered the INS to entertain the

merits of his S 212(c) request and enjoined the government

from deporting Sandoval pending a decision on the merits

of his S 212(c) request.

The government appeals this decision. While this appeal

was pending, the BIA denied Sandoval's motion to reopen,

and Sandoval then filed a Petition for Review with this

court. On August 19, 1998, we consolidated the

government's appeal with Sandoval's Petition for Review.

III.

DISCUSSION

A.

Jurisdiction

1. The Applicable Statutory Changes

On April 24, 1996 the President signed AEDPA into law,

and on September 30, 1996 IIRIRA was enacted. These two

statutes altered many of the substantive provisions of the

6

Immigration and Nationality Act (INA) and also made

significant changes in INA's provisions relating to judicial

review. Prior to the enactment of AEDPA, judicial review of

deportation orders ordinarily proceeded by a Petition for

Review of the INA decision filed in the court of appeals. See

Majority op. at 16 infra. At the same time, INA S 106(a)(10)

provided for review of a deportation order by habeas corpus

proceeding. AEDPA S 401(e) deleted the former text of INA

S 106(a)(10). AEDPA S 440(a) substituted therefor the

following language: "Any final order of deportation against

an alien who is deportable by reason of having committed

a criminal offense [covered in the deportation provisions of

the INA] shall not be subject to review by any court."1

The judicial review structure for deportation orders was

altered several months later with the passage of IIRIRA on

September 30, 1996. IIRIRA contains two different sets of

rules: the "permanent rules" which generally became

effective on April 1, 1997, see IIRIRA S 309(a), and the

"transitional changes in judicial review" ("transitional

rules"), which generally became effective on October 30,

1996 and which apply to aliens who were placed in removal

proceedings before April 1, 1997.2

_________________________________________________________________

1. AEDPA S 440(a), which was codified at 8 U.S.C. S 1105a(a)(10), states

in part:

Judicial Review.--Section 106 of the Immigration and Nationality

Act . . . is amended to read as follows:

(10) Any final order of deportation against an alien who is

deportable by reason of having committed a criminal offense

covered in section 241(a)(2) (A)(iii), (B), (C), or (D) or any

offense

covered by section 241(a)(2)(A)(ii) for which both predicate

offenses

are covered by section 241(a)(2)(A)(I), shall not be subject to

review

by any court.

Section 1105a was repealed by IIRIRA S 306(b) with respect to

deportation proceedings that were initiated on or after April 1, 1997. See

IIRIRA SS 306(b), (c), 309. For such proceedings, IIRIRA substitutes new

judicial review provisions. See IIRIRA S 306(a). Because Sandoval's

deportation proceedings commenced before April 1, 1997, the repealer

and the new judicial review rules do not apply to his case.

2. Both sets of rules were clarified by technical amendments enacted on

October 11, 1997, Pub. L. 104-302, 110 Stat. 3656, 3657.

7

One of the transitional rules, IIRIRA S 309(c)(4)(G),

provides, in relevant part:

[T]here shall be no appeal permitted in the case of an

alien who is inadmissible or deportable by reason of

having committed a criminal offense covered in section

212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the

Immigration and Nationality Act (as in effect as of the

date of the enactment of this Act), or any offense

covered by section 241(a)(2)(A)(ii) of such Act (as in

effect on such date) for which both predicate offenses

are, without regard to their date of commission,

otherwise covered by section 241(a)(2)(A)(I) of such Act

(as so in effect).3

Because Sandoval's deportation proceedings were initiated

before April 1, 1997 and his appeal was dismissed by the

BIA after October 30, 1996, that rule is applicable here.

Finally, IIRIRA S 306(a) amends INA S 242(g), 8 U.S.C.

S 1252(g), to provide: "Except as provided in this section

and notwithstanding any other provision of law, no court

shall have jurisdiction to hear any cause or claim by or on

behalf of any alien arising from the decision or action by

the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under

this Act."4

The District Court rejected the government's position that

this provision applies to Sandoval, basing its decision on

the general effective date provided by IIRIRA S 309(c)(1).

However, section 306(c)(1) states that "the amendments

made by subsections (a) and (b) [which contain the

permanent rules for judicial review] shall apply as provided

under section 309, except that subsection (g) of section 242

_________________________________________________________________

3. By congressional directive, the transitional rules are not part of the

INA and are not codified in the United States Code.

4. IIRIRA dispenses with the terms "deportation" and "exclusion," groups

these categories under the rubric of "removal," and provides for the

uniform administration of removal proceedings. This opinion preserves

the distinction between "deportation" and"exclusion" because under

AEDPA--which governs this case by virtue of the transitional rules--that

distinction continues to have meaning.

8

of the Immigration and Nationality Act (as added by

subsection (a)), shall apply without limitation to claims

arising from all past, pending, or future exclusion,

deportation, or removal proceedings under such Act"

(emphasis added). In light of this provision, we conclude

that the government is correct in arguing that the amended

INA S 242(g) applies to this case.

2. Recent Cases Construing the 1996 Amendments

The government argues that as a consequence of these

three amendments effected by AEDPA and IIRIRA, the

District Court had no habeas jurisdiction to review

Sandoval's challenges to his final order of deportation. In

the period following the filing of this appeal, the same

question has been decided by five other circuits. Three of

the decisions rejected the government's position; two have

adopted the government's arguments.

In Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), the

Court of Appeals for the First Circuit reversed the district

court's dismissal of an alien's habeas petition, holding that

Congress did not eliminate habeas jurisdiction under

S 2241.

Shortly thereafter, in Henderson v. Reno, 157 F.3d 106

(2d Cir. 1998), the Court of Appeals for the Second Circuit

affirmed the decisions of two district courts that they had

jurisdiction under S 2241 to grant writs of habeas corpus to

aliens who were deportable because they had committed

listed crimes. The Second Circuit relied on its earlier

decision in Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir.

1998), where it affirmed the dismissal of an alien's Petition

for Review. In Jean-Baptiste, the court held that the

foreclosure of judicial review did not offend the Constitution

because habeas review under S 2241 remained intact.

Similarly, the Court of Appeals for the Ninth Circuit held

in Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998) (per

curiam), that the district court retained habeas jurisdiction

under S 2241 to hear the claim of an alien who had

committed a drug offense. It reasoned that if IIRIRA were

read to eliminate all judicial review of executive detention,

it would violate the Suspension Clause. That circuit had

previously held, in Hose v. INS, 141 F.3d 932 (9th Cir.

9

1998), that IIRIRA withdrew the jurisdiction of the district

court to hear a habeas petition by an alien who sought to

appeal an immigration judge's determination that she was

excludable. The court noted that the Suspension Clause

was not violated because Hose, who had not been convicted

of a listed crime, could have filed a Petition for Review in

the court of appeals, an option not available to Magana-

Pizano. On December 2, 1998, the Ninth Circuit granted

rehearing en banc and withdrew the Hose opinion. See

Hose v. INS, 161 F.3d 1225 (9th Cir. 1998).

Although the Court of Appeals for the District of

Columbia has not yet reached the question, a district court

in that circuit held that neither AEDPA nor IIRIRA deprived

it of its jurisdiction under the general habeas provision of

28 U.S.C. S 2241 to hear a similar claim by an alien. Lee v.

Reno, 15 F. Supp. 2d 26 (D.D.C. 1998).

In recent months, two Courts of Appeals have taken a

contrary position to that taken by the other three Courts of

Appeals. In Richardson v. Reno, 1998 WL 850045 (11th Cir.

Dec. 9, 1998), opinion vacated and superseded, 1998 WL

889376 (11th Cir. Dec. 22, 1998), the Court of Appeals for

the Eleventh Circuit concluded that IIRIRA's amendment to

INA S 242(g) did eliminate habeas jurisdiction under S 2241.

The court further held that this elimination of jurisdiction

suffered from no constitutional infirmity. Although the

petitioner in Richardson was an alien who was detained

upon re-entry into the United States, and therefore the case

arose in a slightly different procedural posture, the case

otherwise involves the same statutory provisions and

applicable legal principles.

The Court of Appeals for the Seventh Circuit quickly

followed Richardson in LaGuerre v. Reno , 1998 WL 912107

(7th Cir. December 22, 1998), with a similar holding. It

agreed with the conclusion that AEDPA S 440(a) deprives

the district courts of habeas jurisdiction with respect to the

executive's detention of aliens who have been convicted of

the enumerated crimes. The court proceeded to read the

statute as permitting such aliens to bring constitutional

challenges to their detention in the courts of appeals by

means of a petition for review, notwithstanding the general

bar to petitions for review in AEDPA. The court adopted this

10

construction of the statute on the basis of a "presumption

that executive resolutions of constitutional issues are

judicially reviewable." Id. at *4.

For the reasons set forth hereafter, we conclude that the

district courts continue to have habeas jurisdiction under

S 2241. Our colleague who dissents on this portion of our

holding does so on the basis of the reasoning in LaGuerre.

The resulting division among the courts on this important

issue leaves the definitive interpretation for resolution by

the Supreme Court.

In addition to those courts who have directly ruled on the

issue, others have addressed the jurisdictional issue

tangentially in another context. All of the Courts of Appeals

who have decided that because of AEDPA and IIRIRA, they

no longer had jurisdiction to entertain a Petition for Review

from an alien who has been deported for any of the criminal

activity referenced in INA S 241(a)(2)(C), have stated that

some degree of judicial review under habeas corpus

remains available, although they did not specify the scope

of that review. See, e.g., Lerma de Garcia v. INS, 141 F.3d

215, 217 (5th Cir. 1998); Mansour v. INS, 123 F.3d 423,

426 (6th Cir. 1997); Ramallo v. Reno, 114 F.3d 1210, 1214

(D.C. Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154

n.3 (10th Cir. 1997).

In this court's opinion in Morel v. INS, 144 F.3d 248 (3d

Cir. 1998), we agreed with the other circuits on this issue.

We too held that AEDPA S 440(a) deprived us of jurisdiction

to entertain claims of legal error in a Petition for Review

brought by an alien who was convicted of one of the crimes

referenced in INA that disqualify an alien for S 212(c)

discretionary relief. We were not faced with the issue of

habeas jurisdiction in Morel and therefore did not address

it, but in concluding that the elimination of our review

jurisdiction was constitutional, we relied on the

government's concession that some form of review for

constitutional questions survived the enactment of AEDPA.

Id. at 251.

3. Availability of Habeas Jurisdiction

We now address the issue we never reached in Morel:

whether habeas jurisdiction remains available in the

11

district courts to review claims by aliens who have been

ordered deported based on their criminal acts,

notwithstanding the AEDPA and IIRIRA amendments relied

on by the government. This question implicates the long-

standing doctrine disfavoring repeal of jurisdictional

statutes by implication.

The Supreme Court had occasion to apply this doctrine

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

involved AEDPA S 106(b), which bars state inmates from

filing "second or successive" habeas corpus petitions

without first obtaining permission from a three-judge panel

of the relevant court of appeals. The statute provides that

a panel's grant or denial of authorization to file"shall not

be appealable and shall not be the subject of a petition for

. . . writ of certiorari." AEDPA S 106(b)(3)(E), codified at 28

U.S.C. S 2241(b)(3)(E). Noting that "[n]o provision of Title I

mentions our authority to entertain original habeas

petitions," the Court held that because repeals by

implication are not favored, AEDPA's prohibition on

certiorari jurisdiction over court of appeals panel decisions

on second or successive petitions did not preclude the

Supreme Court from exercising its original habeas

jurisdiction under 28 U.S.C. SS 2241 and 2254. 518 U.S. at

660.

The Felker Court took guidance from Ex Parte Yerger, 75

U.S. 85 (1869), in which the Court, when faced with a

similar repeal of its appellate jurisdiction well over a

century ago, found that its habeas jurisdiction was intact.

But to appreciate the significance of Yerger fully, we must

go back to Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

McCardle, like Yerger, involved an 1867 statute that

authorized the federal courts to entertain habeas petitions

by state or federal prisoners and also authorized the

Supreme Court to hear appeals from the federal courts in

habeas cases. McCardle, who was in federal custody,

sought habeas relief. While the case was pending before the

Supreme Court in 1868, Congress enacted, over President

Andrew Johnson's veto, a bill repealing the portion of the

1867 statute that conferred appellate jurisdiction on the

Supreme Court over habeas proceedings. The McCardle

court held that it had no jurisdiction because the 1867

12

conferral of appellate review power had been repealed by

the 1868 enactment.

The McCardle court, however, was not confronted with a

statute that foreclosed all review. The Court specifically

noted that the full extent of its jurisdiction, as it stood

before the 1867 statute, remained: "Counsel seem to have

supposed, if effect be given to the repealing act in question,

that the whole appellate power of the court, in cases of

habeas corpus, is denied. But this is an error. . . . . [The

1868 repealer] does not affect the jurisdiction which was

previously exercised." 74 U.S. (7 Wall.) at 515.

The Yerger decision, issued one year after McCardle, dealt

with the same statute on similar facts, but in Yerger the

Court addressed its power under the general grant of

habeas jurisdiction in the 1789 Judiciary Act. Finding that

the 1868 enactment did not repeal its review power under

the prior general grant of jurisdiction, the Court stated:

[T]here are no repealing words in the Act of 1867. If it

repealed the Act of 1789, it did so by implication .. . .

Repeals by implication are not favored. They are

seldom admitted except on the ground of repugnancy;

and never, we think, when the former Act can stand

together with the new Act.

Ex Parte Yerger, 75 U.S. (8 Wall.) at 105.

Read together, McCardle, Yerger, and Felker establish the

propositions that courts should not lightly presume that a

congressional enactment containing general language

effects a repeal of a jurisdictional statute, and,

consequently, that only a plain statement of congressional

intent to remove a particular statutory grant of jurisdiction

will suffice. Informed by this precedent, we examine each of

the 1996 statutory provisions that the government

contends individually, or in totality, foreclose the District

Court's habeas jurisdiction over Sandoval's deportation

order.

a. AEDPA S 401(e)

AEDPA S 401(e), a non-codified provision, struck the text

of former INA S 106(a)(10), a provision added by the

13

Immigration and Nationality Act of 1961, Pub. L. 87-301,

S 5(a), 75 Stat. 651, and in its place inserted the language

set forth in AEDPA S 440(a). Section 106(a)(10) had

provided that "any alien held in custody pursuant to an

order of deportation may obtain judicial review thereof by

habeas corpus proceedings." The substituted language of

AEDPA S 440(a) reads: "[a]ny final order of deportation

against an alien who is deportable by reason of having

committed a criminal offense covered in [the deportation

provisions of the INA] shall not be subject to review by any

court." The government urges that the 1961 Act

significantly curtailed habeas jurisdiction in immigration

matters, and that AEDPA S 401(e) eliminated such vestigial

habeas jurisdiction as existed after the 1961 Act. We are

not persuaded by either proposition.

In order to analyze this issue, we begin by reviewing

some of the history of habeas corpus relief and judicial

review in immigration cases. Although the specific reference

to habeas jurisdiction in INA S 106(a)(10) was enacted as

part of the 1961 Act, habeas jurisdiction over the

Executive's detention of aliens has a considerably longer

lineage. This jurisdiction was expressly recognized by the

Supreme Court in United States v. Jung Ah Lung , 124 U.S.

621 (1888). A Chinese laborer, who had lost his certificate

entitling him to reenter the United States and was being

held in executive detention upon his return, successfully

turned to the district court for a writ of habeas corpus. The

government argued that under the Chinese Exclusion Acts,

passed in the late nineteenth century, aliens excluded

under the statute were not being deprived of liberty within

the contemplation of the habeas statute. Id. at 626. The

Court rejected this argument and also turned aside the

government's argument that the federal courts' general

statutory habeas power "was taken away by the Chinese

Restriction Act, which regulated the entire subject matter,

and was necessarily exclusive." Id. The Court stated that

"[w]e see nothing in these Acts which in any manner affects

the jurisdiction of the courts of the United States to issue

a writ of habeas corpus." Id. at 627-28.

Subsequently, Congress, as part of the Immigration Act

of 1891, sought to ensure the finality of executive branch

14

decisions regarding the exclusion of aliens by providing: "All

decisions made by the inspection officers . . . touching the

right of any alien to land, when adverse to such right, shall

be final unless [appealed to the relevant executive officers]."

Act of March 3, 1891, ch. 551, S 8, 26 Stat. 1084, 1085. In

1894, this provision was made applicable in Chinese

Exclusion Act proceedings. Act of Aug. 18, 1894, ch. 301,

28 Stat. 372, 390. These finality provisions were apparently

prompted by congressional dissatisfaction with judicial

intervention in this area. See Gerald L. Neuman, Habeas

Corpus, Executive Detention, and the Removal of Aliens, 98

Colum. L. Rev. 961, 1008 (1998).

When the Supreme Court addressed the 1891 statute in

Nishimura Ekiu v. United States, 142 U.S. 651 (1892), it

reaffirmed the availability of habeas to challenge

immigration decisions notwithstanding the finality

provision. The Court stated: "An alien immigrant, prevented

from landing by any such officer claiming authority to do so

under an act of Congress, and thereby restrained of his

liberty, is doubtless entitled to a writ of habeas corpus to

ascertain whether the restraint is lawful." Id. at 660. Hence,

an alien's right to petition for a writ of habeas corpus to

challenge the legal basis of his or her detention by the

Executive Branch was firmly established in precedent more

than a century ago.

The Immigration Act of 1917, ch. 29, S 19, 39 Stat. 874,

890 (repealed 1952), carried forward the provisions of the

1891 and 1894 Acts that made the decisions of the

Attorney General on deportation "final." When the

Administrative Procedure Act ("APA"), ch. 24, 60 Stat. 237

(codified at 5 U.S.C. S 500 et seq.), was enacted in 1946, it

was unclear whether the "judicial review" of agency action

that it provided extended to immigration cases. The Court

answered that question in the negative in Heikkila v.

Barber, 345 U.S. 229 (1953), concluding that the

Immigration Act was "a statute precluding judicial review"

within the meaning of the APA. Id. at 235. In so holding,

the Court reviewed the period from 1891 (the year in which

Congress passed the first in a series of statutes conferring

finality on the Executive's immigration decisions) until 1952

(the year that Congress authorized APA review of

15

immigration decisions), and stated that the legislative

regime in force during that period "clearly had the effect of

precluding judicial intervention in deportation cases except

insofar as it was required by the Constitution." Id. at 234-

35. Significantly, the Court expressly concluded that

habeas jurisdiction persisted even during this period,

stating that in light of its decision that the APA did not

enlarge the alien's rights, "he may attack a deportation

order only by habeas corpus." Id. at 235.

Heikkila was decided under the Immigration Act of 1917,

which was superseded by the Immigration and Nationality

Act of 1952. The Supreme Court considered whether the

APA applied to immigration cases under the 1952 Act in

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

the Court focused on S 12 of the APA, which provided: "No

subsequent legislation shall be held to supersede or modify

the provisions of this Act except to the extent that such

legislation shall do so expressly." 60 Stat. at 244 (codified

as amended at 5 U.S.C. S 559). Noting that"[i]n the

subsequent 1952 Immigration and Nationality Act there is

no language which `expressly' supersedes or modifies the

expanded right of review granted by S 10 of the

Administrative Procedure Act," id. at 51, the Court held in

Shaughnessy (1) that the APA applied to immigration cases

and (2) that under the APA's "generous review provisions,"

id., the district court could review a deportation challenge

under the Declaratory Judgment Act. The Court so held

notwithstanding that the 1952 Act had carried over the

provision of the 1917 Act that provided that the Attorney

General's deportation and exclusion decisions shall be final.

Hence, as a result of the Shaughnessy decision, aliens were

free to seek APA judicial review both in the courts of

appeals and in the district courts.

It is against this backdrop that Congress passed the

Immigration and Nationality Act of 1961. Act of Sept. 26,

1961, Pub. L. No. 87-301, S 5, 75 Stat. 651. In that Act,

Congress restructured judicial review, giving the courts of

appeals "sole and exclusive" power to review deportation

orders. The government relies on this language in

contending that the 1961 Act curtailed habeas jurisdiction

in immigration cases. However, the historical sequence

16

outlined above shows that this "sole and exclusive"

language was addressed to the review provided under the

APA, not to habeas jurisdiction. By locating APA review

power in the courts of appeals, Congress sought to

eliminate APA review by means of declaratory judgment

actions in the district courts, a form of review that

Shaughnessy had permitted. The "sole and exclusive"

provision was not, as the government suggests, an effort to

make APA review in the circuits work to the exclusion of

habeas actions. See Foti v. INS, 375 U.S. 217, 231 (1963)

("[O]ur decision in this case [that the court of appeals has

initial, exclusive jurisdiction to review denial of suspension

of deportation] in no way impairs the preservation and

availability of habeas corpus relief.").

That habeas jurisdiction was left intact by the 1961 Act

is evidenced by the inclusion of S 106(a)(10), a new

provision specifically providing that habeas jurisdiction was

available for deportees. The legislative history makes clear

that this provision was added out of concern that the "sole

and exclusive" language might be read to deprive the courts

of habeas jurisdiction, thereby creating a constitutional

problem. The House Report states:

The section clearly specifies that the right to habeas

corpus is preserved to an alien in custody under a

deportation order. In that fashion, it excepts habeas

corpus from the language which elsewhere declares

that the procedure prescribed for judicial review in

circuit courts shall be exclusive. The section in no way

disturbs the Habeas Corpus Act in respect to the

courts which may issue writs of habeas corpus: aliens

are not limited to courts of appeals in seeking habeas

corpus.

H.R. Rep. No. 87-1086 at 29 (1961), reprinted in 1961

U.S.C.C.A.N. 2950, 2973.

Consequently, S 106(a)(10) as it existed under the 1961

Act cannot be said to have conferred habeas jurisdiction on

the district courts. Such jurisdiction, recognized since the

late nineteenth century, existed independently of the 1961

Act. This inclusion of a reference to habeas relief is best

understood as congressional acknowledgment that the

17

district courts continued to have habeas jurisdiction even

though APA review was channeled to the courts of appeals.

The foregoing effectively refutes the government's

contention that AEDPA's S 401(e) repeal of INAS 106(a)(10)

eliminated the district courts' jurisdiction to review

deportation orders in habeas corpus proceedings. And since

AEDPA S 401(e) does not manifest an intent to repeal the

original grant of habeas corpus jurisdiction, currently

embodied in 28 U.S.C. S 2241, the elimination of INA's

reference to habeas jurisdiction does not overcome the

presumption against finding a repeal of habeas corpus by

implication. Accord Goncalves, 144 F.3d at 121 ("It does not

follow from the repeal of [INA S 106(a)(10)] that S 2241

habeas jurisdiction has been repealed altogether in

immigration cases. Had Congress wished to eliminate any

possible habeas jurisdiction under 28 U.S.C. S 2241, it

could have easily inserted an explicit reference, but it did

not."); Lee, 15 F. Supp. 2d at 39 (" `[T]he bark of [AEDPA

S 401(e)] is worse than its bite. . . .[T]he section only

eliminates the INA habeas provision without mention of

S 2241.' ").

Our dissenting colleague places great importance on the

fact that AEDPA S 401(e) was titled "Elimination of Custody

Review by Habeas Corpus." However, as the Supreme Court

has repeatedly noted, a title alone is not controlling. See

Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct.

1952, 1956 (1998) (" `[T]he title of a statute . . . cannot limit

the plain meaning of the text. For interpretive purposes, [it

is] of use only when [it] shed[s] light on some ambiguous

word or phrase.' " (quoting Trainmen v. Baltimore & Ohio

R.R. Co., 331 U.S. 519, 528-29 (1947)). There is no text in

the AEDPA amendments referring to habeas corpus review.

b. AEDPA S 440(a) and IIRIRA S 309(c)(4)(G)

The government also relies for its jurisdictional challenge

on Congress's declarations in AEDPA S 440(a) that

deportation orders relating to aliens found to have

committed the specified offenses "shall not be subject to

review by any court," and in IIRIRA S 309(c)(4)(G), a

transitional rule, that "there shall be no appeal permitted"

in the case of an alien who is inadmissible or deportable by

reason of having committed a criminal offense [covered in

18

the deportation provisions of the INA]." These statements, it

contends, are express indications that Congress sought to

preclude habeas jurisdiction. We disagree. Neither of these

provisions specifically mentions jurisdiction under S 2241.

Hence, under Felker and Yerger, we do not find a

sufficiently clear statement of congressional intent to repeal

the general grant of habeas jurisdiction.

This conclusion is bolstered by the fact that here, as was

the case in Yerger, "the former Act can stand together with

the new Act." 75 U.S. at 105. When viewed in light of the

history of the Court's treatment of habeas jurisdiction in

deportation cases, the references to "review" in the AEDPA

provision and to "appeal" in the IIRIRA provision are

properly understood as relating to judicial review under the

APA. This is so because in the immigration context, the

Court has historically drawn a sharp distinction between

"judicial review"--meaning APA review--and the courts'

power to entertain petitions for writs of habeas corpus.

As noted above, the Supreme Court in Heikkila held that

although the 1917 Immigration Act was a "statute

precluding judicial review" within the contemplation of the

APA, an alien could challenge his or her executive detention

via habeas. 345 U.S. at 235. In doing so, the Court was

clear that the "judicial review" precluded by the 1917 Acts

did not include habeas corpus; the Court expressly rejected

the conclusions of three courts of appeals that had"taken

the position that habeas corpus itself represented judicial

review." Id. at 235-36.

We can presume that Congress, in enacting AEDPA and

IIRIRA, was cognizant of the Court's differentiation between

"judicial review" on the one hand and writs of habeas

corpus on the other. "It is always appropriate to assume

that our elected representatives, like other citizens, know

the law. . . . . [I]t is not only appropriate but also realistic

to presume that Congress was thoroughly familiar with

these unusually important precedents from this and other

federal courts and that it expected its enactment to be

interpreted in conformity with them." Cannon v. University

of Chicago, 441 U.S. 677, 696-97, 699 (1979). Hence

AEDPA S 440(a) and IIRIRA S 309(c)(4)(G) are most

reasonably understood as foreclosing judicial review under

19

the APA, and not as relating to habeas jurisdiction under

28 U.S.C. S 2241.

c. IIRIRA S 306(a)'s amendment of INAS 242(g)

The government also urges that INA S 242(g), as amended

by IIRIRA S 306(a), precludes the federal courts from

hearing claims arising from removal proceedings unless

they are brought in a petition for review. It argues that

S 242(g) is an expression of congressional intent to channel

all deportation review into the courts of appeals. Section

242(g) states:

Exclusive Jurisdiction. Except as provided in this

section and notwithstanding any other provision of law,

no court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the

decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute

removal orders against any alien under this Chapter.

The principles enunciated in Felker and Yerger apply with

equal force with respect to this provision. As there is no

express reference to jurisdiction under 28 U.S.C.S 2241 in

this provision, the rule disfavoring implied repeals requires

us to conclude that jurisdiction under S 2241 is preserved

under the amended INA S 242(g). Accord Goncalves, 144

F.3d at 122; Lee, 15 F. Supp. 2d at 39 ("[T]he

`notwithstanding' provision [of the new S 242(g)] is simply

insufficient in light of Felker for the Court to imply a repeal

of S 2241.").

We are unpersuaded by the government's argument that

the rule disfavoring repeals by implication does not apply

here because the new INA S 242(g) sets up a comprehensive

jurisdictional scheme which displaces, by virtue of its

comprehensiveness, any other jurisdictional grant. In

advancing this contention, the government cites as support

the Supreme Court's decision in Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428 (1989). That

case concerned an action filed by Amerada Hess against

Argentina in federal court alleging that Argentina was

responsible in tort for bombing Amerada Hess's ship

without justification during the conflict over the Falkland

Islands. Jurisdiction was predicated on the Alien Tort

20

Statute, 28 U.S.C. S 1350. Argentina moved to dismiss on

the basis of immunity granted to foreign sovereigns under

the Foreign Sovereign Immunities Act of 1976 (FSIA), Pub.

L. No. 94-583, 90 Stat. 2891 (codified in scattered sections

of 28 U.S.C.).

The Court of Appeals for the Second Circuit held that

because the FSIA had not repealed the earlier Alien Tort

Statute, the prior statute continued to provide a basis for

jurisdiction. The Supreme Court reversed, concluding that

the principle disfavoring repeals by implication had no

applicability to the FSIA, as "Congress' decision to deal

comprehensively with the subject of foreign sovereign

immunity in the FSIA, and the express provision[granting

foreign states immunity in federal and state courts except

as provided in the FSIA], preclude a construction of the

Alien Tort Statute" that would permit a suit against a

foreign nation. 488 U.S. at 438.

We believe that Amerada Hess does not tilt the

determination here in favor of the government's position. In

reaching its holding, the Amerada Hess Court noted that its

decision rested in part on the fact that the applicability of

the Alien Tort Statute to suits against sovereign nations

was uncertain from the outset. Id. at 436. Thus, the Court

reasoned, "Congress's failure in the FSIA to enact an

express pro tanto repealer of the Alien Tort Statute speaks

only faintly, if at all, to the issue involved in this case. In

light of the comprehensiveness of the statutory scheme in

the FSIA, we doubt that even the most meticulous

draftsman would have concluded that Congress also needed

to amend pro tanto the Alien Tort Statute." Id. at 437.

Furthermore, in Amerada Hess the Court pointedly noted

that the Court of Appeals had not cited "any decision in

which a United States court exercised jurisdiction over a

foreign state under the Alien Tort Statute." Id. at 436. In

other words, there was no long history of exercising

jurisdiction that would have been disturbed by its decision.

In this case, by contrast, there is no lack of clarity about

the historic existence of habeas jurisdiction.

Over a century's worth of precedent and practice

unambiguously supports the conclusion that habeas

21

jurisdiction is available to aliens in executive custody. Chief

Justice Marshall recognized the significance of the writ of

habeas corpus in Ex Parte Bollman, 8 U.S. (4 Cranch) 75

(1807). In reference to section 14 of the Judiciary Act of

1789, the original predecessor of 28 U.S.C. S 2241, he

stated:

[T]his act was passed by the first Congress of the

United States, sitting under a constitution which had

declared `that the privilege of the writ of habeas corpus

should not be suspended, unless when, in cases of

rebellion or invasion, the public safety might require it.'

Acting under the immediate influence of this

injunction, they must have felt, with peculiar force, the

obligation of providing efficient means by which this

great constitutional privilege should receive life and

activity; for if the means be not in existence, the

privilege itself would be lost, although no law for its

suspension should be enacted.

8 U.S. (4 Cranch) at 95.

Despite repeated congressional efforts since the late

nineteenth century to confer finality on the immigration

decisions of the Attorney General, the Court has

consistently recognized the availability of habeas relief to

aliens facing deportation. See Majority op. at 12-17 supra.

In light of this precedent, nothing less than an express

statement of congressional intent is required before a grant

of habeas corpus jurisdiction as provided in 28 U.S.C.

S 2241 will be found to have been repealed. We will not

presume that this grant of jurisdiction is removed by

general language such as that used in the new INAS 242(g).

Accordingly, we apply the rule of Felker and Yerger.

Because this provision is no more specific with respect to

jurisdiction under S 2241 than any of the others canvassed

in this opinion, we discern no express repealer of the

district courts' jurisdiction under S 2241.

We note that this reading comports with our obligation to

read statutes to avoid serious constitutional problems, such

as those we would face were IIRIRA read to take away

habeas jurisdiction as well as APA review. See Edward J.

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades

22

Council, 485 U.S. 568, 575 (1988); United States ex rel.

Attorney General v. Delaware & Hudson Co., 213 U.S. 366,

408 (1909) (court should interpret statute to avoid"grave

and doubtful constitutional questions").

The Suspension Clause of the United States Constitution

states: "The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in Cases of Rebellion or

Invasion the public Safety may require it." U.S. Const. art.

I, S 9, cl. 2. In Swain v. Pressley, 430 U.S. 372 (1977), the

Court considered an amendment to the District of

Columbia Code by which Congress divested the district

courts of habeas jurisdiction and substituted a collateral

proceeding in that District's Superior Court, patterned after

28 U.S.C. S 2255. The Court held that the legislation did

not violate the Suspension Clause because "the

substitution of a collateral remedy which is neither

inadequate nor ineffective to test the legality of a person's

detention does not constitute a suspension of the writ of

habeas corpus." 430 U.S. at 381. A statute removing all

review of executive detention, however, would not provide

an adequate and effective collateral remedy.

Recognizing that its interpretation might lead to just

such a constitutional dilemma, the government contends

that under the 1996 amendments there is jurisdiction in

the courts of appeals to entertain claims of "substantial

constitutional error" by aliens in Sandoval's position. This

argument must fail because of the absence of any support,

either in the statute or in the legislative history. The

government's briefs cite no provision of AEDPA or IIRIRA

that supports its reading and it conceded at oral argument

that there is no specific provision granting us jurisdiction

over substantial constitutional claims. Although the

government's argument would have more force if there were

a constitutional imperative to read the 1996 statutes in

that manner, our conclusion that the statutes have left

habeas jurisdiction intact in the district courts removes any

such imperative.

In sum, because neither AEDPA nor IIRIRA contains a

clear statement that Congress sought to eliminate habeas

jurisdiction under 28 U.S.C. S 2241, we conclude that

S 2241 survives the 1996 amendments.

23

4. Scope of Review Under Habeas Jurisdiction

The jurisdictional holdings of the courts in Richardson

and LaGuerre relieved them of any consideration of the

scope of review under habeas corpus. Because the courts in

Goncalves, Henderson, Magana-Pizano , and Lee sustained

habeas jurisdiction under S 2241, they reached that issue

and held that S 2241 jurisdiction covered not only

constitutional claims but also the aliens' statutory claim

that the Attorney General had S 212(c) to apply to pending

cases.

Inasmuch as the language of the habeas corpus statute

encompasses claims that one "is in custody in violation of

the Constitution or laws or treaties of the United States,"

28 U.S.C. S 2241(c)(3), we agree that Sandoval's statutory

claim is cognizable in a habeas corpus proceeding. 5

Furthermore, the Supreme Court has repeatedly recognized

that aliens may press statutory claims in habeas

proceedings, even during the period when, according to the

Heikkila Court, 345 U.S. at 234-35, judicial review in the

immigration context was reduced to the minimum required

by the Constitution. See, e.g., United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 265 (1954) ("The crucial

question is whether the alleged conduct of the Attorney

General deprived petitioner of any of the rights guaranteed

him by the statute or by the regulations issued pursuant

thereto."); Gegiow v. Uhl, 239 U.S. 3, 9 (1915) ("The courts

are not forbidden by the statute to consider whether the

reasons, when they are given, agree with the requirements

of the act. The statute, by enumerating the conditions upon

which the allowance to land may be denied, prohibits the

denial in other cases. And when the record shows that a

commissioner of immigration is exceeding his power, the

alien may demand his release upon habeas corpus.").

We therefore agree with the legal conclusion reached by

the District Court here that it had jurisdiction, in a habeas

proceeding, to consider the statutory claim raised by

_________________________________________________________________

5. This does not mean that a district court reviewing a deportation claim

in a habeas proceeding necessarily has the same jurisdiction that a

court of appeals previously had under a Petition for Review, an issue we

leave for future decision.

24

Sandoval. Accord Henderson, 157 F.3d at 122 (Statutory

claims "affecting the substantial rights of aliens of the sort

the courts have secularly enforced" are reviewable on

habeas); Goncalves, 144 F.3d at 124-25 ("The pure

statutory claims Goncalves makes here are well within

precedent interpreting the core habeas protection provided

by S 2241."); Lee, 15 F. Supp. 2d at 42 ("[P]recedent and

reason fully persuade me that the Constitution

contemplates that courts inquiring into the legitimacy of

executive detention on habeas must be available to hear

claims of statutory as well as constitutional wrong.").

5. The Pending Petition for Review

Also pending before us is Sandoval's Petition for Review

from the Board of Immigration Appeals, No. 98-3214, which

we consolidated with the government's appeal from the

District Court's grant of relief to Sandoval under its habeas

corpus jurisdiction. The government argues that we lack

subject matter jurisdiction to entertain Sandoval's Petition

for Review, and cites in support our recent decision in

Morel, holding that AEDPA S 440(a) "removes from us

jurisdiction to review a claim of legal error in deportation

proceedings." 144 F.3d at 251. Sandoval recognizes that a

decision by this court that the District Court had

jurisdiction under habeas corpus to review his claim would

obviate the need for us to consider his Petition for Review.

In light of our conclusion that the District Court had such

jurisdiction, and in light of our decision in Morel, we will

dismiss the Petition for Review.6

_________________________________________________________________

6. Because of our conclusion that jurisdiction under 28 U.S.C. S 2241

covers statutory, as well as constitutional claims, we need not decide

whether the claimed existence of jurisdiction in the courts of appeals to

review substantial constitutional claims, but not statutory claims, would

be an adequate alternative.

25

B.

Applicability of the AEDPA Amendment to

INA S 212(c) to Sandoval

Having determined that the District Court properly

exercised habeas jurisdiction, we turn to consider the

government's argument that the District Court erred in

holding that AEDPA S 440(d) does not apply to deprive

Sandoval of the opportunity to seek discretionary relief

under INA S 212(c). Prior to AEDPA, INA S 212(c) permitted

deportable aliens, other than those who had committed

specified crimes (such as aggravated felonies and crimes of

moral turpitude), to apply to the Attorney General for a

waiver of deportation. AEDPA S 440(d) added drug offenses

to the list of deportable offenses that made aliens ineligible

for discretionary relief.7 The provision precluding

discretionary relief for those convicted of drug offenses was

not in effect at the time Sandoval sought to petition under

INA S 212(c). The IJ denied Sandoval on the ground that he

_________________________________________________________________

7. AEDPA S 440(d) amends 8 U.S.C. S 1182(c). As amended, the statute

reads in full:

Aliens lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of deportation,

and who are returning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion of the

Attorney

General without regard to the provisions of subsection (a) of this

section (other than paragraphs (3) and (9)(C)). Nothing contained

in

this subsection shall limit the authority of the Attorney General

to

exercise the discretion in him under section 1181(b) of this title.

This subsection shall not apply to an alien who is deportable by

reason of having committed any criminal offense covered in section

241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by

section

241(a)(2)(A)(ii) for which both predicate offenses are covered by

section 241(a)(2)(A)(I).

See AEDPA S 440(d). Section 1182(c) was repealed by IIRIRA with respect

to cases in which the INS instituted removal proceedings on or after

April 1, 1997. See IIRIRA S 309. Because the INA initiated removal

proceedings against Sandoval before April 1, 1997, the repeal of

S 1182(c) does not apply here.

26

did not possess the requisite seven years lawful residence.

Sandoval appealed to the BIA.

Before the BIA rendered its decision on Sandoval's

appeal, the Attorney General issued her decision in Matter

of Soriano, Interim Decision 3289 (A.G. Feb. 21, 1997), in

which she ruled that AEDPA S 440(d) applies to pending

cases. The BIA, relying on Soriano, dismissed Sandoval's

appeal on the ground that AEDPA S 440(d) made him

ineligible for discretionary relief. The District Court

disagreed, after analyzing the retroactivity decisions in

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

Murphy, 117 S.Ct. 2059 (1997); and United States v.

Skandier, 125 F.3d 1788 (3d Cir. 1997). Therefore, the

court entered an injunction staying Sandoval's deportation

and ordered the INS to consider Sandoval's application for

relief on its merits.

The government urges that the District Court erred in

finding that AEDPA S 440(d) does not apply to Sandoval.

The government contends that the Attorney General's

decision in Soriano is correct, and that her decision is

entitled to deference under Chevron U.S.A., Inc. v. Natural

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

Sandoval argues that the Supreme Court's decision in

Landgraf, understood in light of the intervening decision in

Lindh, compels the conclusion that S 440(d) is not to be

applied to cases pending on the date of enactment.

As a threshold matter, we note that we are doubtful

about the appropriateness of Chevron deference in this

setting. Under Chevron, we are required, in the absence of

a direct expression of congressional intent on an issue, to

defer to an agency's reasonable interpretation of its

governing statute. 467 U.S. at 843. But Chevron appears to

speak to statutory interpretation in those instances where

Congress delegated rule-making power to an agency and

thereby sought to rely on agency expertise in the

formulation of substantive policy. See id. at 865. An issue

concerning a statute's effective date is not one that

implicates agency expertise in a meaningful way, and does

not, therefore, appear to require Chevron deference. See

Goncalves, 144 F.3d at 127. Rather, the question of a

statute's effective date appears to present "a pure question

27

of statutory construction for the courts to decide." INS v.

Cardoza-Fonseca, 480 U.S. 421, 446 (1987).

We need not decide, however, whether Chevron deference

applies. Assuming arguendo that Chevron does apply, it

directs us to ascertain, by "employing traditional tools of

statutory construction," whether Congress has expressed

"an intention on the precise question at issue." 467 U.S. at

843 n.9. By following that direction, we conclude that

AEDPA does contain an expression of congressional intent

and that Congress's intent was that the AEDPA amendment

to S 212(c) was not to be applied to pending cases.

In Landgraf, the Court set forth the now-familiar

principles for determining the temporal reach of a statute:

When a case implicates a federal statute enacted after

the events in suit, the court's first task is to determine

whether Congress has expressly prescribed the

statute's proper reach. If Congress has done so, of

course, there is no need to resort to judicial default

rules. When, however, the statute contains no such

express command, the court must determine whether

the new statute would have retroactive effect, i.e.,

whether it would impair rights a party possessed when

he acted, increase a party's liability for past conduct,

or impose new duties with respect to transactions

already completed. If the statute would operate

retroactively, our traditional presumption teaches that

it does not govern absent clear congressional intent

favoring such a result.

511 U.S. at 280. Thus, Landgraf contemplates a two-step

inquiry: First, a determination, using the ordinary tools of

statutory construction, whether Congress prescribed the

temporal compass of the statute, and, if not, second, a

determination whether application would have a

"retroactive effect."

The Court elaborated upon Landgraf in Lindh, where the

Court was called upon to determine the temporal reach of

another AEDPA provision--one that heightens the

standards for granting S 2254 habeas relief in noncapital

cases. The Lindh Court, speaking through Justice Souter,

emphasized early in the opinion that "in determining a

28

statute's temporal reach generally, our normal rules of

construction apply." 117 S.Ct. at 2063. It noted that

AEDPA set up one set of rules for noncapital cases--for

which Congress provided no effective date--and another for

capital cases--for which Congress made express provision,

i.e., the rules would apply to pending cases. Accordingly,

the Court held that Congress had, by negative implication,

expressed its intent that the rules pertaining to noncapital

cases apply only prospectively, stating that "[n]othing,

indeed, but a different intent explains the different

treatment." Id. at 2064. In so holding, the Lindh Court

made clear that the rule of negative implication is part of

the normal rules of statutory construction. Lindh amplified

the first step of the Landgraf analysis, making clear that if

the statutory construction inquiry yields the answer that

Congress intended prospectivity, the inquiry ends and the

court need not engage in an analysis of whether there

would be a "retroactive effect." Id.; see also Mathews v.

Kidder Peabody, No. 97-3164 (3d Cir. 1998) (noting that

Lindh "essentially add[s] a step" to the Landgraf inquiry).

When the Attorney General considered the applicability of

AEDPA S 440(d) to pending cases in Soriano , she found that

it did not contain an express directive, and then proceeded

to consider whether its application to pending cases would

have an impermissibly retroactive effect. Applying this

second step in the Landgraf analysis, she concluded that

AEDPA S 440(d) would not have such an effect. In urging

the correctness of this decision, the government relies, as

did the Attorney General, on our decision in Scheidemann

v. INS, 83 F.3d 1517 (3d Cir. 1996). However, both Soriano

and Scheidemann were issued without the benefit of the

Lindh court's elaboration of Landgraf principles.

The issue in Scheidemann was whether a 1990

amendment to INA S 212(c)--one that made"aggravated

felonies" a disqualification for discretionary relief--was

intended to encompass pre-enactment convictions. In

examining the text of the relevant statutory provisions in

their context, we concluded that the "design of the [statute]

clearly demonstrated that Congress intended the

temporally-unrestricted definition of `aggravated felony' to

apply to pre-enactment convictions." Id. at 1524. We stated

29

that this interpretation was the only "sensible" one, and

that a contrary interpretation would have rendered a

congressional provision "absurd." Id. at 1526.

That issue was different than the one before us now

under a different statute. Even in Scheidemann , where we

held the 1990 amendment applicable to pre-enactment

conduct, we specified that such construction was applicable

only to aliens who applied for discretionary relief after the

effective date of the 1990 amendment. See id. at 1526 &

n.12.

We thus apply the analysis instructed by Lindh , which

was unavailable both in Scheidemann and in Soriano.

Section 440(d) bears no effective date, although it does

provide that pre-enactment offenses should be considered.

However, several other comparable provisions do have

express effective dates. For example, AEDPA S 413, entitled

"Denial of Other Relief for Alien Terrorists," (like AEDPA

S 440(a)) makes relief that was previously available at the

agency's discretion unavailable to aliens fitting a particular

description, that of an "alien terrorist." Significantly, S 413

(unlike S 440(d)) includes a provision making it effective

with respect to "applications filed before, on or after [the

date of enactment] if final action has not been taken on

them before such date." AEDPA S 413(g). This difference in

treatment between "alien terrorists" underS 413 and aliens

convicted of the referenced crimes under S 440(d) leads to

the negative implication that Congress intended the AEDPA

amendments to apply in pending cases with respect to the

former group of aliens but not the latter. "[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion." Cardoza-Fonseca, 480

U.S. at 432 (alteration in original) (internal quotation marks

omitted).

The legislative history of the revision to S 212(c) lends

firm support to this reading of the statute. See id. at 432

(using legislative history to confirm textual reading of

statute). The Senate version of the bill had within it

language expressly making the amended INA S 212(c)

applicable to pending cases, while the comparable section

30

of the House version did not. Compare S. 735, 104th Cong.

S 303(f) (1995), with H.R. 2703, 104th Cong. S 662 (1996).

The final bill that emerged from the conference committee

dropped the language from the Senate bill that would have

made the amendment to S 212(c) applicable in pending

proceedings, but retained the language from the House bill

that made the amendments with respect to alien terrorists

applicable to pending cases. See H.R. Rep. No. 104-518, at

119 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 952; see

also Gonclaves, 144 F.3d at 131-32 (exhaustively

canvassing the legislative history). This legislative history

confirms that Congress deliberately chose to make AEDPA

S 440(d) apply prospectively. As the Court noted in Cardoza-

Fonseca, "Few principles of statutory construction are more

compelling than the proposition that Congress does not

intend sub silentio to enact statutory language that it has

earlier discarded in favor of other language." 480 U.S. at

442-43 (internal quotation marks omitted).

Thus, according to the Lindh Court's explication of

Landgraf, we can discern by negative implication that

AEDPA S 440(d) was not intended to apply to cases pending

on the date of enactment. Commenting on a similar issue

of statutory construction, the Supreme Court had

previously directed that, "If a court, employing traditional

tools of statutory construction, ascertains that Congress

had an intention on the precise question at issue, that

intention is the law and must be given effect." Chevron, 467

U.S. at 843 n. 9. Because the Lindh court has made clear

that the rule of negative implication is part of the normal

rules of construction, the Chevron instruction is satisfied as

well.

In sum, we conclude that Congress did indeed express an

intent that AEDPA's amendment to INA S 212(c) should not

apply to cases pending on the date of enactment, and so

hold. Accord Henderson, 157 F.3d at 129-30; Goncalves,

144 F.3d at 128-31. Therefore, we need not reach the

question whether AEDPA S 440(d) violates the Equal

Protection Clause. Consequently, we conclude that the

District Court did not err in directing the agency to decide

the merits of Sandoval's claim for discretionary relief.

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IV.

CONCLUSION

For the foregoing reasons, in Nos. 98-1099 and 98-1547

we will affirm the decision of the District Court and in No.

98-3214 we will dismiss the Petition for Review.

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ALITO, Circuit Judge, concurring in part and dissenting in

part:

I agree with LaGuerre v. Reno, 1998 WL 912107, at 1-2

(7th Cir. 1998), that Congress has eliminated the district

courts' jurisdiction to entertain habeas petitions such as

the one at issue here. Before the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, Section

106(a) of the Immigration and Nationality Act ("INA"), 8

U.S.C. S 1105a (a), provided that a petition for review filed

in a court of appeals was, with a few specified exceptions,

"the sole and exclusive procedure for . . . the judicial review

of all final orders of deportation." One of the specified

exceptions provided that "any alien held in custody

pursuant to an order of deportation [could] obtain judicial

review thereof by habeas corpus proceedings." Section 106

(a)(10) of the INA, 8 U.S.C. S 1105a(a)(10).

AEDPA changed this scheme. Section 401(e) of AEDPA,

entitled "ELIMINATION OF CUSTODY REVIEW BY HABEAS

CORPUS," struck former subsection (10). Section 440(a) of

AEDPA substituted the following language for the former

text of that subsection:

Any final order of deportation against an alien who is

deportable by reason of having committed a criminal

offense covered in section 241(a)(2) (A)(iii), (B), (C), or

(D), or any offense covered by section 241(a)(2)(A)(ii) for

which both predicate offenses are covered by section

241(a)(2)(A)(i), shall not be subject to review by any

court.

In my view, the text of Section 106(a) as amended by

AEDPA precluded the type of habeas proceeding that is now

before us. After AEDPA, the introductory portion of Section

106(a) still provided that a petition for review by a court of

appeals was "the sole and exclusive procedure for. . . the

judicial review of all final orders of deportation"; the

exception previously set out in subsection (10), which

permitted an alien held in custody pursuant to an order of

deportation to obtain "judicial review" of that order by

means of a habeas corpus proceeding, had been pointedly

repealed in a statutory section labeled "ELIMINATION OF

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CUSTODY REVIEW BY HABEAS CORPUS"; and in the place

of this previous exception, there was inserted language

stating that such deportation orders "shall not be subject to

review by any court." These provisions are clear-- they

eliminated habeas jurisdiction -- and it is therefore

unnecessary to consider the effect of related provisions of

the subsequently enacted Illegal Immigration Reform and

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

110 Stat. 3009 (1996), for whatever effect these provisions

had, they most certainly did not restore the district courts'

jurisdiction to entertain the type of habeas petition that is

at issue.

In concluding that AEDPA did not touch the district

courts' habeas jurisdiction, the majority invokes the

principle that repeals of habeas jurisdiction should not be

presumed. See Felker v. Turpin, 518 U.S. 651, 658-60

(1996). The majority then reasons that the amendment of

Section 106(a)(10) did not affect the district courts' habeas

jurisdiction under a separate statutory provision, 28 U.S.C.

S 2241. This interpretation, however, presents numerous

problems. First, it ignores the plain meaning of INA Section

106(a), which, after AEDPA, stated that -- with a few,

specified and non-pertinent exceptions -- a petition for

review by a court of appeals was "the sole and exclusive

procedure for . . . judicial review of all final orders of

deportation." Second, the majority's interpretation ignores

the heading of Section 401(e) of AEDPA, viz., "ELIMINATION

OF CUSTODY REVIEW BY HABEAS CORPUS." Third, the

majority's interpretation ignores the clear meaning of the

new text that was placed in Section 106(a)(10), which

stated unequivocally that final orders of deportation such

as the one at issue here "shall not be subject to review by

any court." Fourth, the majority's interpretation has the

perverse effect of lengthening the process of judicial review

of deportation orders based on the commission of a

criminal offense.

The majority's analysis is not supported by Felker, which

concerned the meaning of 28 U.S.C. S 2244(b)(3)(E). This

provision, which states that a court of appeals order

granting or denying authorization to file a second or

successive habeas application is not subject to review by

34

means of a petition for rehearing or certiorari, does not

state that the Supreme Court cannot review such an order

in an original habeas proceeding, and the Court refused to

conclude that S 2241(b)(3)(E) implicitly effected that result.

Here, by contrast, Section 106(a) of the INA, as amended by

AEDPA, expressly precluded a district court from exercising

habeas jurisdiction under the circumstances present here.

Accordingly, in No. 98-1099, I would reverse the judgment

of the District Court and remand with instructions to

dismiss. This result does not implicate the Suspension

Clause because any judicial review to which Sandoval is

constitutionally entitled can and should be provided by

means of a petition for review filed in our court.

Such a petition is before us in No. 98-3214. However, in

Morel v. INS, 144 F.3d 248 (3d Cir. 1998), another panel of

our court, while recognizing that an alien subject to an

order of deportation is entitled to "Article III review of

claims of `substantial Constitutional error,' " held that such

an alien is not constitutionally entitled to review of a non-

constitutional claim. Id. at 251. If Morel too narrowly

construed the scope of the review to which a petitioner like

Sandoval is constitutionally entitled, Morel should be

overruled. The problem should not be compounded by

authorizing the district courts to exercise a type of habeas

jurisdiction that Congress curtailed. For present purposes,

however, since Morel is binding on this panel, I agree with

the majority that we must dismiss the petition insofar as it

asserts non-constitutional claims. I add that, if we were free

to reach the merits, I would follow the Seventh Circuit's

analysis in LaGuerre. I would also deny the petition insofar

as it asserts an equal protection claim. See LaGuerre, 1998

WL 912107 at 4-5.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

35