Respondents Brief — INS v. St. Cyr

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MAR. 2§ De0f G

No. 00-767

a =

In The

Supreme Court of the

IMMIGRATION AND NATURALIZATION SERVICE,

Petitioner,

ENRICO ST. CYR,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF FOR THE RESPONDENT

MicHAEL G. Moore

20 Maple Street, Suite 302

Springfield, Massachusetts

01103

(413) 747-9331

Paut A. ENGELMAYER

CHRISTOPHER J. MEADE

Witmer, CuTLer &

PICKERING

520 Madison Avenue

New York, New York

10022

(212) 230-8800

Lucas GUTTENTAG

Counsel of Record

Leet GELERNT

AHILAN ARULANANTHAM

Jupy Rasinovitz

STEVEN R. SHAPIRO

AMERICAN Crvit LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York

10004

(212) 549-2617

JAYASHRI SRIKANTIAH

LintaNnA M. Garces

AMERICAN Crvit LIBERTIES

UNION FOUNDATION

405 14th Street, Suite 300

Oakland, California

94612

(510) 625-2010

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

IBEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the district court had habeas corpus

jurisdiction over respondent’s challenge to his final

removal order.

2. Whether the Board of Immigration Appeals prop-

erly concluded that respondent is not eligible for discre-

tionary relief from deportation under former 8 U.S.C.

1182(c) (1994) because his removal proceeding was com-

menced after the repeal of Section 1182(c) became effec-

tive, even though he pleaded guilty and was convicted

before that date.

TABLE OF CONTENTS

A. Congress Did Not Provide Expressly For The

New Bars To Relief To Apply To Legal

Permanent Residents With Pre-Act Convic-

Page

QUESTIONS PRESENTED .......s2sescsscceesseses i

OPINIONS GELOW . «.... .i4iauncauei passes 1

PUURISO TION ooo vcanccvais canes esas 1

CONSTITUTIONAL AND STATUTORY PROVI-

SHINS EOVORVEES ox na ck ca decnpeade eee 1

EIU T ROEOUA TRIM ss 5 ocak vkvadocuss oun eueeeenaeee far

STATEMENT «so isa cds casaxse sans daneeaee eee 2

SUMMARY OF ARGSUMENG | x 0icnaddawexudeuasas 7

ARGUMENT oo os hc cnndci ede eee 8

I. RESPONDENT’S RETROACTIVITY CLAIM MAY

BE RAISED IN A SECTION 2241 HABEAS

ACTION IN THE ABSENCE OF PETITION-FOR-

REVIEW FURR se. BK 9 66s ccbad nee eee eens 8

A. The 1996 Amendments Do Not Contain The

Requisite Express Directive To Repeal

Section 2241 Under Felker and Ex Parte Yerger

an 04 nb ae a tae 10

B. AEDPA Did Not Eliminate Section 2241

Bamees eeGicGOh « oc oicccdniteascckansiees 12

C. IIRIRA Did Not Eliminate Section 2241

Fianewns Pere oes sé ccnayeess ease 16

Il. THE NEW PROHIBITION ON RELIEF DOES

NOT APPLY TO PRE-ENACTMENT EVENTS .. 19

iii

TABLE OF CONTENTS - Continued

Page

B. -Changing The Possibility Of Deportation

Into Mandatory Deportation Is A New Legal

SN wd kn de cnbse« betedeckvadiauis 34

C. There Is No Deportation Exception To The

Presumption Against Retroactivity ......... 44

EY Sa sdss ca saen ced udecsracisue flees 50

TABLE OF AUTHORITIES

Page

CAsEs:

Allen v. Hardy, 476 US. 255 CUDRG) oss. cwcccccssceas 39

Arias-Agramonte v. INS, No. 00-C2412, 2000 WL

1059678 (S.D.N.Y. Aug. 1, 2000), appeal pending,

Pom: Gate? Cae CE ince cccecccva se 20, 21, 4%) 2a» Se

Barber v. Gonzales, 347 U.S. 637 (1954)............ ais a

Beazeli wo. Chie, 269 US. 167 (ISZS) «ono ccccsccesscene 42

Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997) .... 18

Buscemi, Matter of, 20 1. & N. Dec. 191 (BIA 1990) ..... 4

Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir.), cert.

granted, 121 S. Ct. 849 (2001) ........cscceses 1, 6, 8

Cannon v. Univ. of Chicago, 441 U.S. 667 (1979) ...... 16

Carter v. United States, 530 U.S. 255 (2000)........... 15

Chamorro-Torres v. INS, 520 U.S. 1103 (1997) ......... 19

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Se I | er errr 48, 49

Chew Heong v. United States, 112 U.S. 536

| FPR pre re erry Torre Ae 45, 46, 47

Chow v. INS, 113 F.3d 659 (7th Cir. 1997)............ 18

Collins v. Youngblood, 497 U.S. 37 (1990) ............. 42

Costello v. INS, 376 U.S. 120 (1964)....... 33, 36, 37, 41

C-V-T-, In re, Int. Dec. No. 3342, 1998 WL 151434

SE: SE 550k Cane ekakedb ane saree ieranrese ees 5, 2a

Daneshvar v. Chauvin, 644 F.2d 1248 (8th Cir. 1981) .... 16

TABLE OF AUTHORITIES - Continued

Page

De Veau v. Braisted, 363 U.S. 144 (1960).............. 42

EEOC-v. Arabian-American Oil Co., 499 U.S. 244

(EDPE) 6 onan cceidvnwnincbadcceeecaeee eee 48

Eastern Enters. v. Apfel, 524 U.S. 498 (1998).......... 20

Edwards, Matter of, 10 I. & N. Dec. 506 (BIA 1964) ..... 4

Felker v. Turpin, 518 U.S. 651 (1996) ....7, 10, 11, 12, 18

Fiswick v. United States, 329 U.S. 211 RPE sakesaces 36

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948)........... 35

Fong Yue Ting v. United States, 149 U.S. 698 (1893) .... 47

Foti v. INS, 375 US. 217 (1963) .........00..cccccees 12

Francis v. INS, 532 F.2d 268 (2d Cir. 1976)........... 32

Galaviz-Medina v. Wooten, 27 F.3d 487 (10th Cir.

ne PETE TE COTE TERE Te Tr ere te eae Oa 16

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

denied, 526 U.S. 1004 (1999)................. 4, 10, 49

Gordon, Matter of, 20 I. & N. Dec. 52 (BIA 1989)...3, 44

Grant v. Zemski, 54 F. Supp. 2d 437 (E.D. Pa. 1999) .... 21

Hamilton Murray v. Gibson, 56 U.S. 421 (1853) ....35, 45

Harisiades v. Shaughnessy, 342 U.S. 580 (1952)........ 47

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

denied, 526 U.S. 1004 (1999)..................,. 33, 49

Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir. .) 18

Hughes Aircraft Co. v. United States ex rel. Schumer,

Rg PER rerio Soe passim

TABLE OF AUTHORITIES - Continued

Page

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ....... 33, 48

-Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000). .38, 39, 48

Jordan v. De George, 341 U.S. 223 (1951) ............. 37

Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir.

1999), cert. denied, 529 U.S. 1041 (2000)......... 23, 49

K-, Matter of, 1 I. & N. Dec. 79 (BIA 1941)........... 4

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494

ae GF CRO iv 20000s0sccecebbessseusesenenniin 20

Katsoulis v. INS, 522 U.S. 1027 (1997)..............4. 19

Kesoler.o. Strecker, SUZ US. ZZ CASS) ccscccescscceses 47

Kolster v. INS, 101 F.3d 785 (ist Cir. 1996)........... 18

L-, Matter of, 1 I. & N. Dec. 1 (BIA 1940)............ 3

Landgraf v. USI Film Prods., 511 U.S. 244 (1994). . passim

Landon v. Plasencia, 459 U.S. 21 (1982)........ 35, 45, 46

Lehmann v. INS, 353 U.S. 685 (1957)................. 47

Lehmann v. United States ex rel. Carson, 353 U.S. 685

CROOND 0s secssvccvecsoucssevansisenéaaaedacelemee 48

Lindh v. Murphy, 521 U.S. 320 (1997)..... 20, 23, 27, 30

Lindsey v. Washington, 301 U.S. 397 (1937)........ 42, 43

Lok, Matter of, 18 I. & N. Dec. 101 (BIA 1981)....... 45

Louis Vuitton v. Spencer Handbags Corp., 765 F.2d

S68 COG Cie, BOER) occcccciiscdceananisecthassuaaes 41

Luria v. United States, 231 U.S. 9 (1913).............. 46

M- Matter of, 5 I. & N. Dec. 598 (BIA 1954).......... 4

Vii

TABLE OF AUTHORITIES - Continued

Page

Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999) .... 23

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

TG. Frey TER GEGEE i ksv0 2 00ddss cient 21

Mahler v. Eby, 264 U.S. 32 (1924).................... 47

Mansour v. INS, 123 F.3d 423 (6th Cir. 1997)......... 18

Marin, Matter of, 16 I. & N. Dec. 581 (BIA 1978) ...3, 4

Martin v. Hadix, 527 U.S. 343 (1999)............. passim

Massachusetts v. United States Dep't of Transp., 93

F.3d 890 (D.C. Cir. 1996). ........ccccccccccccccces 49

Mattis v. Reno, 212 F.3d 31 (1st Cir. DE vacecaesaes 23

Miller v. Florida, 482 U.S. 423 (1987)................. 42

Miller v. French, 530 U.S. 327 (2000)................. 44

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

aff'd in part sub nom. Henderson v. INS, 157 F.3d

106 (2d Cir. 1998), cert. denied, 526 U.S. 1004

NUN £0655 SebsaNenwvnadvieteaetel ee ... 33

NCUA v. First Nat'l Bank & Trust Co., 522 U.S. 479

SS vochvuns bedebacrwuletesciutoliieec 48

Ng Fung Ho v. White, 259 U.S. 276 (1922) ........... 46

Orozco v. United States INS, 911 F.2d 539 (11th Cir.

PA Aee cn neenusbciidiceianiddedscchotuuc ue 16

Pena-Rosario v. Reno, 83 F. Supp. 2d 349 (E.D.N.Y.

i OO TT eT ne ae eth nee EN? Re Se 21

Pension Benefit Guar. Corp. v. Gray, 467 U.S. 717

GAS ct st ce caadnd éidaveedcieldeckhita corks 48

Vili

TABLE OF AUTHORITIES —- Continued

Page

Przygocki, Matter of, 17 I. & N. Dec. 361 (BIA 1980) .... 44

Qasguargis v. INS, 519 U.S. 1148 (1997).............. 19

Radzanower v. Touche Ross & Co., 426 U.S. 148

SOME cabs Weep cnekheecdadsdauuesccekenbobesadeanee 31

Reno v. American-Arab Anti-Discrimination Commit-

Sm, Se UA GR CIRO sans ccncadrcncasdcceccacunt 17

Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th

Sk RE waednhassedsawecdcschedbastnpenatsanacas 23

Reverdes v. Reno, 95 F. Supp. 2d 22 (D. Mass. 2000) .... 38

Rivers v. Roadway Express, Inc., 511 U.S. 298

CPE duce cudseccsaddsd toankecheneen 20, 31, 35, 37, 41

Roberts, Matter of, 20 I. & N. Dec. 294 (BIA 1991)..... 4

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

a, Te UD. TEGP CRBGe yo a cs csscssccsasivcsndss 18

Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286

Sats SW enh anita esdtavens ceWedtedsiuusens 21

Seminole Tribe of Florida v. Florida, 517 U.S. 44

EPP ETCPTT EET EVES CTT TE TT EST CTTT TTT eT eT 23

Shwab v. Doyle, 258 U.S. 529 (1922). ................. 23

Silva, In re, 16 1. & N. Dec. 26 (BIA 1976)........... 32

Slusser v. Commodity Futures Trading Comm’‘n, 210

ee FOOD Ce Ge Ba cen kcrsewassssceenssnsnase 40

Soc’y for the Propagation of the Gospel v. Wheeler, 22

Coe, Fae Cee BN es vccccccccavese 34, 35, 45

TABLE OF AUTHORITIES - Continued

Page

Sotelo Mondragon v. Ilchert, 653 F.2d 1254 (9th Cir.

SOTA Akh 650 5.50 LMU A eR E RRR EL oe 16

Tam v. Reno, No. 98-C2835, 1999 WL 163055 (N.D.

Cal. Mar. 22, 1999), rev'd on other grounds, 2001

Wels Gee Cee GM. SOON ccndciwiianeveccacceGa 38

Tasios v. Reno, 204 F.3d 544 (4th Cir.

MN whan dansw'eu dee nRAReRAPAs OelGciae 23, 38, 41, 43

Thompson v. Reno, No. 99-C5551, 2000 WL 361675

Ge FO MI Bek ooo ik ck vodka kc cc 21

Twenty Per Cent Cases, 87 U.S. (20 Wall.) 179 (1873) .... 28

United States ex rel. Marcello v. District Director, 634

Se FF. Ug ee ee ee 16

United States v. Carlton, 512 U.S. 26 (1994)........... 21

United States v. Graham, 169 F.3d 787 (3d Cir. 1999) ....20

United States v. Heth, 7 U.S. (3 Cranch) 399 (1806) .... 46

United States v. Holguin-Enriquez, 120 F. Supp. 2d

ee ele I EES 5 es FA 9-56 4 odd NEN hea eels 21

United States v. Jung Ah Lung, 124 U.S. 621

Se ae Kune Scbenndcakaneeees sid iabicwiaciet ie 46, 47

United States v. Magnolia Petroleum Co., 276 U.S.

We CRD eS en ckeras See KASD WALES AMER RCRA ES koe 28

United States v. Nordic Village, Inc., 503 U.S. 30

su PRUE ET EEE E ET COTE OTE POC CORTE OTe UEC ETE 23

United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) .... 20

United States v. Williams, 514 U.S. 527 (1995) ........ 23

TABLE OF AUTHORITIES - Continued

Page

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

to, eer rrp ererrr rt Serre rrr Try peer r reer 45

Velasquez v. Reno, 37 F. Supp. 2d 663 (D.N.J.

aE Pe eee Rr reer eer rT a1, 33, 3%

Wallace v. Reno, 24 F. Supp. 2d 104 (D. Mass. 1998),

af a, 194 F3d 279 (ist Cie. 1998). ... 26605 sdcccenns 32

Weaver v. Graham, 450 U.S. 24 (1981)............. 42, 43

Williams v. INS, 114 F.3d 82 (Sth Cir. 1997).......... 18

Yerger, Ex Parte, 75 U.S. (8 Wall.) 85 (1868)...10, 11, 18

Zalawadia v. Reno, No. 99-C1837 (W.D. La. 1999),

pet. for cert. pending, No. 00-268................... 21

STATUTES AND REGULATIONS:

Act of May 10, 1920, ch. 174, § 2, 41 Stat. 593...... 47

Antiterrorism and Effective Death Penalty Act of

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

Se Be i I oh ks carer ed cece nares 13, 15

ef Me Bs < Snr PED re er 4, 23

Illegal Immigration Reform and Immicrant

Responsibility Act of 1996, Pub. L. No.1 208,

é ome bf Re.) er rrr err passim

| Se Lae SU Os +o hi vee sesenersnvesnes 26

eee ep e.g ee rn ree 26

ok eC rr rr errr rr. 28

URC), EEO SUMR: GPT Ts 55 oon evesdescsncsans 28

SS ————S —

=—>

xi \

TABLE OF AUTHORITIES ~ Continued

Page

5 306(d), 110 Stat. 3000-612 «0... 28

§ 304, 110 Stat. 3009-587.......... eee 24, 30

§ 2t{a), 410 Seat. 2009-587... 24, 29, 30

§ SOM(D), 110 Seat. 2000-507... passim

§ 306), 110 Stat. 2008-619 ...... 12

5 3D, 110 at. MOG... 29

§ 309(a), 110 Stat. 3009-625°.................... 28, 29

> a), 116 Sat. MET .. .... s,s 29

5 SMe). 150 Sint: BOO. 29

§ 309(c)(1), 110 Stat. 3009-625.................. 29, 30

§ 309(c)(S), 110 Stat. 3009-627..................... 26

§ 309%{c)(7), 110 Stat. 3009-627..................... 26

§ 321(b), 110 Stat. 3009-628 ................ -+<s 26-25

§ 321(c), 110 Stat. 3009-628................. 24, 25, 27

§ 322(c), 110 Stat. 3009-629................. 24, 25, 27

S Dalle), 110 Stat. S00P-406. ...........5..0........ 26

§ 342(b), 110 Stat. 3009-636 ....................... 25

§ 344(c), 110 Stat. 9009-637.................._- coe

S ree 100 Sa. SEN... .......... 25

§ 348(b), 110 Stat. 3009-639 ................. eye 25

§ 350(b), 110 Stat. 3009-640 .................... 25-26

S SOc), 190 Stat. SOOSOM. . 2.5... ak... 26

xii

TABLE OF AUTHORITIES —- Continued

Page

§ 360(c), 110 Stat. SO09-GSU. ... cee cees sakanees 26

& SBI), TIO Ghat. SOG ok een e sc dkndgdanss 26

S SEC), TAO Stak. CGE, 0 sc vivccc cc ccesenves 26

§ SRI), 210: Seek. SORE caine idan Vaaenk nets 26

§ 3B GZ), 110 Ghat. SIOPOESS... occ vi eicscdeks 26

& GE2G), 220 Diat. DGD ois ccciccencneinwuas 26

& SEEM), EAD SOME. FO ss sn ds eign anarcwcnes 26

5 SOSM), : 520 SRWR. DOSE 3s isaac cdsceccccenwens 26

6 SRS TRO Gent. Dre. on i vic ses anencenae 26

S SAR), TAG Beat. SG oaks canis ascaeneaons 26

Be MB 8, ry ree 26

S S62), TIO Semt. TOPOS «oan os ese kncdivyncwawas 26

BS GOGel, 120 Sink. TOG 5 cass ikke eee 26

Immigration and Nationality Act (“INA”), 8

RAM OR OY OBR i un cc asvaunsccpn tunes Okeaeeeee 3

8 U.S.C. 1101(a)(43)(M) (Supp. V 1999)............ 40

BS UB. TRO CH 6 ak i ieee sin kn ees 12

OS UGA. TRAE CPs 5c os nck cscsccienetaeas 13

8 U.S.C- 1105a(a)(10) (1994) ......... 12, 13, 14, 15, 16

S UC. BERS Cop ei cs o5ca sd ncackcasnkenaean passim

xiii

TABLE OF AUTHORITIES - Continued

Page

8 U.S.C. 1182(h) (Supp. V th 52 a's x6 «dco 6 x 25

8 U.S.C. 1227 (Supp. V 1999) .................. 31-32

~ 8 U.S.C. 1227(c) I sso vesccaccoccce, 32

8 U.S.C. 1229b er 24

8 U.S.C. 1229b(a) (Supp. V 1999)................... 5

ess... cee acccccsss... 32

8 U.S.C. 1252 (Supp. V 1999) ................... 2, 12

8 U.S.C. 1252(a)(1) re 16

8 U.S.C. 1252(a)(2)(C) (Supp. V 1999) ..... 8-9, 16, 19

8 U.S.C. 1252(b)(9) (Supp. V . ee 16, 17, 19

8 U.S.C. 1252(e)(2) a 18

ss... ds... 1

SS ee passim

cc 11

ec... .................. 41

Immigration Act of 1917, ch. 29, § 17, 39 Stat. 874:

Seventh Proviso, 39 Stat. 878....................... $

Cal. Pen. Code § 1016.5 ee 39

Conn. Gen. Stat. § 54-1j (1994 & Supp. 2000)........ 39

D.C. Code Ann. § 16-713 (1997 & Supp. 2000)....... 39

Fla. R. Crim. P. 3.172(c)(8) (1999).................... 39

Xiv

TABLE OF AUTHORITIES - Continued

Page

Haw. Rev. Stat. Ann. § 802E-2 (Michie 1999) ........ 39

Mass. Gen. Laws Ann. ch. 278, § 29D (1992 &

PN. BOGD sale kn canes atapessanabyevesesudeesnese 39

Mont. Code Ann. § 46-12-210(f) (1997) .............. 39

N.Y. Crim. Proc. Law § 220.50(7) (McKinney Supp.

Us WER Rs SKE SC RAOS END Ce A ee 39

Ohio Rev. Code Ann. § 2943.031 (Banks-Baldwin

i EERE ETO PEPE EEC RT e ery PoE E TE Pere ey 39

Or. Rev. Stat. § 135.385(2hid) (1997) ..... 2. 200s. esas 39

Tex. Crim. Proc. Code Ann. § 26.13(a)(4) (West

SOP re re ree ree fy re beers Fe Pes en 39

Wash. Rev. Code Ann. § 10.40.200 (West 1990)... ... 39

Wis. Stat. Ann. § 971.08(1)(c) (West 1998) ........... 39

8 C.F.R.:

| ere rt os ere yi 45

6 rarer Ur ae Ree ern re earn ee 3

OTHER AUTHORITIES:

104 Cong. Rec. 8,632 (19GB) «2 sees ss cccssessseaees 14

104 Cong. Rec. 12,726 (July 6, 1959).............. 13, 15

BOO Cis. TONG: Tae CO oa os ick bee dah ede ee eee 14

104 Cong. Rec. 17,172 (Aug. 12, 1958)............... 14

104 Cong. Rec. 17,173 (Aug. 12, 1958)............... 13

TABLE OF AUTHORITIES — Continued

Page

104 Cong. Rec. 17,175 (Aug. 0 WOO). 14

H.R. 2703, 104th Cong., Title VI, Subtitle A, § 601

0 I isin tickers i nadeaiig edi Ce ee 15

H.R. 2703, 104th Cong., Title VI, Subtitle E, § 661

stelhnics ede EEL Tr ee ne ney: 15

H.R. Rep. No. 2478, 85th Cong., 2d Sess.

ee Fh Oe eh 13, 14

1A J. Sutherland, Statutory Construction § 18.07

-dagadla i ciskess: POM ee IPE T 15

we Se Pe a Ge 23

Sentencing Guidelines for United States Courts,

66 Fed. Reg. 7962 (Jan. 26, Sane ahs Biogen aOR 21

err ee

OPINIONS BELOW

The court of appeals opinion, 229 F.3d 406, is repro-

duced at Pet. App. la. The related court of appeals opinion

in Calcano-Martinez v. INS, 232 F.3d 328, is reproduced at Pet.

App. 40a. The opinion of the district court, Pet. App. 74a-91a,

is reported at 64 F. Supp. 2d 47. The decisions of the Board of

Immigration Appeals, Pet. App. 94a-95a, and the immigra-

tion judge, Pet. App. 96a-97a, are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 1, 2000. The petition for a writ of certiorari was

filed on November 14, 2000, and was granted on January 12,

2001. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The relevant constitutional and Statutory provisions are

identified in the Brief for the Petitioner (“Pet. Br.”) 1-2 and

are set forth at Pet. App. 98a-114a.

INTRODUCTION

This case concerns a néw Statute governing the deporta-

tion of legal permanent residents based on criminal convic-

tions. The jurisdictional issue is whether any court can

review the pure question of law presented here. The merits

issue is whether legislation enacted in 1996 that eliminated

discretionary relief for certain legal residents and compelled

their deportation applies retroactively to alter the legal con-

Sequences of events that occurred before the change in law.

Prior to 1996, legal permanent residents with seven

years residence in the United States who committed a

deportable offense were statutorily eligible to apply for a

waiver of deportation, provided that they did not actually

serve five years in prison for an “aggxavated felony” convic-

tion. The decision whether to grant a waiver was made by an

immigration judge (“IJ”) before a final deportation order was

issued and was based on a balancing of equitable consider-

ations, both positive and negative. In 1996, Congress

imposed a new restriction on eligibility for deportation relief

by barring relief for all aliens convicted of an “aggravated

felony” regardless of the length of time (if any) of imprison-

ment. As a result, those legal residents who were eligible for

relief under prior law because they had served fewer than

five years in prison are now effectively subject to mandatory

deportation under the new law.

While Congress may have broad constitutional power to

impose new restrictions on deportation relief, including new

restrictions governing conduct and events that pre-date the

change in law, that is not the issue in this case. Rather, the

question is whether Congress unambiguously expressed an

intent to reach pre-enactment events. If it did not, the new

provision does not apply retroactively to impose new dis-

abilities or legal consequences as a result of the law’s change.

There is good reason for Congress to have distinguished

between prospective and retroactive application of the new

statute. The prospective elimination of deportation relief

applies to recent misconduct that Congress has concluded

warrants mandatory deportation. Retroactive elimination of

relief, by contrast, applies to immigrants whose misconduct

may have occurred years before the law changed or who

made decisions in their criminal cases, including whether

and how to plead, without any warning that those decisions

would effectively lead to mandatory deportation. The 1996

laws do not contain any express manifestation that Congress

intended that result.

STATEMENT

1. Jurisdiction. The jurisdictional questions raised here

and in the companion case, Calcano-Martinez v. INS, No.

00-1011, are whether any court has jurisdiction to resolve the

statutory retroactivity issue respondent raises, and whether

the proper mechanism for review of that claim is a district

court habeas corpus action under 28 U.S.C. 2241 or a court of

appeals petition-for-review proceeding under 8 U.S.C. 1252.

2. Section 1182(c). a. The immigration statutes have

long included waiver provisions for immigrants with sub-

stantial equities. The early version of the waiver at issue here

was the Seventh Proviso of the Immigration Act of 1917, 39

Stat. 874, 878. Relief under the Seventh Proviso was available

to any alien with seven years of unrelinquished domicile in

the United States. The provision at issue here, 8 U.S.C.

1182(c) (1994), appeared in 1952 when Congress enacted the

current Immigration and Nationality Act (“INA”), 8 U.S.C.

1101 et seq.

The Section 1182(c) waiver determination is made before

entry of a deportation order. Deportation proceedings are

commenced when the Immigration and Naturalization Ser-

vice (“INS”) charges a person with deportability. At the

immigration hearing, the first question is whether the indi-

vidual is in fact a deportable alien based on one of the

grounds enumerated in the INA. That question may be

contested or conceded. If alienage and deportability are

established, the IJ turns to whether the alien qualifies for

relief from deportation. That adjudication is required and

encompasses both whether the alien is eligible and, if eligi-

ble, whether relief should be granted. See 8 C.FR. 212.3

(directing that the IJ “shall adjudicate” an application for

relief under Section 1182(c) made during a deportation or

exclusion proceeding); Matter of Marin, 16 I. & N. Dec. 581,

584 (BIA 1978) (stating that each application for relief “must

‘be judged on its own merits”).

If granted, Section 1182(c) gives full relief and causes

termination of the immigration proceedings. The permanent

resident retains his legal permanent resident status and is not

subject to deportation based on the criminal conviction that

caused the INS to initiate proceedings. See Matter of Gordon,

20 I. & N. Dec. 52 (BIA 1989). The Section 1182(c) adjudica-

tion is based on established equitable factors guided by sixty

years of BIA precedent. See Marin, 16 I. & N. Dec. at 584-85

(reviewing BIA precedents and listing factors to be consid-

ered); Matter of L-, 1 I. & N. Dec. 1, 7 (BIA 1940). The factors

that the IJ is required to consider in a waiver hearing

include: family ties; residence of long duration (especially

when residence began at a young age); evidence of hardship

to the respondent and family if deportation occurs; service in

this country’s Armed Forces; a history of employment; the

existence of property or business ties; evidence of value and

service to the community; proof of genuine rehabilitation;

and other evidence attesting to a respondent’s good charac-

ter. See Marin, 16 I. & N. Dec. at 584-85.! In the years prior to

1996, relief under Section 1182(c) was awarded in approxi-

mately half of all cases. See Goncalves v. Reno, 144 F.3d 110,

128 (1st Cir. 1998) (citing Department of Justice statistics),

cert. denied, 526 U.S. 1004 (1999).

b. Before 1996, the statutory eligibility criteria for relief

under Section 1182(c) precluded relief for immigrants who

were convicted of an “aggravated felony” and who actually

served five years in prison for that crime. In 1996, Congress

enacted a new bar to relief by providing that any aggravated

felony conviction eliminated eligibility for relief regardless of

the length (if any) of imprisonment. Initially, Section 440(d)

of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, amended

1 See also Matter of Roberts, 20 I. & N. Dec. 294, 301 (BIA

1991) (upholding denial of relief in light of absence of evidence

of genuine rehabilitation and seriousness of conviction); Matter

of Edwards, 10 I. & N. Dec. 506 (BIA 1964) (ordering relief under

Section 1182(c), despite evidence that his family would be self-

supporting and two larceny convictions, for 54-year-old man

who immigrated at the age of 7, had served in the armed forces,

and who had lived under the good-faith but erroneous belief

that he was a citizen); Matter of M-, 5 I. & N. Dec. 598 (BIA 1954)

(ordering award of Section 1182(c) relief to 68-year-old man

with legal resident wife, citizen children, and unblemished

record since conviction in 1923 for which he served four years in

prison); Matter of K-, 1 I. & N. Dec. 79 (BIA 1941) (perjury in

naturalization proceedings outweighed by thirteen years of

clear record and equitable factor of dependent citizen wife). The

Board has cautioned that an IJ must examine all of the positive

and negative factors in deciding whether to award relief. See

Matter of Buscemi, 20 I. & N. Dec. 191 (BIA 1990).

-—-

former Section 1182(c) to impose this per se “aggravated

felony” bar to eligibility. Then, the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, Div. C., 110 Stat. 3009-546,

retained the per se bar when it recodified and replaced

Section 1182(c) with a provision called “cancellation of

removal.” That replacement provision now appears at 8

U.S.C. 1229b(a). A “cancellation of removal” adjudication

considers the same equitable factors as Section 1182(c) relief

and is governed by the same BIA precedent. In re C-V-T-, Int.

Dec. No. 3342, 1998 WL_151434 (BIA 1998). The “cancella-

tion” statute carries forward the prohibition enacted by

AEDPA and provides that immigrants who are deportable

based on any aggravated felony are barred from applying for

relief, regardless of the term of imprisonment (if any) actu-

ally served. |

3. Enrico St. Cyr was admitted to the United States on

June 17, 1986 as a lawful permanent resident. Pet. App. 2a.

His parents and sister are citizens of the United States, and

his brother is a lawful permanent resident. Pet. App. 2a.

On March 8, 1996, Mr. St. Cyr was convicted based on a

guilty plea to the sale of a controlled substance. Under the

then-governing immigration statute, the conviction subjected

Mr. St. Cyr to deportation, which was not mandatory

because he was eligible to seek a waiver under Section

1182(c). On April 10, 1997, the INS commenced removal

proceedings against Mr. St. Cyr on the basis of his convic-

tion. Pet. App. 3a. When Mr. St. Cyr sought to apply for

relief under Section 1182(c), the IJ ruled that he had been

rendered statutorily ineligible on the ground that he had

been placed into immigration proceedings after IIRIRA’s

effective date, April 1, 1997. Pet. App. 95a. The IJ issued an

order of removal, and the BIA affirmed on the same ground.?

2 In response to respondent’s argument that he was eligible

for relief under Section 1182(c), the BIA simply stated: “We

disagree as section [1182(c)] relief is not available in removal

proceedings, which [Mr. St. Cyr] is properly in. Section [1182(c)]

Mr. St. Cyr filed a habeas corpus petition in district

court challenging the BIA’s legal ruling that he was stat-

utorily ineligible to apply for relief under Section 1182(c).

The district court held that it had jurisdiction to hear

respondent’s claim under 28 U.S.C. 2241 and, on the

merits, held that he remained eligible to apply for relief

under the immigration law that governed when he pled

guilty. Pet. App. 82a, 87a.

The court of appeals affirmed. The court unani-

mously held, based on its simultaneously-issued decision

in Calcano-Martinez v. INS, that the district court properly

exercised jurisdiction over Mr. St. Cyr’s claims. Pet. App.

6a. A majority of the panel further held that depriving

him of the opportunity to apply for relief under the law

that governed when he pled guilty constituted a retroac-

tive application of the new legislation under Landgraf v.

USI Film Products, 511 U.S. 244 (1994), and Hughes Aircraft

Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997).

The court of appeals first held that neither AEDPA

nor IIRIRA contained express language demonstrating

that Congress intended to eliminate eligibility for relief

for those, like Mr. St. Cyr, who pled guilty to a disqualify-

ing criminal offense before the enactment of AEDPA and

IIRIRA. Pet. App. 16a-17a. The court therefore proceeded

to determine whether the statutes had an impermissible

retroactive effect. The court noted that legal residents

who are charged with a crime “carefully consider[] the

immigration consequences of . . . [a] conviction and,

specifically, the availability of discretionary relief from

removal.” Pet. App. 27a-28a. It recognized that defense

attorneys have a professional obligation to consider

immigration consequences in advising an immigrant

defendant about the consequences of a plea. It further

observed that a resident alien is part of a community and

was repealed by section 304(b) of [IIRIRA], and was replaced

with cancellation of removal under Section 240A[.]” Pet: App.

95a.

“is likely aware of what happens to other members of the

community who engage in criminal conduct.” Pet. App.

28a. The court recognized that preserving the right to

remain in the United States might be the most important

factor in a plea negotiation. The court of appeals held that

under the new statute “settled expectation[s] [are] upset

dramatically,” Pet. App. 29a, because eliminating the pos-

sibility of relief “alter[s] the substantive rights of aliens

subject to removal proceedings,” Pet. App. 30a, and

“eradicates a form of relief previously available,” id.

Therefore, the court of appeals concluded, the change in

law “attach[es] new legal consequences” to pre-enact-

ment pleas and hence has “an impermissible retroactive

effect.” Id. Judge Walker joined the majority on the juris-

dictional ruling but dissented on the merits.

SUMMARY OF ARGUMENT

1. The court of appeals correctly held that, in the

absence of petition-for-review jurisdiction, respondent's

pure question of law was reviewable in the district court

under 28 U.S.C. 2241. Neither the statutes themselves

(nor the legislative history) contain the express directive

that is required to effectuate a repeal of habeas corpus.

See Felker v. Turpin, 518 U.S. 651 (1996).

2. The presumption against retroactive statutes is

one of the bedrock principles of the rule of law. Two years

before the enactment of the laws at issue here, the Court

reaffirmed that a statute will not be applied ‘retroactively

absent an unambiguous directive from Congress. See

Landgraf v. USI Film Prods., 511 U.S. 244 (1994). That

requirement serves to ensure that “Congress itself has

determined that the benefits of retroactivity outweigh the

potential for disruption or unfairness.” Id. at 268.

First, with regard to this statute, Congress did not

provide an unambiguous directive regarding the tempo-

ral scope of the new statutory provision. IIRIRA contains

a number of express temporal provisions, but none

addresses the provision governing eligibility for Section

1182(c) relief. The government seeks authorization for

retroactive application from an effective date provision.

But Landgraf expressly rejected reliance on such provi-

sions. The government also argues for a retroactive scope

by drawing an inference from other provisions, but retro-

activity cannot be inferred.

Second, application of the new statute has a retroac-

tive effect. The prior opportunity to seek a waiver of

deportation - to present one’s individual equities and

have a decision made on the basis of these equities — is

eliminated. As such, for many longtime lawful permanent

residents, the statute transforms the possibility of depor-

tation into a certainty based on acts or events that pre-

date the change in law. Retroactive application therefore

deprives permanent residents of notice and upsets their

settled expectations and reasonable reliance.

Third, the government’s suggestion that retroactivity

concerns play no role in the immigration setting is contra-

dicted by this Court’s decisions. Such a suggestion

conflates the constitutional power of Congress to enact

retroactive legislation with the question of whether Con-

gress has in fact legislated with the requisite specificity to

achieve retroactive applicat’ >.

ARGUMENT

I. RESPONDENT’S RETROACTIVITY CLAIM MAY

BE RAISED IN A SECTION 2241 HABEAS ACTION

IN THE ABSENCE OF PETITION-FOR-REVIEW

JURISDICTION. .

The court of appeals held, on the basis of its compan-

ion decision in Calcano, that 8 U.S.C. 1252(a)(2)(C)? elimi-

nated its own petition-for-review jurisdiction over all

3 Section 1252(a)(2)(C) provides that “[n]otwithstanding

any other provision of law, no court shall have jurisdiction to

review any final order of removal against an alien who is

claims challenging an alien’s eligibility for a waiver of

deportation, but that neither Section 1252(a)(2)(C) nor any

other provision of the 1996 amendments bars access to 28

U.S.C. 2241 habeas jurisdiction over “pure legal” claims. Pet.

App. 73a; see generally id. at 68a-73a. The government main-

tains that the Second Circuit erred and argues that the 1996

amendments vest the courts of appeals with exclusive juris-

diction over final orders. The government further maintains

that, contrary to the Second Circuit’s construction of the

statute, Section 1252(a)(2)(C) should not be read to bar aliens

from raising substantial constitutional claims in the courts of

appeals. The goverrment argues, however, that the 1996

amendments preclude all judicial scrutiny of statutory claims

challenging an alien’s eligibility for a waiver and that such

complete preclusion of judicial scrutiny raises no constitu-

tional concerns.

To avoid repetition with the briefing in Calcano, this

brief addresses only certain of the government's argu-

ments. The Calcano petitioners, who filed both petitions for

review and Section 2241 habeas actions, have addressed

three questions: (i) whether the bar on the circuit courts’

petition-for-review jurisdiction can be construed to permit

review in the court of appeals over the types of statutory

and constitutional claims raised here and in Calcano (Cal-

cano Pets. Br. 17-26, 42-44), (ii) whether Section 2241 juris-

diction is available if petition-for-review jurisdiction is

barred over these claims (id. at 44-49), and (iii) whether the

1996 amendments are unconstitutional if they preclude

review in any forum over such statutory and constitutional

claims (id. at 26-42). Respondent will not address the first

and third arguments, because they are fully set forth in

Calcano and because the respondent here filed only a Sec-

tion 2241 habeas action. This brief will respond only to the

government’s contention that the 1996 amendments bar

removable by reason of having committed a criminal offense

covered in [various sections of the Immigration Act].”

Section 2241 habeas jurisdiction and, where appropriate,

will also reference the briefing in Calcano on that issue.*

A. The 1996 Amendments Do Not Contain The

Requisite Express Directive To Repeal Section

2241 Under Felker and Ex Parte Yerger.

The government maintains that AEDPA’s and IIRIRA’s

amendments were intended to eliminate Section 2241 juris-

diction over final deportation orders (Pet. Br. 18-19) and that

IIRIRA’s amendments “reconfirmed” that result (id. at 19).

As the court of appeals noted, however, none of the amend-

ments made by either AEDPA or IIRIRA expressly mentions

Section 2241. Accordingly, under this Court’s decisions in

Felker v. Turpin, 518 U.S. 651 (1996), and Ex Parte Yerger, 75

U.S. (8 Wall.) 85 (1869), the Second Circuit properly refused

to find that the 1996 amendments eliminated access to Sec-

tion 2241. See Pet. App. 48a-62a (Calcano opinion).

Nor does the legislative history of AEDPA and IIRIRA

mention Section 2241, or in any way show that Congress

focused on the issue of barring access to Section 2241 where

no other review would be available over a pure question of

law. There is likewise nothing in either Act’s history indicat-

ing that Congress was aware of the constitutional issues that

4 Unlike the Calcano petitioners, respondent filed only a

Section 2241 district court habeas action. If this Court were to

hold that the types of claims raised by respondent may be

reviewed — but only in the courts of appeals by petition for

review — respondent respectfully requests that his case be

remanded to allow the Second Circuit to determine in the first

instance whether individuals in respondent’s situation may

now (1) file a late petition for review, or (2) pursue their Section

2241 actions based on the circuit law that governed at the time

they filed. Among other factors, the courts of appeals would

have to consider the fairness of penalizing individuals whose

decision to file only a district court habeas action was consistent

with circuit precedent. See, e.g., Goncalves v. Reno, 144 F.3d 110,

116 n.5 (ist Cir..1998) (noting reliance issue), cert. denied, 526

U.S. 1004 (1999).

een. ~

would be triggered by the total repeal of all review over a

question of law or that Congress made the decision to force

the courts to confront those delicate constitutional questions.

The government seeks to distinguish Felker and Ex Parte

Yerger on the ground that the statutes in those cases-“did not

apply at all to this Court’s habeas jurisdiction, either explic-

itly or in categorical terms that necessarily included that

jurisdiction.” Pet. Br. 24. The government thus argues that

those decisions do not prevent the repeal of Section 2241 by

a preclusion statute that applies generally. Accordingly, the

government contends that the 1996 amendments are suffi-

cient to preclude Section 2241 jurisdiction because they con-

tain a categorical ban on judicial review for aliens deportable

on the basis of certain criminal offenses. Yet, nothing in Felker

or Ex Parte Yerger suggests that this Court intended to limit

those decisions in such a manner. The point of Felker and Ex

Parte Yerger (and clear statement rules in general) is precisely

that they force Congress to legislate explicitly and speci-

fically to eliminate all doubt about whether a general enact-

ment was intended to have a particular effect. Here, the

elimination of Section 2241 would necessarily be “by impli-

cation” (Ex Parte Yerger, 75 U.S. at 105), since none of the

1996 amendments mentions Section 2241.5

> In any event, Felker did involve a preclusion statute that

applied in categorical terms to the type of review sought by the

petitioner in that case. The petition filed directly in this Court in

Felker was denominated an “original” petition in habeas

parlance, but it did not fall within the Court’s original

jurisdiction and was reviewable only under this Court’s

appellate jurisdiction. Consequently, the preclusion language,

which stated that an unmeritorious habeas action “shall not be

appealable and shall not be the subject of a petition for

rehearing or for a writ of certiorari,” 28 U.S.C. 2244(b)(3)(E),

plainly applied to the petitioner’s habeas pet‘tion; indeed, the

language stating that unmeritorious habeas actions “shall not be

appealable” would have been entirely superfluous if it did not

cover “original” writs filed directly in this Court. Thus, if the

government were correct that Section 2241 review may be

B. AEDPA Did Not Eliminate Section 2241 Habeas

Jurisdiction.

The government places substantial emphasis on the role

of AEDPA. However, even apart from the Felker express

statement rule, the government has not demonstrated that in

AEDPA Congress made a decision to bar all avenues of

review, including Section 2241. As an initial matter, AEDPA’s

amendments have no independent force here. AEDPA

amended the INA’s former judicial review scheme, but

IIRIRA repealed that scheme altogether (along with AEDPA’s

amendments) and replaced it with a new scheme (codified at

8 U.S.C. 1252 et seq.). See IIRIRA § 306(b), 110 Stat. 3009-612

(repealing old judicial review scheme in 8 U.S.C. 1105a et

seq.). The new scheme created by IIRIRA now governs cases,

like respondent’s, where immigration proceedings com-

menced after April 1, 1997. Calcano Pets. Br. 15.

In any event, even if AEDPA were still controlling, its

amendments did not bar access to Section 2241.6 The govern-

ment bases its reading of AEDPA’s amendments in signifi-

cant part on its understanding of the relationship between

AEDPA and enactment of 8 U.S.C. 1105a in 1961. The gov-

ernment acknowledges that the 1961 amendments eliminated

only district court actions for declaratory and injunctive

relief under the Administrative Procedure Act, and not

habeas jurisdiction. See Pet. Br. at 4-6, 19; Foti v. INY, 375 US.

217, 231 (1963). The government contends, however, that the

1961 amendments preserved habeas jurisdiction over final

orders only because they contained an explicit provision for

habeas jurisdiction in Section 1105a(a)(10), which according

to the government acted as an exception to the general

barred by a categorical ban that fails to mention Section 2241,

the statute in Felker would have been sufficient. Yet the Court

held that it was not sufficiently explicit because it nowhere

specifically mentioned Section 2241. Felker, 518 U.S. at 661.

6 In addition to the Second Circuit, nine other circuits have

also held that AEDPA’s amendments did not repeal Section

2241. See Calcano Pets. Br. 4 n.3 (citing circuit case law).

provision in Section 1105a(a) vesting the courts of appeals

with “sole and exclusive” jurisdiction over final orders.

Based on this premise, the government contends that when

AEDPA § 401(e), 110 Stat. 1268, subsequently repealed Sec-

tion 1105a(a)(10), Congress thereby eliminated all habeas

jurisdiction, including under Section 2241, and left the courts

of appeals with sole and exclusive jurisdiction.

The government’s argument hinges on demonstrating

both that the 1961 amendments would have eliminated Sec-

tion 2241 in the absence of the specific INA habeas provision

in former Section 1105a(a)(10) and that the AEDPA Congress,

acting 35 years later, intended to bar access to Section 2241

when it repealed that former INA habeas provision. The

government has made neither showing.

The 1961 Act’s “sole and exclusive” provision in former

Section 1105a(a) nowhere mentions Section 2241 (or even

habeas jurisdiction generally). Nor does the legislative his-

tory demonstrate that the 1961 Congress believed that the

Act would have barred habeas jurisdiction in the absence of

Section 1105a(a)(10). From the beginning, the focus of the

1961 amendments was not on eliminating habeas jurisdiction

but rather on the fact that the 1952 Immigration Act had

given aliens the right to bring APA “lawsuits” in district

court for declaratory and injunctive relief. The goal of the

1961 amendments was to eliminate these APA lawsuits, and

indeed, the drafters consistently stated that the amendments

were never intended to eliminate habeas corpus: “Nothing

contained in the bill is, or can be, designed to prevent an

alien from obtaining review by habeas corpus.” 104 Cong.

Rec. 12,726 (July 6, 1959) (statement of Rep. Walter, chief

sponsor). See also 104 Cong. Rec. 17,173 (Aug. 12, 1958)

(statement of Rep. Walter) (noting that habeas corpus was an

“expeditious” means of review and stating that courts would

be “relieved of a great burden” once declaratory actions

were eliminated); H.R. Rep. No. 2478, 85th Cong., 2d Sess. 9

(Aug. 6, 1958) (“[H]abeas corpus is a far more expeditious

judicial remedy than that of declaratory judgment.”).

Given the focus on eliminating APA declaratory and

injunctive lawsuits, nothing in the history of the 1961 Act

suggests that the drafters intended for the “sole and exclu-

sive” language to do anything more than eliminate an alien’s

right to bring such district court suits. The express habeas

provision in Section 1105a(a)(10) appears to have been added

simply out of an abundance of caution to assuage those

who expressed concerns about the constitutionality of elim-

inating habeas corpus. See 104 Cong. Rec. 17,172, 17,175

(Aug. 12, 1958).7 The only point that emerges from the 1961

7 The government’s legislative history citations, Pet. Br. 5

n.2, 6, do not show that the “sole and exclusive” language was

intended to eliminate habeas jurisdiction. Representative Walter

first proposed his bill, along with its “sole and exclusive”

language, in May 1958. See 104 Cong. Rec. 8,632 (1958). At that

time, the bill did not contain the express, habeas provision of

1105a(a)(10), which was only added after Judiciary Committee

consideration. See H.R. Rep. No. 2478, 85th Cong., 2d Sess. No. 2

(1958) (describing amendment). The government cites

Representative Walter’s statement that habeas review could not

constitutionally be foreclosed in support of its claim that the

“sole and exclusive” language would have eliminated habeas

jurisdiction absent Section 1105a(a)(10), Pet. Br. 5 n.2 (citing

subcommittee hearing). However, the statement on which the

government relies was made before Representative Walter

proposed enactment of the first version of his bill, which

included the “sole and exclusive” language but not the express

habeas provision later added by the Judiciary Committee. See

104 Cong. Rec. 8,632 (1958) (introducing first version of his bill);

104 Cong. Rec. 13,104 (1958) (introducing second version). Thus,

given his view that habeas had to be preserved, he likely

believed that the bill he proposed — with the sole and exclusive

language but not the habeas provision — nonetheless preserved

habeas jurisdiction.

As further support for its position, the government also

quotes a portion of the Committee Report saying that habeas

jurisdiction was preserved as an exception to the courts of

appeals’ otherwise exclusive jurisdiction. Pet. Br. 6. However,

that quotation is equally consistent with respondent’s view that

the habeas provision was merely declarative of the drafters’

understanding that the sole and exclusive language was never

amendments is that Congress’s focus was on eliminating

APA actions and that Congress did not intend to eliminate

habeas corpus.

The intent of the AEDPA Congress is similarly unclear.

AEDPA § 401(e), the provision which repealed the former

INA habeas provision in Section 1105a(a)(10), specifically

mentions only Section 1105a(a)(10) and contains no reference

to Section 2241. The government contends, however, that the

title of the provision should be taken as evidence that Con-

gress was seeking to eliminate all habeas review, and thus,

that Section 2241 is no longer available. Pet. Br. 19, 24. Yet the

title of a provision cannot enlarge its meaning and AEDPA

§ 401(e) specifically repeals only former Section 1105a(a)(10).

See 1A J. Sutherland, Statutory Construction § 18.07 (5th ed.

1993); Carter v. United States, 530 U.S. 255, 267 (2000) (statute

does not encompass robbery despite inclusion of “robbery”

in title, because provision’s text did not mention robbery).®

Moreover, Congress had ample reason to want to elimi-

nate the former INA habeas provision in Section

1105a(a)(10), wholly unrelated to any desire to take the

unprecedented step of eliminating access to the independent

grant of habeas jurisdiction in Section 2241. In particular, the

courts had struggled to make sense of the overlapping and

intended to foreclose habeas jurisdiction because “[n]othing

contained in the bill is, or can be, designed to prevent an alien

from obtaining review by habeas corpus.” 104 Cong. Rec. 12,726

(July 6, 1959) (statement of Rep. Walter).

8 The origin of AEDPA § 401(e) casts further doubt on the

government’s position because the provision originated in the

House as part of a series of provisions specifically related to

removing alien terrorists. See H.R. 2703, 104th Cong., Title VI,

Subtitle A, § 601 et seq. (1996). Provisions relating generally to

deportation procedures, and specifically to judicial review of

criminal aliens’ deportation orders, were in a separate subtitle

of the bill. See H.R. 2703, 104th Cong., Title VI, Subtitle E, § 661 et

seq. (1996). Nor does anything in AEDPA’s legislative history

explain the purpose of AEDPA § 401(e)’s repeal of the habeas

provision in Section 1105a(a)(10).

confusing provisions in the 1961 Act. Congress may thus

have hoped to eliminate the confusion by repealing Section

1105a(a)(10), leaving only the traditional and narrow scope

of habeas jurisdiction under Section 2241. See Cannon v. Univ.

of Chicago, 441 U.S. 667, 694 (1979) (presuming congressional

awareness of lower court decisions).?

C. IIRIRA Did Not Eliminate Section 2241 Habeas

Jurisdiction.

The government argues that IIRIRA “reconfirmed” that

the district courts lack Section 2241 habeas jurisdiction to

review legal claims challenging a final order. Pet. Br. 19. But

as the court of appeals correctly found, and as the Calcano

brief addresses, the IIRIRA provisions on which the govern-

ment relies do not specifically address the question of the

availability of Section 2241 habeas jurisdiction where no

other avenue of review is available for pure legal claims. See

Calcano Pets. Br. 46-49 (discussing 8 U.S.C. 1252(a)(1), (b)(9),

(a)(2)(C)). Although IIRIRA generally channels review to the

courts of appeals, and thereby divests the district courts of

APA-type jurisdiction, it does not explicitly eliminate Section

2241 jurisdiction.

The government places reliance on 8 U.S.C. 1252(b)(9)

and the Court’s reference to that provision as a “zipper”

9° For example, some courts had assumed that habeas

jurisdiction existed under both Section 2241 and Section

1105a(a)(10), thereby creating an unnecessary redundancy. See

Orozco v. U.S. INS, 911 F.2d 539 (11th Cir. 1990); Sotelo

Mondragon v. Ilchert, 653 F.2d 1254 (9th Cir. 1980). Courts also

struggled over the scope of habeas jurisdiction and the

circumstances under which it could be invoked. See, e.g.,

Galaviz-Medina v. Wooten, 27 F.3d 487 (10th Cir. 1994); Daneshvar

v. Chauvin, 644 F.2d 1248 (8th Cir. 1981); United States ex rel.

Marcello v. District Director, 634 F.2d 964 (Sth Cir. 1981).

clause in Reno v. American-Arab Anti-Discrimination Commit-

tee, 525 U.S. 471 (1999) (“AADC”). Pet. Br. 20, 24.19 That

reference, however, was made with respect to the scope of

Section 1252(b)(9)’s coverage — i.e., the type of determinations

to which it applied. See Calcano Pets. Br. 46 & n.17 (discussing

Section 1252(b)(9)). The Court stated in AADC that Section

1252(b)(9) channels review of a wide range of immigration —

actions to the courts of appeals. But the Court did not

comment on the analytically distinct question of whether

Section 1252(b)(9) repealed Section 2241 habeas jurisdiction

in cases where there was no review in the court of appeals.

525 U.S. at 480 n.7 (leaving open habeas issue).

The Court’s reference to Section 1252(b)(9) as a “zip-

per clause” is best understood in historical context. As

the Court noted in AADC, the 1961 amendments had been

construed to channel review of final orders of deportation

to the courts of appeals, but to allow the district courts to

exercise traditional jurisdiction over other types of claims

that were viewed as being outside of a “final order.” 525

U.S. at 485. Section 1252(b)(9) now ensures that review of

these other claims will be channeled to the courts of

appeals as part of the review of the fi-al order. That

change, however, has no significance for t..° issue in this

case. No court has disputed that review of final orders is

generally channeled to the courts of appeals where such

review is available; indeed, even under the 1961 Act,

review of final orders was channeled to the courts of

appeals. The issue here is whether the Court should find

a repeal of Section 2241 in the absence of an express

directive if no other avenue of review is available over a

final order.

10 Section 1252(b)(9) provides: “Judicial review of all

questions of law and fact, including interpretation and

application of constitutional and statutory provisions, arising

from any action taken or proceeding brought to remove an alien

from the United States under this title shall be available only in

judicial review of a final order under this section.”

—

The government also notes that one of the provisions

added by IIRIRA - 8 U.S.C. 1252(e)(2) — provides for habeas

jurisdiction for a limited class of aliens (those arriving at

ports of entry) and argues that this limited habeas provision

creates a negative inference that habeas jurisdiction is fore-

closed for all other aliens. Pet. Br. 20, 23. But under the Felker/

Ex Parte Yerger rule, the Court has not permitted Section 2241

to be repealed by inference. The grant of habeas jurisdiction

to one group cannot be the basis for finding a repeal with

respect to another group.

Finally, respondent notes that the government's conten-

tion that the 1996 amendments unequivocally placed all

review over final orders in the circuits is at odds with the

position it initially advanced. When AEDPA went into effect

in April 1996, immigrants did not initially seek district court

habeas review, but instead sought to preserve review in the

courts of appeals by petitions for review, arguing that the

1996 amendments were unconstitutional if they divested the

courts of jurisdiction to review legal claims. The courts of

appeals nonetheless dismissed the petitions for review and

avoided the constitutional questions that would be raised by

a complete preclusion of review by either expressly acknowl-

edging the availability of habeas jurisdiction or leaving open

that possibility."

During this early litigation, the government did not

consistently take the position that it advances here — that the

1996 amendments cannot plausibly be read to preserve Sec-

tion 2241 habeas review. In this Court, for example, when

immigrants sought review of the dismissal of their petitions

for review and argued that the Suspension Clause guaran-

teed review over their deportation orders, the government

opposed certiorari and stated that the Suspension Clause

11 See, e.g., Kolster v. INS, 101-F.3d 785 (1st Cir. 1996);

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

INS, 95 F.3d 309 (3d Cir. 1996), cert. denied, 520 U.S. 1239 (1997);

~ Williams v. INS, 114 F.3d 82 (5th Cir. 1997); Mansour v. INS, 123

F.3d 423 (6th Cir. 1997); Chow v. INS, 113 F.3d 659 (7th Cir. 1997);

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

question was not properly presented because the alien

“ha[d] not sought a writ of habeas corpus.” Brief for the

Respondent [INS] in Opposition at 9, Qasguargis v. INS (No.

96-806), cert. denied, 519 U.S. 1148 (1997).!2 In contrast, the

government now states that any review required by the

Suspension Clause should be provided only in the courts of

appeals by petition for review “either as a matter of statutory

construction or one of constitutional imperative,” Pet. Br. 31,

and that “all questions concerning the ‘interpretation’ and

‘application’ of the Suspension Clause and Section

1252(a)(2)(C)’s preclusion of review” must be raised by peti-

tion for review, id. at 31 (quoting 8 U.S.C. 1252(b)(9)).

In sum, nothing in the 1996 amendments supplies the

type of unequivocal evidence required to repeal Section

2241 where no other commensurate avenue of review is

available to test an administrative deprivation of liberty.

The overarching fact is that Congress did not focus on

Section 2241: the text and legislative history of the 1996

amendments do not mention Section 2241, and in marked

contrast to the 1961 Congress, the AEDPA and IIRIRA

Congresses did not give any attention-to the constitu-

tionality of a statute that would eliminate access to habeas

corpus for aliens facing deportation. Under these circum-

stances, the Court should not presume that Congress

intended to abrogate the minimal level of habeas review

consistently available since Congress first began regulating

immigration at the turn of the twentieth century.

Il. THE NEW PROHIBITION ON RELIEF DOES NOT

APPLY TO PRE-ENACTMENT EVENTS.

Just two years prior to the enactment of AEDPA and

IIRIRA, this Court reaffirmed Congress’s duty to mandate

the temporal scope of a new statute if it intends the law

12 See also Brief for the [INS] at 15,-Chamorro-Torres v. INS

(No. 96-985), cert. denied, 520 U.S. 1103 (1997); Brief for the [INS]

at 23, Katsoulis v. INS (No. 97-379), cert. denied, 522 U.S. 1027

(1997).

to apply retroactively. See Landgraf v. USI Film Prods., 511

U.S. 244, 266 (1994). Emphasizing that the presumption

against retroactive statutes is “deeply rooted in our juris-

prudence, and embodies a legal doctrine centuries older

than our Republic,” id. at 265, this Court made clear that

courts will not apply a statute retroactively absent an

unambiguous directive from Congress.1* The Court

explained that the requirement of express legislation is

designed to “ensure that Congress itself has determined

that the benefits of retroactivity outweigh the potential

for disruption or unfairness.” Id. at 268. See also Martin v.

Hadix, 527 U.S. 343 (1999); Hughes Aircraft Co. v. U.S. ex

rel. Schumer, 520 U.S. 939 (1997); Lindh v. Murphy, 521 U.S.

320 (1997); Rivers v. Roadway Express, Inc., 511 U.S. 298

(1994).

The statutory amendments at issue here change the

legal consequences of pre-enactment events and trigger

the presumption against retroactive legislation. Legal res-

idents affected by these laws made decisions in their

criminal cases — including whether and how to plead - on

the basis of the law in effect at the time of those deci-

sions. The very decisions that previously preserved eligi-

bility for relief now extinguish that opportunity and can

result in compulsory deportation. The new provisions

enact a major change that denies relief to anyone classi-

fied as an “aggravated felon,” even if the conviction

constituted a misdemeanor or low-level felony offense,}4

13 The presumption mirrors rules applied in countries

throughout the world. See Eastern Enters. v. Apfel, 524 U.S. 498,

532-33 (1998) (listing countries with similar presumptions). It

dates back to antiquity. See Kaiser Aluminum & Chem. Corp. v.

Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring).

14 See, e.g., United States v. Pacheco, 225 F.3d 148 (2d Cir.

2000) (misdemeanor larceny of video game constitutes

aggravated felony); United States v. Graham, 169 F.3d 787 (3d Cir.

1999) (misdemeanor theft offense constitutes aggravated

felony); Arias-Agramonte v. INS, No. 00-C2412, 2000 WL 1059678

(S.D.N.Y. Aug. 1, 2000) (criminal sale_of a controlled substance

enema iia Rtas

and even if the individual never served a day in prison.’©

Indeed, applying the new statutes to past convictions

precludes relief for persons whose offenses occurred

years or decades in the past,’© an application that raises

distinct considerations that Congress did not address. See

United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O’Con-

nor, J., concurring) (stating that the government's interest

in the fifth degree, Class D felony under New York State law,

constitutes aggravated felony); United States v. Holguin-

Enriquez, 120 F. Supp. 2d 969 (D. Kan. 2000) (misdemeanor

assault with 365-day suspended sentence constitutes

aggravated felony).

15 See, e.g., Arias-Agramonte, 2000 WL 1059678 (sentence of

probation for 1977 conviction); Velasquez v. Reno, 37 F. Supp. 2d

663 (D. N.J. 1999) (five years probation and $5,000 fine); Grant v.

Zemski, 54 F. Supp. 2d 437 (E.D. Pa. 1999) (eighteen months

reporting probation and a fine). Cf. Sentencing Commission,

Sentencing Guidelines for United States Courts, 66 Fed. Reg.

7962, 8008 (Jan. 26, 2001) (noting that INA definition of

aggravated felony is very broad and proposing lowest level

sentencing enhancement for illegal reentry by alien convicted of

aggravated felony and sentenced to probation for that

conviction).

16 See, e.g., Mahadeo v. Reno, 226 F.3d 3 (1st Cir. 2000) (six

years between 1991 conviction and INS initiation of

proceedings); Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286

(E.D.N.Y. 2000) (thirteen years between 1986 conviction and INS

initiation of proceedings); Pena-Rosario v. Reno, 83 F. Supp. 2d

349 (E.D.N.Y. 2000) (six years between 1992 conviction and INS

initiation of proceedings for petitioner Robinson); Grant v.

Zemski, 54 F. Supp. 2d 437 (E.D. Pa. 1999) (seven years between

1992 conviction and INS initiation of proceedings); Thompson v.

Reno, No. 99-C5551, 2000 WL 361675 (E.D. Pa. Apr. 5, 2000)

(eleven years between 1988 conviction and INS initiation of

proceedings); Velasquez v. Reno, 37 F. Supp. 2d 663 (D.N.J. 1999)

(eighteen years between 1980 conviction and INS initiation of

proceedings); Zalawadia-v. Reno, No. 99-C1837 (W.D. La. 1999),

petition for cert. pending, No. 00-268 (three years between 1995

conviction and INS initiation of proceedings).

in new laws must at some point give way to the interest

of repose). The far-reaching effect of retroactive applica-

tion of the new law is illustrated by the cases being held

for disposition in the lower courts pending resolution of

this case. In one case, for example, a 1977 conviction for a

low-level felony offense resulted only in a sentence of

probation, yet now compels deportation of a longtime

legal resident if Section 1182(c) is barred. In that case, the

IJ ruled that the legal resident should be allowed to apply

for Section 1182(c) relief and held that the equities over-

whelmingly warranted granting relief. The BIA reversed

on the same legal ground as it applied in this case,

namely that Section 1182(c) is completely foreclosed if the

immigration proceeding commenced after April 1, 1997.

See Arias-Agramonte v. INS, No. 00-C2412, 2000 WL

1059678 (S.D.N.Y. Aug. 1, 2000), appeal pending, No.

00-2595 (2d Cir.).

Under this Court’s retroactivity jurisprudence,

whether a new statute should be applied to past events

turns on two inquiries. First, did Congress expressly pro-

vide for the statute’s temporal reach? Second, does appli-

cation of the new law to past events have a retroactive

effect? See Landgraf, 511 U.S. at 280. If Congress has not

stated expressly that the statute applies to past events,

and if its application would have a retroactive effect, the

statute must be limited to prospective application.

A. Congress Did Not Provide Expressly For The

New Bars To Relief To Apply To Legal Perma-

nent Residents With Pre-Act Convictions.

For legislation to impose new legal consequences

based on past events, the statute must contain an “’unam-

biguous directive’ or ‘express command’ that the statute

is to be applied retroactively.” Martin v. Hadix, 527 U.S. at

354 (quoting Landgraf, 511 U.S. at 263, 280). “[C]ases

where this Court has found truly ‘retroactive’ effect ade-

quately authorized by a statute have involved statutory

language that was so clear that it could sustain only one

————————— <<

: 23

interpretation.” Lindh v. Murphy, 521 U.S. 320, 328 n.4

(1997) (collecting cases); see also Shwab v. Doyle, 258 U.S.

529, 537 (1922) (“[A] statute should not be given a retro-

spective operation, unless its words make that imperative

se a

Neither AEDPA nor IIRIRA contain the requisite

express congressional command or unambiguous lan-

guage that would support applying the new restrictions

on Section 1182(c) relief to immigrants whose conduct or

convictions pre-date the change in law. The initial restric-

tions on relief appeared in AEDPA and were set forth in

Section 440(d), 110 Stat. 1277. The courts of appeals that

have considered the question have held that AEDPA

§ 440(d) did not include guidance on temporal appli-

cability with respect to past conduct and convictions and

that the proper scope of that section depends on the

application of the second step of retroactivity analysis.1®

The government does not argue that AEDPA expressly

bars eligibility for Section 1182(c) relief, nor is that an

issue encompassed within the grant of certiorari.'?

IIRIRA likewise contains no explicit language

addressing the temporal scope of its prohibition on relief

17 When noting the type of language required to make a

provision unambiguously retroactive, the Court has analogized

to the “clear statement” required to override a state’s Eleventh

Amendment sovereign immunity. See Lindh, 521 U.S. at 328 n.4

(citing Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), United

States v. Williams, 514 U.S. 527, 531-32 (1995), and United States v.

Nordic Village, Inc., 503 U.S. 30, 34-37 (1992)); see also Landgraf, 511

U.S. at 288 n.2 (Scalia, J., concurring).

18 See, e.g., Mattis v. Reno, 212 F.3d 31, 36 (1st Cir. 2000) (finding

text ambiguous); Tasios v. Reno, 204 F.3d 544, 548-52 (4th Cir. 2000)

(same); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 307-08 (Sth Cir.

1999) (same); Magana-Pizano v. INS, 200 F.3d 603, 612-13 (9th Cir.

1999) (same); Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150 (10th Cir.

1999) (same), cert. denied, 529 U.S. 1041 (2000).

19 See Questions Presented No. 2, Cert. Pet. at I; see also Sup.

Ct. R. 14.1(a).

under Section 1182(c). The restrictions enacted by IIRIRA

appear in Section 304, 110 Stat. 3009-587. Section 304(a),

110 Stat. 3009-587, re-enacted the substance cf the Section

1182(c) waiver provision, maintained the bar on relief for

those legal residents who have been convicted of an

“aggravated felony,” codified the new provision at 8

U.S.C. 1229b, and named it “cancellation of removal.” In

Section 304(b), IIRIRA then repealed the existing Section

1182(c). Section 304(b) is the only provision in IIRIRA

that directly addresses Section 1182(c). It provides, in its

entirety, that “Section 212(c) (8 U.S.C. 1182(c)) is

repealed.” IIRIRA § 304(b), 110 Stat. 3009-597. Nothing in

Section 304(b) - nor in any other provision of IIRIRA -

explicitly provides a temporal scope or mandates that the

repeal of Section 1182(c) should be applied retroactively

to conduct or convictions that pre-date AEDPA’s or

IIRIRA’s enactment.

The silence of IIRIRA on Section 304(b)’s temporal

reach stands in notable contrast to numerous other provi-

sions in IIRIRA that contain explicit language dictating

their temporal scope. In particular, several IIRIRA provi-

sions expressly specify the temporal reach of amend-

ments changing the effect of criminal convictions that

pre-date IIRIRA’s enactment. For example, IIRIRA

§ 321(b), 110 Stat. 3009-628, which amends the aggravated

felony definition, provides that it applies to “convic-

tion[s] . . . entered before, on or after” the date of enact-

ment (emphasis added). Section 321(c), 110 Stat. 3009-628,

further provides that the amendment applies “regardless

of when the conviction occurred .. . .” Similarly, IIRIRA

§ 322(c), 110 Stat. 3009-629, which amends the definition

of “conviction,” provides that it “shall apply to convic-

tions . . . entered before, on, or after” the date of the

enactment (emphasis added).2° A multitude of other

20 TIRIRA § 321(b), 110 Stat. 3009-628, provides in full:

“Notwithstanding any other provision of law (including any

effective date), the term applies regardless of whether the conviction

25 x

IIRIRA provisions covering a wide range of subjects and

appearing throughout the act contain express directives _

setting forth the temporal scope of new seater aa

was entered before, on, or after the date of enactment of this

paragraph.”

IIRIRA § 321(c), 110 Stat. 3009-628, provides in full: “The

amendments made by this section shall apply to actions taken

on or after the date of the enactment of this Act regardless of

when the conviction occurred, and shall apply under Section

276(b) of the Immigration and Nationality Act only to violations

of Section 276(a) of such Act occurring on or after such date.”

IIRIRA § 322(c), 110 Stat. 3009-629, provides in full: “The

amendments made by subsection (a) shall apply to convictions

and sentences entered before, on, or after the date of the

enactment of this Act. Subparagraphs (B) and (C) of Section

240(c)(3) of the Immigration and Nationality Act, as inserted by

Section 304(a)(3) of this division shall apply to proving such

convictions.”

21 See, e.g., IIRIRA § 342(b), 110 Stat. 3009-636 (stating that

amendment adding incitement of terrorist activity as. ground for

exclusion “shall take effect on the date of [IIRIRA’s] enactment

...and shall apply to incitement regardless of when it occurs[ ]”);

IIRIRA § 344(c), 110 Stat. 3009-637 (providing that amendment

adding false claims of U.S. citizenship as ground for removal

“shall apply to representations made on or after the date” of

enactment); IIRIRA § 347(c), 110 Stat. 3009-639 (stating that

amendments rendering excludable or deportable any alien who

unlawfully voted “shall apply to voting occurring before, on, or

after the date” of enactment); IIRIRA § 348(b), 110 Stat. 3009-639

(stating that amendment providing for automatic denial of

discretionary waiver from exclusion under 8 U.S.C. 1182(h)

“shall be effective on the date of [IIRIRA’s] enactment .. . and

shall apply in the case of any alien who is in exclusion or

deportation proceedings as of such date unless a final

administrative order in such proceedings has been entered as of

such date[]”); IIRIRA § 350(b), 110 Stat. 3009-640 (stating that

amendment adding offenses of domestic violence and stalking

as ground for deportation “shall apply to convictions, or

violations of court orders, occurring after the date” of

These numerous express temporal provisions demon-

strate that Congress recognized its obligation to specify

the reach of IIRIRA’s amendments to the INA to avoid the

default rule of prospective application. Furthermore, they

demonstrate that Congress focused its attention on the

question of the temporal scope of the new provisions in

general and the temporal scope of provisions changing

enactment); IIRIRA § 351(c), 110 Stat. 3009-640 (addressing

relationship required for waivers from exclusion or deportation

for smuggling and providing that amendments under

subsections (a) and (b) “shall apply to applications for waivers

filed before, on, or after the date” of enactment); ITRIRA § 352(b),

110 Stat. 3009-641 (providing that amendments adding

renouncement of citizenship to avoid U.S. taxation as new

ground for exclusion “shall apply to individuals who renounce

United States citizenship on or after the date” of enactment);

IIRIRA § 380(c), 110 Stat. 3009-650 (specifying that amendment

imposing civil penalties on aliens for failure to depart “shall

apply to actions occurring on or after” effective date); IIRIRA

§ 384(d)(2), 110 Stat. 3009-653 (providing that amendments

adding penalties for disclosure of information “shall apply to

offenses occurring on or after the date” of enactment); IIRIRA

§ 531(b), 110 Stat. 3009-625 (stating that public charge

considerations as ground for exclusion or denial of adjustment

of status “shall apply to applications [for visa, admission, or

adjustment of status] submitted on or after such a date”); IIRIRA

§ 604(c), 110 Stat. 3009-694 (stating that new asylum provision

“shall apply to applications for asylum filed on or after the first

day of the first month beginning more than 180 days after the

date” of enactment) (all emphases added). See also IIRIRA

§ 105(b), 110 Stat. 3009-556; ITRIRA § 212(e), 110 Stat. 3009-571;

IIRIRA § 309(c)(5), 110 Stat. 3009-627; IIRIRA § 309(c)(7), 110

Stat. 3009-627; IIRIRA § 341(c), 110 Stat. 3009-636; IIRIRA

§ 376(c), 110 Stat. 3009-649; IIRIRA § 379(b), 110 Stat. 3009-650;

IIRIRA § 381(b), 110 Stat. 3009-650; IIRIRA § 382(c), 110 Stat.

3009-651; IIRIRA § 383(b), 110 Stat. 3009-652; IIRIRA § 412(e),

110 Stat. 3009-668; ITRIRA § 421(b), 110 Stat. 3009-670; IIRIRA

§ 503(b), 110 Stat. 3009-671; IIRIRA § 505(b), 110 Stat. 3009-672;

IIRIRA § 551(c), 110 Stat. 3009-679; IIRIRA § 562(e), 110 Stat.

3009-683.

the effect of a pre-enactment criminal conviction in par-

ticular. In short, IIRIRA’s silence on the temporal scope of

Section 304(b) precludes finding that Congress legislated

with the “unambiguous directive” that is required to

support retroactive elimination of Section 1182(c).

The government addresses four of IIRIRA’s provi-

sions that were mentioned by the court of appeals, and

seeks to dismiss them as “miscellaneous minor amend-

ments” that deal mostly with criminal aliens. Pet. Br. 38 &

n.20. In fact, provisions concerning criminal convictions

and aggravated felonies are especially relevant because

they concern the same subject matter that is at issue in

Section 1182(c). See Lindh, 521 U.S. at 330. The govern-

ment also attempts to explain away the significance of the

explicit temporal provisions in Sections 321 and 322 on

the ground that they appear in subtitle III-B, which - the

government argues — stands in contrast to subtitle III-A

because it “has no general effective date ....” Pet. Br. 38.

Therefore, according to the government, “Congress

addressed the temporal scope of those provisions indi-

vidually.” Id. But, of course, subtitle III-B does have an

effective date — it is the date of IIRIRA’s enactment,

September 30, 1996, which Sections 321 and 322 both

explicitly reference. See IIRIRA § 321(c) (applying to

“actions taken on or after the date of the enactment of

this Act”); IIRIRA § 322(c) (applying “to convictions and

sentences entered before, on, or after the date of the

enactment of the Act”). The specific temporal provisions,

therefore, were not needed to set that date, and they do

not do so. Rather, they specify a particular retroactive

reach for those particular provisions and thereby satisfy

the clear statement requirement. That is the language that

is missing from Section 304(b).”

22 The government also suggests that the contrasting

language in other provisions is irrelevant because it appears ina

different subsection of subtitle III and originated in different

bills. However, explicit temporal language appears throughout

In the absence of any express language dictating a

retroactive reach for Section 304(b), the government is

forced to rely on inferences. These arguments, however,

necessarily acknowledge that an explicit temporal direc-

tive is lacking and that the Court should infer a retroac-

tive directive notwithstanding the absence of express

language. The presumption against retroactivity prohibits

that conclusion.

The first statutory provision to which the govern-

ment points is the effective aate provision that governs

subtitle III-A. That provision, Section 309(a), 110 Stat.

3009-625, states that most of subtitle A, including Section

304(b)’s repeal of Section 1182(c), is effective on April 1,

1997. As Landgraf emphatically held, however, an effec-

tive date provision “does not even arguably suggest that

it has any application to conduct that occurred at an

earlier date.” Landgraf, 511 U.S. at 257. The fact that

Section 304(b) went into effect on April 1, 1997 (which

respondent does not dispute), does not, therefore, pro-

vide any support tor applying the statute to pre-enact-

ment events. See id. at 259; id. at 288 (Scalia, J.,

concurring) (the words “shall take effect ” are presumed

to mean “shall have prospective effect” and “that pre-

sumption is too strong to be overcome by any negative

inference ... .”):

The government also appears to suggest that

IIRIRA’s effective date standing alone has greater signifi-

cance because Section 304(b) repealed rather than

amended Section 1182(c). But the presumption against

retroactivity applies equally in cases where new legal

consequences result from the repeal of a prior provision.

See, e.g., United States v. Magnolia Petroleum Co., 276 U.S.

160, 162-63 (1928); Twenty Per Cent Cases, 87 U.S. (20

Wall.) 179, 185-88 (1873). Indeed, all retroactivity cases, by

IIRIRA, including in Title III-A. See, e.g., IIRIRA §§ 301(b)(3), 110

Stat. 3009-578; 301(c)(2), 110 Stat. 3009-579; 306(d), 110 Stat.

3009-612.

definition, involve two legal regimes — the old legal reg-

ime and the new legal regime. That is true whether the

change is by enactment, repeal or amendment. The ques-

tion in retroactivity cases, therefore, is not whether there

are two legal regimes, but which legal regime should

apply to pre-enactment events.

The government then seeks an inference from ITRIRA

§ 309(c)(1), 110 Stat. 3009-625, which the government

labels a “savings” provision, to achieve a retroactive

reach for Section 304(b). Pet. Br. 34-36. But Section 309,

110 Stat. 3009-625, nowhere provides an express state-_

ment regarding the availability of Section 1182(c) relief.

Rather, Section 309(c), entitled “Transition for Aliens in

Proceedings,” provides the rules for deportation and

exclusion proceedings that were pending on the date the

new removal system established by IIRIRA went into

effect, and sets forth rules for phasing in the new pro-

cedural system enacted by Section 304(a). First, in Section

309(a), Congress specified that the effective date for most

of the new provisions of subtitle III-A would be the first

day of the first month beginning 180 days from the date

of enactment, which became April 1, 1997. Next, in Sec-

tion 309(b), 110 Stat. 3009-625, Congress provided for the

promulgation of new regulations to flesh out the many

. changes introduced by subtitle III-A and instructed that

these regulations be in place thirty days prior to the

subtitle III-A effective date. Then, in Section 309(c), Con-

gress addressed the interaction of the new procedural

system with the old system and provided that proceed-

ings commenced before the subtitle III-A effective date

would continue to be conducted without regard to the

changes in the law that were to become effective on April

1, 1997. In particular, Section 309(c)(1) provided the

“[g]eneral rule” that aliens who were already in exclusion

or deportation proceedings on the effective date of Sec-

tion 309(a) (April 1, 1997) would not be subject to the

amendments of subtitle III-A, and that the proceedings

(including judicial review) would be conducted without

regard to the amendments.

These transition provisions were necessary to avoid

the wholesale application of every provision of subtitle

Ill-A to pending deportation and exclusion cases. Absent

a specific provision exempting pending cases, all of the

new IIRIRA procedures would have applied across the

board in every case and would have created procedural

confusion for cases already in proceedings. See Landgraf,

511 U.S. at 285 n.37 (procedural changes presumptively

apply to pending cases). Section 304, for example, pro-

vides that the new “removal” proceedings are com-

menced with a Notice to Appear, IIRIRA § 304(a) (new 8

U.S.C. 1404), rather than an Order to Show Cause;

includes different criteria for entering an order of

removal for those noncitizens who fail to appear at their

hearings, IIRIRA § 304(a) (new 8 U.S.C. 1229a(b)(5)); per-

mits video and telephone conferences, IIRIRA § 304(a)

(new 8 U.S.C. 1229a(b)(2)(A)); and creates different rules

for motions to reconsider and reopen proceedings,

IIRIRA § 304(a) (new 8 U.S.C. 1229a(c)(5)). Without Sec-

tion 309(c)(1), it would have been unclear which set of

procedural rules should apply to pending cases.

In effect, the government is arguing that Section

309(c)(1)’s preservation of the pre-existing framework for

some cases is sufficient to achieve a retroactive repeal of

the substan-tive criteria of Section 1182(c) for other cases.

Pet. Br. 35-36. At best, that argument is based on precisely

the sort of negative inference that this Court’s retroac-

tivity jurisprudence plainly prohibits. As this Court made

clear in Lindh, “normal rules of construction” are suffi-

cient to find that Congress intended prospective applica-

tion, but a negative inference is not a sufficient legislative

authorization for retroactive application. See Lindh, 521

U.S. at 325-26 (“‘unambiguous directive’ is necessary to

authorize ‘retroactive application’”) (quoting Landgraf,

511 U.S. at 264); see also Landgraf, 511 U.S. at 288 (Scalia,

J., concurring) (“The short response to [the negative infer-

ence argument] is that refinement and subtlety are no

substitute for clear statement.”).

~ en TREE ant

: 31

Finally, the government seeks to explain the lack of

specific language on temporal applicability by arguing

that subtitle III-A constituted a comprehensive revision of

the INA. It suggests that in the context of such a “com-

prehensive” revision Congress is under no obligation to

state expressly whether substantive changes in eligibility

for relief apply to past events. Pet. Br. 33-34. But there is

nothing about a “comprehensive” revision that answers

the question of temporal applicability.2> Landgraf itself

involved a major revision of the civil rights laws, and

there the Court held that those revisions, in and of them-

selves, do not speak to the analytically separate question

of whether the amendments should apply to pre-enact-

ment events. Landgraf, 511 U.S. at 260-61; see also Rivers v.

Roadway Express, Inc., 511 U.S. 298, 308 (1994) (that legis-

lation was passed to restore racial discrimination remedy

available under prior case law does not mean that Con-

gress meant to further that purpose with respect to cases

arising prior to the new statute); Barber v. Gonzales, 347

U.S. 637, 642-43 (1954) (rejecting government’s argument

that its construction of the statute would further “broad

congressional purpose to terminate the United States resi-

dence of criminal aliens”).

The government protests that the court of appeals

has created “a hybrid form of proceeding,” Pet. Br. 34, in

which aliens in removal proceedings seek to apply for

relief from deportation under Section 1182(c). But

“removal” is simply a new name for deportation and a

person in these proceedings — under either procedural

scheme - is charged with being “deportable” under 8

23 The government cites to Radzanower v. Touche Ross & Co.,

426 U.S. 148, 154 (1976), for the proposition that a

comprehensive revision should be understood as implicitly

repealing a prior law. The question, however, is not whether

Congress repealed Section 1182(c), but whether the repeal

applies retroactively to past events.

U.S.C. 1227 (“Deportable Aliens”).24 Now, as before, the

INA sets forth the grounds that render aliens “deport-

able.” See former 8 U.S.C. 1251 (1994) (“Deportable

Aliens”); 8 U.S.C. 1227 (Supp. V 1999) (“Deportable

Aliens”). Similarly, the relevant equitable criteria for

adjudicating a claim for “cancellation of removal” are the

same as for a waiver under Section 1182(c). In re C-V-T-,

Int. Dec. No. 3342, 1998 WL 151434 (BIA 1998).25 The only

issue is whether respondent is barred from receiving such

relief, not the label it is given.

The government's view of Section 304(b) would lead,

moreover, to a result that Congress did not specifically

contemplate and likely did not intend. The law governing

past convictions would depend entirely on the happen-

stance of when the INS decides to institute proceedings,

and would apply to people who were convicted ten or

twenty years ago. See, e.g., Wallace v. Reno, 24 F. Supp. 2d

104, 115 (D. Mass. 1998) (“For many [immigrants] the

connection between conviction and deportation [is] nei-

ther [] immediate nor [] direct. Years might elapse

between conviction and deportation, with the deportation

24 The terms “deportation” and “removal” are

interchangeable terms in many parts of the INA. Moreover,

Section 1227, which contains the general classes of deportable

aliens, continues to contain a provision entitled “waiver of

deportation” that applies to certain visa holders. See, e.g., 8

U.S.C. 1227(c) (providing for a “waiver of deportation” to

specified classes of immigrants). -

25 Moreover, the government's semantic argument focusing

on immigration terminology disregards the fact that the Section

1182(c) waiver was never formally denominated a “waiver of

deportation” since it originally arose in “exclusion”

proceedings. See Pet. Br. 3 n.1 (citing Francis v. INS, 532 F.2d 268

(2d Cir. 1976) and In re Silva, 16 I. & N. Dec. 26 (BIA 1976)).

There is nothing novel in preserving Section 1182(c) for the

limited group of legal permanent residents who were eligible

for that relief under the law at the time of the event triggering

their deportation.

proceedings not triggered by the conviction itself but by a

lawful resident’s random contacts with the INS.”), aff'd,

194 F.3d 279 (1st Cir. 1999). See also Arias-Agramonte, No.

00-C2412, 2000 WL 1059678 (S.D.N.Y. Aug. 1, 2000); Velas-

quez v. Reno, 37 F. Supp. 2d 663, 664 (D.N.J. 1999). In fact,

persons with lesser convictions who were not an enforce-

ment priority in earlier times would find themselves sub-

ject to a harsher legal regime in which they could not seek

the relief that they could have sought had the INS moved

more promptly to place them in proceedings. See Mojica v.

Reno, 970 F. Supp. 130, 171 (E.D.N.Y. 1997) (“Retroactivity

generally targets those whom the INS once decided not to

detain and place in deportation proceedings. It denies

them the relief that was available to their fellow inmates

who had deportation proceedings against_them com-

menced in a timely manner.”) (emphasis in original), aff'd

in part sub nom. Henderson v. INS, 157 F.3d 106 (2d Cir.

1998), cert. denied, 526 U.S. 1004 (1999).

Congress could have decided that the passage of time

and the intervening conduct of legal residents is irrele-

vant and that their deportation should be mandatory

nonetheless. But application of the new statute to those

immigrants poses distinct considerations. IIRIRA does

not contain any express manifestation that Congress

“affirmatively considered the potential unfairness of ret-

roactive application and determined that it is an accept-

able price to pay ... .” Landgraf, 511 U.S. at 272-73.

Absent such explicit language, Congress has not directed

that the retroactive elimination of Section 1182(c) relief

should apply to pre-enactment events.7°

26 The presumption against retroactivity is underscored by

the fact that this case concerns the deportation of a legal

permanent resident. The Court has repeatedly noted that it will

construe “any lingering ambiguities in deportation statutes in

favor of the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449

(1987); see also Costello v. INS, 376 U.S. 120, 128 (1964). The rule

oi lenity complements the Landgraf rule by assuring that

Congress has given due consideration to the extreme

B. Changing The Possibility Of Deportation Into |

Mandatory Deportation Is A New Legal Conse-

quence.

Whether application of a new law to past events has a

retroactive effect depends upon a “common sense functional

judgment about ‘whether the new provision attaches new

legal consequences to events completed before its enact-

ment.’ ” Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (quoting

Landgraf, 511 U.S. at 270). The Court’s evaluation of new

legal consequences “is informed and guided by ‘familiar

considerations of fair notice, reasonable reliance and settled

expectations.’” Martin v. Hadix, 527 U.S. at 358 (quoting Land-

graf, 511 U.S. at 270). An impermissible retroactive effect may

result, for example, when a statute “increase[s] a party’s

liability for past conduct,” Landgraf, 511 U.S. at 280; “attaches

a new disability, in respect to transactions or considerations

already past,” id. at 268 (internal citations omitted);

“sweep[s] away settled expectations suddenly and without

individualized consideration,” id. at 266; “changes the legal

consequences of acts completed before [the new law’s] effec-

tive date,” id. at 269 n.23 (internal citations omitted); or

“gives a quality or effect to acts or conduct which they did

fot have or did not contemplate when they were per-

formed,” id. (internal citations omitted).?7

consequence of deportation even in statutes where retroactive

application of a new law is not at issue. Where retroactivity does

arise, the rule of lenity, like the Landgraf rule, assures that a new

immigration law will be applied to past conduct only when

Congress clearly intended that result.

27 In defining what constitutes a “retroactive effect,” the

government cites Justice Story’s formulation in Society for the

Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.N.H.

1814). See Pet. Br. 45. However, this Court has held that Justice __

Story’s formulation “does not purport to define the outer limit

arom et ee

For many lawful permanent residents, the change in law

at issue would convert a possibility of deportation into a

certainty. Respondent’s opportunity to seek a waiver of

deportation would be extinguished. As a result, the pre-

enactment plea that previously allowed for Section 1182(c)

relief would now cause mandatory deportation. Regardless

of whether the change in law is viewed as attaching a new

disability, Landgraf, 511 U.S. at 269 & n.23 (citing Soc’y for the

Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.N.H.

1814)); Hamilton Murray v. Gibson, 56 U.S. 421, 424 (1853)

(inability to introduce evidence of past judgment); as increas-

ing a liability for past conduct, Landgraf, 511 U.S. at 280;

Rivers v. Roadway Express, Inc., 511 U.S. 298, 304, 313 (1994);

as sweeping away settled expectations without individu-

alized consideration, Landgraf, 511 U.S. at 266; or as eliminat-

ing a functional defense to removal, see Hughes Aircraft Co. v.

United States ex rel. Schumer, 520 U.S. 939, 948 (1997), it would

constitute a new legal consequence, namely precluding

application for the Section 1182(c) waiver and thereby com-

pelling deportation.”

Under the government's view, any legal resident who is

subjected to immigration proceedings after April 1, 1997

would be barred from seeking Section 1182(c) relief. Thus,

immigrants whose criminal offense occurred years or

- decades earlier would be barred even though they were

indisputably eligible for the waiver at that time and the INS

did not, for whatever reason, initiate proceedings. Because

of impermissible retroactivity.” Hughes Aircraft Co. v. United

States ex rel. Schumer, 520 U.S. 939, 947 (1997). -

28 The severity of deportation is undisputed. See, e.g.,

Barber v. Gonzales, 347 U.S. 637, 642 (1954) (“Although not penal ,

in character, deportation statutes as a practical matter inflict ‘the '

equivalent of banishment or exile.’”) (quoting Fong Haw Tan v.

Phelan, 333 U.S. 6, 10 (1948)). The severity is all the greater in the

case of legal residents who have developed the ties that go with

permanent residence. See Landon v. Plasencia, 459 U.S. 21, 32

(1982).

the immigration laws contain no statute of limitations, immi-

grants who made decisions in their criminal cases on the

basis of the then-governing immigration law, whose criminal

convictions may have occurred long ago, who have acted in

complete compliance with the law since then, and who now

may have the strongest claims for equitable relief, would be

completely barred. In Velasquez v. Reno, 37 F. Supp. 2d 663

(D.N.J. 1999), for example, a single conviction nineteen years

ago that resulted in probation would serve as the basis for

extinguishing legal resident status and compel the respon-

dent’s deportation without regard to decades of positive

equities. See generally supra note 16 (collecting cases); Brief

Amici Curiae of the Florida Immigrant Advocacy Center, et al.

(collecting examples).

In Costello v. INS, 376 U.S. 120 (1963), this Court recog-

nized that legal residents who are charged with crimes make

decisions — including whether and how to plead guilty -

based on the impact that their decisions will have on the

likelihood of deportation and the opportunity to seek discre-

tionary relief. In that case, the Court considered whether

criminal convictions that occurred when the defendant was

deemed to be a citizen could subsequently be used as the

basis for deportation when the defendant had lost his citi-

zenship status. The Court held that the deportation could not

be based on those criminal convictions because the alien

might have made different strategic judgments or offered to

plead guilty to a particular count based on the immigration

consequences of the conviction:

[T]he petitioner points out that had he held alien-

age status at the time of his trial for income tax

evasion, he could have offered to plead guilty to

one count of the indictment in return for a nolle

prosequi of the other counts, and that the convic-

tion on one count would not have made him sub-

ject to deportation... .

Id. at 130-31. See also Fiswick v. United States, 329 U.S. 211,

221-22 (1946) (potential hazards of deportation constitute a

serious collateral consequence that prevents an appeal of a

criminal conviction from becoming moot). Costello further

noted the importance of the opportunity to seek discretion-

ary relief. The decision emphasized that if the defendant had

been an alien at the time of the conviction, he could have

applied for relief authorized by the immigration act. “Even

more important, had petitioner been an alien at the time of

his convictions, he could have availed himself of the supple-

mentary relief procedure provided for” by the INA. Costello,

376 US. at 131.79

As Landgraf and Martin v. Hadix explained, “fair notice,

reasonable reliance and settled expectations” are the touch-

stones that guide retroactivity analysis. Martin v. Hadix, 527

US. at 358 (citing Landgraf, 511 U.S. at 270). Just as the

defendant in Landgraf was entitled to notice of the degree of

liability for unlawful sexual harassment, 511 U.S. at 281-85,

so a legal resident immigrant is entitled to notice of a change

in immigration liability resulting from his behavior. See also

Rivers, 511 U.S. at 309-10 (defendant entitled to notice of

statutory basis for liability even when prior law had been

interpreted as creating liability); Hughes Aircraft, 520 U.S. at

947-51 (defendant entitled to notice of change in defense

against qui tam relator, even when there was no defense

against United States for action based on the same underly-

ing fraud). As the Court has long recognized in relation to

the deportation consequences of criminal convictions, notice

to legal residents is essential. See Jordan v. De George, 341 US.

223, 230 (1951) (evaluating deportability grounds under

vagueness doctrine to determine whether the statute “fairly

apprise[d] aliens of the consequences which follow after

conviction and sentence”); see also id. at 243 (Jackson, J.,

dissenting) (notice of the circumstances that will lead to

deportation recognizes that “[dJeportation proceedings tech- —

nically are not criminal; but practically they are for they

29 Costello referred to a “judicial recommendation against

deportation,” which the alien could request in the criminal

proceeding and which operated, like Section 1182(c), as a

mechanism for tailoring the deportation law to the individual

facts of the case.

extend the criminal process of sentencing to include on the

same conviction an additional punishment of deportation”).

Likewise, reasonable reliance and settled expectations

are upset by a new legal regime that deprives legal residents

of the waiver eligibility they had under the immigration

statutes at the time they entered into plea agreements. For

noncitizens, the opportunity to preserve their lawful resident

status is often the foremost concern when confronted with

prosecution for a deportable criminal offense. As courts have

regularly recognized, a significant consideration that immi-

grants and their counsel weigh in the criminal justice system

is the likelihood of deportation and the eligibility for Section

1182(c) relief. See, e.g., Jideonwo v. INS, 224 F.3d 692, 695 (7th

Cir. 2000); Tasios v. Reno, 204 F.3d 544, 546 (4th Cir. 2000);

Reverdes v. Reno, 95 F. Supp. 2d 22, 28 (D. Mass. 2000); Tam v.

Reno, No. 98-C2835, 1999 WL 163055, at *1 (N.D. Cal. Mar. 22,

1999), rev'd on other grounds, 2001 WL 30677 (9th Cir. Jan. 11,

2001).

In some cases, those considerations are evidenced

directly in the plea negotiation. For example, in Jideonwo, the

court noted that the “sentence was the subject of consider-

able negotiation between the government and Jideonwo’s

attorney,” 224 F.3d at 695, and that “the whole point of the plea

negotiations in [Jideonwo’s] criminal case” was to preserve

the availability of equitable relief from deportation. Id. at 699

(emphasis added and internal quotation marks omitted). As

a result of the negotiations with the prosecutors, Mr. Jid-

eonwo agreed to provide “his assistance and that of his

family in a federal drug investigation.” Id. at 695. In turn, Mr.

Jideonwo received a sentence that was a “considerable

downward departure from the sentencing range for the

crime to which he pled guilty,” which preserved the avail-

ability of equitable relief from deportation. Id.°

30 See also Tam, 1999 WL 163055 (noting that public

defender informed client that “he would have the right to seek

relief from deportation under Section [1182(c)] of the INA as it

A GI ne

As evidenced by the actions and duties of lawyers and

judges, the criminal justice system recognizes the close rela-

tionship between convictions, pleas, and deportation. Crimi-

nal defense lawyers, guided by ethical standards and

numerous treatises, are obliged to advise legal residents of

the immigration consequences of a guilty plea and whether

the plea would preserve the opportunity for relief. See Brief

Amici Curiae of the National Association of Criminal Defense

Lawyers, et al. Prosecutors sometimes structure pleas in

order to preserve equitable relief when the imposition of

mandatory deportation would be too harsh a consequence

given the facts of the case or the circumstances of the pros-

ecution. See Jideonwo, 224 F.3d at 695 (prosecutor and defense

lawyer structured plea to preserve availability of equitable

relief); cf. Allen v. Hardy, 478 U.S. 255, 260 (1982) (prosecutors

rely on the legal regime in place at the time of trial). In

addition, judges in many states are required to ensure that

defendants are aware that a decision to accept a plea could

have immigration consequences.3!

Legal residents who pled guilty before the change in law

and, as a result, now face mandatory loss of their legal

status, may have chosen to go to trial; may have sought to

plead to other charges; may have pursued appeals; may have

devoted greater resources to their defense; and may have

focused on other issues in the criminal proceeding if they

could have known the consequence of their plea under the

stood at that time if he served a sentence of less than five

years”).

31 See Conn. Gen. Stat. § 54-1j (1994 & Supp. 2000). See also,

e.g., Cal. Pen. Code § 1016.5 (West 1985); D.C. Code Ann. § 16-713

(1997 & Supp. 2000); Fla. R. Crim. P. 3.172(c)(8) (1999); Haw. Rev.

Stat. Ann. § 802E-2 (Michie 1999); Mass. Gen. Laws Ann. ch. 278,

§ 29D (1992 & Supp. 2000); Mont. Code Ann. § 46-12-210(f) (1997);

N.Y. Crim. Proc. Law § 220.50(7) (McKinney Supp. 1999); Ohio

Rev. Code Ann. § 2943.031 (Banks-Baldwin 1997); Or. Rev. Stat.

§ 135.385(2)(d) (1997); Tex. Crim. Proc. Code Ann. § 26.13(a)(4)

(West 1989); Wash. Rev. Code Ann. § 10.40.200 (West 1990); Wis.

Stat. Ann. § 971.08(1)(c) (West 1998).

new law. See Brief Amici Curiae of the National Association of

Criminal Defense Lawyers, et al. Cf. Slusser v. Commodity

Futures Trading Comm’n, 210 F.3d 783, 786 (7th Cir. 2000)

(Easterbrook, J.) (finding that new law cannot be applied

retroactively in part because a “reasonable person in Slus-

ser’s position would have assumed that his maximum expo-

sure was $600,000 and financed his defense accordingly”).

Because the INA’s statutory definition of “aggravated fel-

ony” is highly technical and bears no intuitive relationship to

the designation of offenses under the criminal law (see supra

notes 14 & 15), the change to a regime in which an aggra-

vated felony conviction alone (without regard to the sentence

served) compels deportation will significantly alter the criti-

cal issues in a criminal case.%2

Notwithstanding the new legal consequences that the

statute would impose, the government argues that there can

be no retroactive effect. Pet. Br. 43-45. The fact that the new

statute imposes additional consequences on conduct that

was already unlawful does not, of course, diminish the

retroactive effect. “Even when the conduct in question is

morally reprehensible or illegal, a degree of unfairness is

32 For instance, the only criterion for determining whether

a conviction for fraud or tax conviction constitutes a

disqualifying “aggravated felony” is whether the amount of loss

~ exceeds $10,000. 8 U.S.C. 1101(a)(43)(M). Unless that is the case

at the time of trial, defendants will not know to focus on the

amount of the alleged loss as a critical matter on which to offer

proof in addition to the other issues that are present in the case.

Similarly, in the case of theft crimes, the only criterion in

determining whether the crime will be classified as an

aggravated felony is whether the sentence is one year, even if

the sentence is suspended. Therefore, in negotiations over a plea

and sentence, a legal resident must pay close attention to the

nominal sentence, even if the sentence will be suspended.

Indeed, a person who is eager to preserve the opportunity for

relief and prevent mandatory deportation would choose a

shorter definite sentence (even though it would require

imprisonment) over a longer suspended sentence (that would

not require any imprisonment).

inherent whenever the law imposes additional burdens

based on conduct that occurred in the past.” Landgraf, 511

U.S. at 283 n.35. The Court has repeatedly found retroactive

effect even though the underlying conduct was already sanc-

tionable under prior law. See, e.g., Hughes Aircraft, 520 U.S. at

947; Rivers, 511 U.S. at 301-02, 313.

The fact that Section 1182(c) relief is “discretionary” is

equally beside the point. Changes affecting the opportunity

to prevent a consequence have a retroactive effect, even if

those consequences depend on the decisions of others. In

Hughes Aircraft, the Court held that a change in law had a

retroactive effect, even though the change at issue — the

elimination of a particular defense in a private suit — did not

affect petitioner’s maximum liability. 520 U.S. at 948. Rather,

the change only made it more likely that the petitioner

would be subject to suit because the government might

exercise its discretion differently than a private litigant. Id. at

949.93 The Court held that such a change had an impermissi-

ble retroactive effect because, as a functional matter, it

“attach[ed] a new disability.” Id. at 948 (quoting Landgraf, 511

U.S. at 269). See Tasios, 204 F.3d at 553 (Luttig, J., concurring)

(“I join the court’s opinion with respect to the retroactive

effect [of the elimination of Section 1182(c)] largely, though

not exclusively, because of the Supreme Court's decision in

Hughes Aircraft Co. v. United States ex rel. Schumer... .”). See

_ also Louis Vuitton v. Spencer Handbags Corp., 765 F.2d 966, 970

(2d Cir. 1985) (denying retroactive application to statute that

made treble damages the presumptive award, rather than the

maximum possible award). Cf. Costello v. INS, 376 U.S. 120

33 At issue in Hughes Aircraft was the qui tam provision of

the False Claims Act, 31 U.S.C. 3730(b). Under pre-1986 law, a

party could defend against such a qui tam action on the grounds

that the false information that formed the basis for the suit was

already in the government’s possession; a 1986 amendment,

however, removed this defense. The question before the Court

was whether the amendment eliminating the defense should

apply to conduct pre-dating the amendment’s enactment.

Hughes Aircraft, 520 U.S. at 941.

(1964) (noting importance of opportunity for alien to apply

for discretionary relief from deportation based on criminal

conviction).

In the related context of the Ex Post Facto Clause -

which the Court has regularly turned to in analyzing

whether a civil statute is impermissibly retroactive, see, e.g.,

Hughes Aircraft, 520 U.S. at 948 (citing Collins v. Youngblood,

497 U.S. 37 (1990) and Beazell v. Ohio, 269 U.S. 167 (1925));

Landgraf, 511 U.S. at 266-67, 269 n.23 (citing Miller v. Florida,

482 U.S. 423 (1987) and De Veau v. Braisted, 363 U.S. 144, 160

(1960)) — a change affecting the likelihood of relief is imper-

missibly retroactive, even when the maximum consequences

are unaltered and the relief is discretionary.

In Lindsey v. Washington, 301 U.S. 397 (1937), the Court

held that the change from a maximum indeterminate sen-

tence to an equally long mandatory sentence was imper-

missibly retroactive. Even though the petitioners could have

been sentenced to the identical prison sentence terms, the

Court found an additional disability because it removed the

possibility of a lighter sentence. “Removal of the possibility of

a sentence of less than fifteen years . . . operates to [defen-

dants’] detriment” because “[i]t is plainly to the substantial

disadvantage of petitioners to be deprived of all opportunity”

to receive a lower sentence. Id. at 401-02 (emphases added).

Similarly, in Weaver v. Graham, 450 U.S. 24, 36 (1981), the

Court held that a statute affecting the “gain-time” credits

affecting prisoners’ early release operated retroactively even

though the change did not affect the maximum possible

penalty. The Court recognized that the gain-time allowance

“is an act of grace rather than a vested right,” id. at 28; see

also id. at 30-31 (gain-time accorded “by the grace of the

legislature”), but nonetheless held that the petitioner was

“disadvantaged by the reduced opportunity” to shorten his

time in prison. Id. at 33-34 (emphasis added); see also id. at 37

(Blackmun, J., concurring in the judgment) (new statute

“remove[d] some of petitioner’s hope and a portion of his

opportunity”).

Hughes Aircraft, Lindsey, and Weaver definitively refute

the contention that a change affecting the opportunity for a

favorable exercise of discretion does not have an impermissi-

ble retroactive effect. Indeed, Section 1182(c) relief from

deportation is less discretionary and more predictable*4 than

the situations in Hughes Aircraft, 520 U.S. at 949 (depending

on discretionary decisions of prosecutors); Lindsey, 301 US.

at 797-98 (depending on sentencer’s decision in fixing an

indeterminate sentence); and Weaver, 450 U.S. at 26 & n.2, 28,

35 n.19 (depending on grant of gain-time credits, even when

created by legislature as act of grace and awarded when

prisoner “has performed in a faithful, diligent, industrious,

orderly and peaceful manner, the work, duties and tasks

assigned to him” and on other discretionary bases). As the

Fourth Circuit concluded: “It is of no consequence here that

[Section 1182(c)] relief is discretionary. . . . [A]ny change

from a system of discretionary relief to one of prescribed

outcomes is retroactive.” Tasios, 204 F.3d at 522.

The government also argues that pleas are not a relevant

event for retroactivity analysis because the immigration stat-

utes speak in terms of convictions. That is an artificial dis-

tinction. This Court has emphasized that the retroactivity

inquiry “demands a common sense functional judgment” of

whether new legal consequences attach. Martin v. Hadix, 527

U.S. at 345. For legal residents (like respondent) who pled

guilty under the prior legal regime, convictions based on

pleas rendered them deportable and now prohibit their eligi-

bility for relief. Moreover, as the court of appeals and other

courts have recognized, a guilty plea is the point at which

the reliance aspect of retroactivity is most plainly present. See

Pet. App. 26a-29a; Tasios, 204 F.3d at 551 (noting that alien

may act in reliance on the prospect of Section 1182(c) relief

by waiving right to trial and pleading guilty). Furthermore,

as in Hughes Aircraft, the Court need not decide the precise

event for all cases, see 520 U.S. at 946 n.4 (not deciding which

*4 The standards governing an IJ’s exercise of discretion for

adjudication of Section 1182(c) waivers are established by

decades of BIA precedent. See supra note 1 and accompanying

text.

is a relevant event for retroactivity), since whether the rele-

vant event is considered the criminal conduct, the plea, or

the conviction, all of the relevant events occurred for this

respondent prior to the enactment of the new law.%5

Finally, the government compares the elimination of

discretionary relief from deportation to a court’s injunction

and argues that the change in law does not, therefore,

impose a retroactive effect. Pet. Br. 42-43. Cases concerning

injunctions are, however, wholly distinct. An injunction is a

continuing order of the Court that is always subject to

revision based on changes in the law. See Miller v. French, 530

U.S. 327, 344 (2000). A removal hearing for a legal resident,

in contrast, is an adjudication of whether a status should be

revoked based on a past event. Although current facts are

relevant, an award of Section 1182(c) relief — unlike an

injunction — is not conditional, is not subject to revocation

based on subsequent events, and leads to a final determina-

tion on the charge of deportability. See Matter of Przygocki, 17

I. & N. Dec. 361 (BIA 1980) (award of relief under Section

1182(c) is not conditional); see also Matter of Gordon, 20 1. & N.

Dec. 52 (BIA 1989). In short, “[w]hen determining whether a

new statute operates retroactively, it is not enough to attach a

label (e.g., ‘procedural’, ‘collateral’) to the statute; we must

ask whether the statute operates retroactively.” Martin v.

Hadix, 527 U.S. at 359.

C. There Is No Deportation Exception To The Pre-

sumption Against Retroactivity.

1. Although the government presents its argument as

fitting within this Court’s retroactivity jurisprudence, its

principal claim is that changes in the law affecting a legal

resident’s ongoing right to remain in this country can never

35 In selecting the relevant event, this Court has looked to

the irrevocable act of the person who would suffer the effects of

the new law. See Martin v. Hadix, 527 U.S. at 360 (relevant date is

work performed before notice of the new cap on attorney’s

fees).

qualify as retroactive. See Pet. Br. 40 (asserting that Con-

gress’s plenary power over immigration means that deporta-

tion laws, no matter how much they turn on past facts, are

“inherently prospective” and not subject to the presumption

against retroactive application of new statutes). This asser-

tion is extraordinary, especially as applied to provisions that

would extinguish the lawful status of legal residents. See

Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“Once an alien

gains admission to our country and begins to develop the

ties that go with permanent residence, his constitutional

status changes accordingly.”).36 The government also makes

the related argument that there can be no retroactive effect

because the disability occurs in the future. But, if a new law

attaches a new disability based on past events, the disability

necessarily occurs in the future. See, e.g., Hamilton Murray v.

Gibson, 56 U.S. 421, 423-25 (1853) (ability to enforce prior

judgments); Society for the Propagation of the Gospel v. Wheeler,

22 F. Cas. 756, 768 (C.C.N.H. 1814) (ability to enjoy unim-

paired title to land). Cf Usery v. Turner Elkhorn Mining Co.,

428 U.S. 1, 18 (1976) (treating imposition of costs of Black

Lung program as retroactive although program addressed

ongoing allocation of expenses of ongoing costs).

This Court has consistently applied the presumption

against retroactive legislation in cases concerning the rights

of legal residents who faced bars to reentry or deportation.

In Chew Heong v. United States, 112 U.S. 536, 538-39 (1884), for

example, a case cited and discussed by the Landgraf Court,

3° The government argues that there is no retroactive effect

because immigration proceedings are designed to end an “ongoing

violation of law.” Pet. Br. 50-51. However, that has no application

here where the aliens are legal permanent residents, at least until

there is an entry of a final order of deportation — after adjudication

of waiver applications. 8 C.F.R. 1.1(p); Matter of Lok, 18 I. & N. Dec.

101, 105 (BIA 1981) (“[L]awful permanent resident status of an alien

. . end[s] with the entry of a final administrative order of

deportation.”). In any case, Congress has provided for relief that

aliens subject to deportation are eligible to pursue.

the issue was whether a Chinese legal resident of this coun-

try would be prohibited from reentering the United States

based on a certificate requirement that was enacted after his

departure. The government argued that entry should be

barred based on the intervening law. The Court refused to

read the statute as taking away a right to reenter possessed

by the individual before his trip without a clear statement of

congressional intent. Quoting United States v. Heth, 7 US. (3

Cranch) 399 (1806), a landmark case on the presumption

against retroactivity, the Court endorsed and applied the

established presumption against retroactive legislation. Chew

Heong, 112 U.S. at 559 (“Words in a statute ought not to have

retrospective operation unless they are so clear, strong and

imperative that no other meaning can be annexed to them, or

unless the intention of the Legislature cannot be otherwise

satisfied; and such is the settled doctrine of this Court.”). The

Court reaffirmed this holding four years later in United States

v. Jung Ah Lung, 124 U.S. 621, 633 (1888).7 See also Ng Fung

Ho v. White, 259 U.S. 276, 280-81 (1922) (avoiding issue of

retroactive construction of deportation statute because there

was an independent ground of deportability); Luria v. United

37 The government implicitly acknowledges the force of

Chew Heong but suggests that it is different because it did not

involve a claim to discretionary relief. As discussed above, that

makes no difference. The government also seeks to distinguish

Chew Heong on the ground that Congress had expressly granted

the legal resident a right to remain. But the noncitizen in Chew

Heong had no more right to remain than a permanent resident

has under current law. See Chew Heong, 112 U.S. at 560

(explaining that the certificate provided the “privilege” to “go

from and return to the United States”). The crucial point was

that the Court would not read a retroactive intent into

Congress's prior laws without an express statement from

Congress. Notably, the noncitizens in Chew Heong and Jung Ah

Lung were at the border seeking to enter, and these cases were

decided before this Court recognized that returning legal

residents have a greater constitutional status than other aliens at

the border. See Landon v. Plasencia, 459 U.S. at 30.

States, 231 U.S. 9, 21-23 (1913) (finding express congressional

intent to apply statute retroactively); Kessler v. Strecker, 307

U.S. 22, 30 (1939) (finding no express congressional intent to

apply deportation statute to past acts).

Ultimately, the government conflates this Court’s prece-

dents regarding the constitutional power of Congress to

enact retroactive deportation laws with the question of

whether Congress “itself has determined that the benefits of

retroactivity outweigh the potential for disruption or unfair-

ness.” Landgraf, 511 U.S. at 268. For example, the government

quotes from Mahler v. Eby, 264 U.S. 32 (1924). Pet. Br. 41.

Mahler, however, concerned a statute that included expressly

retroactive grounds of deportability.5*

The issue of Congress's constitutional power is entirely

separate from the question of whether Congress has exer-

cised its power. Indeed, this Court’s decisions upholding the

power of Congress to enact retroactive deportation laws

followed cases in which this Court required a clear statement

of Congress’s intent to reach back in time and change the

consequences of past acts. See Fong Yue Ting v. United States,

149 U.S. 698, 719-720 (1893) (describing how the constitu-

tional issues were reached with respect to the Act of May 5,

1892, following the Court's earlier decisions in Chew Heong

and Jung Ah Lung, which denied retrospective reach to ear-

lier statutes that lacked express retroactive intent); Harisiades

v. Shaughnessy, 342 U.S. 580, 587 n.15 (1952) (describing how

constitutional issues were reached with respect to the Alien

Registration Act of 1940, and following Court's earlier deci-

sion in Kessler in which the Court held that an earlier statute

lacked clear intent to reach past acts). See also Lehmann v. INS,

353 U.S. 685, 690 (1957) (upholding constitutionality of retro-

active provisions of the INA where Court found that it was

38 See Act of May 10, 1920, ch. 174, § 2, 41 Stat. 593

(providing for deportability of “aliens of the following classes”

including “all aliens who since August 1, 1914, have been or

may hereafter be convicted of any violation or conspiracy to

violate [the Selective Service Act]”).

“indisputable . . . that Congress was legislating retrospec-

tively” through a statutory provision that applied “notwith-

standing . . . that the facts by reason of which any such alien

belongs to any of the classes enumerated . . . occurred prior

to the date of enactment”). Under this authority, Congress

may in some cases legislate retroactively in the immigration

realm if it does so explicitly and rationally.*? But whatever

the power of Congress to enact retroactive laws, it must

legislate expressly and assess the consequences of retroactive

application of new deportation laws.

2. Finally, the government's decision to apply Section

304(b) retroactively cannot be saved by reliance on Chevron

deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984). The first step of Chevron requires

that courts employ the “traditional tools of statutory con-

struction” to determine the meaning of the statute. Id. at 842

n.9. Included in these tools are established canons of inter-

pretation. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48

(1987). See also NCUA v. First Nat'l Bank & Trust Co., 522 U.S.

479, 501 (1998); EEOC v. Arabian-American Oil Co., 499 U.S.

244, 248 (1991). These “traditional tools of statutory construc-

tion” include the presumption against retroactive application

39 As the court below found, retroactive elimination of

relief from deportation may raise issues of constitutionality

under this Court’s due process jurisprudence. Due process

requires that Congress have a separate purpose that justifies the

retroactive aspects of new legislation. See Pension Benefit Guar.

Corp. v. Gray, 467 U.S. 717, 730 (1984). In addition, as the Seventh

Circuit found in Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000),

retroactive application raises difficult constitutional issues

regarding the “mousetrapping” of criminal defendants who

entered into pleas with the government in reliance on laws that

did not preclude relief from deportation. Id. at 697-701. See also

Lehmann v. United States ex rel. Carson, 353 U.S. 685, 690 (1957)

(Black, J., dissenting) (arguing that retroactive deportation laws

should be scrutinized under the Ex Post Facto clause).

of new statutes. Landgraf, 511 U.S. at 264. See also, e.g.,

Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir. 1998).

Furthermore, the basic assumption underlying Chevron

deference is that Congress left an ambiguity in a statute to be

filled by the agency. See Chevron, 467 U.S. at 843. The Landgraf

rule, however, is designed to resolve precisely such ambi-

guities in the case of retroactive laws. The purpose of the

presumption against retroactivity is to assure that Congress

has considered the unfairness of retroactive application and

that absent an explicit congressional intent, the statute applies

only prospectively. See generally Henderson v. INS, 157 F.3d

106, 129 n.29 (2d Cir. 1998) (retroactivity question is a “pure

question of statutory construction for the courts to

decide, . . . a question that is quite different from the

question of interpretation that arises in each case in which

the agency is required to apply [statutory] standards to a

particular set of facts which involves the agency’s particular

expertise”) (quoting Goncalves, 144 F.3d at 127) (alterations in

original) (internal quotation marks omitted); Jurado-Gutierrez

v. Greene, 190 F.3d 1135, 1148 (10th Cir. 1999) (deciding

retroactivity question “without affording any deference” to

Attorney General’s decision because Chevron deference was

inappropriate in that context), cert. denied, 529 U.S. 1041

(2000). Cf. Massachusetts v. United States Dep't of Transp., 93

F.3d 890, 895 (D.C. Cir. 1996) (canon of construing statutes to

avoid preemption of state laws is not subject to Chevron

deference). Therefore, Chevron has no role in relation to the

retroactivity question presented here.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

MicHaet G. Moore Lucas GUTTENTAG

20 Maple Street, Suite 302 Counsel of Record

Springfield, Massachusetts Lee GELERNT

01103 AHILAN ARULANANTHAM

(413) 747-9331 Jupy Rasinovitz

STEVEN R. SHAPIRO

AMERICAN Civit LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York

Paut A. ENGELMAYER

CHRISTOPHER J. MEADE

Witmer, CuTLeR &

PICKERING

520 Madison Avenue

10004

New York, New York

10022 (212) 549-2617

(212) 230-8800 JAYASHRI SRIKANTIAH

LittaNA M. Garces

AMERICAN Civit LIBERTIES

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405 14th Street, Suite 300 )

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94612

(510) 625-2010

March 2001

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