# Opposition Brief — LaGuerre v. Reno

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1153

## Text

|

Euprema Court, U.S,
FILDED

— ea

)

VAN 11 2009

No. 99-418 | OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

GARY LAGUERRE AND JOSE MARTIN AVELAR-CRUZ,
PETITIONERS

Vv.

JANET RENO, ATTORNEY GENERAL, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN
Solicitor General
Counsel of Record

DAVID W. OGDEN
Acting Assistant Attorney
General
DONALD E. KEENER
DAVID M. MCCONNELL
ALISON R. DRUCKER
PAPU SANDHU
Attorneys
Department of Justice
Washington, DC 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district courts’ authority to entertain
challenges to the merits of final orders of deportation on
petitions for a writ of habeas corpus was divested by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-182, 110 Stat. 1214, including
Sections 401(e) and 440(a) of AEDPA (110 Stat. 1268, 1277),
which repealed the Immigration and Nationality Act’s for-
mer provision for habeas corpus in 8 U.S.C. 1105a(a)(10)
(1994), and replaced it with a provision precluding judicial
review of deportation orders entered against aliens con-
victed of certain criminal offenses.

2. Whether the Attorney General permissibly concluded
that Section 440(d) of AEDPA (110 Stat. 1277), which made
aliens convicted of certain criminal offenses ineligible for dis-
cretionary relief from deportation under 8 U.S.C. 1182(c)
(1994), should apply in the cases of aliens who had already
filed applications for relief under Section 1182(c) as of the
date of AEDPA’s enactment.

3. Whether 8 U.S.C. 1182(c) (1994), as amended by Sec-
tion 440(d) of AEDPA, violates constitutional principles of
equal protection because it precludes discretionary relief
only for aliens convicted of certain offenses who are placed in
deportation proceedings in the United States, and not also
aliens convicted of similar crimes who are placed in exclusion
proceedings when returning from a trip abroad.

(I)

TABLE OF CONTENTS

Page
Opinions below 1
Jurisdiction
Statement 2
Argument 13
Conclusion 30
TABLE OF AUTHORITIES
Cases:
Almon v. Reno, 192 F.3d 28 (1st Cir. 1999) .....cccscccssss. 28, 29
Ashby v. INS, 961 F.2d 555 (5th Cir. 1992) 3
Berehe v. INS, 114 F.3d 159 (10th Cir. 1997) .......ccccccscsose. 21
Block v. Community Nutrition Inst., 467 U.S. 340
(1984) 23
Bowrin v. INS, 194 F.3d 483 (4th Cir. 1999) ........e.cccscceeeee 19
Carlson v. Landon, 342 U.S. 524 (1952) 23
Chow v. INS, 113 F.3d 659 (7th Cir. 1997) .......cceccesscese. 16, 17
Chow v. Reno, 193 F.3d 892 (7th Cir. 1999) ........ce.ce.00-. 16, 18
Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir.
1997) 21
De Osorio v. INS, 10 F.3d 1084 (4th Cir. 1998) ................ 26
DeSousa v. Reno, 190 F.3d 175 (8d Cir. 1999) .............. 25, 28
FEC v. NRA Political Victory Fund, 513 U.S. 88
(1994) 24
Fiallo v. Bell, 430 U.S. 787 (1977) 28
Francis v. INS, 582 F.2d 268 (2d Cir. 1976) ....ccccccsccesscesee 3, 29
Fuentes-Campos, In re, Interim Dec. 3818 (May 14,
1997) 7
Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998),
cert. denied, 119 S. Ct. 1140 (1999) 18-19, 24
Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1998) .................. 3
Gonzalez-Camarillo, In re, Interim Dec. 3320 (June
19, 1997) 7
Hall v. INS, 167 F.3d 852 (4th Cir. 1999) 21

(IID)

IV

Cases—Continued: Page

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998),
cert. denied, sub nom. Reno v. Navas, 1198S. Ct. 1141

(1999) 19, 22, 24
INS v. Yeuh-Shaio Yang, 519 U.S. 26 (1996) .......c..ccccse0 22
Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th

Cir. 1999) 19, 25, 26, 28
Landgraf v. USI Film Products, 511 U.S. 244 (1994) .... 6,

25, 26
Landon v. Plasencia, 459 U.S. 21 (1982) 29
Martin v. Hadix, 119S. Ct. 1998 (1999) ........... 15, 24, 26, 27 |
Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999) ........ 19, 24-25 |
McDonald v. Bd. of Election Comm’rs, 394 U.S. 802

(1969) 29
Musto v. Perryman, 193 F.3d 888 (7th Cir. 1999) ....... 16, 18
Okoro v. INS, 125 F.3d 920 (5th Cir. 1997) 21
Pak v. Reno, 196 F.3d 666 (6th Cir. 1999) 19
Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471 (1999) 14, 26
Reno v. Goncalves, 119 S. Ct. 1140 (1999) 14
Reno v. Navas, 1198S. Ct. 1141 (1999) 14, 19, 22
Requena-Rodriquez v. Pasquarell, 190 F.3d 299 (5th

Cir. 1999) 19, 25, 26, 28, 29
Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999),

petition for cert. pending, No. 99-887 (Nov. 23, 1999) .... 29
Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir.

1995) 26
Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999) ............. 19, 24
Shah v. Reno, 184 F.3d 719 (8th Cir. 1999) .0.........cseseee 19, 24
Silva, In re, 161. & N. Dec. 26 (BIA 1976) 3
Singh v. Reno, 182 F.3d 504 (7th Cir. 1999) 17
Soriano, In re, Interim Dec. No. 3289 (June 27,

1996) 6
Swain v. Pressley, 430 U.S. 372 (1977) 22
Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981) .......... 3

Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997) ........ccssesse0 16

Cases—Continued: Page
Turkhan v. Perryman, 188 F.3d 814 (7th Cir.

1999) 16, 17, 18
United States v. Estrada-Torres, 179 F.3d 776

(9th Cir. 1999) 28
United States ex rel. Accardi v. Shaughnessy, 347 U.S.

260 (1954) 23
United States ex rel. Hintopoulos v. Shaughnessy,

353 U.S. 72 (1957) 23
Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999) .0..........00.. 24
Webster v. Doe, 486 U.S. 592 (1988) 21
Weinberger v. Hynson, Westcott & Dunning, Inc.,

412 U.S. 609 (1973) : 23
Wisniewski v. United States, 353 U.S. 901 (1957) ........... 17
Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) 21

Constitution, statutes and regulation:
U.S. Const. Art. I, § 9, Cl. 2 (Suspension of Habeas

Corpus Clause) 8, 9, 10, 22
Art. III 23
Antiterrorism and Effective Death Peanlty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 2
§ 401(e), 110 Stat. 1268 oc ececseees 4, 10, 13, 14, 15, 19, 20
§ 440(a), 110 Stat. 1276 passim.
§ 440(a), 110 Stat. 1276-1277 4
§ 440(d), 110 Stat. 1277 passim

Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Pub. L. No. 104-208, Tit. III, Div. C,
110 Stat. 3009-546 .... 2

§ 304(b), 110 Stat. 3009-597 4
§ 309(a), 110 Stat. 3009-625 4
4
5
5

§ 309(c)(1), 110 Stat. 3009-625

§ 309(c)(2), 110 Stat. 3009-625

§ 309(c)(4)(G), 110 Stat. 3009-626
Immigration and Nationality Act, 8 U.S.C. 1101 et seq.:

8 U.S.C. 1101(a)(43)(B) (1994 & Supp. IV 1998) .........000 7

8 U.S.C. 1105a (1994) 4,5

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

3
8 U.S.C. 1105a(a)(10) (1994) ......ccssssssssees 3, 4, 5, 10, 11, 19, 20

VI

8 U.S.C. 1182(c) (1994) passim
8 USC. 12251) (Supp. [V 1998) 4
8 U.S.C. 1229b (Supp. IV 1998) 4
8 U.S.C. 1251(a)(2)(A iii) (1994) 3
8 U.S.C. 1251(a(2)(B)(i) (1994) 3,7
8 U.S.C. 1251(a)(2)(iii) (1994) 7
8 U.S.C. 1252 (Supp. IV 1998) 4,19
8 U.S.C. 1252(a)(1) (Supp. IV 1998) 5
8 U.S.C. 1252(a(2)(C) (Supp. IV 1998) 5,19
8 U.S.C. 1252(b)(9) (Supp. IV 1998) 5,19
8 U.S.C. 1252(e)(1) (Supp. IV 1998) 4
8 U.S.C. 1252(g) (Supp. IV 1998) 14
8 U.S.C. 1255a (1994 & Supp. IV 1998) 8

Prison Litigation Reform Act of 1995, Pub. L.

No. 104-134, 110 Stat. 1321-66 (42 U.S.C. 1997e) ............. 26

§ 803, 110 Stat. 1321-70 26

28 U.S.C. 2241 8, 9, 11, 12, 13, 18, 19, 20, 23

8 C.F.R. 3.1(h) 6
Miscellaneous:

H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1
(1996) 29

In the Supreme Court of the United States

No. 99-418

GARY LAGUERRE AND JOSE MARTIN AVELAR-CRUZ,
PETITIONERS

Vv.

JANET RENO, ATTORNEY GENERAL, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-13a) is
reported at 164 F.3d 1035. The memorandum opinion and
order of the district court denying habeas corpus to peti-
tioner LaGuerre (Pet. App. 7la-103a) is unreported. The
memorandum opinion and order of the district court
granting habeas corpus to petitioner Avelar-Cruz (Pet. App.
14a-47a) is reported at 6 F. Supp. 2d 744. The decisions and
orders of the Board of Immigration Appeals (Pet. App. 48a-
49a, 104a-105a) and the immigration judge (Pet. App. 50a-
59a, 106a-112a) with respect to both petitioners are un-
reported.

(1)

JURISDICTION

The judgment of the court of appeals was entered on
December 22, 1998. Pet. App. 115a-116a. A petition for re-
hearing was denied on April 9, 1999. Pet. App. 118a-114a.
On June 28, 1999, Justice Stevens extended the time for
filing a petition for a writ of certiorari to and including
September 6, 1999, and the petition was filed on September
7, 1999 (the day after Labor Day). The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1996, Congress enacted several major changes to
the Nation’s immigration laws. Those changes were de-
signed in large part to reduce the opportunities for criminal
aliens to obtain administrative relief from deportation, and
to facilitate their removal from the United States by re-
stricting and streamlining the process of judicial review of
their deportation orders. Two enactments are pertinent to
this case: the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (en-
acted Apr. 24, 1996), and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, Div. C, 110 Stat. 3009-546 (enacted Sept. 30, 1996).

a. Before the enactment of AEDPA, an alien lawfully
admitted for permanent residence who was subject to depor-
tation because of a criminal conviction could apply to the
Attorney General for discretionary relief from deportation.
To be eligible for such relief, the alien had to show that he
had a lawful unrelinquished domicile in this country for
seven years, and that, if his conviction was for an “aggra-
vated felony,” as defined in the Immigration and Nationality
Act (INA), he had not served a term of imprisonment for
that conviction of five years or longer. See 8 U.S.C. 1182(c)

3

(1994) (repealed 1996).' If the Attorney General, in the
exercise of her discretion under Section 1182(c), denied relief
from deportation, then the alien could challenge that denial
by filing a petition for review of his final deportation order in
the court of appeals. See 8 U.S.C. 1105a(a) (1994) (repealed
1996) (incorporating 28 U.S.C. 2341-2351). Under certain cir-
cumstances an alien in custody pursuant to an order of de-
portation could seek judicial review thereof by filing a peti-
tion for a writ of habeas corpus in district court, pursuant to
8 U.S.C. 1105a(a)(10) (1994) (repealed 1996).

In 1996, Congress twice restricted both the substantive
eligibility of criminal aliens for discretionary relief from
deportation and the availability of judicial review of criminal
aliens’ deportation orders. First, on April 24, 1996, Congress
enacted AEDPA into law. As to substantive eligibility for
relief, Section 440(d) of AEDPA, 110 Stat. 1277, amended
8 U.S.C. 1182(c) to make certain classes of criminal aliens
categorically ineligible for discretionary relief from deporta-
tion under Section 1182(c)—including aliens who were de-
portable because they had been convicted of aggravated
felonies or of controlled substance offenses. See 8 U.S.C.
1251(a)(2)(A)(iii) and (B)(i) (1994). As to judicial review,
Section 401(e) of AEDPA—in a provision entitled “Elimina-
tion of Custody Review by Habeas Corpus”—repealed the
previous version of 8 U.S.C. 1105a(a)(10) (1994), which had

1 Although Section 1182(c) by its terms applied only to aliens who had
temporarily proceeded abroad and were returning to their domicile in the
United States, it had been interpreted, in response to the Second Circuit’s
decision in Francis v. INS, 582 F.2d 268 (1976), also to permit the Attor-
ney General to waive the grounds of deportation of lawfully admitted per-
manent resident aliens who were present in the United States and in
deportation proceedings. See In re Silva, 16 I. & N. Dec. 26 (B.I.A. 1976);
Gonzalez v. INS, 996 F.2d 804, 806 (6th Cir. 1993); Ashby v. INS, 961 F.2d
555, 557 & n.2 (6th Cir. 1992); Tapia-Acuna v. INS, 640 F.2d 228 (9th Cir.
1981).

4

specifically permitted aliens in custody pursuant to an order
of deportation to seek habeas corpus relief in district court.
110 Stat. 1268. Section 440(a) of AEDPA, 110 Stat. 1276-
1277, replaced that habeas corpus provision with a new
8 U.S.C. 1105a(a)(10), which provided that any final order of
deportation against an alien who was deportable for having
committed certain criminal offenses “shall not be subject to
review by any court.” 110 Stat. 1277.

On September 30, 1996, Congress enacted IIRIRA, which
comprehensively amended the INA. IIRIRA repealed
8 U.S.C. 1182(c) on a prospective basis, see IIRIRA § 304(b),
110 Stat. 3009-597, and replaced it with a new form of
discretionary relief known as “cancellation of removal,” see 8
U.S.C. 1229b (Supp. IV 1998). The cancellation of removal
provisions, however, were made applicable only to aliens
who are placed in removal proceedings on or after April i,
1997, and therefore do not govern petitioners’ cases. See
ITRIRA § 309(a) and (c)(1), 110 Stat. 3009-625. For cases
commenced prior to April 1, 1997, including petitioners’
cases, IIRIRA retained the prior 8 U.S.C. 1182(e)—including
the amendment made by Section 440(d) of AEDPA that
made certain classes of criminal aliens ineligible for relief
under Section 1182(c).

ITRIRA also replaced the INA’s judicial review provisions
in 8 U.S.C. 1105a (1994) with a new 8 U.S.C. 1252 (Supp. IV
1998), again for cases in which the administrative proceed-
ings were commenced on or after April 1, 1997. See IIRIRA
§ 309(c)(1), 110 Stat. 3009-625.2 Cases in which the admin-

2 The new Section 1252 provides for judicial review of all final removal
orders in the courts of appeals, see 8 U.S.C. 1252(a)(1) (Supp. IV 1998) (in-
corporating 28 U.S.C. 2341-2351), with a limited exception for aliens sub-
ject to removal without a hearing under 8 U.S.C. 1225(b)(1) (Supp. IV
1998), for whom limited review by means of habeas corpus is available, see
8 U.S.C. 1252(a)(1) and (e)(2) (Supp. IV 1998). Section 1252 also carries
forward the preclusion of review in former Section 1105a(a)(10) (as

istrative proceedings were commenced prior to April 1, 1997,
however, continue to be governed by 8 U.S.C. 1105a, as
amended by AEDPA. See IIRIRA § 309(c)(2), 110 Stat.
3009-625. Congress enacted special rules for any such cases
in which the final deportation order was entered on or after
October 31, 1996. One of those special rules, in Section
309(c)(4)(G) of IIRIRA, reinforces the preclusion of judicial
review in amended 8 U.S.C. 1105a(a)(10) by providing that
“there shall be no appeal permitted in the case of an alien
who is inadmissible or deportable by reason of having com-
mitted [specified criminal offenses].” 110 Stat. 3009-626.

b. After the enactment of these changes to the immigra-
tion laws, two questions arose in immigration proceedings
about the scope of Section 440(d) of AEDPA, barring certain
criminal aliens from relief under 8 U.S.C. 1182(c).

First, the question arose as to whether Section 440(d)
applies to aliens who were placed in deportation proceedings
before the enactment of AEDPA. On June 27, 1996, the
Board of Immigration Appeals (BIA) initially decided that
AEDPA § 440(d) does apply to deportation proceedings that
had already been initiated, but that it should not be applied
to aliens who had already filed applications for Section

amended by AEDPA § 440(a)) by providing that “no court shall have
jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed” a crime within several classes
of criminal offenses. 8 U.S.C. 1252(a)(2)(C) (Supp. IV 1998). The new
Section 1252(b)(9) further provides sweepingly that “[jjudicial review of
all questions of law and fact, including interpretation and application of
constitutional and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under
this section”—.e., only in the court of appeals, as provided in Section
1252(a)(1).

6

1182(c) relief before AEDPA’s enactment. In re Soriano,
Int. Dec. No. 3289."

The Attorney General, exercising her authority under 8
C.F.R. 3.1(h), vacated the BIA’s opinion in Soriano and
certified for her decision the question whether AEDPA
§ 440(d) applies to applications filed as of the date of its
enactment. On February 21, 1997, the Attorney General
concluded in Soriano that Section 440(d) applies to all
deportation proceedings pending on (or commenced after)
the date of AEDPA’s enactment, including those proceed-
ings in which aliens had already submitted applications for
Section 1182(c) relief on the date of enactment. Pet. App.
125a-138a. Following the analytical framework set forth by
this Court in Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Attorney General concluded that application of
Section 440(d) to pending deportation cases is not retro-
active because it does not “impair a right, increase a liability,
or impose new duties on criminal aliens. The consequences
of [the alien’s] conduct remain the same before and after the
passage of AEDPA: criminal sanctions and deportation.”
Pet. App. 182a. The Attorney General also concluded that
AEDPA § 440(d) may be understood as “Congress’s with-
drawal of the Attorney General’s authority to grant prospec-
tive relief. Thus, the statute alters both jurisdiction and the
availability of future relief, and should be applied to pending
applications for relief.” Ibid.

Second, the ques*ion arose whether AEDPA § 440(d) bars
the Attorney General from granting Section 1182(c) relief to
criminal aliens who temporarily proceeded abroad, seek

8 Eleven of the 12 members of the BIA concluded that AEDPA
§ 440(d) applies to pending deportation proceedings commenced before
AEDPA was enacted. Those 11 divided only on whether Section 440(d)
applies to aliens who had already applied for relief under 8 U.S.C. 1182(c)
before AEDPA was enacted; six of the 11 concluded that it does not.

7

admission to the United States, and are placed in exclusion
proceedings, as well as to criminal aliens in the United
States who are placed in deportation proceedings. The BIA
concluded in In re Fuentes-Campos, Int. Dec. 3818 (May 14,
1997), and In re Gonzalez-Camarillo, Int. Dec. 3320 (June 19,
1997), that AEDPA § 440(d) bars relief only for criminal
aliens placed in deportation proceedings in the United
States.

2. a. Petitioner LaGuerre is a native and citizen of Haiti
who was lawfully admitted to the United States as a per-
manent resident alien on August 13, 1985. On February 23,
1995, LaGuerre was convicted of delivery of a controlled sub-
stance containing cocaine, and of delivery of a controlled sub-
stance containing cocaine within 1000 feet of a school. Pet.
App. 72a. On December 19, 1995, the Immigration and Natu-
ralization Service (INS) commenced deportation proceedings
against LaGuerre, charging him with deportability based on
his convictions for an aggravated felony (see 8 U.S.C.
1251(a)(2)(iii)(1994))* and a controlled substance offense (see
8 U.S.C. 1251(a)(2)(B)(i) (1994)). Pet. App. 78a.

On April 24, 1996, before LaGuerre had his deportation
hearing, the President signed AEDPA into law. On October
3, 1996, at his deportation hearing, LaGuerre conceded that
he was deportable on the basis of his drug-related convic-
tions, but he applied for relief from deportation under
Section 1182(c). An immigration judge (IJ) found LaGuerre
statutorily ineligible for such relief based on AEDPA
§ 440(d). Pet. App. 109a-112a. LaGuerre appealed to the
BIA, which affirmed on August 1, 1997, based on the Attor-
ney General’s decision in Soriano, supra. See id. at 104a-
105a.

* The INA defines “aggravated felony” to include illicit trafficking in a
controlled substance. 8 U.S.C. 1101(a)(43\B) (1994 & Supp. IV 1998).

b. On November 24, 1997, LaGuerre filed a petition for a
writ of habeas corpus in district court. He alleged that the
district court had jurisdiction under 28 U.S.C. 2241, the gen-
eral federal habeas corpus statute, as well as the Suspension
of Habeas Corpus Clause of the Constitution, Art. I, § 9, Cl.
2. He contended that the Board’s denial of his application for
relief under Section 1182(c) based on AEDPA § 440(d) was
an improper retroactive application of the amendment made
by AEDPA. Pet. App. 71a.

The district court denied the habeas corpus petition. Pet.
App. 71a-102a. The court ruled (id. at 77a-87a) that it had
jurisdiction under 28 U.S.C. 2241. On the merits, however,
the court upheld the Attorney General’s application of
AEDPA § 440(d) to cases pending at its enactment, con-
cluding that such application was not impermissibly retro-
active because Section 440(d) withdrew the Attorney Gen-
eral’s authority to grant discretionary relief after its enact-
ment date. Jd. at 88a-102a. LaGuerre appealed to the Sev-
enth Circuit.

3. a. Petitioner Avelar-Cruz is a native and citizen of
Mexico who entered the United States unlawfully in 1975.
On September 25, 1987, Avelar-Cruz became a lawful tempo-
rary resident of the United States pursuant to the legaliza-
tion provisions of 8 U.S.C. 1255a (1994 & Supp. IV 1998). On
May 10, 1989, he became a lawful permanent resident alien.
Pet. App. 15a.

On September 7, 1998, Avelar-Cruz was convicted of pos-
session of a controlled substance with intent to deliver and
delivery of a controlled substance. As a result of those con-
victions, the INS charged Avelar-Cruz with deportability as
an alien convicted of an aggravated felony and a controlled
substance violation. At a hearing on June 20, 1994, an IJ
found Avelar-Cruz deportable based on his convictions, and
further found him statutorily ineligible for relief under Sec-
tion 1182(c) because he had not satisfied one of the statutory

prerequisites for such relief, viz., seven years’ lawful domi-
cile in the United States. The BIA affirmed the IJ’s decision.
Pet. App. 15a-16a.

On June 27, 1995, the Seventh Circuit reversed the BIA’s
determination that Avelar-Cruz had not accumulated seven
years’ lawful domicile in the United States, and remanded
the case to the BIA. Pet. App. 62a-70a. On February 7,
1996, the BIA remanded the case to an IJ to adjudicate
Avelar-Cruz’s application for relief under Section 1182(c).
Id. at 60a-61a. While the case was pending on remand before
the IJ, the President signed AEDPA into law.

On November 18, 1996, the IJ denied Avelar-Cruz’s re-
quest for Section 1182(c) relief on the ground that AEDPA
§ 440(d) had made him statutorily ineligible for such relief.
Pet. App. 50a-57a. On January 8, 1998, the BIA affirmed the
IJ’s decision, based on Soriano. Id. at 48a-49a.

b. On February 25, 1998, Avelar-Cruz filed a petition for
a writ of habeas corpus in district court. Like LaGuerre, he
invoked the district court’s jurisdiction under 28 U.S.C. 2241
and the Suspension of Habeas Corpus Clause, and argued
that the Attorney General’s decision in Soriano was con-
trary to the presumption against retroactive application of
federal statutes. He also argued that, if AEDPA § 440(d)
were applied to pending cases such as his, then it would
contravene equal-protection principles, because it bars relief
only to aliens who are in the United States and placed in
deportation proceedings and not to aliens returning to the
United States from a temporary trip abroad and facing
potential exclusion from the United States.

On April 27, 1998, the district court granted the habeas
corpus petition. The district court concluded, as it had in
LaGuerre, that it had jurisdiction under 28 U.S.C. 2241 to
review the BIA’s final deportation order (Pet. App. 20a-28a),
and that Section 440(d) of AEDPA is applicable to deporta-
tion cases pending at its enactment (id. at 28a-38a). The

10

court also concluded (id. at 39a-46a), however, that the appli-
cation of AEDPA § 440(d) to Avelar-Cruz’s case violates
equal protection because in its view the distinction between
deportable and excludable criminal aliens, with respect to
the availability of Section 1182(c) relief, lacks a rational
basis. The government appealed to the Seventh Circuit.

4. The court of appeals consolidated the appeals in
LaGuerre and Avelar-Cruz and on December 22, 1998,
issued a decision directing the district court to dismiss the
habeas corpus petitions in both cases. Pet. App. la-18a. The
court concluded that Sections 401(e) and 440(a) of AEDPA
divested the district courts of authority to review the merits
of final deportation orders by habeas corpus, and that the
bar to judicial review enacted by Congress does not create
any constitutional difficulty under the Suspension of Habeas
Corpus Clause. See id. at 4a-10a.

In reviewing the statutory history of judicial review of
deportation orders, the court observed that, although before
1961 such orders were reviewable by habeas corpus in the
district courts, in 1961 “Congress made review of such
orders by the courts of appeals, without preliminary re-
course to the district courts, the exclusive method of judicial
review.” Pet. App. 3a. Although Congress in 1961 expressly
preserved “[t]he right of habeas corpus” in a provision of the
INA itself, see ibid. (discussing 8 U.S.C. 1105a(a)(10) (1994)),
that provision “was intended to be limited to situations in
which the alien was unable to obtain judicial review under
the new statutory procedure” enacted in 1961, id. at 4a. Fur-
ther, that provision in the INA “preserving a limited right to
apply for habeas corpus” was repealed by Section 401(e) of
AEDPA. Ibid.

The court acknowledged that dicta in its previous deci-
sions construing AEDPA § 440(a)—which amended 8 U.S.C.
1105a(a)(10) to preclude review by any court of deportation
orders entered against aliens convicted of drug offenses and

11

aggravated felonies—had suggested that some review by
habeas corpus might remain available in the district courts,
had noted that Congress had not expressly amended 28
U.S.C. 2241, and had raised potential constitutional concerns
about a suspension of habeas corpus. Pet. App. 4a. The
court concluded in this case, however, that no constitutional
concerns would be raised by precluding district court review
by habeas corpus of petitioners’ claims. The court observed
that there was no question in this case of “the jurisdiction of
the immigration authorities over [petitioners],” for “[tJhere
can be no doubt that [petitioners] are detained pursuant to
valid orders issued by the responsible authorities.” Jd. at 5a.
Further, “[tJhe issue they wish to press—the issue of
whether they are entitled to ask for discretionary relief from
these orders—does not raise doubts about the jurisdiction of
the [INA] over them.” Jd. at 5a-6a. And, the court stressed
(id. at 6a), “we cannot think of any theory under which
Congress would have wanted [AEDPA §] 440(a) to limit only
review in the courts of appeals and leave intact whatever
powers the old [8 U.S.C. 1105a(a)(10) (1994)]—which, re-
member, [AEDPA §] 440(a) repealed—had conferred on dis-
trict courts.” If petitioners were correct that the district
courts retained authority to review deportation orders by
habeas corpus even after enactment of AEDPA, then “Con-
gress accomplished nothing toward its aim of curtailing
judicial review” in cases involving aliens convicted of drug
offenses and aggravated felonies. Jd. at 8a. Therefore, the
court held (ibid.), “for the class of aliens encompassed by
[AEDPA] [S]ection 440(a), judicial review by means of
habeas corpus did not survive enactment of that [S]ection.”
The court also noted, however, that “[i]t does not follow
that judicial review of the class of deportation orders illus-
trated by the orders in these two cases has been totally
extinguished,” for the government acknowledged that, even
after enactment of AEDPA § 440(a), the courts of appeals

12

retained authority to review substantial constitutional chal-
lenges to the INA presented by aliens convicted of the
specified criminal offenses. Pet. App. 8a-9a. The court also
suggested (id. at 10a) that, “if for reasons beyond the alien’s
control he could not have raised his substantial constitutional
issue in [the court of appeals] by seeking review here
directly under [AEDPA §] 440(a), he may be able to proceed
in the district court directly under 28 U.S.C. § 2241,” but
“(t]his we need not decide; such cases will be very rare, and
these two cases are not among them.”

Although the court of appeals thus concluded that it had
no jurisdiction in this case, it also examined the merits of
petitioners’ challenges to their deportation orders, “lest they
feel we’ve tripped them up on a technicality,” Pet. App. 10a,
and found them without substance, id. at 10a-13a. As for
petitioners’ contention that AEDPA § 440(d) should not be
applied to their cases, the court found nothing in the text of
the statute to indicate definitively whether Congress in-
tended Section 440(d) to apply to cases pending at its enact-
ment, noting that some provisions of AEDPA curtailing the
rights of aliens were expressly prospective whereas others
were expressly retroactive. Jd. at 10a-1la. The court then
considered issues of retroactivity more generally, and ob-
served that changes in substantive law are usually not
applied retroactively, whereas statutes “that change merely
procedures” may be applied to pending cases, because
“people are much more likely to rely on substantive than
procedural law.” Id. at 1la. But, the court noted, “[i]t would
border on the absurd to argue that [petitioners] might have
decided not to commit drug crimes, or might have resisted
conviction more vigorously, had they known that if they
were not only imprisoned but also, when their prison term
ended, ordered deported, they could not ask for a discretion-
ary waiver of deportation.” Jd. at 1la-12a.

13

The court also found no merit to Avelar-Cruz’s claim that
Section 1182(c), as amended by AEDPA § 440(d), violates
equal protection because it applies only to aliens placed in
deportation proceedings in the United States and not to
aliens returning from abroad. That distinction is rational,
the court noted, because “it creates an incentive for deport-
able aliens to leave the country—which is after all the goal of
deportation—without their having to he ordered to leave at
the government’s expense. To induce their voluntary depar-
ture, a little carrot is dangled before them, consisting of the
opportunity to seek a waiver should they seek to return to
the country.” Pet. App. 12a.

ARGUMENT

Petitioners renew their contentions that (1) the district
courts have authority under the general federal habeas
corpus statute, 28 U.S.C. 2241, to review their challenges to
the merits of final orders of deportation entered against
them, notwithstanding Sections 401(e) and 440(d) of
AEDPA, which repealed the INA’s provision of habeas cor-
pus authority to the district courts and expressly precluded
judicial review of challenges to deportation orders raised by
aliens convicted of certain criminal offenses; (2) Section
440(d) of AEDPA, enacted by Congress to preclude discre-
tionary relief from deportation under 8 U.S.C. 1182(c) (1994)
for such aliens, does not apply in the cases of aliens against
whom deportation proceedings had been commenced before
AEDPA was enacted; and (8) if Section 440(d) does apply in
such cases, then it violates equal protection because it ap-
plies only to aliens placed in deportation proceedings in the
U.S. and does not apply to aliens returning to the United
States from a trip abroad. :

As petitioners concede (Pet. 17 n.13), the court of appeals’
comments on the merits are dicta, because the court con-
cluded that it did not have jurisdiction in the ease. For that

14

reason alone, the merits issues do not warrant review.
Moreover, petitioners’ challenges are closely related to the
issues that were presented in the government’s certiorari
petitions denied by this Court in Reno v. Goncalves, 119 S.
Ct. 1140 (1999), and Reno v. Navas, 119 S. Ct. 1141 (1999).
The Court’s denial of certiorari in those cases may have
reflected a perception that, in light of the Court’s decision in
Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999) (AADC), those petitions presented only
issues that were relevant to “transitional cases,” i.e., to de-
portation proceedings commenced before April 1, 1997, the
general effective date of IIRIRA, which comprehensively
revised the INA and established an entirely new statutory
framework for removal of aliens from the United States and
judicial review of removal orders.’ Now, almost a year later,

5 In AADC, the Court construed 8 U.S.C. 1252(g) (Supp. IV 1998),
added to the INA by IIRIRA, which precludes the district courts from
entertaining “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.” Although the Court held in AADC that Section 1252(g) did
prevent the district court from taking jurisdiction in that case, it rejected
the construction of Section 1252(g) principally put forth by the govern-
ment, which would have eliminated the district court’s authority to enter-
tain challenges to the merits of final deportation orders. See 525 U.S. at
482-484. Before AADC, the government had relied on Section 1252(g) in
cases like the present one to argue that the district courts had no habeas
corpus authority to review the challenges presented by the aliens, and the
government raised Section 1252(g) in its certiorari petitions in Goncalves
and Navas. The proper construction of Section 1252(g) presented an issue
of ongoing significance, because Section 1252(g) is part of the INA as
comprehensively revised by IIRIRA. In light of AADC, the government
no longer relies on Section 1252(g) in this case, but rather relies on Sec-
tions 401(e) and 440(a) of AEDPA, as well as the general structure of the
INA before enactment of AEDPA and IIRIRA, to contend that the dis-
trict courts lack such authority. Furthermore, in the decision below, the
court of appeals relied on AEDPA §$§ 401(e) and 440(a), and did not rely on

15

the same issues again do not warrant review, because they
do not apply to removal proceedings commenced after April
1, 1997, and therefore are not of continuing importance, and
because most of the courts of appeals have now resolved the
issues presented and the volume of litigation on those issues
has therefore subsided.

Petitioners also argue that, even if this Court does not
grant plenary review, it should vacate the judgment of the
court of appeals and remand the case for further considera-
tion (on jurisdiction) in light of asserted conflicts in the
Seventh Circuit’s own cases and (on the merits) in light of
this Court’s intervening decision in Martin v. Hadiz, 119 S.
Ct. 1998 (1999), concerning retroactivity in another context.
Such a remand would serve no purpose, however, for nothing
in either the court of appeals’ or this Court’s intervening
case law suggests that petitioners would be granted relief on
remand. The petition therefore should be denied.

1. a. Petitioners first argue (Pet. 18-22) that the Court
should vacate the judgment of the court of appeals and re-
mand this case because the court of appeals’ jurisdictional
ruling in this case supposedly conflicts with subsequent cir-
cuit case law. Petitioners point out (Pet. 19-20) that, before
the court of appeals’ decision in this case, the Seventh Cir-
cuit had held that Section 440(a) of AEDPA absolutely
precluded the court of appeals from entertaining any chal-
lenge to a deportation order brought by a criminal alien
covered by Section 440(a), but had suggested that the dis-
trict courts might have authority to exercise habeas corpus
jurisdiction over constitutional challenges to deportation
orders, notwithstanding Sections 401(e) and 440(a) of

Section 1252(g), to reach its jurisdictional ruling. Sections 401(e) and
440(a) of AEDPA, however, did not survive the amendments to the INA
made by IIRIRA, and therefore have no ongoing significance beyond the
transitional cases commenced before IIRIRA’s effective date.

16

AEDPA. See Chow v. INS, 113 F.3d 659, 668-670 (7th Cir.
1997) (Chow DID; Turkhan v. INS, 123 F.3d 487, 490 (7th Cir.
1997) (Turkhan I). Petitioners also observe (Pet. 20-21) that,
after the court of appeals’ decision in this case, that court
allowed the district courts to exercise habeas corpus juris-
diction over challenges to deportation orders in Chow and
Turkhan, where the aliens, following dismissal of their peti-
tions for review, sought habeas relief in reliance on the
Seventh Circuit’s earlier statements that any relief available
on constitutional claims must be by some route other than a
petition for review, such as habeas corpus. See Chow v.
Reno, 193 F.3d 892, 893-894 (7th Cir. 1999) (Chow IJ);
Turkhan v. Perryman, 188 F.3d 814, 823-824 (7th Cr. 1999)
(Turkhan IIT. Petitioners argue that the Seventh Circuit
should have followed the same course in this case, to avoid
unfairness to them for having relied on that court’s earlier
jurisdictional decisions.

Petitioners’ assertion of an intracircuit conflict between
the decision in this case and subsequent decisions of the Sev-
enth Circuit ignores distinctions among the cases’ and in any

6 In both Turkhan II and Chow II, the alien previously had filed a
petition for review, which the Seventh Circuit then dismissed for lack of
jurisdiction. See Turkhan I, 123 F.3d at 490; Chow I, 113 F.3d at 668-670.
The Seventh Circuit therefore concluded in Turkhan II and Chow II that
those cases fell within the exception to the jurisdictional bar to habeas
review recognized by the panel in this case (see Pet. App. 10a) for cases in
which, “for reasons beyond the alien’s control,” he was unable to raise a
substantial constitutional issue directly in the court of appeals. See
Turkhan II, 188 F.3d at 824; Chow II, 193 F.3d at 893-894. Here, by
contrast, petitioners did not previously file a petition for review in that
court (albeit apparently due to the decisions in Chow I and Turkhan J),
and the court of appeals therefore did not dismiss any such petition and
thus itself prevent review “for reasons beyond the alien’s control.” Com-
pare Musto v. Perryman, 193 F.3d 888, 891 (7th Cir. 1999) (ordering
dismissal of habeas petition filed by similarly situated alien). Moreover,
although the Seventh Circuit in Chow I and Turkhan I had left open the

17

event does not warrant review by this Court. See Wis-
niewski v. United States, 353 U.S. 901 (1957). Moreover,
petitioners overlook that the court of appeals did examine
the merits of their claims precisely to avoid any seeming
unfairness that might have arisen from the fact that the
court had previously stated that no claims of any kind could
be raised in the court of appeals by a criminal alien covered
by Section 440(a) of AEDPA. See Pet. App. 10a (“But we
shall add, lest they feel that we’ve tripped them up on a
technicality, that they would not have prevailed even if they
hadn’t dropped the jurisdictional ball.”).

As petitioners concede (Pet. 17 n.13), the court’s com-
ments on their claims were dicta, given the court’s jurisdic-
tional holding. But after the court of appeals issued its
decision in this case, it examined the very same claims again
and squarely rejected them on the merits. In Turkhan II,
which like this case involved a criminal alien who applied for
Section 1182(c) relief before AEDPA was enacted, the court
reaffirmed that “AEDPA § 440(d) applies retroactively to
bar covered criminal aliens from seeking a discretionary
waiver of deportation under” Section 1182(c) (except in one
respect not relevant here), see 188 F.3d at 827, and con-
cluded that the statute’s application to pending cases does

prospect of habeas relief on substantial constitutional claims, see Chow I,
113 F.5d at 668-670; Turkhan I, 123 F.3d at 490, petitioners seek to raise a
non-constitutional claim concerning the temporal reach of Section 440(d) of
AEDPA as well as a constitutional equal protection claim.

In Singh v. Reno, 182 F.3d 504 (7th Cir. 1999), on which petitioners also
rely (Pet. 20-22), the court of appeals in fact ordered dismissal of the
habeas corpus petition, while directly ordering that prior administrative
proceedings be vacated in the “unusual circumstances” of the particular
procedural due process claim in that case. See 182 F.3d at 511. Peti-
tioners raise no such claim here.

18

not violate due process, id. at 827-828.’ The court also
rejected the same equal-protection challenge as that raised
in this case, relying on its decision in this case. See id. at
828-829. The court again rejected the same equal-protection
challenge in Chow II, 193 F.3d at 894. Accordingly, a re-
mand would serve no purpose in this case, because the court
of appeals has definitively rejected the substance of peti-
tioners’ contentions. See, ¢e.g., Musto v. Perryman, 193 F.3d
888, 891 (7th Cir. 1999) (denying relief to similarly situated
alien).

b. Petitioners argue in the alternative (Pet. 22-25) that
the Court should grant plenary review on the question
whether the district courts retain authority under 28 U.S.C.
2241 to review the merits of final deportation orders. We
acknowledge (as we pointed out in our filings in this Court in
Goncalves and Navas) that the Seventh Circuit’s jurisdic-
tional ruling conflicts with decisions of other circuits, which
have held that AEDPA did not divest the district courts of
that authority under Section 2241, at least where the habeas
corpus petition is filed by an alien who is precluded by
AEDPA § 440(a) from raising any challenge to his deporta-
tion order by petition for review in the court of appeals.®

7 Although the court in Turkhan II stated that Section 440(d) applies
“retroactively” to pending deportation proceedings, the better analysis is
that the application of Section 440(d) to such proceedings does not con-
stitute retroaction at all, since it controls the Attorney General’s authority
to grant relief from deportation in the future, i.e., after AEDPA’s enact-
ment. See p. 26, n.13, infra. In any event, the court in Turkhan II arrived
at the same conclusion as that arrived at by the court below in this case,
namely, that Section 440(d) may be applied to deportation proceedings
pending at its enactment without running afoul of either the presumption
against retroactive application of federal civil statutes or constitutional
concerns, and there is no reason to believe the court of appeals would
arrive at a different conclusion should this case be remanded.

8 See Gov’t Reply Br., Navas, at 2-3; Gov’t Reply Br., Goncalves, at 1-
3; see also Goncalves v. Reno, 144 F.3d 110, 116-126 (1st Cir. 1998), cert.

19

The jurisdictional issue presented in this case has only
limited future significance, however, because the INA was
comprehensively revised by IIRIRA, which prospectively
eliminated Section 440(a) of AEDPA (on which the court of
appeals in this case relied) and replaced the INA’s judicial
review provisions with an entirely new framework in 8
U.S.C. 1252 (Supp. IV 1998). Moreover, among the provi-
sions added by IIRIRA is a new 8 U.S.C. 1252(b)(9) (Supp.
IV 1998), which this Court described in AADC as an “unmis-
takable ‘zipper’ clause” (525 U.S. at 488) channeling all
judicial review of removal orders into the courts of appeals.
Aliens may argue, in cases arising under the new removal
provisions of IIRIRA, that the district courts have authority
under Section 2241 to review challenges to removal orders
filed by criminal aliens precluded from seeking review in the
courts of appeals by IIRIRA, see 8 U.S.C. 1252(a)(2)(C)
(Supp. IV 1998). See, e.g., Richardson v. Reno, 180 F.3d
1311 (11th Cir. 1999), petition for cert. pending, No. 99-887.
If that argument is made, then the courts should consider,
not just the express repeal in AEDPA § 401(e) of the district
court’s former habeas corpus authority under 8 U.S.C.
1105a(a)(10) (1994) (repealed 1996), but also the structure of
Section 1252 as a whole, the proper reach of Section

denied, 119 S. Ct. 1140 (1999); Henderson v. INS, 157 F.8d 106, 118-122 (2d
Cir. 1998), cert. denied sub nom. Reno v. Navas, 119 S. Ct. 1141 (1999);
Sandoval v. Reno, 166 F.3d 225, 229-238 (3d Cir. 1999); Bowrin v. INS, 194
F.3d 483, 486-490 (4th Cir. 1999); Requena-Rodriguez v. Pasquarell, 190
F.3d 299, 304-306 (5th Cir. 1999); Pak v. Reno, 196 F.3d 666, 671- 674 (6th
Cir. 1999); Shah v. Reno, 184 F.3d 719, 722-724 (8th Cir. 1999); Magana-
Pizano v. INS, Nos. 97-15678 and 97-70884, 1999 WL 1249708, at *3-*5
(9th Cir. Dec. 27, 1999); Jurado-Gutierrez v. Greene, 190 F.3d 1185, 1142-
1147 (10th Cir. 1999); Mayers v. INS, 175 F.3d 1289, 1296-1301 (11th Cir.
1999) (all holding that Congress did not, in AEDPA, divest district courts
of authority under 28 U.S.C. 2241 to address question on retroactive ap-
plication of AEDPA § 440(d)).

20

1252(a)(2)(C), and the relevance of Section 1252(b)(9), all of
which were added by IIRIRA, and are applicable only to
removal proceedings commenced after April 1, 1997, but not
to this case. Should the courts of appeals reach conflicting
decisions on the continued availability of habeas corpus
review of removal orders after IIRIRA, this Court will have
the opportunity to consider issues about the continuing
availability of habeas corpus under Section 2241 in the con-
text of a proceeding under IIRIRA, which governs all re-
moval proceedings commenced after April 1, 1997.

c. The jurisdictional ruling of the court of appeals is
correct. The court of appeals properly held that Congress
precluded the district courts from reviewing the merits of
deportation orders by habeas corpus. The court correctly
pointed out that, although before 1961 Congress authorized
the district courts to entertain challenges to deportation
orders by habeas corpus, “[{iJn 1961 Congress made review of
such orders by the courts of appeals, without preliminary
recourse to the district courts, the exclusive method of judi-
cial review.” Pet. App. 3a. The Seventh Circuit reasoned
that, although Congress in 1961 preserved a limited author-
ity for the district courts to grant habeas corpus, see 8
U.S.C. 1105a(a)(10) (1994) (repealed 1996), that provision
“was intended to be limited to situations in which the alien
was unable to obtain judicial review under the new statutory
procedure.” Pet. App. 4a.

In AEDPA § 401(e)—entitled “Elimination of Custody
Review By Habeas Corpus”—Congress repealed 8 U.S.C.
1105a(a)(10) (1994), which had previously preserved some of
the district court’s habeas corpus authority. Section 440(a)
of AEDPA also provided that final deportation orders en-
tered against certain criminal aliens “shall not be subject to
review by any court.” Section 401(e) thus eliminated what-
ever authority to issue habeas corpus the district courts had
previously retained after 1961 and therefore shifted all

21

review of deportation orders to the courts of appeals; Section
440(a) withdrew the availability of review in the courts of
appeals at the behest of criminal aliens, except insofar as the
withdrawal of such review would create serious constitu-
tional questions.’

As the court of appeals observed, petitioners’ jurisdic-
tional theory—which would open the district courts to
review under habeas corpus only for criminal aliens, and not
for all other aliens, who must proceed through the INA’s
ordinary exclusive review procedure in the courts of appeals
—would make judicial review for criminal aliens more pro-
tracted than for noncriminal aliens, a result demonstrably at
odds with Congress’s intent to streamline the process of
removing criminal aliens from the country. See Pet. App. 8a

9 For that reason, we have argued that AEDPA § 440(a) should not be
read to preclude the courts of appeals from entertaining constitutional
challenges to the INA itself made by criminal aliens. Although Section
440(a) states broadly that “[{a)]ny” final order of deportation entered
against certain criminal aliens “shall not be subject to review by any
court,” the statute does not express clearly and convincingly an intent by
Congress to preclude judicial review of constitutional claims. This Court
has stated on several occasions that such preclusion of review of consti-
tutional issues would raise serious constitutional questions. See Webster
v. Doe, 486 U.S. 592, 603 (1988). We therefore read AEDPA § 440(a) to
permit the courts of appeals to entertain petitioners’ equal-protection
challenge to AEDPA § 440(d). As we explain below (pp. 28-29, infra),
however, that challenge fails on the merits in any event.

We have also argued that the courts of appeals retain jurisdiction to re-
view threshold issues of alienage and deportability to determine whether
the preclusion of review in AEDPA § 440(a) in fact applies to a petition for
review at hand. The courts of appeals have for the most part agreed. See
Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (reversing BIA deportability
finding for criminal alien); Hall v. INS, 167 F.8d 852 (4th Cir. 1999)
(reviewing deportability issue to determine court’s jurisdiction in case of
criminal alien); Okoro v. INS, 125 F.3d 920, 925 (5th Cir. 1997); Coronado-
Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997); but see Berehe v. INS, 114
F.3d 159, 161 (10th Cir. 1997). That issue is not presented here.

22

(noting that, if petitioners’ submission were accepted, then
“Congress accomplished nothing toward its aim of curtailing
judicial review [for criminal aliens], * * * and [mJaybe less
than nothing”); Henderson v. INS, 157 F.3d 106, 119 n.9 (2d
Cir. 1998) (acknowledging that it would be more consistent
with congressional intent to streamline review for criminal
aliens’ claims to proceed in the court of appeals than district
court), cert. denied sub nom. Reno v. Navas, 119 S. Ct. 1141
(1999).

Congress’s action in AEDPA to curtail judicial review of
deportation orders for criminal aliens raises no substantial
constitutional questions. First, whatever review of deporta-
tion orders is required by the Suspension of Habeas Corpus
Clause is satisfied by the opportunity for direct review in the
courts of appeals as prescribed in the INA. There can be “no
question of Congress’ power to prescribe a habeas corpus
substitute,” Pet. App. 10a; see Swain v. Pressley, 430 U.S.
372, 381 (1977), and Congress has provided such a substitute
by placing review directly in the courts of appeals. As ex-
plained above (p. 21, n.9, supra), Section 440(a) of AEDPA
does not preclude the courts of appeals from reviewing
constitutional challenges to the INA itself by criminal aliens.
Second, Congress is not required by the Suspension of
Habeas Corpus Clause to provide for judicial review of
purely statutory questions arising out of the application of
the immigration laws, at least when such statutory questions
concern solely the alien’s eligibility for discretionary relief
from deportation, and the alien’s deportability is without
dispute. This Court has described the grant of discretionary
immigration relief as an “act of grace” akin to “a judge’s
power to suspend the execution of a sentence or the Presi-
dent’s [power] to pardon a convict.” INS v. Yueh-Shaio
Yang, 519 U.S. 26, 29 (1996). As the court of appeals ob-
served, it is doubtful the Suspension of Habeas Corpus
Clause “requires preserving habeas corpus as a vehicle for

23

challenging final orders of deportation in cases in which the
jurisdiction of the immigration authorities over the alien is
not in question.” Pet. App. 5a.° Third, Congress’s pre-
clusion of review of petitioners’ nonconstitutional claims
raises no serious questions under Article III, for the federal
courts have jurisdiction to review statutory questions only
to the extent that Congress assigns it to them, see Block v.
Community Nutrition Inst., 467 U.S. 340 (1984), and “[t]he
power to expel aliens, being essentially a power of the
political branches of the government, * * * may be exer-
cised entirely through executive officers, with such opportu-
nity for judicial review of their action as Congress may see
fit to authorize or permit,” Carlson v. Landon, 342 U.S. 524,
537 (1952) (internal quotation marks omitted); see ibid. (“No
judicial review [of deportation orders] is guaranteed by the
Constitution.”).”

10 The court of appeals also suggested that petitioners’ challenges to
the Attorney General’s construction of AEDPA § 440(d) in Soriano might
be reviewable in the courts of appeals by review petition, notwithstanding
AEDPA § 440(a). Pet. App. 12a. We submit that Section 440(a) bars re-
view of that claim in any court, and that such preclusion does not present
constitutional concerns. If that claim is reviewable by the courts, how-
ever, it would be far more consistent with Congress’s overall intent to
streamline judicial review of criminal aliens’ deportation orders to
construe AEDPA § 440(a) to permit review of that claim in the courts of
appeals, rather than to find that review remains available in the district
courts under 28 U.S.C. 2241. Cf. Weinberger v. Hynson, Westcott &
Dunning, Inc., 412 U.S. 609, 631-632 (1973) (“It is well established that our
task in interpreting separate provisions of a single Act is to give the Act
the most harmonious, comprehensive meaning possible in light of the
legislative policy and purpose.”) (internal quotation marks omitted).

1! Petitioners observe (Pet. 25) that this Court has considered, in
habeas corpus proceedings, aliens’ claims that they were eligible to be
considered for discretionary relief from deportation. In neither United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), nor United
States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957), however,
did the Court’s opinion address the question of habeas jurisdiction over

24

2. With regard to the temporal scope of Section 440(d) of
AEDPA, petitioners urge the Court to remand the case to
the court of appeals in light of Martin v. Hadiz, 119 S. Ct.
1998 (1999), or to grant plenary review. Neither course of
action is warranted.

a. First, a remand to the court of appeals (or plenary
review in this Court) would not be appropriate because, as
we have explained, the court of appeals correctly ruled that
it lacked jurisdiction over petitioners’ claims. The court of
appeals therefore has no power to entertain petitioners’ chal-
lenges to their deportation orders and could not reexamine
the merits of those claims based on Hadix. Because of that
jurisdictional barrier (and because the court of appeals’
comments on the merits of petitioners’ claims are therefore
dicta), this case also is not an appropriate vehicle for this
Court to give plenary consideration to the merits of peti-
tioners’ claims.

Second, petitioners’ challenge to the Attorney General’s
construction in Soriano of the amendment to Section 1182(c)
made by AEDPA § 440(d) is of limited prospective signifi-
cance. Congress has repealed Section 1182(c) for removal
proceedings commenced after April 1, 1997, and replaced it
with a new form of discretionary relief, known as cancella-
tion of removal. See pp. 4-5, supra. Thus, while there is a
conflict in the circuits on the temporal scope of AEDPA
§ 440(d),” the question presented here has now been settled

deportation orders, and it did not suggest that such jurisdiction was
required by the Constitution itself. This Court has never considered itself
bound by swb silentio assumptions of jurisdiction in the manner that peti-
tioners suggest. See FEC v. NRA Political Victory Fund, 513 USS. 88, 97
(1994).

12 Compare the decision below with Goncalves, 144 F.3d at 126-133,
Wallace v. Reno, 194 F.3d 279, 285-288 (1st Cir. 1999), Henderson, 157
F.3d at 129-130, Sandoval, 166 F.3d at 241, Pak, 196 F.3d at 675-676, Shah,
184 F.3d at 724, Magana-Pizano, 1999 WL 1249703, at *6-*8, and Mayers,

25

in most circuits and the issue is inherently restricted to
“transitional cases.” The Court denied review of the same
issue last Term in Goncalves and Navas, and there is no
basis in this case for a different result. The Attorney
General also presently has under consideration a number of
proposals for an administrative response to the court of ap-
peals decisions that have rejected her construction of
AEDPA § 440(d) in Soriano.

Third, the court of appeals’ decision raises no broad issues
of retroactivity warranting this Court’s review. The court of
appeals applied the two-part test articulated by this Court in
Landgraf v. USI Film Products, 511 U.S. 244 (1994), for
determining whether a new statute applies to pre-enactment
conduct. The court first considered whether Congress had
specifically addressed the question of the temporal applica-
tion of AEDPA § 440(d) and determined that there is no
clear indication of congressional intent as to its temporal
scope. See Pet. App. 10a-11a (noting that several provisions
of Title IV of AEDPA were expressly made prospective, and
two were expressly made applicable to pending cases, but
Congress expressly indicated neither as to Section 440(d)).
The court next examined whether application of Section
440(d) to petitioners’ cases would contravene the traditional
presumption against retroactivity, and concluded that it
would not, because, the court observed, while statutes that
impose new primary duties are generally not applied to
pending cases, new laws that change procedures usually are
so applied. See id. at 12a. The court further noted that such
procedural changes are usually applied “retroactively” be-

175 F.3d at 1301-1304. Compare also DeSousa v. Reno, 190 F.3d 175, 185-
187 (3d Cir. 1999) (holding that AEDPA § 440(d) does apply to aliens
convicted before AEDPA but placed in deportation proceedings after
enactment), Requena- Rodriguez, 190 F.3d at 307-308 (same), and Jurado-
Gutierrez, 190 F.3d at 1152-1155 (same), with Magana-Pizano, 1999 WL
1249703, at *8-*9 (discussed at p. 27, n.14, infra).

26

cause they do not disturb “reasonable expectations,” which
underlie the presumption against retroactivity. Ibid. In this
case, the court stated, it would “border on the absurd” to
suggest that AEDPA § 440(d) disturbed any reasonable
expectation in the availability of relief from deportation that
petitioners might have had when they decided to commit
their crimes or resist conviction at their criminal trials. Id.
at 1la-12a; accord Requena-Rodriguez v. Pasquarell, 190
F.3d 299, 308 (5th Cir. 1999); Jurado-Gutierrez v. Greene, 190
F.3d 1135, 1150-1151 (10th Cir. 1999).

b. This Court’s decision in Hadix provides no basis for a
remand. Hadix involved the temporal reach of a new pro-
vision limiting attorney’s fees for prisoner lawsuits, Section
803 of the Prison Litigation Reform Act of 1995 (PLRA), 110
Stat. 1321-66, 42 U.S.C. 1997e. Stressing that retroactivity
implicates issues of “fair notice, reasonable reliance, and
settled expectations,” 119 S. Ct. at 2006, the Court concluded

13 The court of appeals did not elaborate on its point that the applica-
tion of AEDPA § 440(d) to pending cases may be understood as a “pro-
cedural” change. As the Attorney General observed in her decision in
Soriano, however, the application of AEDPA § 440(d) to pending deporta-
tion proceedings is not retroactive at all because Section 440(d) governs
the availability of prospective relief from deportation, which itself is in-
tended to remedy a continuing violation of federal immigration law (the
alien’s unlawful presence in the United States). See p. 6, supra; see also
Landgraf, 511 U.S. at 273 (“When the intervening statute authorizes or
affects the propriety of prospective relief, application of the new provision
is not retroactive.”). This Court confirmed that point in AADC, where it
emphasized that “in all cases, deportation is necessary in order to bring to
an end an ongoing violation of United States law.” 525 U.S. at 491.
Deportation and the Attorney General’s authority to grant relief from
deportation are therefore matters inherently prospective in nature. See
DeSousa, 190 F.3d at 187 (recognizing that legislative changes affecting
the Attorney General’s discretionary authority to grant relief from depor-
tation in the future have only prospective impact); Samaniego-Meraz v.
INS, 58 F.3d 254, 256 (9th Cir. 1995); De Osorio v. INS, 10 F.3d 1084, 1042
(4th Cir. 1993).

27

that application of Section 803 to govern work performed in
pending cases after the passage of the new law creates “no
retroactivity problem” because that application controlled
only post-enactment conduct by attorneys, id. at 2007. Simi-
larly, as the court of appeals noted in this case (p. 12, supra),
application of Section 440(d) to pending proceedings does not
create any problem involving fair notice, reasonable reliance,
or settled expectations on the part of aliens like petitioners
who committed their crimes before AEDPA was enacted.
The court of appeals’ decision is therefore consistent with
the principles governing retroactivity articulated by this
Court in Hadix."

8. Petitioners’ equal-protection claim also does not war-
rant further review. As is true of the issues of habeas corpus
jurisdiction and the temporal scope of AEDPA § 440(d)
discussed above, the equal-protection issue is of diminishing
importance because Congress has repealed Section 1182(c),
and so the claim by its nature applies only to transitional
cases. Second, there is no conflict among the circuits on the

‘In its recent decision in Magana-Pizano, the Ninth Circuit agreed
with the government that AEDPA § 440(d) does apply generally to aliens
placed in deportation proceedings after AEDPA was enacted, if the alien
was convicted before its enactment date. See 1999 WL 1249708, at *9.
The court also expressed concern, however, about aliens who might have
pled guilty or nolo contendere prior to the enactment of AEDPA, based on
representations about the availability of Section 1182(c) relief. The court
therefore left open the possibility of habeas relief upon a specific factual
showing by an alien that he had entered a plea of guilty or nolo contendere
in reliance on the availability of relief under Section 1182(c). The Ninth
Circuit’s belief that aliens (and only those aliens) who make such a factual
showing could be exempt from the reach of AEDPA § 440(d) is incorrect.
Retroactivity analysis examines the applicability of a law to the entire
class of persons situated at particular point in time, not on the potentially
varying specific reliance interests of different individuals within such a
class. The Solicitor General has not yet decided whether to seek rehearing
en banc in Magana-Pizano.

issue. Every other circuit that has addressed the equal-
protection challenge to Section 440(d) has also rejected it.
See Almon v. Reno, 192 F.3d 28, 29-32 (1st Cir. 1999);
DeSousa v. Reno, 190 F.3d 175, 184-185 (8d Cir. 1999);
Requena-Rodriguez, 190 F.3d at 308-310; Jurado-Gutierrez,
190 F.3d at 1152-1153. Further, even if the equal-protection
claim had merit, the appropriate remedy, given Congress’s
overall intent in AEDPA to restrict relief from deportation
for criminal aliens, would be to extend Congress’s bar
against discretionary relief to aliens in exclusion pro-
ceedings, rather than to strike it for aliens in deportation
proceedings. See DeSousa, 190 F.3d at 185 n.8 (noting that
“the history of Congress’ amendments to [Section 1182(c)]
shows that, throughout the 1990s, it had been tightening the
controls over granting such waivers”); cf. United States v.
Estrada-Torres, 179 F.3d 776, 779 (9th Cir. 1999) (reading
language of AEDPA § 440(d) to eliminate discretionary re-
lief for both excludable and deportable aliens).

Third, the court of appeals’ rejection of petitioners’ equal-
protection claim is correct. Congress had a rational basis for
precluding certain criminal aliens placed in deportation pro-
ceedings in the United States from obtaining Section 1182(c)
relief, even while allowing criminal aliens seeking to return
to the United States from a trip abroad to remain eligible for
such relief. See Fiallo v. Bell, 480 U.S. 787, 794 (1977) (in
light of Congress’s plenary power over immigration, statu-
tory classification must be upheld if it is based upon any
“facially legitimate and bona fide reason”). The court of
appeals observed that Congress’s distinction encourages de-
portable aliens to leave the country—“which is after all the
goal of deportation”—by providing them with an opportu-

29

nity to apply for Section 1182(c) relief in exclusion proceed-
ings if they attempt to return. Pet. App. 12a.

Petitioners’ reliance on Francis v. INS, 532 F.2d 268 (2d
Cir. 1976), is misplaced. Francis addressed a distinction that
the BIA had drawn (for purposes of eligibility for Section
1182(c) relief) between two classes of aliens placed in depor-
tation proceedings in the United States, based solely on
whether the alien had previously taken a temporary trip
abroad. See Requena-Rodriguez, 190 F.3d at 308-309 (ex-
plaining Francis); p.3, n.1, supra. Petitioners’ claim chal-
lenges an entirely different distinction, between aliens
placed in deportation proceedings in the United States and
aliens placed in exclusion proceedings at the border or a port
of entry. That traditional distinction has been fundamental
to the INA. See Landon v. Plasencia, 459 U.S. 21, 25-28
(1983). Given the quite different purposes of the two kinds
of proceedings and the different ways in which they operate,
Congress is entitled to make different judgments about the
kinds of claims for discretionary relief that may be consid-
ered in the proceedings.

1© Furthermore, Congress’s decision to address criminal aliens in
deportation proceedings and not exclusion proceedings is rational for
another reason—aliens in deportation proceedings pose a much more
serious problem simply because they are much more numerous. See H.R.
Rep. No. 469(I), 104th Cong., 2d Sess. 384-385 (1996) (reporting that INS
in 1995 removed a total of approximately 32,000 criminal aliens—29,255
arising from deportation cases and only 2,738 from exclusion cases);
Almon, 192 F.3d at 31 (noting same). While excludable criminal aliens
may also constitute an immigration problem, “a legislature traditionally
has been allowed to take reform one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind.”
McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809 (1969) (inter-
nal quotation marks omitted).

30

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General

DAVID W. OGDEN
Acting Assistant Attorney
General
DONALD E. KEENER
DAVID M. MCCONNELL
ALISON R. DRUCKER
PAPU SANDHU

Attorneys

JANUARY 2000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0005%3A3. Public record. Not legal advice.