Opposition Brief — Rodriguez v. Immigration & Naturalization Service

Pee Supreme Court, U.S.

FILED

| NFC 1372000

No. 00-753 — |

“OFFICE OF THE CLERK

Jn the Supreme Court of the Unites States

CARMELO JOSE RODRIGUEZ, PETITIONER

v.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Assistant Attorney General

DONALD E. KEENER

LISA M. ARNOLD

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-221?

QUESTION PRESENTED

Whether the court of appeals correctly concluded

that, under 8 U.S.C. 1252(a)(2)(C) (Supp. V 1999), it

lacked jurisdiction on direct petition for review over

petitioner’s challenge to his final removal order, but

that the district court had habeas corpus jurisdiction to

entertain that challenge under 28 U.S.C. 2241.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction

Statement ..

Discussion on 11

COMCHUBION ........<ccccccecssceess . 14

TABLE OF AUTHORITIES

Cases:

Calcano-Martinez v. INS, No. 98-4033, 2000 WL

1336611 (2d Cir. Sept. 1, 2000) .. - 12,13

Flores-Miramontes v. INS, 212 F.3d 11 33 (9th Cir.

ED Kalina cute 12

Mahadeo v. Reno, 226 F.3d 3 (1st Cir. 2000),

petition for cert. pending, No. 00-692 .oo..c.cccccecceccescesssseseeee 11

Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000), 11

petition for cert. pending, No. 00-6280 .......ceccsecscescsessseeons 11

Reno v. American-Arab Anti-Discrimination

I ie he Ge CO crctecsinistcnniccinrdinticeseee i)

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

1715956 (9th Cir. Nov. 17, 2000) .....cccccccccccccccccossecsecscoeeseees 11

Richardson vy. Reno, 180 F.3d 1311 (11th Cir. 1999),

Cert. denied, 120 S. Ct. 1529 (2000) .........c.cecececececscsssoooseeeees 11

Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999) .................

St. Cyr v INS, 229 F.3d 406 (2d Cir. 2000), petition for

: Cert. pemding, No. 00-FG7 .........ccccscsosecececeseccocezesonecccnsceseces 11,13

Statutes:

Act of Oct. 11, 1996, Pub. L. No. 104-302, § 2, 110 Stat.

3657 wivttsiibiapencmpssenenislbiladygieadietibhainandbiinensiidiantais 5

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 .o..ccccccccccccccscssoeee 2

I

§ 440(a), 110 Stat. 1276-1277 ...cccscscccccccsessscocsseceecccoosecee.. 3,4

eee 3,4

(IIT)

IV

Statutes—Continued: Page

Hobbs Adiministrative Orders Review Act,

28 U.S.C. 2341-2351 (1994 & Supp. V 1999) wesc 3

Illegal Immigration Reform and Immigrant Responsi-

bility Act of 1996, Pub. L. No. 104-208, Div. C,

RDO Bitet. BOG ceccccccrccsessecesssssssessennsasccnssoncsnsocosassnesneasesssase 2

§ 304, 110 Stat. 3009-587 to 3009-5935 oo. ceeeseeeesenenees 4

$ 304(aX3), 110 Stat. BO09-594 .........c.cccccccrsosscscscsscecsereres 4

§ 3O4(), 110 Stat. BOOD-GO7 .......cccccccssssccrccsscsoccsaccccccseseses 4

§$ 306, 110 Stat. 110 Stat. 3009-G12 ...ecsseeesssesees 5

$ BOG(b), 110 Stat. BOO9-G12 ....csscseeeseceensenetseeenseneneees 5

S DODLa), 2AO Biba. BRB ED cnccersccccccsssresoscesesenssccansecsiacees 5

§ 309(¢), 110 Stat. 3009-625 to BOO9-G27 ....eceseceseseees 5

8 U.S.C. 1101(a)(43)(G) (1994 & Supp. V 1999) .....eeeeeeee 2,7

BU S.C. 1 CGin (BBDG) oan ccececassiccssosnsecsssnsncssssssossoeresscsnensccsessoenseesie 5

8 U.S.C. 1105 aa) (1994) .............ccccccsccosccssssccscsrccrssssesensenessesens 3

8 USC. 110Gb alaX lO) (1994) ........cccccccccccccsecrecseccccsncserecssesess 3,4,5

SB USC. DEBUG ENC) ececrcccccscssesicsresssccrccssesscnsecasscncnssasssstansens 8, 11

US i SI aise nitsisciatieainileiens 2-3, 4,5, 7, 10

8 U.S.C. 1227(aX2A ii) (Supp. V 1999) .............ccecccssseessees 2.3

8 U.S.C. 1227(al(2)(A)(iii) (Supp. V 1999) .......sccseessereereeees 2,3

8 U.S.C. 1227(aX2)(B) (Supp. V 1999) ............scccccssesssreesees 3

8 U.S.C. 1227(aX(2 Bi) (Supp. V 1999) .........csscssesesrcereeees 2

8 U.S.C, 1229 (Seapp. V YGBD) .22...0cccc.ncceccscosacsccescesecsccscoesecseseee 4

S UB.C. EBB Boum. V GBD) niccsesecscerensccieoscccsncinnnarensnnsensenes 4

S U.S.C. 222i lata. V BGG). cnecsccsccncescccsveicnsnscniectssinapnniianne 4

8 U.S.C. 1229b(aX3) (Supp. V 1989) .......c.cccccsccoreccoscoeccssoscese 4

8 U.S.C. 1251(aX 2M AN) (T9BE) ...........ccccccccecesccccccssesscessseosess 3

8 U.S.C. 1251(aN2A iii) (1994) .............ccsccccscececsncecsorerserees 3

8 U.S.C. 1251 (aN 2B) (1994) ...........ccccccccscscsvesccsrecoresssesecssesonss 3

SS UF SRC RR a, VF FID cnccicncnisticnsntetiteintntgeinninciinctenesns 5,6

8 USC. 1262(aX1) (Supp. V 1909) ........cocoscocsecccserccsscscsscseseee 5

8 U.S.C. 1252(a)(2)(C) (Supp. V 1999) ....... 6,8, 9, 10, 11, 12, 13

Statutes—Continued: Page

8 U.S.C. 1252(b)(9) (Supp. V 1999) ........ccccsccocsssocessssessssesescece 6,9

See S) Sbdids POE sdisusiceneinbicsoiiniahaedinabiiacis 8, 9, 10, 11, 12, 13

Jn the Supreme Court of the United States

No. 00-753

CARMELO JOSE RODRIGUEZ, PETITIONER

v.

IMMIGRATION AND NATURALIZATION SERVICE

' ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-33a)

is reported at 206 F.3d 308. The decisions of the Board

of Immigration Appeals (Pet. App. 40a-42a) and the

immigration judge (Pet. App. 37a-39a) are unreported.

The decision of the district court on habeas corpus

proceedings, rejecting petitioner’s claim on the merits

(Pet. App. 46a-58a), is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 9, 2000. A petition for rehearing was denied on

June 9, 2000 (Pet. App. 43a-45a). On August 29, 2000,

Justice Souter extended the time within which to file a

petition for a writ of certiorari to and including October

7, 2000. On September 27, 2000, Justice Souter further

(1)

2

extended the time within which to file a petition for a

writ of certiorari to and including November 6, 2000,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. This case involves amendments to the Immigra-

tion and Nationality Act (INA) enacted by Congress in

1996. Those changes were designed in large part to

reduce the opportunities for criminal aliens to obtain

administrative relief from deportation, and to facilitate

their removal from the United States by restricting and

streamlining the process of judicial review of their

deportation orders. Two enactments by Congress are

particularly pertinent: the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1214 (enacted Apr. 24, 1996); and the

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div.

C, 110 Stat. 3009-546 (enacted Sept. 30, 1996).

a. An alien is deportable from the United States if

he has been convicted at any time after his admission of

two or more crimes involving moral turpitude not

arising out a single scheme of criminal misconduct (see

8 U.S.C. 1227(a)(2)(A)(ii) (Supp. V 1999)), if he has been

convicted of an “aggravated felony,” as that term is

defined in the INA (see 8 U.S.C. 1227(a)(2)(A)(iii)

(Supp. V 1999); 8 U.S.C. 1101(a)(43)(G) (1994 & Supp. V

1999)), or if he has been convicted of an offense involv-

ing controlled substances (see 8 U.S.C. 1227(a)(2)(B)(i)

(Supp. V 1999)). Before the enactment of AEDPA, an

alien lawfully admitted for permanent residence who

was subject to deportation because of a criminal con-

viction could apply to the Attorney General for dis-

cretionary relief from deportation under 8 U.S.C.

i ila

3

1182(c) (1994). To be eligible for such relief, the alien

had to show, among other things, that he had had a

lawful unrelinquished domicile in this country for seven

years, and that, if his conviction was for an aggravated

felony, he had not served a term of imprisonment of five

years or more. See 8 U.S.C. 1182(c) (1994).

If the Attorney General denied relief from deporta-

tion under Section 1182(c), then the alien could chal-

lenge that denial of relief by filing a petition for review

of his deportation order in the court of appeals. See

8 U.S.C. 1105a(a) (1994) (incorporating Hobbs Admin-

istrative Orders Review Act (Hobbs Act), 28 U.S.C.

2341-2351 (1994 & Supp. IV 1998)). Under certain cir-

cumstances an alien in custody pursuant to an order of

deportation could seek judicial review thereof by filing

a petition for a writ of habeas corpus in district court,

pursuant to 8 U.S.C. 1105a(a)(10) (1994).

b. In 1996, Congress twice restricted both the sub-

stantive 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.

Section 440(d) of AEDPA amended Section 1182(c) to

make certain classes of criminal aliens categorically in-

eligible for discretionary relief from deportation under

that Section, including aliens convicted of two unrelated

crimes involving moral turpitude, aggravated felonies,

and controlled substance offenses. See AEDPA

§ 440(d), 110 Stat. 1277 (referring toaliens deportable

under 8 U.S.C. 1251(a)(2)(A)(ii), 1251(a)(2)(A)(iii), and

1251(aX(2)(B) (1994) (now recodified as 8 U.S.C.

1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), and 1227(a)(2)(B)

(Supp. V 1999)).

Section 440(a) of AEDPA enacted a related exception

to the general availability of judicial review of deporta-

4

tion orders in the courts of appeals for the same classes

of aliens. Section 440(a) provided that any final order of

deportation against an alien who was deportable for

having committed one of the disqualifying offenses

enumerated in Section 440(d) “shall not be subject to

review by any court.” AEDPA § 440(a), 110 Stat. 1276-

1277. At the same time, Section 401(e) of AEDPA, en-

titled “ELIMINATION OF CusTODY REVIEW By HABEAS

CORPUS,” repealed the previous version of 8 U.S.C.

1105a(a)(10) (1994), which had specifically permitted

aliens in custody pursuant to an order of deportation to

seek habeas corpus relief in district court. See AEDPA

§ 401(e), 110 Stat. 1268.

ec. On September 30, 1996, Congress enacted

ITRIRA into law. In Section 304 of IIRIRA, Congress

abolished the old distinction between “deportation” and

“exclusion” orders, and instituted a new form of pro-

ceeding, known as “removal.” See 8 U.S.C. 1229, 1229a

(Supp. V 1999); IIRIRA § 304, 110 Stat. 3009-587 to

3009-593. Section 304 of IIRIRA also refashioned the

terms on which an alien found to be subject to removal

may apply for relief in the discretion of the Attorney

General. Congress completely repealed old Section

1182(c). See IIRIRA § 304(b), 110 Stat. 3009-597 (“Sec-

tion 212(c) (8 U.S.C. 1182(c)) is repealed.”). In its stead,

Congress created a new form of discretionary relief,

known as cancellation of removal, with new eligibility

terms. See 8 U.S.C. 1229b (Supp. V 1999); IIRIRA §

304(a)(3), 110 Stat. 3009-594. An alien convicted of any

aggravated felony is ineligible for discretionary

cancellation of removal. See 8 U.S.C. 1229b(a)(3) (Supp.

V 1999).

Because IIRIRA made sweeping changes to the sys-

tem for removal of aliens, Congress delayed IIRIRA’s

full effective date and established various transition

Gena

5

rules. As a general matter, Congress provided that

most of IIRIRA’s provisions, including the new

removal procedures, the new provisions for cancellation

of removal, and the repeal of Section 1182(c)—all of

which were enacted together in Section 304 of IIRIRA

—would take effect on Apyil_ J, 1997. See IIRIRA

§ 309(a), 110 Stat. 3009-625. For aliens who were placed

in deportation or exclusion proceedings before that

date, Congress provided that most of IIRIRA’s amend-

ments would not apply, and that such cases instead

would generally be governed by pre-IIRIRA law,

including AE DPA, along with transitional rules further

restricting judicial review of criminal aliens’ deporta-

tion orders. See IIRIRA § 309(¢), 110 Stat. 3009-625 to

3009-627, as amended by Act of Oct. 11, 1996, Pub. L.

No. 104-302, § 2, 110 Stat. 3657 (technical corrections).

Congress also recast and streamlined the INA’s pro-

visions for judicial review of removal orders, in Section

306 of IIRIRA. For removal proceedings commenced

after April 1, 1997, Congress repealed altogether the

former judicial-review provisions of 8 U.S.C. 1105a

(1994), which, before AEDPA, had (at subsection

(a)(10)) expressly made the writ of habeas corpus

available to aliens held in custody. IIRIRA § 306(b),

110 Stat. 3009-612. Congress replaced those judicial

review provisions with the new 8 U.S.C. 1252 (Supp. V

1999), which reestablished the traditional rule that final

orders of removal are subject to judicial review only on

petition for review in the courts of appeals. See

8 U.S.C. 1252(a)(1) (Supp. V 1999) (incorporating Hobbs

Act). Congress also restricted judicial review of re-

moval orders entered against criminal aliens by

providing that, “[nlotwithstanding any other provision

of law, no court shall have jurisdiction to review

any final order of removal against an alien who is

6

removable by reason of having committed” various

criminal offenses, including aggravated felonies, con-

trolled substance offenses, and two unrelated crimes

involving moral turpitude. See 8 U.S.C, 1252(a)(2)(C)

(Supp. V 1999). And Congress enacted a new, sweeping

jurisdiction-limiting provision, 8 U.S.C. 1252(b)(9)

(Supp. V 1999), which provides:

Judicial review of all questions of law and fact, in-

cluding interpretation and application of constitu-

tional 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 [7.e., Section 1252].

2. Petitioner is a native and citizen of the Dominican

Republic who was admitted to the United States as a

lawful permanent resident alien on December 20, 1983.

Certified Administrative Record (C.A.R.) 17. On

February 19, 1993, petitioner pleaded guilty in New

Jersey state court to possession of a controlled sub-

stance (cocaine) and receiving stolen property, and was

sentenced to four years’ imprisonment. C.A.R. 69, 82-

83. On March 28, 1994, he pleaded guilty in Ohio state

court to receiving stolen property, and was sentenced

to six months’ imprisonment. C.A.R. 75-31.

On July 1, 1997, after the general effective date of

IIRIRA, petitioner was served with a Notice to Appear

which charged him with removability based on those

convictions. The Notice charged that petitioner had

been convicted of two unrelated crimes involving moral

turpitude (the two convictions for receiving stolen

property), an aggravated felony (the New Jersey con-

7

viction for receiving stolen property),' and a controlled

substance offense. At his removal hearing before an

immigration judge (IJ), petitioner admitted the alle-

gations in the Notice to Appear, and conceded his

removability as charged. Petitioner sought, however,

to apply for discretionary relief from deportation under

former 8 U.S.C. 1182(c) (1994), which had been repealed

by IIRIRA. The immigration judge ruled that peti-

tioner was ineligible for relief under Section 1182(c),

and ordered him deported to the Dominican Republic.

C.A.R. 54-55.

The Board of Immigration Appeals (BIA) dismissed

petitioner’s appeal. Pet. App. 41a-42a. The BIA con-

cluded that relief under former Section 1182(c) was not

available to petitioner because he was placed in removal

proceedings after IIRIRA’s effective date, when

Section 1182(c) was repealed. The BIA also ruled that

petitioner was ineligible for cancellation of removal

because of his conviction for an aggravated felony. Id.

at 42a.

3. Petitioner filed a petition for review of his final

removal order in the court of appeals. Petitioner did

not contest that he was an alien who was removable as

a result of his criminal convictions. Rather, he argued

that the BIA erred in concluding that he was ineligible

for relief under former Section 1182(c), and that

ITRIRA’s repeal of that provision should not be applied

' The definition of “aggravated felony” in the INA includes “a

theft offense (including receipt of stolen property) * * * for which

the term of imprisonment [is] at least one year.” 8 U.S.C.

1101(a)(43)(G) (1994 & Supp. V 1999). Petitioner was sentenced to

four years’ imprisonment for the New Jersey offense of receiving

stolen property. C.A.R. 69.

8

to his case, which involved a criminal conviction entered

before IIRIRA became effective. Pet. C.A. Br. 26-59.

The government moved to dismiss the petition for

review for lack of jurisdiction, contending that, under

Section 1252(a)(2)(C), the court of appeals was pre-

cluded from reviewing the claim raised by petitioner,

who was convicted of offenses enumerated in that Sec-

tion. Gov’t C.A. Br. 3-4. The government also argued

(id. at 11-15) that the district court also would not have

authority to entertain petitioner’s challenge to his final

removal order under its habeas corpus jurisdiction

provided by 28 U.S.C. 2241. The government argued

that the court of appeals’ earlier decision in Sandoval v.

Reno, 166 F.3d 225 (8d Cir. 1999), which had held that

district courts retained their authority after AEDPA to

entertain criminal aliens’ challenges to their final de-

portation orders, was distinguishable because that case

involved only AEDPA and the transitional judicial-

review provisions of IIRIRA, and not the permanent

provisions of IIRIRA.

The court of appeals dismissed the petition for

review for lack of jurisdiction, but also held that the

district court (in which petitioner filed a petition for a

writ of habeas corpus, see p. 10, infra), could entertain

at least some of petitioner’s challenges to his removal

order under 28 U.S.C. 2241. Pet. App. la-33a. Closely

following its earlier decision in Sandoval (see id. at 20a-

22a), the court concluded that Congress had not, in

IIRIRA, expressly repealed the district court’s author-

ity to entertain challenges to removal orders under 28

U.S.C. 2241. The court stressed that “a repeal of

habeas jurisdiction will not be found by implication”

(Pet. App. 20a), and that such a repeal “can only be

effected by express congressional command” (id. at

21a). Nor did the court find its decision in Sandoval

9

undermined by either the permanent rules of IIRIRA,

including Section 1252(b)(9)—which, it concluded, does

not “expressly revoke[] habeas jurisdiction” (id. at 20a)

—or this Court’s intervening decision in Reno v.

American-Arab Anti-Discrimination Committee, 525

U.S. 471, 482 (1999), which described Section 1252(b)(9)

as an “unmistakable ‘zipper’ clause” channeling review

of all issues arising out of removal orders into the

courts of appeals on direct review. Although the court

agreed with the government that Section 1252(b)(9)

“clearly expresses congressional intent that judicial

review of questions arising from a proceeding brought

to remove an alien be conducted under the INA in the

courts of appeals,” it did not agree that that Section

“clearly expresses congressional intent that the district

courts be divested of their habeas jurisdiction under

§ 2241.” Pet. App. 24a.

The court also observed that its decision in Sandoval

was predicated heavily on concerns that an uncon-

stitutional suspension of habeas corpus would arise if

criminal aliens such as petitioner were not able to

invoke the district court’s jurisdiction under 28 U.S.C.

2241 to challenge the merits of their removal orders.

Pet. App. 28a-29a. The government had argued that

the Constitution did not require a judicial forum for the

particular claims raised by petitioner in this case, con-

cerning eligibility for discretionary relief from deporta-

tion, and that on petition for review, the court of

appeals could decide jurisdictional facts on which the

statutory preclusion of review turned, including

whether petitioner was an alien and whether he had in

fact been convicted of an offense referred to in the

categories enumerated in Section 1252(a)(2)(C). Gov’t

C.A. Br. 19-23. The government also suggested that, to

the extent the Constitution did require a judicial forum

10

for petitioner’s particular claims, it would be more

consistent with congressional intent for that claim to be

reviewed in the court of appeals on petition for direct

review than in the district court on collateral challenge.

See Pet. App. 30a. The court of appeals concluded,

however, that Section 1252(a)(2)(C) broadly precluded

it from reviewing the particular claims raised in this

case by petitioner, and thus found this case no different

from Sandoval. Id. at 29a-33a. The court noted, how-

ever, that “were the judges’ preferences determinative,

it is likely that many would opt for a system under

which aliens’ challenges to nondiscretionary immigra-

tion decisions, both statutory as well as constitutional,

would be reviewed directly in the courts of appeals”

rather than the district court on collateral challenge.

Id. at 38a.

4. While his petition for review was pending in the

court of appeals, petitioner filed a separate petition for

a writ of habeas corpus in district court raising

essentially the same challenges to his removal order.

After the court of appeals’ decision was issued, the

district court ruled that it had habeas corpus juris-

diction under Section 2241 to consider petitioner’s

constitutional and statutory challenges to his removal

order. Pet. App. 50a-52a. The district court also ruled,

however, that the BIA had correctly concluded that

petitioner was ineligible for relief under former Section

1182(c) because that provision was repealed when

IIRIRA’s permanent provisions went into effect, and it

dismissed the habeas corpus petition on the merits. /d.

at 53a-58a. Petitioner’s appeal from that decision is still

pending in the court of appeals. Rodriguez v. Reno, No.

00-2225 (3d Cir.).

11

DISCUSSION

Petitioner urges this Court to grant review to decide

whether, after the comprehensive changes to the INA

made by AEDPA and IIRIRA, a court of appeals on

petition for review may entertain a claim such as that

raised by petitioner in this case, notwithstanding the

broad preclusion of review set forth in 8 U.S.C.

1252(a)(2)(C) (Supp. V 1999), and if not, whether the

district courts retain authority under 28 U.S.C. 2241 to

review a criminal alien’s challenge to the merits of his

final removal order. As petitioner points out, the courts

of appeals have reached differing conclusions on those

questions.

The Fifth Circuit, in Max-George v. Reno, 205 F.3d

194, 198-203 (2000), petition for cert. pending, No. 00-

6280, and the Eleventh Circuit, in Richardson v. Reno,

180 F.3d 1311, 1318 (1999), cert. denied, 120 S. Ct. 1529

(2000), have ruled that Congress in IIRIRA has barred

the district courts from entertaining a criminal alien’s

challenge to his final removal order. By contrast, in

addition to the Third Circuit in the decision below, the

First, Second, and Ninth Circuits have concluded that

the district courts have such authority. See Mahadeo v.

Reno, 226 F.3d 3, 7-14 (1st Cir. 2000) (holding that dis-

trict court had habeas corpus jurisdiction under Section

2241 to consider retroactivity challenge), petition for

cert. pending, No. 00-962; St. Cyr v. INS, 229 F.3d 406,

409-410 (2d Cir. 2000) (same), petition for cert. pending,

No. 00-767; Richards-Diaz v. Fasano, No. 99-56530,

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

Second and Ninth Circuits have also held, in agreement

with the court of appeals in this case, that Section

1252(a)(2)(C) broadly precludes the courts of appeals

from entertaining challenges to final removal orders

12

raised by criminal aliens on direct petition for review,

including challenges similar to that raised by petitioner

in this case. See Calcano-Martinez v. INS, No. 98-4033,

2000 WL 1336611, at *9-*16 (2d Cir. Sept. 1, 2000)

(holding that, under Section 1252(a)(2)(C), court of

appeals lacked jurisdiction on direct petition for review

to entertain similar retroactivity claim, but that district

court had jurisdiction to entertain that claim on habeas

corpus); Flores-Miramontes v. INS, 212 F.3d 11338,

1135-1136, 1141-1148 (9th Cir. 2000) (holding that, under

Section 1252(a)(2)(C), court of appeals lacked juris-

diction to entertain aggravated felon’s contention that

his removal proceedings violated procedural due pro-

cess, but that district court could entertain that claim

on habeas corpus).

Because of that conflict in the circuits, as well as the

importance of the issue to the administration of the

INA, we have filed a petition for a writ of certiorari in

St. Cyr seeking review of the Second Circuit’s decision

upholding the district court’s assertion of jurisdiction

under Section 2241 in that case.” In our view, St. Cyr is

a better vehicle than this case for resolution of that

jurisdictional issue. The government’s petition in St.

Cyr also seeks review of the Second Circuit’s decision

agreeing with the alien’s challenge to the merits of the

removal order in that case, which independently war-

rants plenary review in the event that the Court con-

cludes in that case that jurisdiction in that case was

proper under 28 U.S.C. 2241. See 00-767 (St. Cyr) Pet.

- We are providing petitioner with a copy of our petition in St.

Cyr. Related jurisdictional issues ave also presented by the peti-

tions in Zalawadia v. Reno, No. 00-268; Obajuluwa v. Reno, 00-

523; Reno v. Mahadeo, No. 00-962; Russell v. Reno, No. 00-5970;

and Ma.r-George v. Reno, No. 00-6230.

13

at 26-30. This case, however, presents only the issue of

jurisdiction, because the court of appeals held that it

lacked jurisdiction over petitioner’s petition for review

ané thus did not adjudicate the merits of petitioner’s

challenge to his removal order. :

Petitioner points out (Pet. 8-9) that St. Cyr arises in a

case in which the alien invoked the district court’s

habeas corpus jurisdiction, whereas this case arises on

an alien’s direct petition for review in the court of

appeals. Petitioner does not disagree that the petition

in St. Cyr warrants this Court’s review, but he suggests

that the Court should also grant review in this case, SO

that the Court may consider the jurisdictional issues

raised by AEDPA and IIRIRA with both a habeas

corpus case and a petition for review case before it.

Petitioner observes (and we agree) that the Court will

likely construe the preclusion-of-review provisions in

ITRIRA in determining whether the district courts may

exercise habeas corpus jurisdiction.

Although the Court could grant certiorari in this case

as well as in St. Cyr, in our view it is not necessary for

the Court to grant review in both cases. Every court of

appeals that has considered the jurisdictional issues

raised by AEDPA and IIRIRA has recognized that the

scope of the court of appeals’ jurisdiction on petition for

review and the scope of the district court’s habeas

corpus jurisdiction after AEDPA and IIRIRA are

closely intertwined issues. indeed, the central basis for

the court of appeals’ decision in St. Cyr that jurisdiction

was proper under 28 U.S.C. 2241 was its conclusion,

based on its devision issued the same day in Calca no,

supra, that une r Section 1252(a)(2)(C) it lacked juris-

diction to entertain the same claim on direct petition for

review. See St. Cyr, 229 F.3d at 409-410. Thus, if the

Court grants certiorari in St. Cyr, when the Court

14

determines whether the lower courts properly exer-

cised habeas corpus jurisdiction in that case, it almost

surely will review the Second Circuit’s conclusion that

it could not have entertained the same claim on petition

for review. Accordingly, we suggest that the Court

hold the petition in this case for its disposition of St.

Cyr.

CONCLUSION

The petition for a writ of certiorari should be held

pending the disposition of the petition for a writ of

certiorari in JNS v. St. Cyr, No. 00-767, and then

disposed of as appropriate in light the Court’s action in

that case.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Assistant Attorney General

DONALD E. KEENER

LISA M. ARNOLD

Attorneys

DECEMBER 2000