Opposition Brief — Immigration & Naturalization Service v. Magana-Pizano

Supreme Court, U.S.

FILED

DEC 2 1 1998

No. 98-836

a OFFICE -OF THE -CLERK

In The

- Supreme Court of the United States

October Term, 1998

a

IMMIGRATION AND NATURALIZATION SERVICE

AND ROSANNE SONCHIK, DISTRICT DIRECTOR,

Petitioners,

DANIEL MAGANA-PIZANO.

a,

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

ooo

RESPONDENT’S BRIEF IN OPPOSITION

cammamieeipameacennpmmadmnets e eutetietinnaee

MICHAEL FRANQUINHA Lucas GUTTENTAG

STENDER & LARKIN (Counsel of Record)

343 W. Roosevelt Street Lee GELERNT

Phoenix, AZ 85003 KATHRYN PALAMOUNTAIN

JAYASHRI SRIKANTIAH

AMERICAN Civic LIBERTIES

UNION FOUNDATION

1663 Mission Street

San Francisco, CA 94103

(415) 621-2493

Marc VAN Der Hout

VAN Der Hout & BRIGAGLIANO

180 Sutter Street, 5th Floor

San Francisco, CA 94104

COCKLE LAW BRIEF PRINTING CO., (800) 22

YR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Respondent, a legal permanent resident for more

than twenty years who is deportable based on a single

misdemeanor drug offense, is being held in executive

custody and has been ordered deported based on the

Attorney General’s retroactive application of a 1996

amendment to the Immigration and Nationality Act

(INA). After exhausting administrative remedies, respon-

dent filed both a habeas corpus action in district court

and, alternatively, a petition for review directly in the

court of appeals to challenge his final deportation order

on constitutional and non-constitutional grounds. The

court of appeals, finding that both its own and the district

court’s jurisdiction was repealed by new INA amend-

ments, held that preclusion of all review violated the

Constitution and that the district court retained jurisdic-

tion under 28 U.S.C. 2241 over both claims. The question

presented is:

1. Whether the Antiterrorism and Effective Death

Penalty Act (AEDPA) and the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA) repealed the

jurisdiction of both the courts of appeals and the district

courts over challenges to a deportation order raising

claims of statutory construction and constitutional viola-

tion and, if so, whether AEDPA and IIRIRA violate the

Suspension of Habeas Corpus Clause, Article III or the

Due Process Clause of the Constitution.

il

TABLE OF CONTENTS

Page

Opinions Below , ......<.siaisad veda cee 1

Jurisdiction... s.<.. scciweven tee ee l

Statutes or Other Provisions LACORS eo 1

statement . 2. isi en ot emed pene Ee aaa oe 2

The Statutory Framework... 0 ..20.00..0126)0.0.6. 3

statement of Padis 005.555; csv ees ok ee 10

Reasons for Denying the Welg.2 8) sinh ie 14

Conclusion «0... si yisaysierree ees ee! 27

ili

Page

Cases:

Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997) ..... 6

Brown v. Allen, 344 U.S. i ss8h hig. AE EER 24

Chamorro-Torres v. INS, 520 U.S. 1103 SAE Ca 9

Chow v. INS, 113 F.3d 659 (7th Cir. 1997)....... 6, 8, 17

Commodities Future Trading Comm'n v, Schor, 478

List beochicy cana OE EE IE 24

Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996) ....._. 6, 13

Felker v. Turpin, 518 US. 651 Geer eat cccut 11, 20, 21

Fernandez v. INS, 113 F.3d 1151 (10th Cir. sd pepe 6

Francis v. INS, 532 F.2d 268 Pee 7). 3.C 5S. 3

Goncalves v. Reno, 144 F.3d 110 (1st Cir.), petition

for cert. filed, __ U.S.L.W. — (U.S. Nov. 18, _

1998) (No. See 9 RE A ae passim

Heikkila v. Barber, 345 U.S. 229 PU es ace te 23

Henderson v. INS, 157 F.3d 106 (2d Cir.), petition for

cert. filed sub nom. Reno v. Navas, __—~U.S.L.W.

— (U.S. Dec. 18, 1998) (No. 98-__).., 13, 14, 15, 21

Hincapie-Nieto v, INS, 92 F.3d 27 (2d Cir. 1996)....... 6

Hose v. INS, 141 F.3d 932 (9th Cir.), opinion with-

drawn, No. 97-15789, 1998 Daily Journal D.A.R.

12215 (9th Cir. Dec. 2, oo ee Rare een cs, 26 20

Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998)..... 21

Katsoulis v. INS, tite a + SOS Ce ghe bog Rae 9

Kolster v. INS, 101 F.3d 785 (1st Cir. 1996).........___ 6

IV

TABLE OF AUTHORITIES — Continued

Page

Layne & Bowler Corp. v. Western Well Works, Inc.,

Gt U.S. SBP GEES). ensvaa ache ckcesvae ba 16

Lee v. Reno, 15 F. Supp. 2d 26 (D.D.C. 1998)......... 21

Lerma de Garcia v. INS, 141 F.3d 215 (5th Cir.), reh’g

en banc denied, 159 F.3d 1358 (1998)............. 8, 16

Mansour v. INS, 123 F.3d 423 (6th Cir. 1997).......... 6

Mastrapasqua v. Shaughnessy, 180 F.2d 999 (2d Cir.

RGU <a shi dy aoc ce Canes VER) eRe Dee eer ee ane 24

Moytca v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997),

aff'd sub nom. Henderson v. INS, 157 F.3d 106 (2d

Cir.), petition for cert. filed sub nom. Reno v.

Navas, ___ U.S.L.W. ___ (U.S. Dec. 18, 1998) (No.

AM EN BA EEE Ae feet spt Jone pie aan POR fe OVA 3

Nakaranurack v. INS, 68 F.3d 290 (9th Cir. 1995) ...... 5

Qasguargis v. INS, 519 U.S. 1148 (1997)............... 9

Richardson v. Reno, _ F.3d __, 1998 WL 850045

Cis Sosa 9: SS ok hecvadieeh cn dneee 17, 18

Salazar-Haro v. INS, 95 F.3d 309 (3d Cir. 1996), cert.

MOND, AOOALS: tee LOMAS ba aoa dee eee aes i 6

Soriano, In re, Int. Dec. No. 3289 (BIA June 27,

POPOD ook) Op 4S SAE ACs RAMA DA STIL ERIE ONL ate ss +

Soriano, Matter of, Int. Dec. No. 3289 (AG Feb. 21,

WW oistcles ce ce ee auc ee ee 4, 10

Swain v. Pressley, 430 U.S, 372 (1977).......... ccc. 24

Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997)....6, 8, 16, 17

v

TABLE OF AUTHORITIES — Continued

Page

United States ex rel. Accardi v. Shaughnessy, 347 U.S.

MOO: TITS ini osc seas Sa oe 23, 24

United States ex rel. Hintopoulos v. Shaughnessy, 353

SDs FE ROMO i cs kanes chk ia ee 23

United States ex rel. Kaloudis v. Shaughnessy, 180

ran <p (26 Ce 390: os ee ee, 24

lLinited States ex rel. Marcello v. INS, 634 F.2d 964

COO. Cab. BGS). svc cavacses bobo dai 5

Williams v. INS, 114 F.3d 82 (5th Cir. 1997)........... 6

Williams v. INS, 795 F.2d 738 (9th Cir. 1986).......... 5

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950)...... 25

Yang v. INS, 109 F.3d 1185 (7th Cir.), cert. denied sub

nom. Katsoulis v. INS, ___ U.S. __, 118 S. Ct. 624

CRIED v0 bvadeNvdalwt ceceiel Beret eee 16, 17

Docketep Cases:

Avelar-Cruz v. Reno, No. 98-2613 (7th Cir.)........ $5, 27

Esparza-Treto v. Greene, No. 98-1339 (10th Cir.)....... 19

Gutierrez-Martinez v. INS, No. 98-8185 (11th Cir.) 15-16, 18

Jurado-Gutierrez v. Greene, No. 97-1437 (10th Cir.) .... 16

LaGuerre v. INS, No. 98-1954 (7th Cir.) ........... 15, 17

Mayers v. Reno, No. 97-5537 (11th Cir.)........... 16, 18

Pak v. Reno, No. 98-3852 (6th Cir.) .............0000. 16

Reno v. American-Arab Anti-Discrimination Commit-

OG PUD. PRR isa ck Sock hence chee et ae 7

Sandoval v. Reno, No. 98-1099 (3d Cir.) .............. 16

Shah v. Reno, No. 98-2636 (8th Cir.) ................. 16

Vi

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION, STATUTES AND REGULATIONS:

U.S. Const.

Ast. 1,9 9, Ch 2.ciccscssctnsvctctuaseueeeanen passim

et. TEE 6 s4 dae tne one i. 2 4 Te eee

Amend. V...... Pr er et em gle" i, Bas Gor oe

Antiterrorism and Effective Death Penalty Act of

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

G& 440la). 110 Stat TZ7O ccc voc cteckestastsn ae se

S 460d). 410 Sbat. TO77 occ vce bccewecesnnerera passim

Illegal Immigration Retorm and Immigrant

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

Div. C, 110 Stat. 3009-546. .... Ty ew's'e eG ae ss 5 ee

S 3A%a), 110 Stat. 3009-625 ... ccs cccscce: ie Fo

S 309(c)(1), 110 Stat. 3009-625. a ee Peer NS

S 309(c)(4), 110 Stat. 3009-625. 7

S 309(c)(4)(G), 110 Stat. 3009-626........ 8, 13, 19, 22

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

passim

8 U.S.C. 1105a (1994) (repealed 1996) . >, 6, 2:

8 U.S.C. 1105a(a) (1994) (repealed en 6 36 os “au

8 U.S.C. 1105a(a)(10) (1994) (repealed 1996) ........5

8 U.S.C. 1182(c) (1994) (repealed 1996).......3, 4, 10

S USC 229b(a) (Supp. Il 1996) ie | 4

8 U.S.C. 1252 (Supp. II 1996) y thas oy ae

ee er

Vil

TABLE OF AUTHORITIES — Continued

Page

8 U.S.C. 1252(a)(2)(C) (Supp. II 1996) ....... 8, 18, 19

8 U.S.C. 1252(g) (Supp. II 1996)....... 6, 7, 13, 14, 21

Me Wes: SNAG a cd's Xb 908 Soha e ei kak dL eRh eee passim

PO Manes MMMM DT 65.1.0 hb 900s a Ris edueas hidden ee ees 12

Se Aras CUMIN 15 3 Wehbe ands octave eeaesene ees 12

OPINIONS BELOW

Respondent adopts the petitioners’ statement of the

opinions below.

JURISDICTION

Respondent does not contest this Court's jurisdiction

under 28 U.S.C. 1254(1).

STATUTES OR OTHER PROVISIONS INVOLVED

In addition to the provisions referred to in the Peti-

tion for Certiorari and reprinted in the Petitioners’

Appendix:

U.S. Constitution, Art. III:

“Section 1. The judicial power of the United States,

shall be vested in one supreme Court, and in such infe-

rior Courts as the Congress may from time to time ordain

and establish... . ”

“Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made, . . . to

Controversies to which the United States shall be a

id

Party. .

U.S. Constitution, Amend. V:

“No person shall be . . . deprived of life, liberty, or

””

property without due process of law;... .

+

STATEMENT

The jurisdictional issue in this case is whether Con-

gress has repealed all federal court jurisdiction to review

statutory retroactivity and constitutional equal protection

challenges to a final order of deportation and, if so,

whether such repeal violates the Constitution. The under-

lying substantive issue, whether Section 440(d) of the

Antiterrorism and Effective Death Penalty Act (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214, 1277, retroactively

eliminates statutory eligibility for discretionary relief or

violates equal protection, is not presented in this case

because the court of appeals remanded those issues to the

district court.

This case squarely presents whether either the courts

of appeals or the district courts have jurisdiction to hear

respondent's claims. Respondent sought judicial review

of his final order of deportation both by means of a

petition for review directly in the court of appeals and by

means of a habeas corpus petition in the district court.

Pet. Br. 10; Pet. App. 5a. The court of appeals consoli-

dated the two actions into a single case and resolved the

jurisdiction of both courts. Pet. App. 5a. In that respect,

as noted by the government (Pet. Br. 28-29), the pro-

cedural posture of this case differs from Goncalves v. Reno,

144 F.3d 110 (1st Cir.), petiticn for cert. filed, __ U.S.L.W.

____ (U.S. Nov. 18, 1998) (No. 98-835), because Goncalves

filed only a habeas corpus action in district covrt, but not

a petition for direct review in the court of appeals.

For the reasons stated below, certiorari should be

denied. However, if the Court determines that review of

the jurisdictional issue is warranted, respondent agrees

with the government that this case, unlike Goncalves,

would allow the Court to “render a definitive holding

regarding the jurisdiction of both the courts of appeals and

the district courts. ...” Pet. Br. 29 (emphasis original).

¢

THE STATUTORY FRAMEWORK

1. Relief from Deportation. Under the INA, a legal

permanent resident who becomes deportable based on a

criminal conviction, like respondent in this case, has long

been statutorily eligible to apply for discretionary relief if

the two criteria set forth in 8 U.S.C. 1182(c) are satisfied.

First, the legal permanent resident must have resided in

the United States for seven consecutive years. Second, the

legal permanent resident must not have been convicted of

an “aggravated felony” and must not have served a term

of imprisonment of five years or more. See, e.g., Francis v.

INS, 532 F.2d 268 (2d Cir. 1976); Pet. Br. 3 n.2. Over half of

the total number of applications for Section 1182(c) relief

were granted during fiscal years 1989 through 1994.1

In 1996, before repealing Section 1182(c) altogether,

Congress expanded the list of disqualifying convictions.

Specifically, Section 440(d) of AEDPA mandated that

aliens who committed some non-violent, non-aggravated

offenses were no longer eligible for discretionary relief

from deportation under 8 U.S.C. 1182(c), regardless of

1 Mojica v. Reno, 970 F. Supp. 130, 178 (E.D.N.Y. 1997) (citing

U.S. Dep’t. of Justice Executive Orrice FoR IMMIGRATION Review,

StaTIsTICAL SHEET 1 (Jan. 19, 1995)), aff'd sub nom. Henderson v.

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

how long they have lived in the United States or how

strong their ties are to this country.2 The Board of Immi-

gration Appeals (BIA) ruled en banc that Section 440(d)

did not apply retroactively to applications pending when

AEDPA was enacted. In re Soriano, Int. Dec. No. 3289 (BIA

June 27, 1996) (Pet. App. 65a-97a). At the request of the

INS, however, the Attorney General vacated the BIA’s

decision (Pet. App. 98a) and issued a nationally-

applicable ruling that AEDPA’s new restrictions apply to

all Section 1182(c) requests. Matter of Soriano, Int. Dec.

No. 3289 (AG Feb. 21, 1997) (Pet. App. 99a-112a).

Five months after AEDPA, Congress enacted IIRIRA.

IIRIRA replaced Section 1182(c) altogether for immigra-

tion proceedings initiated on or after April 1, 1997.

IIRIRA 309(a) & (c)(1), 110 Stat. 3009-625. Section 1182(c)

remains in effect only for cases in which immigration

proceedings were commenced before April 1, 1997. For all

immigration cases initiated on or after April 1, 1997 -

now called “removal proceedings” — IIRIRA enacted a

successor form of relief called “cancellation of removal,”

8 U.S.C. 1229b(a) (Supp. II 1996), with its own eligibility

criteria and mandatory disqualifications.

Respondent was subjected to deportation based on a

single misdemeanor conviction of being under the influ-

ence of controlled substances. Pet. App. 3a. That convic-

tion did not constitute a disqualifying offense for Section

1182(c) relief before the statute was amended by AEDPA

* AEDPA Section 440(d) added the following sentence to

the end of Section 1182(c): “This subsection shall not apply toan

alien who is deportable by reason of having committed any

criminal offense covered in [enumerated INA provisions].”

—

440(d), and it is not a disqualifying offense for relief under

the new IIRIRA “cancellation of removal” provision.

2. Judicial Review. Before AEDPA and IIRIRA, judi-

cial review of final orders of deportation and exclusion

was governed by 8 U.S.C. 1105a. Section 1105a provided

that any alien subject to a final order of deportation -

regardless of the basis for the order — was entitled to

obtain judicial review by a petition for review directly in

the court of appeals, 8 U.S.C. 1105a(a), and under some

circumstances, by habeas corpus proceedings in the dis-

trict court. 8 U.S.C. 1105a(a)(10).3 The INA habeas corpus

Provision supplemented the “sole and exclusive” direct

review procedure, and the circuit courts disagreed about

when an alien could invoke it. See, e.g., Nakaranurack v.

INS, 68 F.3d 290 (9th Cir. 1995); Williams v. INS, 795 F.2d

738 (9th Cir. 1986); United States ex rel. Marcello v. INS, 634

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

a. AEDPA repealed the former habeas corpus provi-

sion in Section 1105a(a)(10) and added a provision (the

precursor to the IIRIRA provision at issue here) stating

that a final deportation order based on certain criminal

grounds “shall not be subject to review by any court.”

AEDPA 440(a), 110 Stat. 1276.4 The Ninth Circuit and

* Section 1105a(a)(10) provided that “any alien held in

custody-pursuant to an order of deportation may obtain judicial

review thereof by habeas corpus proceedings.”

4 Section 440(a) was codified at 8 U.S.C. 1105a(a)(10) and

provided: “Any finalorder of deportation against an alien who

is deportable by reason of having committed a criminal offense

covered by [enumerated grounds of deportation] shall not be

subject to review by any court.”

other courts of appeals dismissed pending petitions for

review under Section 440(a) on the ground that Congress

had repealed their statutory jurisdiction to exercise direct

circuit court review. See Duldulao v. INS, 90 F.3d 396 (9th

Cir. 1996).° The circuit courts routinely found, however,

that elimination of direct review did not foreclose all

judicial review over deportation orders because the possi-

bility of alternative avenues of review, including speci-

tically habeas corpus, remained. See Duldulao, 90 F.3d at

400 n.4.6

b. HRIRA further amended the INA’s judicial

review provisions. First, for administrative proceedings

commenced on or after IIRIRA’s effective date, April 1,

1997, it repealed Section 1105a and adopted a new perma-

nent judicial review statute, Section 1252. The permanent

provision and the various subsections cited by the gov-

ernment (with the arguable exception of subsection (g))

(see Pet. Br. 5-6), apply only to cases where the

> See also Mansour v. INS, 123 F.3d 423 (6th Cir. 1997);

Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997); Fernandez v. INS, 113

F.3d 1151 (10th Cir. 1997); Boston-Boliers v, INS, 106 F.3d 352

(11th Cir. 1997); Kolster v. INS, 101 F.3d 785 (1st Cir. 1996);

Salazar-Haro v. INS, 95 F.3d 309 (3d Cir. 1996), cert. denied, 520

U.S. 1239 (1997); Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir. 1996).

© See also Mansour, 123 F.3d at 426; Williams v. INS, 114 F.3d

82, 83-84 (5th Cir. 1997); Fernandez, 113 F.3d at 1155; Chew v. INS,

113 F.3d 659, 668 (7th Cir. 1997); Kolster, 101 F.3d at 790; Salazar-

Haro, 95 F.3d at 311: Hincapie-Nieto, 92 F.3d at 30-31.

immigration proceeding is initiated on or after April 1,

1997.7 Second, for cases (like respondent’s) initiated before

April 1, 1997, IIRIRA enacted special “transitional” judi-

cial review rules. I[TRIRA 309(a), (c)(1) & (4), 110 Stat.

3009-625, 626. These transitional provisions amend the

judicial review procedures in former Section 1105a and

apply only to a defined set of “pipeline” deportation and

exclusion cases.* Respondent's case is governed by these

transitional rules. Pet. Br. 6.

Like AEDPA 440(a), both the permanent and transi-

tional provisions of IIRIRA restrict review of final orders

based on enumerated criminal grounds. The transitional

rule, which governs here, provides that “there shall be no

appeal permitted in the case of an alien who is inadmiss-

ible or deportable by reason of having committed a crimi-

nal offense covered in [enumerated INA sections].”

7 IIRIRA 309(a) & (c)(1), 110 Stat. 3009-625. In a different

context, the applicability of Section 1252(g) to cases pending on

April 1, 1997, is presented to this Court in Reno v. AADC, No.

97-1252 (argued Nov. 4, 1998). Section 1252(g) provides:

(g) 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 Act.

8 U.S.C. 1252(g) (Supp. II 1996).

® The transitional rules apply to cases initiated before April

1, 1997, if the BIA decision is issued after October 30, 1996.

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

HIRIRA 309(c)(4)(G), 110 Stat. 3009-6269 The courts of

appeals interpreted the transitional provision as they had

the precursor provision in AEDPA 440(a) and held that it

repealed their own jurisdiction to hear cases on direct

review. But, as under AEDPA, the courts again noted that

alternative grounds for seeking review, in particular in

district court habeas corpus actions, were not foreclosed.

See, e.g., Lerma de Garcia v. INS, 141 F.3d 215, 217 (Sth Cir.),

reh’g en banc denied. 159 F.3d 1358 (1998): Turkhan v. INS,

123 F.3d 487, 490 (7th Cir. 1997).

The petitioners’ discussion of judicial review under

AEDPA and IIRIRA (Pet. Br. 17-20), fails to mention the

government’s own interpretation of these various juris-

dictional provisions, as advanced in the courts of appeals.

First, under AEDPA 440(a), the INS affirmatively sought

dismissal of circuit court review on the ground that the

circuit courts no longer had jurisdiction, including in

cases raising constitutional claims. See Chow v. INS, 113

F.3d 659, 663, 668 (7th Cir. 1997). In the First Circuit, the

INS further stated that, notwithstanding AEDPA, it

would assume that the district courts retained jurisdiction

to review at least some claims in a habeas corpus pro-

ceeding. 10 Subsequently, under IIRIRA’s transitional

” The successor provision in the permanent ITRIRA statute

appears at 8 U.S.C. 1252(a)(2)(C) (Supp. II 1996). It provides:

“Notwithstanding 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 a criminal offense

covered in [enumerated provisions].”

0 Goncalves v. Reno, 144 F.3d 110, 115 (1st Cir. 1998) (noting

that in an earlier AEDPA case “INS conceded ... some form of

a

rules, the INS again sought dismissal of petitions for

review in circuit court cases that raised both statutory

and constitutional claims. In fact, the INS urged dismissal

of the precise constitutional equal protection claim raised

by the respondent in this case — a claim the government

now contends is reviewable in the courts of appeals by

means of a petition for review. Compare Pet. Br. 18-20 with

Goncalves v, Reno, 144 F3d 110, 118-19 (1st Cir. 1998)

(noting that INS asserted neither claim was reviewable in

any court).

The government also fails to note that when some

immigrants sought certiorari review in this Court to chal-

lenge circuit court rulings denying direct review, the gov-

ernment opposed review by this Court on the basis, inter

alia, that any claim to judicial review based on the Sus-

pension Clause must await the filing of a habeas corpus

petition."

habeas jurisdiction in the district court”). The INS did not

specify what it believed was the Proper statutory basis for

habeas review in the district courts.

'' Brief for the Respondent [INS] in Opposition at 23,

Katsoulis v. INS, No. 97-379 (filed Nov. 1997), cert. denied, __

U.S. __, 118 S. Ct. 624 (1997) (opposing certiorari and arguing

that any claim under Suspension Clavse was not properly

presented because petitioner “did not seek a writ of habeas

corpus”); Brief for the [INS] in Opposition at 15, Chamorro-Torres

v. INS, No. 96-985 (filed Jan. 1997), cert. denied, 520 US. 1103

(1997) (same); Brief for the [INS] in Opposition at 9, Qasguargis

v. INS, No. 96-806 (filed Jan. 1997), cert. denied, 519 US. 1148

(1997) (same).

10

STATEMENT OF FACTS

|. Respondent Daniel Magana-Pizano is a citizen of

Mexico who has been a legai >ermanent resident of the

United States for twenty-one years. Pet. App. 3a. He

entered the United States legally as a five-year-old child

with his parents and siblings. Id. In 1995, he pled guilty to

a single misdemeanor offense of being under the influ-

ence of controlled substances. Id. At the time respondent

pled guilty, he was eligible to apply for a discretionary

waiver of deportation under 8 U.S.C. 1182(c).

On May 17, 1996, the INS commenced deportation

proceedings based on the misdemeanor conviction. Pet.

App. 3a. Respondent conceded deportability and applied

for relief under Section 1182(c). Pet. App. 4a. The immi-

gration judge (IJ) ruled that AEDPA 440(d) rendered

respondent statutorily ineligible for Section 1182(c) relief.

Pet. App. 5a. Respondent appealed to the BIA, which

dismissed his appeal without exercising discretion, on the

basis of the Attorney General's interpretation of Section

440(d) in Matter of Soriano. Pet. App. 5a. The BIA issued a

final order of deportation, and respondent was taken into

custody for deportation in May 1996, where he remains.

Respondent immediately filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. 2241. Respondent

asserted that Section 440(d) violates equal protection and

asked to amend the petition to allege that Section 440(d)

did not apply retroactively to his case. Pet. Br. 9 & n5.

The district court dismissed the habeas corpus petition

for lack of jurisdiction. Pet. App. 5a. Respondent

appealed the habeas dismissal and also timely filed a

petition for review directly in the court of appeals. Pet.

1]

App. 5a. The Ninth Circuit consolidated respondent's

appeal of the habeas dismissal with the petition for

review.

In the court of appeals, respondent challenged

AEDPA 440(d) on Statutory retroactivity and constitu-

tional equal protection grounds. He sought judicial

review of both the statutory and constitutional claims in

either the district court by means of his habeas corpus

action under 28 U.S.C. 2241 or on direct review in the

court of appeals by means of his petition for review. In

support of district court jurisdiction, respondent asserted

that, as a matter of Statutory construction, neither AEDPA

nor IIRIRA expressly mentioned or repealed the general

grant of habeas corpus jurisdiction to the district courts

in Section 2241, and that that grant of jurisdiction

remained intact absent an express repeal under Felker v,

Turpin, 518 U.S. 651 (1996).12 Respondent also argued that

his statutory and constitutional claims were encompassed

'2 Both parties fully briefed the jurisdictional question of

whether, as a matter of Statutory construction, AEDPA or

IIRIRA repealed district court habeas corpus jurisdiction under

Section 2241, as Hose v. INS, 141 F.3d 932 (9th Cir. 1998), on

which the court below subsequently relied in finding a repeal of

Section 2241, was not decided until after the instant case was

fully submitted. See Brief for Petitioner [Magafia-Pizano] at

15-16, Magaria-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998) (Nos.

97-15678 & 97-70384); Brief for Respondent [INS] at 12-14,

Magatia-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998) (Nos.

97-15678 & 97-70384).

12

within the plain terms of 28 U.S.C.-2241(c)(1) & (3).'8 In

support of his constitutional right to judicial review (in

either the district court or the court of appeals), respon-

dent asserted that the Suspension of Habeas Corpus

Clause, Art. I, Sec. 9, Cl. 2, the separation of powers

principle embodied in Article III, and the Due Process

Clause of the Fifth Amendment entitled him to judicial

review.

In response, the INS argued that no court had juris-

diction over either the constitutional or statutory claim. It

argued that respondent's retroactivity claim could not be

heard in either the district court in a habeas corpus action

or in the court of appeal by petition for review. The INS

further argued that the district court lacked jurisdiction

over the equal protection claim, and contrary to the posi-

tion taken here, that the court of appeals also lacked

jurisdiction because direct review remained only for sub-

stantial constitutional claims causing a “fundamental

miscarriage of justice.” See Pet. App. 22a-23a.

13 28 U.S.C. 2241 provides:

(c) The writ of habeas corpus shall not extend to a

prisoner unless —

(1) He is in custody under or by color of the

- authority of the United States .. .

or

(3) He is in custody in violation of the

Constitution or laws or treaties of the

United States.

13

Looking first at its own direct review jurisdiction, the

cour: of appeals found that the ITRIRA 309(c)(4)(G) transi-

tional provision governed the petition for review (Pet.

App. 6a-7a), that the provision barred respondent's

claims (Pet. App. 7a-8a), and that under circuit precedent

(interpreting AEDPA 440(a)), the court lacked jurisdiction

because “Congress had [not] conferred it.” Pet. App. 8a

(citing Duldulao v. INS, 90 F.3d 396, 399-400 (9th Cir.

1996)).

Turning to the district court’s habeas corpus jurisdic-

tion, the court of appeals determined that it was bound

by Hose v. INS, 141 F.3d 932 (9th Cir. 1998) (ruling that

Section 1252(g) eliminated access to habeas corpus

relief),'* and posed the issue in this case as “whether

[Section 1252(g)], as interpreted by Hose and applied to

cases such as the one before us, violates the Suspension

Clause . . . where no other avenue of judicial review

exists.” Pet. App. lla-12a. After reviewing the history of

habeas corpus in both the common law and immigration

contexts, the court of appeals concluded that Section

1252(g) as construed by Hose violated the Suspension

Clause in cases where no other avenue for review existed.

Pet. App. 19a (“elimination of all judicial review of execu-

tive detention violates the Constitution”); see also Hender-

son v. INS, 157 F.3d 106, 120 (2d Cir. 1998) (“for at least a

hundred years, the courts have reviewed the executive

branch's interpretation of the imrnigration laws, and have

4 As discussed below, the Ninth Circuit has, since the

filing of the government's petition, granted rehearing en banc

and withdrawn the panel opinion in Hose v. INS, No. 97-15789,

1998 Daily Journal D.A.R. 12215 (9th Cir. Dec. 2, 1998).

14

deemed such review to be constitutionally mandated”),

petition for cert. filed sub nom. Reno v. Navas tA ee

(U.S. Dec. 18, 1998) (No. 98- ).

Having ruled that Section 1252(g) could not constitu-

tionally block access to habeas corpus, the court of

appeals concluded that “to the extent habeas remedies in

immigration cases are protected by the Suspension

Clause, relief is afforded through the statutory remedy of

28 U.S.C. § 2241.” Pet. App. 21a. It then ruled that respon-

dent's constitutional and statutory claims fell within the

scope of Section 2241 and remanded the case to the

district court for a decision on the merits. Pet. App. 24a

— & —

REASONS FOR DENYING THE WRIT

For the reasons set forth in Point 1, infra, certiorari

should be denied. For the reasons set forth in Point 2,

infra, if review is granted, respondent agrees with the

government that this case (along with Magana-Pizano’s

conditional cross-petition), rather than Goncalves, pre-

sents the proper vehicle for addressing the jurisdictional

issues because the respondent in this case filed both a

district court habeas action and a petition for review in

the court of appeals.

l. Review is not warranted because the Ninth Cir-

cuit has withdrawn its prior decision in Hose v. INS that

resulted in the constitutional ruling in the decision below,

15

because no conflict exists among the circuits on the juris-

dictional (or merits) question, because the jurisdictional

issue arises from interim statutory provisions that apply

only to transitional cases governed by expiring jurisdic-

tional statutes, and because the decision is correct. The

instant setting, involving temporary INA provisions that

are so unclear that the government itself has interpreted

them inconsistently, is not an appropriate vehicle for the

Court to consider the far-reaching constitutional ques-

tions about the scope of Congress's power to limit judicial

review of executive detention that would arise if Con-

gress has repealed all grants of jurisdiction, including

Section 2241,

a. There is no conflict among the circuit courts on

either of the two jurisdictional questions the government

presents: whether respondent may obtain judicial review

of his retroactivity and equal protection claims (Pet. Br.

I-II), and, if so, whether the district court or the court of

appeals is the proper forum to raise those claims. See Pet.

Br. 21-24. Three courts of appeals, the First, Second and

Ninth, have squarely addressed both questions and agree

that judicial review of both the Statutory and constitu-

tional claims is available and that the proper forum is the

district court pursuant to 28 U.S.C. 2241. See Pet. App.

la-24a; Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998);

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998). Six addi-

tional courts of appeals are now considering habeas

corpus appeals that raise the same jurisdictional (and

merits) claims presented by this case.15 Consideration by

1S LaGuerre v. INS, No. 98-1954 and Avelar-Cruz v. Reno, No

98-2613 (7th Cir.) (argued & submitted Oct. 29, 1998); Gutierrez-

16

this Court is premature unless and until an actual conflict

between the circuits emerges. Cf. Layne & Bowler Corp. v.

Western Well Works, Inc., 261 U.S. 387 (1923).%

The government contends that there is a conflict in

the lower courts because the Seventh Circuit in Yang v.

INS, 109 F.3d 1185 (7th Cir.), cert. denied sub nom. Katsoulis

v. INS, __ U.S. __, 118 S. Ct. 624 (1997), has “disagreed

with the proposition that aliens may proceed under Sec-

tion 2241....” Pet. Br. 27. Yet the government does not,

and could not, maintain that Yang held that Section 2241 is

no longer available for aliens such as the respondent in

Martinez v. INS, No. 98-8185 and Mayers v. Reno, No. 97-5537

(11th Cir.) (argued & submitted Oct. 8, 1998); Sandoval v. Reno,

No. 98-1099 (3d Cir.) (argued & submitted Sept. 28, 1998); Shah v.

Reno, No. 98-2636 (8th Cir.) (argument scheduled Jar. 13, 1998);

Jurado-Gutierrez v. Greene, No. 97-1437 (10th Cir.); Pak v. Reno,

No. 98-3852 (6th Cir.).

16 Although the First, Second and Ninth Circuits are the

only courts of appeals to decide both the proper forum and the

scope of review available to aliens with criminal convictions,

other circuits have addressed the forum question and have

rejected the government’s position that all review under

AEDPA and IIRIRA’s transitional rules belongs in the courts of

appeals. These courts stated or assumed that habeas corpus

jurisdiction (or another avenue) remains available, and invited

or instructed immigrants to seek review through such an action.

See, e.g., Lerma de Garcia v. INS, 141 F.3d 215, 217 (5th Cir.)

(rejecting government’s position that aliens with criminal

convictions can obtain review in courts of appeals and noting

that “criminal deportees retain some opportunity to apply for

writs of habeas corpus”), reh’g en banc denied, 159 F.3d 1358

(1998); Turkhan v. INS, 123 F.3d 487, 490 (7th Cir. 1997) (rejecting

government's position that aliens with criminal convictions can

seek review in courts of appeals and noting “possibility of a writ

of habeas corpus”).

17

this case; indeed, Yang was decided before IIRIRA took

effect on April 1, 1997, and the alien was before the

Seventh Circuit solely on a petition for review and had

not filed a habeas petition. More importantly, the state-

ments in Yang regarding the availability of Section 2241

have been superseded by subsequent decisions in the

Seventh Circuit. Those decisions have rejected the gov-

ernment’s position that the courts of appeals are the

proper forum to seek review for aliens such as respon-

dent, and in doing so, have specifically retreated from the

dicta in Yang that suggested that Section 2241 is no longer

available. See Turkhan v. INS, 123 F.3d 487, 490 (7th Cir.

1997) (noting “possibility of a writ of habeas corpus

authorized under . . . [Section] 2241”); Chow v. INS, 113

F.3d 659, 668 (7th Cir. 1997) (same); see also Pet. Br. 27

(acknowledging the Seventh Circuit’s subsequent Turkhan

decision). Indeed, the precise jurisdictional question

raised in the instant case remains pending in the Seventh

Circuit. See LaGuerre v. INS, No. 98-1954 and Avelar-Cruz

v. Reno, No. 98-2613 (7th Cir.) (argued and submitted Oct.

29, 1998) (appeals from habeas actions under Section 2241

challenging AEDPA 440(d) on retroactivity and equal pro-

tection grounds).

The government has also argued in the circuit courts

that the Eleventh Circuit’s recent decision in Richardson v.

Reno, No. 98-4320, ___ F.3d __, 1998 WL 850045 (11th Cir.

Dec. 9, 1998), decided after the filing of the government's

petition in this case, creates a split in the circuits because

Richardson states in dicta that IIRIRA repealed Section

2241, and that review of final orders is available only in

the court of appeals and only to the extent guaranteed by

the Suspension Clause. Richardson, however, did not

18

involve an alien seeking judicial review of a final order of

deportation. Indeed, Richardson’s administrative pro-

ceeding remains pending in the BIA (id. at *3), and the

litigation before the Eleventh Circuit concerned only his

right to release from detention on bond pending the

outcome of his removal proceeding. See id. at *2-*4. The

Eleventh Circuit’s discussion regarding the availability of

Section 2241 to review final orders of deportation is there-

fore entirely dicta. The jurisdictional questions in the

instant case regarding review of final orders remain

pending in the Eleventh Circuit. See Gutierrez-Martinez v.

INS, No. 98-8185 and Mayers v. Reno, No. 97-5537 (11th

Cir.) (argued & submitted Oct. 8, 1998).

In short, there is no conflict in the circuit courts. All

three circuits that have ruled in cases squarely presenting

the jurisdictional issue raised by the government's peti-

tion in this case - the First, Second, and Ninth — have

held that a statutory retroactivity and constitutional equal

protection challenge to the Attorney General’s decision in

Soriano is properly litigated in a district court habeas

action under Section 2241.

b. This case does not raise questions of lasting

national importance warranting this Court’s review

because it arises under IIRIRA’s temporary “transitional”

judicial review rules and does not involve the permanent

judicial review provisions of IIRIRA. The government

attempts to cloud the temporary nature of the issue by

arguing that the permanent counterpart to the applicable

transitional provision, 8 U.S.C. 1252(a)(2)(C), “is substan-

tively identical” and that the “courts in the future are

likely to construe” (Pet. Br. 16 n.9) (emphasis added) the

permanent provision in light of their interpretation of the

19

transitional rule. But elsewhere the INS has already

argued that decisions construing the transitional provi-

sion of ITRIRA 309(c)(4)(G) do not govern cases under the

permanent successor provision, 8 U.S.C. 1252(a)(2)(C).!7

The fact that this case (like Goncalves, No. 98-835)

involves only IIRIRA’s transitional provisions strongly

militates in favor of denying certiorari. If the Court were

to find that Section 2241 remains available under IIRIRA’s

transitional rules, the Court’s ruling would not eliminate

the inevitable future litigation that will arise under

IIRIRA’s permanent provisions, unless the government

were to definitively agree that interpretation of IIRIRA’s

transitional provisions conclusively settles the interpreta-

tion of IIRIRA’s permanent provisions. Alternatively, if

the Court were to find that the transitional rules did

repeal 28 U.S.C. 2241 as well as all other statutory grants

of jurisdiction over respondent's non-constitutional retro-

activity claim, then the Court would have to decide his-

toric constitutional questions regarding the reach of

Congress's power to eliminate Article III review for indi-

viduals in executive detention in the context of an interim

jurisdictional provision. If the Court is going to reach

those far-reaching constitutional questions, it should not

do so unless the permanent provisions are found to have

repealed all statutory grants of jurisdiction, including

Section 2241.

7 See, e.g., Brief for Respondent-Appellee [INS] at 17-18

n.10, Esparza-Treto v. Greene, No. 98-1339 (10th Cir.) (filed Nov.

20, 1998) (Magaria-Pizano is “clearly limited to cases under the

transitional rules and does not apply to cases under new Section

242.”).

20

c. The court of appeals held that respondent's

claims were reviewable in a district court habeas corpus

action under 28 U.S.C. 2241. That ruling is correct both as

a matter of statutory interpretation under the clear state-

ment rule of Felker v. Turpin, 518 U.S. 651 (1996), and as a

matter of constitutional right.'®

As the First and Second Circuits have correctly recog-

nized, the 1996 amendments to the INA do not repeal

18 The court below, unlike the First and Second Circuits,

held that Section 2241 had been repealed, but ruled that the 1996

amendments were unconstitutional insofar as they left

respondent without any judicial forum to raise his claims. Pet.

App. 19a; Hose v. INS, 141 F.3d 932, 935 (9th Cir. 1998), reh’g en

banc granted & opinion withdrawn, 1998 Daily Journal D.A.R.

12215 (9th Cir. Dec. 2, 1998). Accordingly, it held that Section

2241 must remain available for aliens, like respondent, who are

subject to a bar on review in the courts of appeals. Pet. App.

20a-21a.

The court ruled n constitutional grounds only because it

believed itself constrained by the Ninth Circuit’s now-withdrawn

opinion in Hose. See Pet. App. 18a. Hose involved an alien whose

removal order was not based on a criminal conviction and who

therefore did not face a bar on direct review in the court of

appeals. Hose, 141 F.3d at 933. In that non-criminal context, Hose

stated, in broad dica, that IIRIRA repealed Section 2241 and

made no exception tor aliens who could not obtain review in the

court of appeals. Id. at 935. Because the court below believed

that it was bound by Hose on the question whether Section 2241

has been repealed, it proceeded tc the constitutional questions

raised by a total preclusion of review. Pet. App. 18a. Hose has

now been withdrawn and the Ninth Circuit has granted

rehearing en banc in that case, with argument scheduled for

March 25, 1999. See Hose v. INS, No. 97-15789, 1998 Daily Journal!

D.A.R. 12215 (9th Cir. Dec. 2, 1998). The Ninth Circuit itself may

therefore now conclude that Section 2241 has not been repealed

(at least for aliens with criminal convictions).

am ot a nef teal 1B

21

Section 2241 because neither AEDPA’s nor IIRIRA’s provi-

sions expressly mention Section 2241, much less contain

the requisite express and unambiguous directive neces-

sary to repeal that venerable statute. Felker, 518 U.S. at

661 (Section 2241 may not be repealed “by implication”);

see also Goncalves, 144 F.3d at 122; Henderson, 157 F.3d at

119 (discussing holding of Jean-Baptiste v. Reno, 144 F.3d

212 (2d Cir. 1998)).19

The clear statement rule of Felker is not a formalistic

requirement. It acts as a “signpost[ ], warning Congress

that specific types of legislation, such as acts that. . . strip

the courts of all jurisdiction, may give rise to constitu-

tional difficulties.” Lee v. Reno, 15 F. Supp. 2d 26, 38

(D.D.C. 1998).

The fact that AEDPA and IIRIRA are not sufficiently

explicit to effectuate a repeal of Section 2241 ‘s under-

scored by the government’s own shifting interpretation of

these transitional statutes. Indeed, in one circuit the INS

stated that it would assume that any review that

remained would occur in a district court habeas corpus

petition. Goncalves, 144 F.3d at 115 (noting that in a prior

AEDPA case “INS conceded . . . some form of habeas

19 The enactment of 8 U.S.C. 1105a in 1961 did not repeal

Section 2241 expressly or by implication, and the amendments

made by AEDPA and IIRIRA do not even mention Section 2241.

New Section 1252(g), on which the government places special

emphasis, also fails the Felker test because it does not expressly

amend or mention Section 2241 even though it was enacted after

this Court’s unanimous and closely-watched Felker opinion

removed any possible doubt that Congress knew of the

necessity for explicit legislation to amend or repeal jurisdiction

under Section 2241. See Goncalves, 144 F.3d at 122.

22

jurisdiction in the district court”). Moreover, INS sought

dismissal in the circuits of the same claim it now insists is

reviewable only in the courts of appeals (respondent’s

equal protection claim), and has argued in the past that

any claim for review under the Suspension Clause had to

await the filing of a habeas corpus petition. See note 11,

supra. Now, the government abandons those earlier views

and argues that IIRIRA’s transitional provisions are clear

and unambiguous and that the Court must therefore

decide the far-reaching constitutional questions raised by

a total preclusion of all Article III review over respon-

dent’s retroactivity claim.

The government contends that the court of appeals

created “needless constitutional doubt” (Pet. Br. 16), and

asserts, without explanation, that Section 309(c)(4)(G)

could have been construed to allow jurisdiction over

constitutional claims directly in the court of appeals by a

petition for review. Pet. Br. 19-20. But even if construing

Section 309(c)(4)(G) to allow review of constitutional

claims were possible, doing so does not avoid the consti-

tutional questions raised by the jurisdictiona! provisions

of AEDPA and IIRIRA’s transitional rules. The constitu-

tional question remains whether judicial review of

respondent’s non-constitutional question of statutory

interpretation (i.e., whether the statute applies retroac-

tively) can be barred. Construing IIRIRA to allow review

of only constitutional claims does nothing to avoid that

constitutional question.

Finally, even if Section 2241 has been repealed, the

court of appeals properly recognized that respondent’s

claims are reviewable as a matter of constitutional right.

23

The constitutional basis for judicial review of respon-

dent’s statutory retroactivity and constitutional equal

protection claims lies in the Suspension Clause, the Sep-

aration of Powers principle of Article III and the Due

Process Clause of the Fifth Amendment. The government

asserts that denying review of a statutory claim govern-

ing discretionary relief raises no constitutional issue. Pet.

Br. 20-21. That is contradicted by decades of consistent

judicial adjudication of such claims in habeas corpus

proceedings, including by this Court. Under the immigra-

tion acts of 1891 and 1917, judicial review was prohibited

except as “required by the Constitution.” Heikkila v. Bar-

ber, 345 U.S. 229, 235 (1953). Throughout that period,

however, the courts adjudicated habeas petitions by resi-

dent aliens alleging that a denial of discretionary relief

was erroneous because it rested on a misconstruction of

the immigration statute or some other non-constitutional

error.

This Court twice reviewed the denial of discretionary

deportation relief for non-constitutional error shortly after

the Court affirmed in Heikkila that review was limited to

the constitutional core. See United States ex rel. Hin-

topoulos v. Shaughnessy, 353 U.S. 72 (1957); United States ex

rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Accardi is

especially significant because the Court exercised habeas

jurisdiction and overturned the denial of discretionary

relief over the specific objection of four dissenting Jus-

tices that habeas corpus jurisdiction did not extend to

24

claims arising from discretionary relief. See Accardi, 347

U.S. at 269 (Jackson, J., dissenting).?°

The government has not pointed to a single habeas

decision of this Court holding that review of a legal error

concerning eligibility for discretionary relief from depor-

tation can be insulated from all Article III review, includ-

ing habeas corpus review. Absent an adequate and

effective alternative avenue of review, the Suspension

Clause requires review of both statutory and constitu-

tional claims challenging eligibility to apply for relief

from deportation. See Swain v. Pressley, 430 U.S. 372, 386

(1977) (Burger, C.J., concurring) (“[T]he traditional Great

Writ was largely a remedy against executive detention”);

Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., con-

curring) (“The historic purpose of the writ has been to

relieve detention by executive authorities without judicial

trial.”).

Judicial review of the legal claim presented here is

also grounded in Article III. See Commodities Future Trad-

ing Comm'n v. Schor, 478 U.S. 833 (1986). Under Article III,

respondent’s legal claim cannot be adjudicated entirely

by the Executive Branch without any access, by appeal or

otherwise, to an Article III court. Likewise, the Due Pro-

cess Clause requires access to a judicial forum to present

respondent’s statutory claim because deportation of a

long-time legal resident implicates fundamental interests

20 The courts of appeals routinely reviewed claims denying

discretionary relief during this period. See, e.g., Mastrapasqua v.

Shaughnessy, 180 F.2d 999 (2d Cir. 1950) (Frank, J.); United States

ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489 (2d Cir. 1950) (L.

Hand, J.).

25

”

“basic to human liberty and happiness.

v. McGrath, 339 U.S. 33, 50 (1950).

Wong Yang Sung

2. If the Court decides that review is warranted,

respondent agrees in part, and disagrees in part, with the

government’s suggestion regarding which case(s) should

be taken to ensure that there are no procedural obstacles

to a complete resolution of the issues. First, respondent

agrees with the government that the instant case is a

better vehicle to address the jurisdictional issue than Gon-

calves. Unlike Goncalves, who filed only a district court

habeas action, Magana-Pizano filed both a district court

habeas corpus action and a court of appeals petition for

direct review. As the government notes, Magavia-Pizano is

therefore the appropriate vehicle to address the jurisdic-

tional issues because it “would allow this Court to render

a definitive holding regarding the jurisdiction of both the

courts of appeals and the district courts. ...” Pet. Br. 29

(emphasis in original). In that respect, in order to ensure

that the question of the court of appeal’s jurisdiction is

fully before the Court, respondent in this case is filing a

conditional cross-petition seeking certiorari of the Ninth

Circuit’s dismissal of Magafia-Pizano’s petition for

review.?!

21 The government has requested that the Court take both

Goncalves (because only that case presents the merits) and

Magaria-Pizano (because it presents the jurisdictional issues in

the most comprehensive manner). Pet. Br. 28-29. Alternatively,

the government suggests that if the Court takes only one case, it

should take Goncalves, because Magafia-Pizano does not present

the merits issue. However, the government would presumably

agree with respondent that if the Court grants certiorari on only

the jurisdictional issue, it should take Magafia-Pizano, and need

26

Second, respondent disagrees with the government

that Goncalves presents an appropriate vehicle to address

the merits issues. The government’s own reasoning shows

that it would make little sense for the Court to grant

certiorari in Goncalves in order to address the retroactivity

of Section 440(d). Goncalves will allow the Court to reach

the merits issue only if the Court concludes that jurisdic-

tion is proper in a district court habeas action. See Pet. Br. 29

(review of Goncalves will “preserv[e] the Court’s ability to

resolve [the merits issue] if it concludes that the district

court in Goncalves” had jurisdiction) (emphasis added).

But, if the Court were to conclude that jurisdiction over

the retroactivity claim lies in the courts of appeals, then

the merits issue will not be presented because Goncalves

filed only a district court habeas action. Accordingly, the

retroactivity issue should be considered, if at all, after the

Court has determined whether, and where, jurisdiction is

proper, or in a case where the alien filed both a habeas

corpus action and a petition for direct circuit court

review.

not also take Goncalves, since Goncalves adds nothing to Magafia-

Pizano on the jurisdictional issue.

27

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Lucas GUTTENTAG

(Counsel of Record)

Lee GELERNT

KATHRYN PALAMOUNTAIN

JAYASHRI SRIKANTIAH

AMERICAN Crvit LIBERTIES

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