# Opposition Brief — Rodriguez v. Immigration & Naturalization Service

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 949

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1314%3A3. Public record. Not legal advice.