# Appendix — INS v. St. Cyr

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1327%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 289

## Text

Tre «lai
a D
OF v67 NOV 1 3 2000

wrrice OF Ile CLERK

In the Supreme Court of the Gnited States

No.

IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER

Vv.
ENRICO ST. CYR

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

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN
Solicitor General
Counsel of Record

DAVID W. OGDEN
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

PAUL R.Q. WOLFSON
Assistant to the Solicitor
General

STEPHEN C. ROBINSON

DONALD E. KEENER

ALISON R. DRUCKER

ERNESTO H. MOLINA

JAMES K. FILAN, JR.
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

TABLE OF CONTENTS

Page
Appendix A (court of appeals opinion, Sept. 1, 2000) ...
Appendix B (court of appeals opinion in Calcano- la
Martinez v. INS, Madrid v. INS, and Khan v. INS.
Sept. 1, 2000) 40a
Appendix C (district court decision, Aug. 30, 1999) ...... 75a

Appendix D (district court judgment, Aug. 30, 1999)... 92a
Appendix E (decision of Board of Immigration

Appeals, Nov. 10, 1998) ... . &
Appendix F (decision of immigration judge, Jan. 12

1998) ..... , 96a
Appendix G (constitutional and statutory provisions

PUTED seviiniiecisvistioninstitenstanininiesiinininsimnctants 98a

; (I)

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 99-2614
ENRICO ST. CYR, PETITIONER-APPELLEE
Vv.

IMMIGRATION AND NATURALIZATION SERVICE,
RESPONDENT-APPELLANT

[Argued: Mar. 30, 2000]
{[Decided: Sept. 01, 2000]

Before: OAKES, WALKER and KEITH,”
Circuit Judges.

OAKES, Senior Circuit Judge:

The case before us presents legal questions of re-
viewability and retroactivity under the 1996 amend-
ments to the Immigration and Nationality Act (“INA”).
Congress amended the INA through the enactment of
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 et seq.
(1996) and the Illegal Immigration Reform and Immi-

* The Honorable Damon J. Keith of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.

(la)

2a

grant Responsibility Act (““IIRIRA”), Pub. L. No. 104-
208, 110 Stat. 3009-546 et seq. (1996). These laws se-
verely narrowed the rights of certain classes of aliens, —
including those like St. Cyr who were ordered deported
because of a prior drug conviction, and have spawned a
multitude of judicial decisions.

AEDPA § 440(d) and IIRIRA § 304 significantly
limit the cases where discretionary relief from removal
can be sought. They effectively preclude an alien, who
- Is removable from the United States because of a
conviction of a crime that qualifies as an “aggravated
felony” under the law, from applying for discretionary
relief from removal. St. Cyr’s removal proceedings
were commenced after the enactment of the AEDPA
and IIRIRA. However, St. Cyr pled guilty to the drug-
related offense that rendered him deportable and in-
eligible under the AEDPA and ITRIRA to apply for
discretionary relief a year before the statutes were
enacted. He argues that applying the AEDPA § 440(d)
and IIRIRA § 304 bar to his removal proceedings
would have an impermissible retroactive effect. Thus,
in this case, we must determine whether the bar to
discretionary relief from removal is properly applied
retroactively to pre-enactment guilty pleas.

BACKGROUND

Enrico St. Cyr, a native of Haiti, was admitted to the
United States as a lawful permanent resident on June
17, 1986. St. Cyr’s family lives in the United States.
His parents and sister are citizens of this country and
his brother is a lawful permanent resident.

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On March 8, 1996, prior to the enactment date of the
AEDPA and IIRIRA, St. Cyr pled guilty to the sale of
a controlled hallucinogenic narcotic in violation of Con-
necticut General Statutes § 21a-277(a). At the time that
St. Cyr pled guilty to the charge, the drug conviction
rendered him deportable under the immigration
laws. See INA § 241(a)(2)(B)(i), codified at 8 U.S.C.
§ 1251(a)(2)(B)(i) (1994), now renumbered as INA
§ 237(a)(2)(B)(i), codified at 8 U.S.C. § 1227(a)(2)(B)(i)
(1999); see also INA § 241(a)(2)(A)(iii), codified at
8 U.S.C. § 1251(a)(2)(A)(iii) (1994), now renumbered
as INA § 237(a)(2)(iii), codified at 8 U.S.C.
§ 1227(a)(2)(A)(iii) (1999); INA § 101(a)(43), codified at 8
U.S.C. § 1101(a)(48) (1999).’

On April 10, 1997, the Immigration and Naturali-
zation Service (“INS”) issued St. Cyr a Notice to
Appear, charging him as removable under INA
§ 237(a)(2)(A)(iii) because he had been convicted of an
aggravated felony. On January 12, 1998, an immi-
gration judge (“IJ”) found that St. Cyr was removable
under INA § 237(a)(2)(_:)Gii). In the time between St.
Cyr’s conviction and his receipt of a Notice to Appear,
Congress enacted the AEDPA and IIRIRA. These
laws significantly limited the cases where discretionary

1 INA § 237(a)(2)(B)(i) provides that “Any alien who at any
time after admission has been convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a controlled
substance . . . other than a single offense involving [a small
amount of marijuana for one’s own use] is deportable.”; INA
§ 237(a)(2)(A)(iii) provides that “Any alien who is convicted of an
aggravated felony at any time after admission is deportable.”; INA
§ 101(a)(43), codified at 8 U.S.C. § 1101(a)(43) defines “aggravated
felony” to include illicit trafficking in a controlled substance.

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relief from deportation could be sought and rendered an
alien who was removable because of an aggravated
felony conviction statutorily ineligible to apply for relief
from deportation.

At his hearing, St. Cyr sought to prevent his removal
by applying for a discretionary waiver of deportation
under former INA § 212(c). See 8 U.S.C. § 1182(c)
(1996) (repealed by IIRIRA, § 304(b), 110 Stat. at 3009-
597, September 30, 1996). The IJ denied St. Cyr’s
§ 212(c) application. St. Cyr appealed his removal order
to the Board of Immigration Appeals (“BIA”). Because
of the changes made by Congress to the immigration
laws, specifically IIRIRA § 304(b)’s repeal of the avail-
ability of § 212(c) relief to aliens such as St. Cyr, the
BIA dismissed his appeal on November 10, 1998.

On April 27, 1999, St. Cyr filed a habeas corpus peti-
tion in the United States District Court for the District
of Connecticut. In his petition, he argued that § 440(d)
of the AEDPA and IIRIRA § 304 should not be applied
retrospectively to bar his eligibility for § 212(c) relief
because both his criminal conduct and his conviction
occurred prior to the statutes’ enactment. The INS
argued that the 1996 amendments to the INA divested
the district court of jurisdiction to hear St. Cyr’s habeas
petition. On the merits, the INS argued that § 440(d) of
the AEDPA was applicable to St. Cyr’s case because
removal proceedings had been commenced against him
after the effective date of the AEDPA. Specifically, the
INS argued that applying § 440(d) to aliens ordered de-
portable because of a criminal conviction that was
entered prior to the AEDPA’s effective date was not an
unjustified retrospective application of § 440(d).

5a -

On August 23, 1999, the district court rejected the
INS’s arguments and held that it had jurisdiction to
hear the habeas petition because the 1996 amendments
to the INA did not explicitly divest a district court of
its habeas jurisdiction over final removal orders under
28 U.S.C. § 2241. It concluded that the scope of its re-
view pursuant to 28 U.S.C. § 2241 included St. Cyr’s
statutory claim that the BIA had misapplied the immi-
gration laws.

In addressing the merits of St. Cyr’s habeas petition,
the district court held that AEDPA § 440(d) is inappli-
cable to an alien placed in removal proceedings after
the AEDPA’s enactment if the relevant convictions,
criminal proceedings, or underlying criminal conduct
occurred prior to enactment. The court reasoned that
Congress did not intend AEDPA § 440(d) to be applied
retroactively to such pre-enactment events because it
would unfairly attach new legal consequences to pre-
AEDPA criminal conduct. Thus, the district court
concluded that St. Cyr’s removal proceedings should be
governed by the laws that were in effect at the time he
committed the crime. The INS timely appealed.

DISCUSSION

I. Jurisdiction.

Because the question whether the district court had
subject matter jurisdiction in this case is a question of
law, we review it de novo. See Conntech Dev. Co. v.
University of Connecticut Educ. Properties, Inc., 102
F.3d 677, 681 (2d Cir. 1996).

The INS’s arguments that the district court lacked
jurisdiction under 28 U.S.C. § 2241 to decide St. Cyr’s

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claim are foreclosed by our decision in Calcano-
Martinez v. Reno, Civ. Nos. 98-4033, 98-4214, 98-4246
(2d Cir. 2000), a case argued on the same day as this
one. In that case, we held that the permanent rules of
IIRIRA do not divest Article III courts of their habeas
jurisdiction under 28 U.S.C. § 2241 to review statutory
and constitutional challenges to final removal orders
when no other avenue for judicial review is available.
Here, no such avenue existed because St. Cyr, con-
victed of a crime involving a controlled substance, is an
alien deportable under INA § 237(a)(2)(A)(iii). A peti-
tion in the court of appeals pursuant to INA § 242(a)(1)
is, therefore, unavailable to him. See 8 U.S.€.
§ 1252(a) (2)(C) (1999).

Although a federal court’s habeas jurisdiction does
not include all challenges that an alien may launch
against his or her removal order, St. Cyr’s habeas peti-
tion raises pure questions of law. He is not challenging
the BIA’s refusal to exercise its discretion in his favor.
Rather, he is challenging the BIA’s determination that
it cannot legally consider St. Cyr’s request to exercise
its discretion. Therefore, his habeas challenge to his
final order of removal is the type of claim that is
cognizable in the district court under 28 U.S.C. § 2241.

Because there is no other avenue for judicial review
available and St. Cyr’s petition raises a purely legal
challenge to his final order of removal, the district court
had subject matter jurisdiction to review his habeas
petition.

II. Availability of § 212(c) relief.

Having determined that the district court had juris-
diction to decide St. Cyr’s claim, we turn to the issue

Ta

raised by St. Cyr in his habeas petition: whether
AEDPA § 440(d) and IIRIRA § 304, which essentially
make discretionary relief unavailable to an alien like St.
Cyr, apply to his removal proceeding.

A. History of Discretionary Relief.

Under the law in effect prior to the enactment of the
AEDPA, certain aliens otherwise determined to be de-
portable were entitled to apply to the Attorney General
or her delegates’ for a waiver of deportation under INA
§ 212(c), 8 U.S.C. § 1182(c) (1994). Former § 212(¢) pro-
vided:

Aliens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are re-
turning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion
of the Attorney General without regard to [pro-
visions setting forth various grounds for exclusion].
. . . The first sentence of this subsection shall not
apply to an alien who has been convicted of one or
more aggravated felonies and has served for such
felony or felonies a term of imprisonment of at least
five years.

8 U.S.C. § 1182(c) (1994) (repealed by IIRIRA § 304(b),
110 Stat. at 3009-597, Sept. 30, 1996).

Although the literal terms of § 212(c) appeared to
apply only to resident aliens who had temporarily pro-
ceeded abroad and were returning to the United States,
since 1976 the section has been-interpreted by this
Court to permit the Attorney General to waive the

2 The Attorney General’s delegates include [Js and the BIA.

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grounds for deportation under certain conditions in the
case of a lawfully admitted permanent resident in de-
portation proceedings. See Buitrago-Cuesta v. INS,
7 F.3d 291, 292 (2d Cir. 1993); Francis v. INS, 532 F.2d
268, 272-73 (2d Cir. 1976).

Discretionary relief from deportation, which has been
available in our system in some form since at least 1917,
- see Francis, 532 F.2d at 270, provides the Attorney
General with a mechanism to consider the impact of
immigration on an alien’s family. Prior to 1996, INA
§ 212(c) gave power to the Attorney General to permit
a worthy alien to stay in this country in order to avoid
extraordinary hardship to the alien’s family in the
United States. See id. at 272. In a case where a con-
victed alien demonstrated that he or she had a lawful
unrelinquished domicile in the United States for at least
seven years and that his or her conviction was not for
an “aggravated felony,” for which he or she had served
a term of imprisonment of five years or longer, the
Attorney General could, in her discretion, waive de-
portation. See 8 U.S.C. § 1182(c) (1994). Under the law
in effect before 1996, if the Attorney General denied
relief, the alien could challenge that denial by filing a
petition for review in the court of appeals. See 8 U.S.C.
§ 1105a(a) (1994) (repealed by IIRIRA § 306(b), 110
Stat. at 3009-612, Sept. 30, 1996).

On April 24, 1996, Congress enacted the AEDPA, of
which § 440(d) expanded the category of criminal con-
victions that would render an alien ineligible to apply
for § 212(c) relief. The explicit goal of the AEDPA was
to enhance “the ability of the United States to deport
criminal aliens.” H.R. Conf. Rep. No. 104-518, at 119

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(1996), reprinted in 1996 U.S.C.C.A.N. 924, 9523 Sec-
tion 440(d) struck the language “has been convicted of
one or more aggravated felonies” and that which
followed in § 212(c) and inserted the following bar:

This section shall not apply to an alien who is
deportable by reason of having committed any
criminal offense covered in section 241(a)(2)(A)(iii),
(B), (C), or (D), or any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i).

AEDPA § 440(d), 110 Stat. at 1277.4 Under the
amended version, a waiver could not be granted to an
alien convicted of certain enumerated offenses including
a drug-related crime, two or more offenses involving

3 This was by no means Congress’s first attempt to narrow a
criminal alien’s eligibility for a waiver from deportation) Congress
passed the Anti-Drug Abuse Act of 1988 and made conviction of an
aggravated felony an additional ground for deportation. See Anti-
Drug Abuse Act of 1988 § 7344, 102 Stat. at 4470-71 (codified at 8
U.S.C. § 1251(a)(2)(A)(iii) (1996)). In 1990, Congress amended
§ 212(c) and precluded waiver for aliens convicted of aggravated
felonies who had served at least five years in prison for the con-
viction. See Immigration Act of 1990, Pub. L. No. 101-649,
§ 511(a), 104 Stat. 4978, 5052 (1990), codified at 8 U.S.C. § 1182(c).
Also in 1990, Congress expanded the definition of aggravated
felony to include more offenses and render a greater number of
criminal aliens ineligible for discretionary relief. See id. § 501, 104
Stat. at 5048. Again, in 1994, Congress expanded the definition of
aggravated felony to include more classes of crimes. See Immi-
gration and Nationality Technical Corrections Act of 1994, Pub. L.
No. 103-416 § 222(a), 108 Stat. 4805, 43822 (1994), codified at
8 U.S.C. § 1101(a)(48).

* INA § 241, codified at 8 U.S.C. § 1251 (1994) was renumbered
by IIRIRA as INA § 287, codified at 8 U.S.C. 8 1227. See IIRIRA
§ 305(a)(92), 110 Stat. at 3009-598.

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moral turpitude, and an aggravated felony, regardless
of time served in prison.

Just a few months later, on September 30, 1996, Con-
gress enacted IIRIRA, which wrought further changes
to the availability of deportation waivers. IIRIRA in-
cluded temporary transitional rules and permanent
rules. Under the statutory interplay of IIRIRA’s tran-
sitional rules and the AEDPA, the Attorney General
was able, in her discretion, to grant relief from de-
portation under INA § 212(c) as amended by § 440(d).
See IIRIRA § 309(c)(1), 110 Stat. at 3009-625 (most
of IIRIRA amendments to the INA do not apply to
aliens placed in deportation proceedings prior to April
1, 1997); see also Tasios v. Reno, 204 F.3d 544, 547 n.1
(4th Cir. 2000).

The permanent provisions of IIRIRA, however, re-
peal INA § 212(c) altogether and consolidate prior “sus-
pension of deportation” relief and aspects of former
§ 212(c) relief into an entirely new form of relief. See 8
U.S.C. § 1229b(a)(3) (1999). Section 304(a) of IIRIRA,
entitled “Cancellation of removal for certain permanent
residents,” found at INA § 240A, provides:

The Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable
from the United States if the alien- :

(1) has been an alien lawfully admitted for perma-
nent residence for not less than 5 years,

(2) has resided in the United States continuously
for 7 years after having been admitted in any status,
and

lla

(3) has not been convicted of any aggravated fe-
lony.

8 U.S.C. § 1229b(a) (1999). Cancellation of removal is
thus limited to a smaller category of aliens than had
historically been eligible for pre-AEDPA § 212(c) relief
because it is unavailable to all aliens convicted of
aggravated felonies and not just to those imprisoned for
more than five years. Compare 8 U.S.C. § 1182(c)
(1994) with 8 U.S.C. § 1129b (1999). Cancellation of re-
moval, however, is categorically available to a larger
number of aliens than those eligible under AEDPA
§ 440(d) because it restores the availability of dis-
cretionary relief for aliens deportable because they
‘ committed two or more crimes of moral turpitude under
INA § 237(a)(2)(A)(ii). Compare 8 U.S.C. § 1182(c) as
amended by AEDPA § 440(d) with 8 U.S.C. § 1229b
(1999).

This complex statutory history applies to St. Cyr as
follows: when St. Cyr pled guilty to drug trafficking i in
March of 1996, he was deportable under the immigra-
tion laws as an alien convicted of a drug-related offense
which constituted an aggravated felony as defined
under the INA. See 8 U.S.C. § 1251(a)(2)(B)(i) (1994); 8
U.S.C. § 1251(a)(2)(A)(iii) (1994); 8 U.S.C. § 1101(a)(43).
At the time he pled guilty to the deportable offense, he
was eligible to apply for a waiver of deportation under
§ 212(c) of the INA. On April 24, 1996, before removal
proceedings were commenced against St. Cyr, AEDPA
§ 440(d) was enacted, making aliens such as he ineligible
to apply for a § 212(c) waiver. By April 10, 1997, the
date that removal proceedings against St. Cyr were
commenced, INA § 212(c) relief had been repealed by
ITRIRA § 304(b) and replaced by “cancellation of re-

12a

moval” in § 304(a). St. Cyr was ineligible to apply for
“cancellation from removal” by its terms because he
was convicted of an aggravated felony. See 8 U.S.C.
§ 1101(a)(43). Thus, if either AEDPA § 440(d) or
IIRIRA § 304 apply to this case, as the INS argues, St.
Cyr is removable because he pled guilty to a deportable
offense and is statutorily ineligible to apply to the BIA
for discretionary relief from deportation.

B. Retroactivity.

Our analysis of whether AEDPA § 440(d) and
IIRIRA § 304 (referred to collectively as “the bar to
relief”) apply to removal proceedings against an alien
who pled guilty to a deportable crime before the date of
IIRIRA’s enactment is governed by the legal principles
announced by the Supreme Court in its landmark de-
cisions, Landgraf v. USI Film Prod., 511 U.S. 244
(1994) and Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U.S. 939, 117 S. Ct. 1871, 188 L.Ed.2d 135
(1997). The Supreme Court directs that we begin
with the “presumption . . . deeply rooted in our
jurisprudence,” against the retroactive application of
legislation. Landgraf, 511 U.S. at 265; Hughes Aircraft,
520 U.S. at 946 (quoting Landgraf). This “principle that
the legal effect of conduct should ordinarily be assessed
under the law that existed when the conduct took place
has timeless and universal appeal.” Landgraf, 511 U.S.
at 265 (quoting Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827, 855, 110 S. Ct. 1570, 108
L.Ed.2d 842 (1990) (Scalia, J., concurring)). “Elemen-
tary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and
to conform their conduct accordingly; settled expecta-
tions should not be lightly disrupted.” Jd. Application
of this presumption requires that statutes are not

13a

afforded retrospective effect unless “Congress has
clearly manifested its intent to the contrary.” Hughes
Aircraft, 520 U.S. at 946.

The Supreme Court in Landgraf provided the
following framework for determining whether a law
should apply to cases where the underlying conduct
occurred prior to enactment:

When a case implicates a federal statute enacted
after the events in suit, the court’s first task is to
determine whether Congress has expressly pre-
scribed the statute’s proper reach. If Congress has
done so, of course, there is no need to resort to
judicial default rules. When, however, the statute
contains no such express command, the court must
determine whether the new statute would have
‘retroactive effect, i.e, whether it would impair
rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new
duties with respect to transactions already com-
pleted. If the statute would operate retroactively,
our traditional presumption teaches that it does not
govern absent clear congressional intent favoring
such a result. |

Id. 511 U.S. at 280. Landgraf therefore contemplates a
two-step inquiry: (1) whether Congress prescribed the
statute’s temporal reach and, if not, (2) a determination
whether retrospective application would have a “retro-
active effect.” If application of the statute to the con-
duct at issue would have a retroactive effect, “then, in
keeping with our ‘traditional presumption’ against re-
troactivity, we presume that the statute does not apply
to that conduct.” Martin v. Hadix, 527 U.S. 3438, 352,

l4a

119 S. Ct. 1998, 144 L.Ed.2d 347 (1999) (quoting
Landgraf, 511 U.S. at 280).

1. Congressional Intent.

Our first step under J andgraf is to determine, using
ordinary tools for statutory interpretation, whether
Congress expressly prescribed that AEDPA § 440(d)
and IIRIRA § 304 should be applied to rem val pro-
ceedings involving convictions entered prior to its
enactment. See 511 U.S. at 280. In Henderson v. INS,
157 F.3d 106, 129-30 (2d Cir. 1998), cert. denied, Reno v.
Navas, 526 U.S. 1004, 119 S. Ct. 1141, 148 L.Ed.2d 209
(1999), we analyzed whether AEDPA § 440(d) applied
to deportation proceedings pending on the date of
enactment. Our analysis ended after the first Landgraf
step because there existed “abundant direct evidence
-that the section was not intended to apply retro-
actively” to deportation proceedings pending on the
date of enactment. See id. at 129. Our decision that
Congress clearly intended that AEDPA § 440(d) not
apply to aliens for whom deportation proceedings had,
on the date of AEDPA’s enactment, already com-
menced, was in accord with the majority of U.S. Courts
of Appeals to consider the same question. See Magana-
Pizano v. INS, 200 F.3d 608, 611 (9th Cir. 1999); Pak v.
Reno, 196 F.3d 666, 675-76 (6th Cir. 1999); Shah v.
Reno, 184 F.3d 719, 724 (8th Cir. 1999); Mayers v. INS,
175 F.3d 1289, 1303-04 (11th Cir. 1999); Goncalves v.
Reno, 144 F.3d 110, 133 (ist Cir. 1989), cert. denied,
Reno v. Goncalves, 526 U.S. 1004, 119 S. Ct. 1140, 143
L.Ed.2d 208 (1999); Sandoval v. Reno, 166 F.3d 225,
241-42 (3d Cir. 1999); LaGuerre v. Reno, 164 ¥.3d 1035,
1040-41 (7th Cir. 1998), cert. denied, Reno v. LaGuerre,
— US. —, 1208S. Ct. 1157, 145 L.Ed.2d 1069 (2000).

15a

The specific issue raised in this case, however, is not
whether the bar to relief applies to pending removal
proceedings but whether it bars an alien who pled
guilty to the deportable crime before the AEDPA or
IIRIRA’s effective date from applying for a waiver.
The question whether Congress intended AEDPA
§ 440(d) to apply to removal proceedings against an
alien ordered removed because of a pre-enactment con-
viction or criminal conduct has been much discussed in
numerous published opinions of district courts and

courts of appeals. When the past conduct under the -

Landgraf analysis changes from the commencement of
removal proceedings to the conviction or criminal con-
duct, the majority of courts of appeals that have con-
sidered AEDPA § 440(d) conclude that Congress’s
intent whether to apply the law retrospectively is
ambiguous. See Mattis v. Reno, 212 F.3d 31, 36 (1st Cir.
2000); Tasios v. Reno, 204 F.3d 544, 550 (4th Cir. 2000);
Magana-Pizano, 200 F.3d at 612; Requena-Rodriquez v.
Pasquarell, 190 F.3d 299, 307-8 (5th Cir. 1999);
DeSousa v. Reno, 190 F.3d 175, 186-87 (3d Cir. 1999);
Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150 (10th
Cir. 1999), cert. denied Palaganas-Suarez v. Greene,
—__, US.__,__ U.S. __, 120S. Ct. 1589, 146 L.Ed.2d
352 (2000); Turkhan v. Perryman, 188 F.3d 814, 826
(7th Cir. 1999). We agree with the majority of courts
that have held that Congress’s intent whether to apply
AEDPA § 440(d) to pre-enactment convictions
is ambiguous and because the question has been
thoroughly analyzed in the foregoing opinions, we do
not set forth our own detailed analysis of AEDPA

§ 440(d).

We turn now to IIRIRA § 304(b). The INS argues
that, unlike AEDPA § 440(d), Congress provided

;

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specific “statutory guidance” in IIRIRA § 309(a) as to
whether IIRIRA § 304 reaches back to bar an alien who
pled guilty to a deportable crime before the effective
date of IIRIRA. IIRIRA § 309(a) provides that the
new rules added by IIRIRA §§ 301-308, including
IIRIRA’s repeal of § 212(c) relief and substitution of
cancellation of removal relief contained in IIRIRA
§ 304(a), apply to an alien covered by the rules unless
that alien is currently in removal proceedings. See
IIRIRA § 309(a), 110 Stat. at 3009-625 (new rules apply
except to “an alien who is in exclusion or deportation
proceedings as of [April 1, 1997]”). Thus, according to
the INS, Congress indicated that IIRIRA’s permanent
rules, including § 304, apply in cases such as St. Cyr’s
that are commenced after April 1, 1997.

We disagree that IIRIRA’s general effective date
provision set forth in IIRIRA § 309(a) demonstrates
that Congress carefully considered whether the repeal
of the only opportunity for relief from removal should
bar that relief for an alien who pled guilty prior to
IIRIRA’s enactment to the crime rendering him or her
removable. In Landgraf, the Supreme Court noted that
a provision stating that “[a] statute will become effec-
tive on a certain date does not even arguably suggest
that it has any application to conduct that occurred at
an earlier date.” 511 U.S. at 257. Although the lan-
guage in IIRIRA § 309(a) is arguably more direct than
a typical effective date provision, it is not precise
enough to mandate retroactive application of IIRIRA
§ 304 under the first step of the Landgraf inquiry.
“(Tjhe only presumption mentioned in [Landgraf] is a

.general presumption against retroactivity,” Hughes

Aircraft, 520 U.S. at 950. Accordingly, in its post-
Landgraf decisions, the Supreme Court has indicated

17a

that a “heightened level of clarity” is required to justify
the retroactive application of a law that implicates past
conduct. See Salahuddin v. Mead, 174 F.8d 271, 275 (2d
Cir. 1999) (citing Lindh v. Murphy, 521'U.S. 320, 328
n.4, 117 S. Ct. 2059, 1388 L.Ed.2d 481 (1997); Hughes
Aircraft, 520 U.S. at 946 (1997)). Therefore, Congress
must have used statutory language that can “sustain
only one interpretation” in order to make IIRIRA § 304
retroactive to pre-enactment guilty pleas. See Lindh,
521 U.S. at 328 n.4. We shall not infer from the general
language contained in IIRIRA § 309(a), making § 304
effective in pending proceedings, that Congress also
intended the bar to discretionary relief to apply to pre-
enactment guilty\ pleas, an application that we hold
today has an impermissible retroactive effect. See infra
at Section IIB(2).

An examination of other IIRIRA provisions demon-
strates that despite the general effective date pro-
vision, Congress made sure to use specific language,
capable of only one interpretation, when it clearly
intended a provision to apply to past conduct relevant
to the particular provision. See, é.g., IIRIRA § 321(c),
110 Stat. at 3009-628 (providing that amended defini-
tion of “aggravated felony” applies regardless of “when
the conviction occurred”) (emphasis added); IIRIRA
§ 322(c), 110 Stat. at 3009-629 (providing that new de-
finitions of “conviction” and “term of imprisonment”
shall apply “to convictions and sentences entered be-
fore, on, or after the date of the enactment of this Act”)
(emphasis added); IIRIRA § 324(c), 110 Stat: at 3009-
629 (providing that provision governing re-entry of
deported aliens applies to “departures that occurred
before, on, or after the date of enactment” of IITRIRA)
(emphasis added); IIRIRA § 347(c), 110 Stat. at 3009-

18a

639 (providing that provision rendering an alien deport-
able because he or she voted in violation of the law is
applicable to “voting occurring before, on, or after the
date of the enactment of this Act.”) (emphasis added).
Indeed, that Congress knew how to explicitly make an
IIRIRA provision applicable to “convictions and sen-
tences entered before, on, or after the date of the
enactment of the Act,” is demonstrated by IIRIRA
§ 321(c) and IIRIRA § 322(c). Because Congress made
some provisions specifically applicable to prior con-
victions but did not do so in regard to IIRIRA § 304, it
appears that Congress did not definitively decide the
issue of § 304’s retroactive application to pre-enactment
convictions.

The INS notes that the removal ground underlying
St. Cyr’s proceedings, made applicable by IIRIRA,
renders aliens subject to removal proceedings if they
were “convicted of an aggravated felony at any time
after admission.” 8 U.S.C. § 1227(a)(2)A)(iii) (1999)
(emphasis added). The INS argues that the use of past-
tense language to qualify the timing of a deportable
conviction shows that Congress clearly intended that
an alien, such as St. Cyr, who committed his or her
crime and was convicted prior to IIRIRA’s April 1,
1997, effective date would become subject to removal
proceedings in which § 212(c) relief is no longer avail-
able.

We are not persuaded that the use of the past tense
in INA § 237 is an indication that Congress intended
IIRIRA § 304 to apply retrospectively. A similar argu-
ment was considered and rejected by the Supreme
Court in Martin v. Hadix, 527 U.S. at 354-55. There,
the Court considered the retroactivity of the Prison

19a

Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C.
§ 1997e(d)(3), which limited the fees available to
prisoners’ attorneys who were monitoring prisons post-
judgment. See Martin, 527 U.S. at 347. The petitioners
argued that the language of § 803(d)(1)—"[iJn any
action brought by a prisoner who is confined [to a
correctional facility] . . . attorney’s fees . . . shall not
be awarded”—clearly expressed a congressional intent
that § 803(d) apply to pending cases. Id. at 2003-4
(emphasis added). The Court rejected the argument
that Congress’s use of a past-tense verb clearly indi-
cated Congress’s intent that the provision apply to
pending cases. The Court reasoned that § 803(d)(1)
“define[s] the substantive availability of attorney’s fees;
[it] [does] not purport to define the temporal reach of
these substantive limitations.” Jd. at 354. Thus, the
Court concluded that the language fell short of dem-
onstrating a clear congressional intent to apply § 803(d)
retrospectively to pending cases and that had Congress \
intended the provision to apply to all fee orders, in-
cluding those compensating work performed before the
effective date, “it could have used language more obvi-
ously targeted to addressing the temporal reach of that
section.” Id. |

Under the reasoning of Martin, the use of a past-
tense verb in INA § 237(a)(2)(iii) is not dispositive of
Congress’s intent to apply IIRIRA § 304 retroactively
to pre-enactment convictions. The language “convicted
of an aggravated felony” in INA § 237(a)(2)(iii) is used
to describe the substantive availability for removal
from the United States. It is not used to describe the
retrospective application of IIRIRA § 304. We there-
fore cannot and will not rely on the text of INA
§ 237(a)(2)(A)iii) to hold that IIRIRA § 304 applies.in_

20a

cases where an alien pled guilty to the underlying
deportable crime prior to IIRIRA’s enactment.

This is not to say that the INS’s argument is not
sophisticated. In Salahuddin, this Court relied on a
similarly formulated argument to hold that Congress
clearly intended that a statute be applied prospectively.
174 F.3d at 274-75. In that case, the appellant
argued that the exhaustion requirement of 42 U.S.C.
§ 1997e(a), as amended by the PLRA, should not apply
to an action pending at the time of its enactment. See
id. at 272. Because the new provision provided that no
action “shall be brought” until administrative remedies
are exhausted, we concluded that a plain reading of the
statute made it clear that Congress intended it to be
applied prospectively. Jd. at 274. We reasoned there
that the use of the future tense in the provision was
sufficient evidence of Congress’s intent to apply the
statute prospectively. Seeid. at 274-75. An inter-
pretation that supports the application of a statute
prospectively, however, does not justify its retroactive
application. See id. at 275 (distinguishing between
interpretations justifying prospective and retroactive
applications); see also Goncalves, 144 F.3d at 129 (refus-
ing to require that Congress draft an explicit effective
date provision to insure against retroactive application
because that rule would reflect a presumption in favor
of retroactive application). The longstanding presump-
tion is against, not in favor of, the retroactive appli-
cation of a statute to pre-enactment conduct. See
Landgraf, 511 U.S. at 265. Were we to infer from the
sole use of a tense that Congress intended the IIRIRA
§ 304 bar to apply to past conduct, we would reverse
this established presumption. Therefore, although we
interpreted a 42 U.S.C. § 1997e(a) in Salahuddin to

21a

apply prospectively based on the use of future tense
-phraseology, the presumption against retroactive appli-
cation requires a more explicit statement from Con-
gress to interpret IIRIRA § 304 to apply retroactively.®

In sum, we conclude that there is no clear evidence
that Congress considered and decided whether IIRIRA
§ 304’s bar to relief from removal applies retrospec-
tively to removal proceedings commenced after
IIRIRA’s enactment against an alien who pled guilty to
the underlying criminal conduct before its enactment.
The requirement that Congress “first make its inten-.
tion clear helps ensure that Congress itself has deter-
mined that the benefits of retroactivity outweigh the
potential for disruption or unfairness.” Landgraf, 511

® St. Cyr, relying on a brief submitted in the consolidated cases,
Calcano-Martinez v. INS, Civ. Nos. 99-4033; 98-4214; 98-4246 (2d
Cir. [Sept. 1, 2000]), agrees that IIRIRA lacks an express directive
that the statute apply retrospectively and contends that IIRIRA
reveals Congress’s explicit intent that “cancellation of removal” be
applied only to those cases involving post-enactment convictions.
According to St. Cyr, the absence of specific retrospective lan-
guage in IIRIRA § 304, when such language is used in other
IIRIRA provisions, requires the court to infer by negative impli-
cation that Congress clearly intended IIRIRA § 304 to apply
prospectively. We disagree. The provisions for which Congress
expressly provided a retroactive temporal reach cover distinct
subject matters that are too dissimilar to the-availability of dis-
cretionary relief to support a negative inference in favor of pro-
spective application of IIRIRA § 304. See Martin, 527 U.S. at 356-
57. In addition, the effective date provision in IIRIRA § 309(a),
although it does not make IIRIRA § 304 retroactive to pre-enact-
ment convictions, does render Congressional intent ambiguous.
Therefore, we decline to infer from this lack of guidance that Con-
gress intended IIRIRA § 304 to apply only prospectively and hold
that Congress’s intent as to the section’s temporal reach is ambig-

uous.

22a

U.S. at 268. The statutory language does not convince
us, and the INS has pointed to no legislative history in
support of the conclusion, that Congress specifically
considered the precise issue whether IIRIRA § 304
should be applied to an alien who rendered a pre-enact-
ment guilty plea. Therefore, we hold Congress’s intent
with respect to the application of IIRIRA § 304 to pre-
enactment convictions is unclear.°

2. Retroactive Effect.

Having concluded that no clear congressional intent
exists as to whether AEDPA § 440(d) or IIRIRA § 304

° In some cases, the interest in avoiding constitutional ques-
tions will cause a court to refrain from applying a statute retro-
actively. See Landgraf, 511 U.S. at 267 n.21 (citing Pension
Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.
Ct. 2709, 81 L.Ed.2d 601 (1984); Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 17, 96 S. Ct. 2882, 49 L.Ed.2d 752 (1976)). Our
holding in this case is guided, in part, by that principle. Even when
Congress clearly intends that legislation is to be applied to past
conduct, Congress’s broad power to enact retroactive legislation
does not go completely unchecked. The Fifth Amendment’s Due
Process Clause places a narrow limit on Congress’s power to
sweep away citizens’ settled expectations under the law. The
Constitution’s safeguard against retroactivity is especially appro-
priate where it protects an unpopular group or individual. See
Landgraf, 511 U.S. at 266; Pottinger, 51 F. Supp. 2d at 361 (the
presumption against retroactivity “reflects our enduring commit-
ment to the protection of the unpopular and the voiceless from
the retributive and vindictive use of retroactive legislation.”).
Because, in our view, a profound constitutional question would
arise under the Fifth Amendment’s Due Process Clause were we
to interpret IIRIRA as precluding the availability of § 212(c) relief
in cases where an alien pled guilty or nolo contendere in reliance on
the availability of § 212(c) relief, our ruling today that IIRIRA
§ 304 does not apply retroactively to pre-enactment guilty pleas
avoids this result.

23a

apply to an alien who pled guilty to a removable crime
prior to the statute’s enactment, we must determine
whether a bar to relief has any retroactive effect. See
Landgraf, 511 U.S. at 280; Hughes Aircraft, 520 U.S. at
946. “A statute does not operate ‘retrospectively’
merely because it is applied in a case arising from
conduct antedating the statute’s enactment.” Land-
graf, 511 U.S. at 269. Rather, our inquiry requires a
“common sense, functional judgment” to determine
“whether the new provision attaches new legal conse-
quences to events completed before its enactment.”
Martin, 527 U.S. at 357-58 (quoting Landgraf, 511 U.S.
at 270). A statute that “would impair rights a party
possessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to
transactions already completed” has retroactive effect.
Landgraf, 511 U.S. at 280.

We are the first U.S. Court of Appeals to consider
whether applying IIRIRA § 304 to pre-enactment con-
victions is impermissibly retroactive. A number of
our sister courts, however, have considered the similar
question of whether the scope of AEDPA § 440(d)
extends to deportation proceedings that involve con-
victions or guilty pleas that occurred prior to the
AEDPA’s enactment. The Tenth, Fifth, and Third Cir-
cuits have analyzed whether AEDPA § 440(d) was
retroactive as applied to aliens whose criminal convic-
tions occurred prior to the AEDPA’s effective date.
See Jurado-Gutierrez, 190 F.3d at 1147; Requena-
Rodriquez, 190 F.3d at 306; DeSousa, 190 F.3d at
185. Having found that Congressional intent to apply
AEDPA § 440(d) retrospectively was ambiguous, these
Courts, adopting the INS’s position, determined that
there existed no impermissible retroactive effect in

24a

applying AEDPA § 440(d) to pre-enactment convic-
tions. See Jurado-Gutierrez, 190 F.3d at 1150-52;
Requena-Rodriquez, 190 F.3d at 307-8; DeSousa, 190
F.3d at 187.

In three very recent cases, the First, Fourth, and
Ninth Circuits had occasion to consider specifically
whether AEDPA § 440(d) reached backward to cover a
pre-enactment guilty or nolo contendere plea to an
otherwise qualifying offense. See Mattis, 212 F.3d at
37; Tasios, 204 F.3d at 551; reh’g en banc denied, Tasios
v. Reno, No. 99-6061 (9th Cir.) (May 25, 2000); Magana-
Pizano, 200 F.3d at 612. In these cases, the relevant
conduct for the retroactive determination was specifi-
cally a guilty or nolo contendere plea. The Fourth Cir-
cuit concluded that application of AEDPA § 440(d)’s
bar on discretionary relief previously afforded by INA
§ 212(c) to guilty pleas made before the AEDPA’s
enactment “would upset reasonable, settled expecta-
tions and change the legal effect of prior conduct.”
Tasios, 204 F.3d at 552. Accordingly, that Circuit
adopted a blanket rule that AEDPA § 440(d) does
not apply retroactively. See id. The First and Ninth
Circuits, adopting a middle ground, determined that
AEDPA § 440(d) should not apply to an alien who can
make a specific showing that he or she entered a guilty
or nolo contendere plea in reliance upon the relief
afforded by INA § 212(c). See Mattis, 212 F.3d at 39-40;
Magana-Pizano, 200 F.3d at 613-14.

Finally, the Seventh Circuit has developed an ap-
proach that is in accord with the decisions of the First
and Ninth Circuits. It has announced a general rule
that AEDPA § 440(d)’s bar on INA § 212(c)’s discre-
tionary relief applies retroactively to pre-enactment

25a

guilty pleas. See LaGuerre, 164 F.3d at 1041; Turkhan,
188 F.3d at 827. It has also, however, identified a parti-
cular set of circumstances where applying AEDPA
§ 440(d) to past conduct would have an impermissible
retroactive effect. Under the law of the Seventh
Circuit, AEDPA § 440(d) applies retrospectively unless
an alien actually had conceded deportability, despite a
colorable defense, in reliance upon receiving a § 212(c)
waiver. See Turkhan, 188 F.3d at 827; Morales-
Ramirez v. Reno, 209 F.3d 977, 982 (7th Cir. 2000).

We conclude that AEDPA § 440(d) and IIRIRA § 304
as applied to a guilty or nolo contendere plea that pre-
-dates the statutes’ enactment has an impermissible
retroactive effect. In so holding, we follow the reason-
ing of the Fourth Circuit in Tasios v. Reno that such an
application of the bar to relief would upset settled
expectations and change the legal effect of prior con-
duct.

As an initial matter, we note that it is difficult to
argue that barring eligibility for discretionary relief
on the basis of pre-enactment criminal conduct—as
opposed to a plea going to the guilt of a deportable
crime—constitutes an impermissible retroactive appli-
cation of a statute. Indeed, we agree that,

It would border on the absurd to argue that these
aliens might have decided not to commit drug
crimes, or might have resisted conviction more vig-
orously, 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 discre-
tionary waiver of deportation.

26a

Jurado-Gutierrez, 190 F.3d at 1150-51 (quoting La-
Guerre, 164 F.3d at 1041). Thus, we conclude that the
bar to discretionary relief applies regardless of whether
a legal permanent alien’s underlying criminal conduct

pre-dated the AEDPA or IIRIRA.

However, in Hughes Aircraft, the Supreme Court
conducted a retroactivity analysis that was not focused
solely on the petitioner’s primary conduct, but also on
the relevant secondary conduct. See 520 U.S. at 947-48.
Furthermore, “it is the conviction, not the underlying
criminal act, that triggers the disqualification from

§ 212(c) relief.” Mattis, 212 F.3d at 37. Thus, in _

considering whether the changes to the availability of
discretionary relief would alter the legal effect of
conduct that predates the AEDPA and IIRIRA’s
enactment, our analysis focuses on the decision to
enter a guilty plea to a crime—not on the criminal
conduct—that qualifies the alien for removal under the
immigration laws.

A “legal change that would have an impact on private
parties’ planning” triggers the presumption against
retroactivity. See Landgraf, 511 U.S. at 282-83. A
number of courts have documented that “an alien
charged with a crime [making him eligible for deporta-
tion] would factor the immigration consequences of
conviction in deciding whether to plead or proceed to
trial... .” Tasios, 204 F.3d at 552 (quoting Magana-
Pizano, 200 F.3d at 612); see also Pottinger v. Reno, 51
F. Supp. 2d. 349, 362-63 (E.D.N.Y. 1999); Wallace v.
Reno, 24 F. Supp. 2d 104, 110 (D. Mass. 1998), aff’d 194
F.3d 279 (1st Cir. 1999); Mojica v. Reno, 970 F.Supp.
130, 177 (E.D.N.Y. 1997), affd in part, dismissed in
part, Henderson v. INS, 157 F.3d 106 (2d Cir. 1998);

27a

Reyes-Hernandez v. INS, 89 F.3d 490, 492 (7th Cir.
1996).

As the Amici’ in this case demonstrate, a legal re-
sident who is charged with a crime that renders him
removable from the United States carefully considers
the immigration consequences of his or her conviction
- and, specifically, the availability of discretionary relief
from removal. It is not unreasonable to attribute
knowledge of the availability of relief to a legal resident
because it is a common requirement that defense
counsel and the court advise a criminal defendant of the
immigration consequences of a guilty plea. Addi-
tionally, an attorney’s professional duty to his or her
client includes advising that client of the immigration
consequences of a plea or conviction. See Magana-
Pizano, 200 F.3d at 612; see also ABA Standards for
Criminal Justice, Pleas of Guilty, Standard 14-3.2, com-
mentary at 75 (2d ed. 1982) (providing that where it is
apparent that a defendant faces deportation as a
result of conviction, counsel “should fully advise the
defendant of these consequences.”); National Legal Aid
and Defender Association Performance Guidelines for
Criminal Defense Representation, Guideline 6.2(a)(3)
and commentary (1994) (recognizing that it is defense
counsel’s duty to “be fully aware of, and make sure that
the client is fully aware of . . . consequences of
conviction such as deportation.”). A criminal defense
law treatise provides that:

” In regard to this point, Amici include The Legal Aid Society
of the City of New York, The New York State Association of
Criminal Defense Lawyers, and the New York State Defenders
Association. These briefs were submitted in Calcano-Martinez v.
INS, Civ. Nos. 99-4083; 98-4214; 98-4246 (2d Cir. 2000).

28a

Preserving the client’s right to remain in the United
States may be more important to the client than any
potential jail sentence. Thus, the immigration
consequences of a prosecution may totally alter the
strategies chosen . . . a[ny] attorney who suspects
that this client is an alien has a duty to inquire and
to protect his client’s immigration status. Pleas and
admissions must be approached with caution and
with knowledge of the consequences. . . .

3 Bender’s Criminal Defense Techniques (1999)
§ 60A.01 and § 60A.2[2]. Furthermore, lawful perma-
nent residents are typically part of a resident alien
community and are likely aware of what happens to
other members of the community who engage in
criminal conduct. See Pottinger, 51 F. Supp. 2d at 363.

There is also little doubt that before the AEDPA and
IIRIRA were enacted, an alien’s reliance on the possi-
bility of receiving a waiver of deportation was reason-
able because there was a strong possibility that he or
she would receive relief. See Tasios, 204 F.3d at 551
(“in the years immediately preceding the enactment of
AEDPA, immigration judges and the BIA granted over
half of the § 212(c) applications they decided”). When
a request was denied, an alien could petition a court of
appeals for review and, “on a nontrivial number of
occasions,” these denials were overturned. See id. at
551-52 (quoting Reyes-Hernandez, 89 F.3d at 492).

When, in March of 1996, St. Cyr pled guilty to his
drug-trafficking offense, he and legal residents in his
position were removable from the United States. He
and others like him, however, could depend on the
availability of a hearing to determine his eligibility for

29a

relief from removal. Given the dramatic impact re-
mova! would have on a legal resident’s life, it is likely
that a legal resident would, because of the possibility of
receiving a lighter sentence, only decide to concede
guilt to a crime that renders him or her removable in
order to be eligible to apply for relief from removal.
Under the law today, this settled expectation is upset
dramatically. For certain classes of aliens, there is
currently no reason to forgo fighting the conviction of a
qualifying crime and enter a plea because, pursuant to
the AEDPA and IIRIRA, there is no possibility of
relief from removal as a result of the plea.

“(Individuals should have an opportunity to know
what the law is and to conform their conduct accord-
ingly.” Landgraf, 511 U.S. at 265. Because there is
sufficient evidence that a legal resident accused of a
crime that renders him or her removable from this
country would have conformed his or her conduct ac-
cording to the availability of relief when he or she pled
guiity, AEDPA § 440(d) and IIRIRA § 304 would
severely upset settled expectations were it applied
retroactively to pre-enactment guilty pleas. A repeal of
the eligibility to apply for relief from removal would
attach new legal consequences to a legal resident’s
guilty plea to a removal crime. Therefore, AEDPA
§ 440(d) and IIRIRA § 304 have an impermissible
retroactive effect as applied to pre-enactment guilty
pleas.

We are not persuaded that, as the INS argues, be-
cause the bar to relief can be described as a new
jurisdictional rule—in that it gives the Attorney
General jurisdiction to grant a waiver in her discretion
—it automatically has no retroactive effect. It is true

30a

that a change in law that “speak[s] to the power of the
court rather than to the rights or obligations of the
parties” may be applied in a case without raising con-
cerns that it is impermissibly retroactive. Landgraf,
511 U.S. at 274 (quoting Republic Nat'l Bank of Miami
v. United States, 506 U.S. 80, 100, 118 S. Ct. 554, 121
L.Ed.2d 474 (1992) (Thomas, /. concurring). In Hughes
Aircraft, however, the Supreme Court explained that a
jurisdictional statute that does not “merely address [ ]
which court shall have jurisdiction to entertain a parti-
cular cause of action” but, rather, affects “whether [a
claim] may be brought at all” should not presumptively
be given retroactive effect. 520 U.S. at 951. AEDPA
§ 440(d) and IIRIRA § 304 do not merely change the
degree of deference to be afforded a § 212(c) request or
change the judicial or administrative forum in which
relief may be granted. Rather, they alter the sub-
stantive rights of aliens subject to removal proceedings
because it eradicates a form of relief previously avail-
able. By their terms, AEDPA § 440(d) and IIRIRA
§ 304 attach new substantive legal consequences to a
guilty or nolo contendere plea to a deportable crime and
would have an impermissible retroactive effect if ap-
plied to pre-enactment pleas.

Our conclusion here is consistent with the law of this
Circuit. In Buitrago-Cuesta, we considered a 1990
amendment to INA § 212(c) which precluded an alien
who had “been convicted of an aggravated felony and
has served a term of at least 5 years” from seeking a
discretionary waiver from deportability. See 7 F.3d at
292. The petitioner in that case argued that because at
the time of his conviction his crime was not defined as
an “aggravated felony,” the 1990 amendment should not
apply to his deportation proceeding commenced prior to

3la

the amendment. See id. We decided that Congress
intended that the 1990 amendment be applied retro-
spectively. See id. at 295. Since we decided Buitrago-
Cuesta, however, the Supreme Court has decided
Landgraf, Hughes Aircraft, and Martin, cases that
honed retroactivity principles. See id. at 293 (“{at time
of decision] [t]he Supreme Court’s position on the retro-
activity of civil statutes is somewhat unclear.”).
Moreover, the petitioner in Buitrago-Cuesta did not
pled guilty to a deportable crime but instead was
convicted after a jury trial in state court. See id. at 293.
Therefore, our ruling today that the 1996 amendments
insofar as they bar relief afforded prior to their
enactment have a retroactive effect as applied to pre-
enactment guilty pleas—a situation where an alien is
likely to strategize according to the availability of
discretionary relief—does not contradict our earlier
ruling in Buitrago-Cuesta.

The INS’s warning against “an absurd superpro-
spective result” is also unfounded. We do not rule
today that application of the 1996 amendments to pre-
enactment convictions has an impermissible retroactive
effect. Rather, we hold that AEDPA § 440(d) and
ITRIRA § 304 do not apply to pre-enactment guilty
pleas or pleas of nolo contendere because such an appli-
cation would upset reasonable, settled expectations and
change the legal effect of prior conduct. Our ruling
affects the narrow class of cases where an alien pled
guilty to a criminal offense that qualifies as a removable
crime. Discretionary relief as amended by AEDPA
§ 440(d) still applies to all aliens with convictions pre-
dating its enactment and to all guilty pleas entered
after its effective date. Likewise, cancellation of re-
moval still applies to all aliens with convictions pre-

32a

dating IIRIRA and to all guilty pleas entered by aliens
to deportable crimes after it took effect.

CONCLUSION

In sum, we hold that the district court had habeas
corpus jurisdiction under 28 U.S.C. § 2241 to review St.
Cyr’s challenge to the BIA’s interpretation of AEDPA
§ 440(d) and IIRIRA § 304. On the merits, we hold
that the bar on applying for relief enacted in AEDPA
§ 440(d) and IIRIRA § 304 does not apply to an alien
who pled guilty or nolo contendere to an otherwise
qualifying crime prior to IIRIRA’s enactment date.
Because we determine that these laws do not apply
retroactively to St. Cyr, we do not decide his consti-
tutional challenges. The district court is affirmed
insofar as it held that the bar to discretionary relief
from removal does not apply to guilty and nolo con-
tendere pleas entered before IIRIRA’s enactment.

33a

JOHN M. WALKER, Jr., Circuit Judge, Dissenting:

There is no doubt that it is within Congress’s power
to redefine what will subject an alien to removal, see
Mathews v. Diaz, 426 U.S. 67, 81, 96 S. Ct. 1883, 48
L.Ed.2d 478 (1976), and that Congress may effect such
changes to require removal of an alien who would not
have been subject to removal before the changes be-
came effective,* see United States v. Koziel, 954 F.2d
831, 834 (2d Cir. 1992) (upholding retroactive repeal of
Judicial Recommendations Against Deportation for
certain criminal aliens); Marcello v. Bonds, 349 U.S.
302, 314, 75 S. Ct. 757, 99 L.Ed. 1107 (1955) (permitting
deportation based on conviction that would not have
been a basis for deportation when the crime was com-
mitted). Indeed, there is a long tradition of Congress
retroactively changing the qualifications for aliens’ con-

* The majority hints that removing 8 U.S.C. § 1182(c¢)
(“$ 212(c)”) relief retroactively would raise “a profound consti-
tutional question.” Supra at [24 n.6). I share no such concern.

remove § 212(c) relief, as advocated by the INS. I do not dispute
the general presumption against the retroactive application of
congressional enactments, especially where the rights of “an un-
popular group or individual” are affected. Jd. But this is not an
issue of constitutional dimension. Accordingly, I share the view of
the majority, as expressed in the body of its opinion, that our
inquiry here is governed by retroactivity analysis and not by the
canon of construction requiring us to avoid constitutional ques-
tions.

34a

tinued residence in the United States. See, eg.,
Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S. Ct.
512, 96 L.Ed. 586 (1952); Mahler v. Eby, 264 U.S. 32, 39,
44 S. Ct. 283, 68 L.Ed. 549 (1924); Bugajewitz v. Adams,
228 U.S. 585, 592, 33 S. Ct. 607, 57 L.Ed. 978 (1913).
While there is little doubt that Congress may alter the
requirements for continued residence in this country,
identifying when Congress has chosen to exercise its
power retroactively has proven a more difficult pro-
blem and it is here that my views diverge from those of
my colleagues.

The majority’s opinion has correctly identified the
nature of the inquiry that we must undertake. See
supra [13a-14a] (quoting Landgraf v. USI Film Prods.,
511 U.S. 244, 280 (1994)). The threshold question in the
Landgraf framework is whether Congress has ex-
pressly provided for a statute’s retroactive application.
If so, our inquiry is at an end. See id.; Martin v. Hadiz,
527 U.S. 343, 352, 119 S. Ct. 1998, 144 L.Ed.2d 347
(1999). The majority has found ambiguity in the tem-
poral reach of Congress’s repeal of § 212(c) relief for
criminal aliens. I disagree.

I believe that Congress’s intent is clear on the face of
the statute and that IIRIRA, Pub. L. No. 104-208, 110
Stat. 3009-546 et seg. (1996), has removed the avail-
ability of § 212(c), or equivalent relief, from criminal
aliens like the petitioner here, regardless of when they
entered their guilty pleas. This plain congressional
intent is evident from IIRIRA’s general statutory
framework and its comprehensive method of imple-
mentation. See Robinson v. Shell Oil Co., 519 U.S. 337,
341, 117 S. Ct. 843, 1386 L.Ed.2d 808 (1997) (“The plain-
ness or ambiguity of statutory language is to be deter-

35a

mined by reference to the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole.” (emphasis added)).

IIRIRA § 309 fixed April 1, 1997 as IIRIRA’s effec-
tive date. See 110 Stat. at 3009-625. While § 309 con-
tains a general savings clause listing those aliens for
whom IIRIRA does not apply as of its effective date,
none of those exceptions are relevant here. See
§ 303(b)(2), 110 Stat. at 3009-586; § 242(g¢), 8 U.S.C.
§ 1252(g); § 306(c), 110 Stat. at 3009-612; §§ 308(d)(2)(D)
& (d)(5), 110 Stat. at 3009-617, 619. Moreover, Con-
gress, intending that IIRIRA be a complete break from
the past, enacted transitional provisions that would
operate during a phase-in period ending on IIRIRA’s
effective date. See Calcano-Martinez v. Reno, Civ.
Nos. 98-4033, 98-4214, 98-4246, at [50a-54a] (describing
ITRIRA’s transitional rules). This legislative scheme of
transitional provisions followed by permanent legisla-
tion can be reduced to one essential point relevant to
IIRIRA’s repeal of § 212(c): Congress intended the
whole of IIRIRA’s permanent provisions to apply to
every alien as of April 1, 1997, except where it ex-
pressly exempted those provisions that were not meant
to apply as of that date. The provision repealing
§ 212(c) was not one of them. Included in the provisions
generally effective as of April 1, 1997 is § 304(b),
repealing § 212(c), and § 304(a), replacing § 212(c) with
new provisions entitled “Cancellation of Removal.” See
§ 304, 110 Stat. at 3009-594-97. The new cancellation of
removal proceedings exclude Specified classes of
criminal aliens, including the petitioner here, from
seeking discretionary relief.

36a

Congress could not have been more express about its
intent to have ILRIRA apply to all aliens against whom
deportation or removal proceedings were not yet pend-
ing as of April 1, 1997. See generally § 309. If, as peti-
tioner necessarily concedes, it is IIRIRA and not the
old INA that subjects him to removal, then it is
IIRIRA’s provisions that provide for the limits of judi-
cial review and for cancellation of removal proceedings.
I need look no farther to find that Congress made
express its intention to disallow the relevant aliens
against whom removal proceedings were filed after
April 1, 1997 from seeking the protection of-§ 212(c)
relief. Because petitioner falls generally within
IIRIRA’s provisions, he is subject to IIRIRA’s “Can-
cellation of Removal” proceedings—from which, be-
cause of his criminal past, he is expressly excluded—
and does not have access to § 212(c) relief.

The majority discounts this argument, suggesting
that it is based on nothing more than the statute’s
effective date and that such reasoning is impermissible
because of the pronouncement in Landgraf that “[a]
statement that a statute will become effective on a
certain date does not even arguably suggest that it has
any application to conduct that occurred at an earlier
date.” Landgraf, 511 U.S. at 257. But the Court’s
statement in Landgraf is inapplicable here. Changes to
the Civil Rights Act of 1991, at issue in Landgraf,
created new rights of employees “to recover com-
pensatory and punitive damages for certain violations
of Title VII of the Civil Rights Act of 1964,” id. at 247,
and the Court had to decide only whether a Title VII
plaintiff whose suit was on appeal when the 1991 Act
was enacted should be retroactively entitled to the
Act’s punitive damages provisions. In that context, the

37a

fact that the 1991 Act was enacted on November 21,
1991 did not help the Court to decide whether it was
intended to apply to claims predating the Act. But
here, where the entirety of the new IIRIRA applies
generally to the petitioner— indeed, if it did not, he
would not be subject to removal at all—IIRIRA’s
complex provisions governing its effective dates are
Squarely relevant to determining the extent of
ITRIRA’s application as to him. In my view, these
provisions plainly provide that petitioner is not entitled
to § 212(c) relief.

The awkward statutory patchwork sewn together by
-the majority from scraps of IIRIRA and the former
INA reveals Congress could not have intended the ma-
jority’s conclusion. The majority’s opinion faces insur-
mountable hurdles even on a linguistic level. The peti-
tioner here is subject to removal under the new
IIRIRA. With this opinion, the majority has permitted
petitioner access to a waiver of deportation hearing
under § 212(c) that was part and parcel of a statutory
scheme that no longer exists. Under IIRIRA, there is
no such thing as deportation that can be waived. In
order to reach the result they want, the majority has
effectively taken a provision that they like from a
Statute that has been substantially replaced, and
grafted it onto the replacement.

Insofar as the Landgraf presumption against retro-
activity is a canon of construction that permits us to
divine the intent of Congress, I cannot concur in a
conclusion that flies so indisputably in the face of Con-
gress’s express denial of cancellation of removal hear-
ings for this alien. Combined with what I think are
compelling expressions of Congress’s actual intent to

38a

repeal § 212(c) retroactively as to the broader class of
criminal aliens described in IIRIRA § 304, I respect-
fully dissent from my colleagues’ view that § 304 may
only be applied prospectively to pleas antedating
IIRIRA’s enactment.

Because Congress’s intent is plain on the face of the
statute, I see no reason to reach the second step of the
Landgraf analysis which requires us to determine
whether IIRIRA’s provisions governing cancellation of
removal have genuine retroactive effect. Nevertheless,
if I were to reach Landgraf’s second step, I would con-
clude that provisions denying cancellation of removal do
not operate retroactively. I believe that analysis of this
question should be governed by cases arising in the
context of the substantially analogous 1990 amendment
to the INA.

The 1990 amendment limited the relief afforded by
§ 212(c)’s waiver of deportation by excluding aggra-
vated felons who were sentenced to terms of imprison-
ment of at least five years. In holding that the 1990
amendment did not have a retroactive effect, the Ninth
Circuit persuasively held that “[clongressional repeal of
a discretionary power to relieve an alien from deporta-
tion does not attach any new legal consequences to the
pre-enactment events.” Samaniego-Meraz v. INS, 53
F.3d 254, 256 (9th Cir. 1995). As in the present case,
“the consequences of petitioner’s criminal conduct were
clear at the time of that conduct and they remain un-
changed today. He was subject to possible criminal
sanctions and deportation.” Scheidemann v. INS, 83
F.3d 1517, 1523 (8d Cir. 199€.. “In general, the concern
regarding retroactive application of statutes is the
deprivation of rights without notice and fair warning;

39a

such concerns are not present in this case... . In
this case, Congress did not attach additional conse-
quences [to past criminal activity] but merely withdrew
a previously available form of discretionary relief.” Jd.
(quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.
1993)) (alterations in original). True retroactivity
would occur if IIRIRA revoked § 212(c) relief from
those who had received it prior to IIRIRA’s effective
date. IIRIRA § 304(b), like the 1990 amendment, “is
not made retroactive merely because it applies to
convictions for aggravated felonies before that time.
The past aggravated felony conviction is only the pre-
requisite for the prospective denial of discretionary
relief.” De Osorio, 10 F.3d at 1042.

As of IIRIRA’s April 1, 1997 effective date, Congress
plainly changed the category of aliens who thereafter
may seek cancellation of removal, and I disagree that
the new scheme has a genuinely retroactive effect.
Accordingly, I would conclude that the Landgraf pre-
sumption against retroactivity has no effect on our
analysis. In the absence of any such presumption
against retroactivity, our more traditional tools of
construction apply, including the usual deference
afforded to agency interpretations under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694
(1984). Thus, even were I to agree that the temporal
reach of § 304(b) is ambiguous, I still believe that
petitioner here would not be entitled-to withholding of
deportation or cancellation of removal proceedings.

40a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Docket Nos. 98-4033, 98-4214, 98-4246

DEBORIS CALCANO-MARTINEZ, PETITIONER
Vv.

IMMIGRATION AND NATURALIZATION SERVICE,
RESPONDENT

SERGIO MADRID, PETITIONER
Vv.

IMMIGRATION AND NATURALIZATION SERVICE,
RESPONDENT

FAZILA KHAN, PETITIONER
Vv.

IMMIGRATION AND NATURALIZATION SERVICE,
RESPONDENT

[Decided: Sept. 1, 2000]

4la

Before: OAKES, WALKER, and KEITH,"
Circuit Judges.

OAKES, Senior Circuit Judge:

The consolidated cases before the Court require us to
interpret the effect of the permanent rules of the Illegal

546 (1996), on the jurisdiction of federal courts to hear
challenges raised by criminal aliens with respect to

handed down in the last three years, we considered the
effect of various provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214 (1996) and the transi-
tional rules of IIRIRA ona federal court’s jurisdiction
to review removal proceedings. This is our first occa-
sion tu examine the effect of ITRIRA’s permanent rules

In enacting the AEDPA and IIRIRA in 1996, Con-
gress reworked the role of the courts in immigration
decisions by severely limiting judicial review of final
orders of deportation for certain classes of aliens. By

* The Honorable Damon J. Keith of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.

42a

1997 WL 563320. In our first decision interpreting Con-
gress’s 1996 amendments, we held that the AEDPA
“repealed the jurisdiction a court of appeals formerly
had over petitions for review filed by aliens convicted of
[certain criminal offenses].” Hincapie-Nieto v. INS, 92
F.3d 27, 28 (2d Cir. 1996). Two years later, we held that
under the transitional rules of IIRIRA, federal courts
retained habeas jurisdiction under 28 U.S.C. § 2241.
See Jean-Baptiste v. Reno, 144’ F.3d 212, 220 (2d Cir.),
reh’g denied, 175 F.3d 226 (2d Cir. 1998). Four months
after our decision in Jean-Baptiste, we examined the
scope of the remaining habeas review and held that
federal courts retained jurisdiction to review statutory
and constitutional challenges to deportation orders. See
Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998), cert.
denied, Reno v. Navas, 526 U.S. 1004, 119 S. Ct. 1141,
143 L.Ed.2d 209 (1999).

The three petitioners before us, Deboris Calcano-
Martinez, Sergio Madrid, and Fazila Khan, are legal
permanent residents of the United States who have
been ordered deported because of prior criminal con-
victions. Each has filed a petition for review in this
Court pursuant to INA § 242(a)(2), codified at 8 U.S.C.
§ 1252(a)(2), challenging the final orders of removal
entered against them by the Board of Immigration
Appeals (“BIA”). Each petitioner has also filed a
petition for habeas corpus in a United States district
court. The petitions of Caleano-Martinez and Madrid
were dismissed without prejudice to refiling after this
Court’s mandate in the present case, and Khan’s peti-
tion is pending in the Eastern District of New York.
On appeal, the petitioners do not dispute that they are
aliens with criminal convictions that render them
deportable under the Immigration and Naturalization

The INS argues that this Court does not have juris-
diction to hear these petitions. We hold, for the reasons
set forth herein, that INA § 242(a)(2)(C) bars this Court

interpreting the immigration laws. Accordingly, we
dismiss the petitions without prejudice to the same
claims being brought pursuant to habeas petitions.

I. BACKGROUND

A. Deboris Calcano-Martinez.

Deboris Calcano-Martinez is a native and citizen of
the Dominican Republic who was admitted to the
United States as a lawful permanent resident in 1971,

Law.

44a

On June 16, 1997, the INS commenced removal pro-
ceedings against Calcano-Martinez by filing a Notice to
Appear. See 8 C.F.R. § 239.1(a) (1999). The notice
charged that Calcano-Martinez’s narcotic conviction
rendered her deportable from the United States pur-
suant to INA §§ 237(a)(2)(A)(iii) and (a)(2)(B)(i), codi-
fied at 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)G) (1999),
as an alien convicted of an aggravated felony and as an
alien convicted of a violation of a controlled substance
law.”

A removal hearing, at which Calcano-Martinez was
represented by counsel, was held before an Immi-
gration Judge (“IJ”). At the end of the hearing, the IJ
ordered Calcano-Martinez deportable as charged by the
INS and ruled that, based on her criminal convictions,
she was statutorily ineligible for any relief from re-
moval. Calcano-Martinez timely appealed the IJ’s
decision to the BIA. The BIA dismissed her appeal. On
January 29, 1998, Calcano filed a petition for review in
this Court. On October 13, 1999, Calcano filed a petition -
for a writ of habeas corpus in the United States District
Court for the Southern District of New York. See
Calcano-Martinez v. Reno, No. 99 Civ. 10481 (S.D.N.Y.
filed Oct. 13, 1999). By stipulation and order dated
December 20, 1999, Calcano’s habeas petition was dis-
missed without prejudice to refiling after this Court’s
mandate in the instant case.

® INA § 237(a)(2)(A)(iii) provides that “[a]ny alien who is con-
victed of an aggravated felony at any ‘ime after admission is
deportable.” INA § 237(a)(2)(B)i) states that “[aJny alien who at
any time after admission has been convicted of a violation of . . .
any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance . . . is deportable.”

45a

B. Sergio Madrid.

On June 24, 1997, the INS commenced removal pro-
ceedings against Madrid by filing a Notice to Appear.
The notice charged that Madrid’s narcotic conviction
rendered him deportable from the United States as an
alien convicted of an aggravated felony and as an alien
convicted of a violation of a controlled substance law.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C.
§ 1101(a)(43)." A removal hearing was held before an
IJ and at the close of the hearing, the IJ rendered
Madrid deportable. Madrid appealed the BIA’s

review in this Court. On October 13, 1999, Madrid filed
a petition for a writ of habeas corpus in the United
States District Court for the Southern

order dated December 20, 1999, Madrid’s habeas
petition was dismissed without prejudice to refiling
after this Court’s mandate in the instant case.

WINA § 101(a)(43), codified at 8 U.S.C. § 1101(a)(43), defines
“aggravated felony” as a crime involving “illicit trafficking in a
controlled substance.”

46a

C. Fazila Khan.

Fazila Khan is a native and citizen of Guyana who
was admitted to the United States as a lawful per-
manent resident on September 2, 1987. Khan’s family,
including her mother and sister as well as five of her
aunts and uncles, are also United States citizens. She
also has a four-year-old daughter who is a United
States citizen. On February 13, 1997, Khan was sen-
tenced to a prison term of four months, to be followed
by a period of supervised release for one year, in con-
nection with her November 6, 1996, guilty plea to the
use of a telephone to facilitate the distribution of heroin
in violation of 21 U.S.C. §§ 843(b), (d).

In May 1997, the INS commenced removal pro-
ceedings against Khan by filing a Notice to Appear.
The notice charged that her offense rendered her de-
portable as an alien convicted of an aggravated felony.
See INA § 237(a)(2)(A)(iii), codified at 8 U.S.C.
§ 1127(a)(2 Ail); 8 U.S.C. § 1101(a)(43)(B).

A removal hearing was held before an IJ and Khan,
represented by counsel, denied that she was deportable
as charged. On July 24, 1997, the IJ ordered her de-
portable. Khan timely appealed the IJ’s decision. On
May 28, 1997, the BIA issued a decision dismissing
Khan’s appeal. On June 29, 1998, Khan filed a petition
for review in this Court. On October 13, 1998, Khan
also challenged her removal order by filing a petition
for a writ of habeas corpus in the United States District
Court for the Eastern District of New York. Khan v.
Reno, No. CV 99-6515 (E.D.N.Y. filed Oct. 13, 1999).
That petition is pending.

47a

D. INA § 212(c) Waiver from Deportation.

Under former INA § 212(c), codified at 8 U.S.C.
§ 1182(c) (1996), the Attorney General had discre-
tionary authority to waive the deportation of an alien
deportable because of a prior conviction where de-
portation would cause extraordinary hardship to the
deportee or his or her family. The permanent rules of
IIRIRA, effective April 1, 1997, repealed § 212(c) in its
entirety and replaced it with another form of relief
entitled “cancellation of removal,” found at new INA
§ 240A, codified at 8 U.S.C. § 1229b (1999). See IIRIRA
$§ 304(a), (b), 110 Stat. at 3009-587-594. That relief,
permitting the Attorney Generai to waive deportation
for certain classes of aliens, is categorically not avail-
able to an alien convicted of a crime that qualifies as an
“aggravated felony” under the Statute. See id. The
petitioners are each ineligible for “cancellation of re-
moval” because their convictions qualify as “aggravated
felonies” under the INA. See IN A § 240A, codified at 8
U.S.C. § 1229b (1999): 8 U.S.C. § 1101(a)(43).

In their petitions for review to this Court, the peti-
tioners argue that the BIA erred by interpreting
IIRIRA § 304’s repeal of § 212(c) relief and replacement
with “cancellation of removal” to apply retroactively to
an alien who is convicted before April 1, 1997, the effec-
tive date of IIRIRA § 304(a)." The petitioners further
contend that if IIRIRA is interpreted to apply retro-
actively to pre-enactment convictions, § 304(a) of
ITRIRA is unconstitutional because it violates their

"| At argument, counsel for the petitioners alternatively argued
that IIRIRA §§ 304(a), (b) should not apply retrospectively to
guilty pleas entered to deportable crimes prior to IIRIRA’s effec-
tive date.

48a

rights guaranteed under the due process and equal
protection clauses of the U.S. Constitution.

II. DISCUSSION

We must consider whether we have jurisdiction over
the petition before us. Implicit in this question is
whether IIRIRA’s permanent rules repealed habeas
corpus jurisdiction to review final removal orders
entered against a legal resident alien who is removable
because of a prior conviction. See Liang v. INS, 206
F.3d 308, 312-13 (3d Cir. 2000) (noting the interrelation-
ship between jurisdiction over a petition for review and
habeas corpus). The permanent rules of IIRIRA are
Congress’s most recent enactment, in a line of many, on
the subject of the judicial review available over immi-
gration decisions. A complete discussion of the history
of judicial review of immigration orders is set forth in
this Court’s decision in Henderson, 157 F.3d at 112-17.
For our purposes on this appeal, it is necessary to begin ~
with the 1996 amendments to the INA.

A. The AEDPA.

In April of 1996, Congress enacted the AEDPA,
which included two provisions relevant to the judicial
review of immigration decisions. Prior to the enact-
ment of the AEDPA, INA § 106(a)(10) provided that
“any alien held in custody pursuant to an order of
deportation may obtain judicial review thereof by ha-
beas corpus proceedings.” 8 U.S.C. § 1105a(a)(10)
(1996). Section 401(e) of the AEDPA, entitled “Elimi-
nation of Custody Review by Habeas Corpus,” expli-
citly repealed prior INA § 106(a)(10). See AEDPA
§ 401(e), 110 Stat. at 1268. Section 440(a) was enacted
to replace the repealed provision and substitute the
following language:

49a

(10) Any final order of deportation against an alien
who is deportable by reason of having committed a
criminal offense covered in section 241(a)(2)(A)(iii),
(B), (C), or (D), or any offense covered by section

was repealed, we noted that “[t]he absence of an op-

arising in the course of deportation proceedings.” Jd. at
30. In Hincapie-Nieto, it was not necessary to deter-
mine whether district courts continued to have 28

50a

Our suggestion in Hincapie-Nieto that AEDPA
§ 440(a)’s bar of judicial review under the INA was
constitutional because courts might review deportation
orders through habeas corpus petitions was in accord
with the vast majority of courts of appeals to consider
the same issue. See Mansour v. INS, 123 F.3d 423, 426
(6th Cir. 1997); Mendez-Morales v. INS, 119 F.3d 738,
739 (8th Cir. 1997); Williams v. INS, 114 F.3d 82, 838-4
(5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154-
55 (10th Cir. 1997); Chow v. INS, 118 F.3d 659, 668-70
(7th Cir. 1997); Boston-Bollers v. INS, 106 F.3d 352, 354
n.1 (11th Cir. 1997); Kolster v. INS, 101 F.3d 785, 790-91
(1st Cir. 1996); Salazar-Haro v. INS, 95 F.3d 309, 311
(3d Cir. 1996); Duldulao v. INS, 90 F.3d 396, 400 n.4
(9th Cir. 1996).

B. IIRIRA’s Transitional Rules.

Five months after enacting the AEDPA, on Septem-
ber 30, 1996, Congress enacted IIRIRA, which further
narrowed judicial review for legal residents ordered
removable because they were convicted of certain
crimes. IIRIRA contains two sets of provisions. The
transitional rules (which are not codified in the U.S.
Code) control deportation proceedings commenced
prior to April 1, 1997. See IIRIRA § 309(c), 110 Stat. at
3009-625. Section 309(c)(4)(G) of IIRIRA’s transitional
rules is the successor to AEDPA § 440(a) and provides
in more absolute language that “there shall be no
appeal permitted in the case of an alien who is inadmiss-
ible or deportable by reason of having committed a
criminal offense covered in [the deportation proceed-
ings of the INA].” IIRIRA § 309(c)(4)(G), 110 Stat. at
3009-626, codified at 8 U.S.C. § 1101 note (1999).

5la

In addition, ITRIRA § 806(a) amends INA § 242(g) to
provide:

Exclusive Jurisdiction. Except as provided in this
section and notwithstanding any other provision of
law, no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General
to commence proceedings, adjudicate cases, or exe-
cute removal orders against any alien under this
Chapter.

ITRIRA § 306(a), 110 Stat. at 3009-612, codified at 8
U.S.C. § 1252(g) (1999), Although INA § 242(g) is listed
with the permanent provisions, IIRIRA § 306(c) makes
§ 242(g) applicable to both transitional and permanent
rules cases. See IIRIRA § 306(c), 110 Stat. at 3009-612.

In Jean-Baptiste, 144 F.3d at 214-18, this Court
considered whether INA § 242(g) divested federal
courts of jurisdiction over a case where legal residents,
ordered deported because of a criminal conviction,
maintained that their right to due process was violated
because they had never been given notice that their
criminal conviction could subject them to consequences
under the immigration laws. Finding that plaintiffs’
claims arose out of “the decision of the Attorney
General to commence proceedings, adjudicate cases, or
execute removal orders,” this Court held that INA
§ 242(g) deprived federal courts of jurisdiction to hear
plaintiffs’ claims. See id. at 218.

We reasoned, however, that all review had not been
eliminated by INA § 242(g) or the AEDPA. See id.
Relying on the doctrine articulated in Felker v. Turpin,
518 U.S. 651, 659-61, 116 S. Ct. 2333, 185 L.Ed.2d 827

52a

(1996), that repeal by implication of the right to petition
for habeas corpus relief is disfavored, we held that:

Nothing in the language of either the [AEDPA] or
[IIRIRA] suggests that Congress expressly re-
pealed § 2241, limited its scope, or eliminated the
jurisdiction of the district courts under that statute
to entertain petitions seeking writs of habeas
corpus. Those two Acts therefore do not specifically
exclude habeas review in deportation cases under
San. ss

Id. at 219. Therefore, in Jean-Baptiste, this Court
concluded that the AEDPA and IIRIRA’s transitional
rules did not repeal the habeas jurisdiction granted to
federal courts by Congress in 28 U.S.C. § 2241 to re-
view challenges to final deportation orders. We left
open the question of the scope of the habeas review of
immigration decisions available under 28 U.S.C. § 2241.
See id. at 220.

Our decision in Jean-Baptiste is in accord with the
majority of circuits also to hold that the language of
§ 242(g) did not repeal habeas jurisdiction over immi-
gration decisions. The First, Third, Fourth, Fifth,
Sixth, Eighth, Ninth, Tenth, and Eleventh Circuit
Courts of Appeals held that habeas jurisdiction to
review final deportation decisions survived the AEDPA
and IIRIRA transitional rules’ streamline of the judi-
cial review available under the INA. See Magana-
Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999); Pak v.
Reno, 196 F.3d 666, 673 (6th Cir. 1999); Bowrin v. INS,
194 F.3d 483, 489 (4th Cir. 1999); Requena-Rodriquez v.
Pasquarell, 190 F.3d 299, 306 (5th Cir. 1999); Jwrado-
Gutierrez v. Greene, 190 F.3d 1135, 1145-46 (10th Cir.
1999), cert. denied, Paluganas-Suarez v. Greene,

58a

Mayers v. INS, 175 F.3d 1289, 1801 (11th Cir. 1999);
Sandoval v. Reno, 166 F.3d 225, 236-37 (3d Cir. 1999);
Goncalves v. Reno, 144 F.3d 110, 119-23 (ist Cir. 1998),

Circuit has held that the transitional rules of IIRIRA
effected a repeal of habeas jurisdiction over final
deportation orders. See LaGuerre v. Reno, 164 F.3d

In Henderson, 157 F.3d at 118-22, we reaffirmed our
synthesized holding of Hincapie-Nieto and Jean-
Baptiste that under the INA, modified by the AEDPA
and IIRIRA’s transitional rules, an alien ordered de-
ported because of a criminal conviction cannot seek a
petition for review in the court of appeals but must
pursue a claim in a habeas proceeding pursuant to 28
U.S.C. § 2241. Although the panel questioned the wis-
dom of having the channel for review be by habeas in
the district court rather than by petition for review in
the courts of appeals, it acknowledged that it was
bound by a reasonable comprehension of the statute _
and Second Circuit precedent. See id. at 119 n.9; see
also Jean-Baptiste, 175 F.3d at 226 (denying a subse-
quent petition for rehearing despite the Henderson
panel’s questioning).

54a

that the courts were without power to review the
Attorney General’s interpretation of the immigration
laws. See Henderson, 157 F.3d at 119-20. We soundly
rejected the INS’s argument and held that federal
courts have jurisdiction under 28 U.S.C. § 2241 to
consider all claims that are purely legal in nature—
including constitutional challenges and claims that the
Attorney General misinterpreted the immigration laws.
See id. at 122.

C. IIRIRA’s Permanent Rules.

The permanent rules of IIRIRA govern deportation
proceedings initiated after April 1, 1997. See IIRIRA
§ 309(c), 110 Stat. at 3009-625. The parties agree that
because deportation proceedings were not initiated
against any of the petitioners until after April 1, 1997,
the permanent rules apply to their cases. The per-
manent rules revamp the INA by striking 8 U.S.C.
§ 1105(a) in its entirety and relocating the rules govern-
ing judicial review of deportation orders to 8 U.S.C.
§ 1252. See IIRIRA § 306(a), 110 Stat. at 3009-607-612.

The INS argues that the court of appeals is the
exclusive forum for all immigration matters, invoking
several provisions of the permanent rules in support of
its position that IIRIRA, in its final form, divests
district courts of their habeas jurisdiction. The INS
calls our attention to newly added INA §§ 242(a)(1),
242(a)(2)(C), 242(e)(2), 242(¢) and 242(b)(9). See
IIRIRA § 306(a), 110 Stat. at 3009-607-612. Section
242(a)(1) of the INA provides:

Judicial review of a final order of removal (other
than an order of removal without a hearing pursuant
to section 1225(b)(1) of this title) is governed only by
chapter 158 of Title 28 [the Hobbs Act]... .

55a

8 U.S.C. § 1252(a)(1) (1999). The INS argues that be-
cause the Hobbs Act gives exclusive jurisdiction to the
court of appeals, see 28 U.S.C. § 2342 (“The court of
appeals . . . has exclusive jurisdiction” over specified
agency orders), § 242(a)(1) evidences Congress's intent

to eradicate habeas review.

Seetion 242(a)(2)(C) of the INA is the successor to
AEDPA § 440(a) and ITRIRA § 309(c)(4)(g) and in its
final form now states:

Notwithstanding any other provision of law, no
court shall have jurisdiction to review any final
order of removal] against an alien who is removable
by reason of having committed a criminal offense
covered in [the deportation sections of the INA].

8 U.S.C. § 1252(a)(2)(C) (1999). The INS argues that
when it added the “notwithstanding any other provision
of law” phrase to the final incarnation of this section,
Congress explicitly repealed habeas jurisdiction.

The INS also relies on INA § 242(e)(2). This section
provides:

Judicial review of any determination made under
section 1225(b)(1) of this title is available in habeas
corpus proceedings, but shall be limited to
determinations of—(A) whether the petitioner is an
alien, (B) whether the petitioner was ordered re-
moved under such section, and (C) whether the
petitioner can prove by a preponderance of the
evidence that the petitioner is an alien lawfully
admitted for permanent residence, has been ad-
mitted as a refugee under section 1157, or has been
granted asylum under section 1158, such status not
having been terminated, and is entitled to such

56a

further inquiry as prescribed by the Attorney
General pursuant to section 12255(b)(1)(C) of this
title.

8 U.S.C. § 1252(e)(2) (1999). The INS contends that be-
cause INA § 242(e)(2) provides for statutory habeas
review under the delineated circumstances, Congress
knew how to create habeas review under the INA when
it so desires. It follows, according to the INS, that
Congress’s decision to omit analogous language in re-
gard to an alien’s challenge to his or her final deporta-
tion order demonstrates its intent that this review be
unavailable.

The INS additionally points to INA § 242(g), a
section already considered by this Court in Henderson.
Section 242(g) provides:

Except as provided in this section and notwith-
standing any other provision of law, no court shall
have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or
action by the Attorney General to commence pro-
ceedings, adjudicate cases, or execute removal
orders against any alien under this Chapter.

8 U.S.C. § 1252(g) (1999).

Finally, § 242(b)(9), upon which the INS rests its
principal argument 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

57a

shall be available only in judicial review of a final
order under this section.

8 U.S.C. § 1252(b)(9) (1999). The INS argues that be-
cause INA § 242(b)(2) requires that all petitions for
review “be filed with the court of appeals for the
judicial circuit in which the immigration judge com-
pleted the proceedings,” § 242(b)(9) necessarily divests
any court of jurisdiction other than the appropriate
court of appeals. In Support of this argument, the INS
points to the Supreme Court’s recent characterization
in dicta of § 242(b)(9) as a “zipper clause” that channels
all review of removal decisions under the INA into the
court of appeals. See Reno vy. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 483, 119 S. Ct.
936, 142 L.Ed.2d 940 (1999) (“AADC”).

Four courts of appeals have considered arguments
similar to those presented by the INS in this case. The
Fifth and Eleventh Circuit Courts of Appeals adopted
the INS’s position; the Third and N inth rejected it.

In Richardson v. Reno, 180 F.3d 1311, 1312-13 (11th
Cir. 1999) (“Richardson II”), cert. denied, Richardson
v. Reno, __, U.S. —__., 120 St. Ct. 1529 (2000), the
Eleventh Circuit reaffirmed its holding in Richardson
v. Reno, 162 F.3d 1388 (11th Cir. 1998) (“Richardson
I”), after reconsideration in light of the Supreme
Court’s decision in AADC, that IIRIRA’s permanent
rules eliminated § 224] habeas jurisdiction over an
alien’s challenge to his or her removal proceedings. The
court held that INA § 242(b)(2), § 242(e)(2) and the
AEDPA’s elimination of habeas review in § 401(e) evi-
denced Congress’s intent to preclude statutory habeas
review over immigration decisions. See id. at 1814.

58a

More specifically, the court held that INA § 242(b)(9)
and the Supreme Court’s description of that section in
AADC as a “zipper clause” that channels judicial re-
view of immigration decisions exclusively into that
provided by the INA, was evidence that Congress
intended to repeal all habeas review. See id. at 1314-15.
The court concluded that the repeal of habeas juris-
diction to review immigration decisions is not unconsti-
tutional because judicial review still remains under
INA § 242(a)(2)(C) to determine whether the petitioner
is an alien, is deportable, and deportable for a reason
covered by INA § 242(a)(2)(C). See id. at 1315-16.
Furthermore, the court said, review of substantial con-
stitutional questions and challenges to the consti-
tutionality of the INA itself remains available because
INA § 242(a)(2)(C) does not literally foreclose consti-
tutional challenges to the statute itself. See id. at 1316
n.d.

In Max-George v. Reno, 205 F.3d 194, 197-98 (5th Cir.
2000), the Fifth Circuit followed the lead of the
Eleventh Circuit and agreed with the INS that 28
U.S.C. § 2241 habeas jurisdiction had been repealed by
IIRIRA’s permanent rules. According to the Fifth
Circuit, Congress need not explicitly mention habeas
jurisdiction generally or § 2241 by name to repeal ha-
beas jurisdiction. See id. at 199 (“While Congress could
theoretically have been more explicit by specifically
mentioning habeas corpus in general or § 2241 in
particular, we believe the jurisdictiona! limitation de-
scribed throughout § 1252 was sufficiently explicit.”).
Accordingly, the court reasoned that, unlike the lan-
guage in IIRIRA’s transitional rules, the jurisdiction-
stripping provisions in the permanent rules, beginning
with the far more preclusive language “notwithstanding

59a

any other provisions of law,” explicitly repealed § 2241
habeas jurisdiction over immigration decisions. Jd. at
198. The Fifth Circuit, like the Eleventh Circuit, rea-
soned that the repeal was not unconstitutional because
sufficient judicial review remained available for
criminal aliens’ challenges against removal under INA
§ 242(a)(2)(C). See id. at 199-201. It did not go as far,
however, as the Eleventh Circuit to hold that review of
constitutional and statutory claims were preserved. It
held instead that the court of appeals retains juris-
diction under § 242(a)(2)(C) only to determine whether
the prerequisites for precluding review are met,
whether the provisions classifying the petitioner in a
Specific criminal category are constitutionally applied,
and whether the level of judicial review remaining in a
particular case satisfies the Constitution. See id.

In Liang v. INS, 206 F.3d 308, 316-18 (3d Cir. 2000),
the Third Circuit parted ways with the Fifth and
Eleventh Circuits, holding that because none of the
Sections in § 1252 expressly refers to habeas juris-
diction or to § 2241, none expressly revoked habeas
jurisdiction. The court reasoned that the Supreme
Court did not, in AADC, decide that § 242(b)(9) radi-
cally eliminated habeas jurisdiction because that was
not the issue raised in that case, and the Supreme
Court explicitly noted that courts were in disagreement
whether habeas jurisdiction remained after IIRIRA.
See id. at 319. The Third Circuit also disagreed with
the Fifth and Eleventh Circuits’ conclusion that suffi-
cient judicial review remained under § 242(a)(2)(C) so
that the repeal of habeas was not unconstitutional, and
continued to adhere to its earlier ruling in Sandoval,
166 F.3d 225, that the language of § 242(a)(2)(C) makes
clear that the court of appeals lacks jurisdiction over

60a

petitions of review filed by aliens removable because of
prior convictions. See id. at 321. Because no judicial
review of criminal aliens’ statutory and constitutional
claims remains under § 242(a)(2)(C), the court con-
cluded that a repeal of habeas jurisdiction over immi-
gration decisions raises serious constitutional questions.
See id. at 321-22.

The Ninth Circuit, following the lead of the Third
Circuit, held that IIRIRA’s permanent rules do not use
language explicit enough to repeal a federal court’s
habeas jurisdiction to review final removal orders. See
Flores-Miramontes v. INS, 212 F.3d 1133, 1137-38 (9th
Cir. 2000). The court reasoned that although the
language of the permanent rules is stronger than that
of the transitional provisions, the difference would not
cause it to depart from its decision in Magana-Pizano,
200 F.3d 603, to find a repeal of 28 U.S.C. § 2241
jurisdiction over final removal orders. See Flores-
Miramontes, 212 F.3d at 1137. Furthermore, the court
held that § 242(b)(9) and the Supreme Court’s remarks
about that provision did not require the conclusion that
habeas review is repealed. See id. at 1139. Finally, the
court found that an interpretation that IIRIRA does
not repeal habeas jurisdiction avoids a substantial
constitutional question. See id. at 1141-42. In so doing,
it rejected the INS’s argument that review of sub-
stantial constitutional claims remained in the court of
appeals under a petition for review. See id. at 1142.

We are persuaded by the Third and Ninth Circuits’
reasoning in Liang v. INS and Flores-Miramontes v.
INS that Article III courts continue to have habeas
jurisdiction under 28 U.S.C. § 2241 over legal chal-
lenges to final removal orders. We conclude that the

6la

constitutional questions that would arise were we to
find that IIRIRA eliminates habeas jurisdiction over
final immigration decisions.

We will not strain to infer that Congress radically
repealed the federal courts’ habeas jurisdiction to re-
- View final orders of removal. In Felker, 518 U.S. at 657,
the Supreme Court considered whether Title I of the

dictional statutes by implication are not favored. See
Felker, 518 U.S. at 660. This rule requires that a court
cannot presume that a congressional enactment effects
a repeal of a jurisdictional statute when it does not
explicitly mention the jurisdictional statute or the
general type of jurisdiction by name.

62a

In Jean-Baptiste, 144 F.3d at 220, we determined
that although the AEDPA and IIRIRA’s transitional
rules eliminated habeas corpus review under INA
§ 106(a)(10), neither specifically discussed 28 U.S.C.
§ 2241 or habeas jurisdiction generally. Following the
rule articulated in Felker, we held that Congress did
not repeal habeas corpus jurisdiction under 28 U.S.C.
§ 2241. See id. In order to find habeas jurisdiction
eradicated, our precedent thus requires an explicit
statement from Congress that mentions a repeal of
habeas jurisdiction. The majority of other circuit courts
have also held that Congress must explicitly mention
§ 2241 or general habeas jurisdiction to repeal it. See ~
Flores-Miramontes, 212 F.3d at 1137; Liang, 206 F.3d
at 320; Magana-Pizano, 200 F.3d at 608-09; Pak, 196
F.3d at 673; Bowrin, 194 F.3d at 489; Jwrado-Gutierrez,
190 F.3d at 1145-46; Shah, 184 F.3d at 724; Goncalves,
144 F.3d at 119; but see LaGuerre, 164 F.3d at 1038-39.

Nothing in IIRIRA’s permanent provisions requires
us to stray from our determination in Jean-Baptiste
that habeas review survives IIRIRA. Although the
language is arguably more restrictive, there is still
nothing in IIRIRA’s permanent provisions that consti-
tutes a sufficiently clear statement of congressional
intent to repeal the habeas jurisdiction granted Article
III courts by 28 U.S.C. § 2241. Although each new pro-
vision works to narrow or limit the judicial review
available to the criminal aliens under the INA, INA
§§ 242(a)(1), 242(a)(2)(C), 242(e)(2), and 242(g)" do not

2 Indeed, the INS’s argument that INS § 242(g) repeals § 2241
habeas jurisdiction over final deportation orders is foreclosed by
the Supreme Court’s decision in AADC, interpreting § 242(g) to

63a

explicitly mention a repeal of a federal court’s general
habeas jurisdiction or 28 U.S.C. § 2241. See 8 U.S.C.
$§ 1252(a)(1), (a)(2\C), (e)(2), and (g) (1999). Judicial
review and habeas corpus have distinct technical mean-
ings under the law. See Heikkila v. Barber, 345 U.S.
229, 235-36, 73 S. Ct. 603, 97 L.Ed. 972 (1953); see also
Flores-Miramontes, 212 F.3d at 1140 (citing Sandoval,
166 F.3d at 235). We will not infer that Congress meant
to repeal habeas corpus review under 28 U.S.C. § 2241
when it mentioned only judicial review, a distinct and
Separate concept from habeas.

Felker’s requirement that Congress provide an
explicit statement in order to repeal habeas jurisdiction
is particularly relevant in this case. As the Ninth
Circuit pointed out, Felker was decided three months
before IIRIRA became law. We assume that Congress
is aware of the law, see U.S. y. Georgopoulos, 149 F.3d
169, 172 (2d Cir. 1998) (citing Miles v. Apex Marine
Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 112 L.Ed.2d 275
(1990)), and therefore aware of Felker’s mandate when
it considered the transitional and permanent rules of
IIRIRA. See Flores-Miramontes, 212 F.3d at 1139.
Had Congress intended that the avenue of review avail-
able under 28 U.S.C. § 2241 be repealed, it knew to use
more explicit language than it chose.

The INS rests heavily on the phrase “notwith-
standing any other provision of law” added to INA
§ 242(a)(2)(C), codified at 8 U.S.C. § 1252(a)(2)(C)
(1999). However, we were not persuaded that the same
exact phraseology repealed § 2241 habeas jurisdiction

apply only to the three discrete immigration decisions identified in
the section. See 525 U.S. at 482.

64a

when, in Jean-Baptiste, we examined the effect on ha-
beas jurisdiction of INA section 242(g). See 144 F.3d at
218. Other courts of appeals have also held that the
“notwithstanding” language was not strong enough to
repeal habeas jurisdiction. See Sandoval, 166 F.3d at
236; Goncalves, 144 F.3d at 122. Our holding and our
application of it in Jean-Baptiste controls our inter-
pretation of the permanent rules and requires a con-
clusion that the permanent rules do not divest federal
courts of jurisdiction to review a criminal alien’s legal
challenge to his or her removal order.

As for the INS’s reliance on § 242(b)(9), we first re-
cognize that § 242(b)(9) does not expressly mention
habeas jurisdiction or § 2241. INA § 242(b)(9) is a con-
gressional limitation on judicial review and does not
concern habeas jurisdiction. Thus, under Felker and
our decision in Jean-Baptiste, § 242(b)(9) does not con-
stitute a repeal of habeas corpus.

Furthermore, we are not persuaded by the INS
that the Supreme Court’s characterization of INA
§ 242(b)(9) as a “zipper clause” requires us to hold that
it effects a repeal of habeas jurisdiction. In AADC, a
group of temporary residents, who belonged to the
Popular Front for the Liberation of Palestine, sought
injunctive and declaratory relief on the ground that
the INS was selectively enforcing the immigration laws
against them in violation of their First and Fifth
Amendment rights. See 525 U.S. at 473-74. The INS
sought to dismiss the case for lack of jurisdiction, argu-
ing that INA § 242(g), made applicable to the case by
§ 306(c)(1) of IIRIRA, deprived the courts of power to
hear the appeal. See id. at 475. The Supreme Court
agreed with the INS that INA § 242(g) deprived

65a

federal courts of jurisdiction over the petitioners’ selec-
tive enforcement case until the deportation orders
against them became final, if ever. See id. at 482. The
Court, however, rejected the “unexamined assumption
that § 1252(g) covers the universe of deportation
claims” and held that the section covered only the three
discrete actions delineated by the statute: the Attorney
General’s decision to commence proceedings, adjudicate
cases, or execute removal orders. See id. In AADC,
the Supreme Court contrasted the narrow scope of INA
§ 242(g) with INA § 242(b)(9), which it described as an
“unmistakable zipper clause” that channels judicial
review of all immigration-related decisions and actions
to the court of appeals. Jd. at 482-83.

The Court’s description of INA § 242(b)(9) as a
“zipper clause” that “channels judicial review” of immi-
gration decisions to the court of appeals was not a
holding that § 242(b)(9) divests federal courts of § 2241
habeas jurisdiction. The discussion of § 242(b)(9) in
AADC pertained to whether § 242(g) was redundant of
§ 242(b)(9). By interpreting § 242(g) narrowly, the
Supreme Court held that the apparent redundancy was
a “mirage.” Id. at 482. Far from deciding the question
what habeas relief remained after IIRIRA, the Court
chose not to address the question. See id. at 480 n.7
(noting disagreement among the courts of appeals). To
repeat, that case did not concern a habeas petition but

'8 The Supreme Court thus held that INA § 242(g) applies in a
very narrow class of cases. This holding is contrary to our inter-
pretation of that section in Jean-Baptiste where we assumed that
it governed in the case before us. This distinction has no bearing,
however, on our holding in Jean-Baptiste that the language of
§ 242(g) was insufficient to repeal § 2241.

66a

was a case brought under a federal court’s federal
question subject matter jurisdiction. See id. at 474:
Therefore, “that case does not require a conclusion
contrary to the rule set forth in Felker.” Flores-
Miramontes, 212 F.3d at 1139. Accordingly, we will
not presume that the Supreme Court meant its decision
in AADC to have the radical effect of repealing habeas
jurisdiction when it declined to address the issue
directly.

As the Ninth Circuit points out, our interpretation
that INA § 242(b)(9) does not eradicate 28 U.S.C. § 2241
habeas jurisdiction does not render that section mean-
ingless. See Flores-Miramontes, 212 F.3d at 1140. Put
differently, § 242(b)(9) forces a legal resident alien in
removal proceedings to save all of his or her challenges
to an unlawful government decision or action until after
a final removal order is issued. Congress enacted INA
§ 242(b)(9) for the important purpose of consolidating
all claims that may be brought in removal proceedings
into one final petition for review of a final order in
the court of appeals. See id. at 1141. Before INA
§ 242(b)(9), only actions attacking the deportation order
itself were brought in a petition for review while
other challenges could be brought pursuant to a federal
court’s federal question subject matter jurisdiction
under 28 U.S.C. § 1331. Now, by establishing “exclu-
sive appellate court” jurisdiction over claims “arising
from any action taken or proceeding brought to remove
an alien,” all challenges are channeled into one petition.
See 8 U.S.C. § 1252(b)(9); Flores-Miramontes, 212 F.3d
at 1140-41. Hence, § 242(b)(9) concerns judicial review
in a civil action brought under 28 U.S.C. § 1331 rather
than review under habeas corpus. Finally, our inter-
pretation of IIRIRA’s permanent rules as preserving

67a

28 U.S.C. § 2241 habeas jurisdiction allows us to avoid
the serious constitutional question that a repeal of ha-
beas jurisdiction over removal proceedings involving
criminal aliens would raise under the Constitution. See
Webster v. Doe, 486 U.S. 592, 603, 108 S. Ct. 2047, 100
L.Ed.2d 632 (1988) (interpreting a federal statute to
avoid a serious constitutional question presented where
the statute appeared to foreclose review of consti-
tutional claims); Ashwander v. Tennessee Valley Auth.,
297 U.S. 288, 348, 56 S. Ct. 466, 80 L.Ed. 688 (1936)
(Brandeis J., concurring) (same). The Suspension
Clause mandates that “(t]he privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in
cases of rebellion or invasion of the public safety may
require.” U.S. Const. art. 1,§ 9, cl. 2. Just recently,
Justice Stevens, writing for the Supreme Court ma-
jority, remarked that “[t]he writ of habeas corpus plays
a vital role in protecting constitutional rights.” Slack v.
McDaniel, — U.S. ——, 120 S. Ct. 1595, 1603, 146
L.Ed.2d 542 (2000). Historically, legal permanent
residents ordered removable from this country have
been entitled to assert their legal rights in habeas
corpus proceedings. See ¢.g., Heikkila, 345 U.S. at 230;
Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12
S. Ct. 336, 35 L.Ed. 1146 (1892); United States v. Jung
Ah Lung, 124 U.S. 621, 622-23, 8 S. Ct. 663, 31 L.Ed. 591
(1888). Indeed, non-citizens have long been permitted
to raise statutory claims, similar to those raised by the
petitioners before us, that are based on the executive
branch’s misinterpretation of the immigration laws. See
_ Kwong Hai Chew v. Colding, 344 U.S. 590, 596-600, 73
S. Ct. 472, 97 L.Ed. 576 (1953); Wong Yang Sung v.
McGrath, 339 U.S. 38, 48-53, 70 S. Ct. 445, 94 L.Ed. 616
(1950); Fong Haw Tan v. Phelan, 333 U.S. 6, 9, 68 S. Ct.
374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332

68a

U.S. 388, 390-91, 68 S. Ct. 10, 92 L.Ed. 17 (1947);
Kessler v. Strecker, 307 U.S. 22, 28-32, 59 S. Ct. 694, 83
L.Ed. 1082 (19389); Mahler v. Eby, 264 U.S. 32, 45, 44
S. Ct. 283, 68 L.Ed. 549 (1924). An interpretation
that repeals habeas corpus jurisdiction as it applies to
legal permanent residents ordered removed from the
country because of prior crimes would therefore raise a
serious constitutional question under the Suspension
Clause of the Constitution.

The INS argues that a constitutional question does
not arise if 28 U.S.C. § 2241 jurisdiction is repealed be-
cause the constitutionally-mandated amount of judicial
review remains under the INA. Specifically, although
it acknowledges the broad preclusive language of
§ 242(a)(2)(C) and the majority of courts’ interpretation
of it, see supra at II. A, the INS assures us that a
criminal alien may still obtain review of his or her
removal orders pursuant to a petition for review in a
court of appeals. It argues that this review includes all
that is required by the Constitution—“substantial”
constitutional claims and “certain jurisdictional facts”
including whether the petitioner is an alien who is re-
movable by reason of having committed a specified
criminal offense.

It is true that the Supreme Court has held that
Congress may divest the district courts of habeas juris-
diction without violating the Constitution so long as it
substitutes “a collateral remedy which is neither inade-
quate nor ineffective to test the legality of a person’s
detention.” Swain v. Pressley, 430 U.S. 372, 381, 97
S. Ct. 1224, 51 L.Ed.2d 411 (1977). In accord with this
principle, we heretofore have recognized the need for
adequate judicial review of the legal challenges filed by

69a

a criminal alien. We have determined that, because
§ 242(a)(2)(C) eradicated all review for legal residents
ordered removed owing to a prior conviction, habeas
review of this class of claims remains. See Henderson,
157 F.3d at 119; Jean Baptiste, 144 F.3d at 219;
Hincapie-Nieto, 92 F.3d at 31.

The INS’s interpretation of INA § 242(a)(2)(C) and
its definition of what review is required by the Consti-
tution is a misapprehension of the law, in conflict with
our prior decisions, and difficult. to reconcile with the
INS’s earlier position taken in Hincapie-Nieto. A\-
though a-federal court of appeals generally retains
jurisdiction under INS § 242(a)(1) to review a legal
resident alien’s challenge to his or her final order of
removal, INA § 242(a)(2)(C) excepts this review for a
petition filed by a detained alien ordered removable
because of a criminal conviction. See 8 U.S.C. § 1252(a)
(2)(C). Thus, in Hincapie-Nieto and Jean-Baptiste, we
interpreted § 242(a)(2)(C) as barring all review of a final
order of removal entered against an alien removable
because of a prior conviction, Hincapie-Nieto, 92 F.3d
at 30; Jean-Baptiste, 144 F.3d at 219. Indeed, in
Hincapie-Nieto, the INS, contrary to what it asserts
here, assured the court that there was no constitutional
infirmity with this interpretation because a non-citizen
in executive detention could obtain judicial review of
his or her deportation order by habeas corpus. See 92
F.3d at 31. ;

Furthermore, in Jean-Baptiste, we rejected the very
same argument presented by the INS in this case.
There, the INS argued that it was unnecessary to pre-
serve habeas jurisdiction to avoid a constitutional
question because review of constitutional questions re-

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mained available under the INA. Relying on our prior
decision in Hincapie-Nieto, we held that the INA as
amended by IIRIRA takes away that review for legal
residents ordered removable because of prior con-
victions. See Jean-Baptiste, 144 F.3d at 219-20. The
INS’s arguments were “not well-taken” in that case, see
id. at 220, and are received with the same skepticism
here. There is nothing in IIRIRA’s permanent rules or
their legislative history that indicates that Congress
excepted review of substantial constitutional questions
under INA § 242.

In addition, the INS’s formulation of the review
required by the Constitution falls short of the review
that we held in Henderson is mandated. We found
there that even a partial repeal of habeas jurisdiction to
hear an executively detained alien’s statutory chal-
lenges may violate the Suspension Clause. See 157 F.3d
at 120. In that case, we reasoned that the INS’s
articulation of the review that is required under the
Constitution: .

is drawn from the very different context of succes-
sive federal habeas corpus petitions by prisoners in
state custody who have already had one or more
opportunities for full judicial process and appeals in
the state system, with an opportunity for further
review in the Supreme Court by a writ of certiorari,
and one or more opportunities for review in the
federal judiciary on their first habeas petition.

Id. (quoting Goncalves, 144 F.3d at 118 n.8). The case of
a legal permanent resident alien, in contrast, arises in
the setting of executive detention, “a context in which
the petitioner[ ] ha[s] never had [his or her] claim[ ]
review[ed] by any court, federal or state.” Jd. In this

7la

context, circuit courts, including this one, have noted
that review of statutory questions similar to the one
presented in this case has long been deemed essential
to ensure that a detained alien receives full due process
of law. See Henderson, 157 F.3d at 121 (citing Gegiow
v. Uhl, 239 U.S. 3, 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915);
Brownell v. We Shung, 352 U.S. 180, 182 n.1, 77 S. Ct.
252, 1 L.Ed.2d 225 (1956)); Goncalves, 144 F.3d at 124
(citing numerous immigration cases that have con-
sidered claims of statutory right)); see also Mayers, 175
F.3d at 1300 (citing United States ex rel. Hintopoulos v.
Shaughnessy, 353 U.S. 72, 78, 77 S. Ct. 618, 1 L.Ed.2d
652 (1957)); Accardi v. Shaughnessy, 347 U.S. 260, 268,
74 S. Ct. 499, 98 L.Ed. 681 (1954)).

Furthermore, the language of 28 U.S.C. § 2241 does
not contemplate that the writ only extends to a person
in custody in violation of the Constitution. Rather, the
statute also provides habeas jurisdiction over claims
that a person is in custody in violation of federal laws
and treaties. See 28 U.S.C. § 2241 (providing that
the writ of habeas corpus shall extend to a person in
custody “in violation of the Constitution or laws or
treaties of the United States”). Hence, the literal
terms of 28 U.S.C. § 2241 contemplate statutory claims
against executive detention.

The substitution of judicial review only of substantial
constitutional questions for the habeas review guaran-
teed under 28 U.S.C. § 2241 therefore does not cure the
constitutional infirmity that could result from a repeal
of the habeas statute. Without habeas jurisdiction to
review final orders, there is currently no judicial review
at all of a removal order issued against a non-citizen
who is ordered removable because he or she committed

72a

a certain crime. Because habeas jurisdiction is consti-
tutionally required where the immigration laws have
been interpreted to bar other forms of judicial review
under § 242(a)(2)(C), our decision that habeas review
remains for a criminal alien’s legal challenge to his or
her deportation order obviates the profound consti-
tutional questions that would arise if we concluded that
all judicial review had been eradicated.

Although not all challenges that an alien may launch
against his removal are cognizable under habeas, purely
legal statutory and constitutional claims are within
§ 2241’s scope. Thus, a federal court’s habeas review
includes the claim raised by the petitioners in these
consolidated cases—that IIRIRA does not apply to bar
the availability of § 212(c) relief for convictions that
occurred prior to its enactment. The petitioners chal-
lenge the government’s refusal to consider an appli-
cation for a waiver from deportation and do not ask the
court to determine whether the BIA exercised its
discretion appropriately. Their claim is a purely legal
question that is cognizable under the habeas statute.

We note, as did the Third Circuit in Liang, that if we
were legislators, rather than judges, we might opt for a
statutory scheme under which an alien’s constitutional
and statutory challenges are cognizable in the court of
appeals pursuant to a petition for review. This would
eradicate habeas corpus’s duplicative review of legal
questions in the district court and the court of appeals
and serve Congress’s goal to streamline judicial review.
However, we disagree with the Eleventh Circuit’s
interpretation of INA § 242(a)(2)(C) in Richardson II as
permitting review of both statutory and constitutional
claims. Although this interpretation may represent

73a :

sound legislative policy, we reiterate that we do not
read IIRIRA or our prior cases to permit such review
under INA § 242(a)(2)(C).

Notwithstanding, the question raised by the peti-
tioners is a purely legal matter appropriate for a court,
rather than the BIA, to determine. See Mayers, 175
F.3d at 1300; see aiso Goncalves, 144 F.3d at 113;
LaGuerre, 164 F.3d at 1041. It is the type of question
that, once answered by the highest court, is answered
for all cases that follow presenting the same issue. We
therefore believe our decision today that a legal re-
sident alien’s pure legal challenges are preserved via
habeas corpus to his or her removal order serves to
advance Congress’s goal of streamlining judicial review.

III. CONCLUSION

We affirm our adherence to the proposition that had
Congress intended to strip federal courts of habeas
jurisdiction under 28 U.S.C. § 2241 over criminal aliens’
statutory and constitutional challenges, it would have
done so by making its intent explicit. Because the
permanent rules do not mention a repeal of 28 U.S.C.
§ 2241 or habeas jurisdiction generally, we hold that
they do not deprive a federal court of its habeas juris-
diction under § 2241 to review the purely legal claims of
criminal aliens against final orders of removal. Because
we lack jurisdiction under INA § 242(a)(2)(C) over the
petitions for review brought by Calcano-Martinez,
Madrid, and Khan challenging their final orders of
removal, we dismiss the petitions without prejudice to
Khan’s pending petition or to the same claims being
brought by Calcano-Martinez and Madrid under habeas
corpus.

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APPENDIX C

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

Nos. 3:99ev260 (AHN), 3:99ev772 (AHN),
3:99ev773(AHN)

ROHAN P. DUNBAR
Vv.

INS

GYNO DOMOND

v.
INS

ENRICO ST. CYR

v.
INS

[Aug. 30, 1999)

75a

RULING ON PETITIONS FOR HABEAS CORPUS

The petitioners in these cases, Rohan P. Dunbar
(“Dunbar”), Gyno Domond (“Domond”), and Enrico St.
Cyr (“St. Cyr”), are Lawful Permanent Residents
(“LPRs”) of the United States currently facing deporta-
tion as a consequence of criminal acts they have com-
mitted. The Immigration and N aturalization Service
(“INS”) has agreed, through an oral stipulation entered
into via the United States Attorney’s Office for the
District of Connecticut, to suspend the deportation of
the petitioners pending the outcome of these actions.

In particular, the petitioners seek writs of habeas
corpus compelling the INS to allow them to apply for a
statutorily repealed form of discretionary relief from
deportation. For the following reasons, Dunbar’s
petition [doc. # 1 (3:99ev260(AHN))] is GRANTED,
Domond’s petition [doc. # 1 (3:99ev772(AHN))] is
GRANTED, and St. Cyr’s petition [doc. # 1 (3:99ev773
(AHN))] is GRANTED.

BACKGROUND

On April 24, 1996, Congress enacted the Anti-
Terrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”)
(effective date April 24, 1996). Later that year, Con-
gress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, Div. C, 110 Stat. 3009 (1996) (“

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1327%3A02. Public record. Not legal advice.