Opposition Brief — Reno v. Navas

a Supreme Court, U.S.

No. 98-996 ~ FILED

SANTS 1999

In The a

Supreme Court of the United-States-——-

October Term, 1998

%

JANET RENO, et al.,

Petitioners,

SAUL NAVAS, et al.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

e

RESPONDENTS’ BRIEF IN OPPOSITION

*

HELAINE BARNETT Lucas GUTTENTAG

Scott ROSENBERG (Counsel of Record)

GemMM~. SOLIMENE Let GELERNT

OutviA CAssIN KATHRYN PALAMOUNTAIN

MariA NAVARRO JAYASHRI SRIKANTIAH

THe Lecat Aip Society AMERICAN Civit LIBERTIES

90 Church Street, UNION FOUNDATION

15th Floor 1663 Mission Street

New York, NY 10007 San Francisco, CA 94103

oh Be,

Kerry WILLIAM Bretz (415) 621-2493

ALAN STRAUSS Tuomas E. MoseLey

Bretz & ASSOCIATES One Gateway Center,

299 Broadway, Suite 810 Suite 2600

New York, NY 10007 Newark, NJ 07102

(Additional counsel listed on inside cover)

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

OR CALL COLLECT (402) 342-2831 10

MiIcHAEL P. DiRAIMONDO MANUEL D. VARGAS

30 Rockefeller Plaza, 48 Eighth Avenue, No. 404

Suite 1925 New York, NY¥ 10014

New York, NY 10112

QUESTIONS PRESENTED

Respondents, longtime legal permanent residents,

are subject to final orders of deportation on the authority

of the Attorney General’s retroactive application of a

1996 amendment to the Immigration and Nationality Act

(INA) made by Section 440(d) of the Antiterrorism and

Effective Death Penalty Act (AEDPA). Respondents col-

lectively sought review of the Attorney General’s ruling

in the district courts by habeas corpus and in the court of

appeals by direct review. The court of appeals held that

the district courts properly exercised jurisdiction under

28 U.S.C. 2241, that its own direct review jurisdiction

was repealed and, on the merits, that the Attorney Gen-

eral incorrectly applied Section 440(d) retroactively. The

government contends that no court has jurisdiction to

review the Attorney General’s retroactivity decision and

that, if reviewable, the decision is correct. The questions

presented are:

1. Whether AEDPA and the Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA)

repealed the jurisdiction of both the district courts and

the courts of appeals over respondents’ statutory and

constitutional challenges to their final deportation orders

and, if so, whether AEDPA and IIRIRA violate the

Suspension of Habeas Corpus Clause, Article III or the

Due Process Clause of the Constitution.

2. Whether AEDPA 440(d) applies retroactively

and, if so, whether it violates the Constitution.

PARTIES TO THE PROCEEDING

Petitioners are Janet Reno, the Attorney General of

the United States; Doris Meissner, the Commis: oner of

Immigration and Naturalization; the Derartment of Jus-

tice; the Immigration and Naturalization Service (INS);

Lynne Underwood, District Director of the INS in New

Orleans; Edward McElroy, District Director of the INS

in New York; and Nancy Hooks, Officer in Charge of the

INS Office in Oakdale, Louisiana.

Respondents are Saul Navas, Guillermo Mojica,

Engin Yesil, and Franklin Henderson.

iil

TABLE OF CONTENTS

Page

CAITNE MENNN 5555 cn es Sandee deere ane

TUN 6 65 os he we REE Kee ee |

Statutes or Other Provisions Involved............ |

OIG Se cs baa ee eee et a ae |

The Statutory Framework ...............0cecees, 2

WE RRA Se oc Jaleo ae? Oo oe es 7

Reasons for Denying the Writ................... 13

Conclusion 30

TABLE OF AUTHORITIES

Page

CASES:

Almon v. Reno, 13 F. Supp.2d 143 (D. Mass.

FSIE) os so bo nnn «bins pak ed 2a eee ee 29

Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996)......... 8

Carlson v. Landon, 342 U.S. 524 (1952) ...... 16, 17

Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)... 12, 23

Chow v. INS, 113 F.3d 659 (7th Cir. 1997)..... >, 19

Commodities Future Trading Comm’n vy. Schor,

SFG U.S. BSS CIF as 0d ee ee a 17

De Osorio v. INS, 10 F.3d 1034 (4th Cir. 1993) ....27

Eastern Enterprises v. Apfel, _. U.S. __.,

3S BS. CA. 2USG) CES eee en eee 28

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

Francis v. INS, 532 F.2d 268 (2d Cir. 1976)....... 29

Fuentes-Campos, In re, Int. Dec. No. 3318, 1997

WL 269368 (BIA May 14, 1997)............... 29

Goncalves v. Reno, 144 F.3d 110 (Ist Cir.), peti-

tion for cert. filed, __. U.S.L.W. ___ (U.S.

mov. 16, 1996) G0; FOsa) osc cincacs cess passim

Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir. 1996) ...9, 11

Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939 (1997)........... 12-13, 23

INS vy. Lopez-Mendoza, 468 U.S. 1032 (1984)...... 28

Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir.

PROG) once dveeee a htewe ale oe eee i, 32

Kolster v. INS, 101 F.3d 785 (Ist Cir. 1996)........ 6

LaGuerre v. Reno, No. 98-1954, 1998 WL

912107 (7th Cir. Dec..22, ISGG). . o<s s5sesen passim

Landgraf v. USI Film Prods., 511 U.S. 244

(1994)... 0... eee. ees 12;-22-23, 26, 27

Lee v. Reno, 15 F. Supp.2d 26 (D.D.C. 1998)...... 22

Lerma de Garcia v. INS, 141 F.3d 215 (Sth Cir.),

reh’g en banc denied, 159 F.3d 1358 (1998) .... 18-19

SF RE Ee

TABLE OF AUTHORITIES —- Continued

Page

Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059

Die £5 EGRET CEN POT TPT EE eee epee Pe eP 13, 23

Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.),

petition for cert. filed, ___. U.S.L.W. ____ (US.

Nov. 18, 1998) (No. 98-836) ............... passim

Mansour v. INS, 123 F.3d 423 (6th Cir. 1997)..... 19

Mathews v. Kidder-Peabody & Co., Inc., 161

oe See A EE © cela ls cn a eke 26-27

Nakaranurack v. INS, 68 F.3d 290 (9th Cir. 1995) ..... 4

Pak v. Reno, 8 F. Supp.2d 1001 (N.D. Ohio

| ER A OR ay in aie + Pes Aah Nog a 22

Perez v. Reno, 18 F. Supp.2d 674 (W.D. Tex.

SES bc eoN ows ae Bile a pee eee eke ek ke bee

Richardson v. Reno, No. 98-4320, 1998 WL

889376 (llth Cir. Dec. 22, 1998), amending,

1998 WL 850045 (Dec. 9, 1998) ............ 20-21

Rodriguez v. Reno, No. 98-4426, 1999 WL 1762

fo, Be Ae Re ES... | On areata teen es Enea 21

Sandoval v. Reno, No. 97-7298, 1997 WL

839465 (E.D. Pa. Dec. 30, 1997) ........... 18, 22

Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996) ....26

Soriano, In re, Int. Dec. No. 3289 (BIA June 27,

a) OE HOUR ney Sout oy Shr aha 8) aa ae 3

Soriano, Matter of, Int. Dec. No. 3289 (AG Feb.

a ss ate a Sa ek tae ee ee be nee a a ts 0

Swain v. Pressiey, 430 U.S. 372 (1977) ........... 16

Turkhan vy. INS, 123 F.3d 487 (7th Cir. 1997)...... 19

United States ex rel. Marcello v. INS, 634 F.2d

oe Gk | | dE rere ee eee 4

Williams v. INS, 795 F.2d 738 (9th Cir. 1986) ...... 4

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) ....17

Yerger, Ex parte, 75 U.S. (8 Wall.) 85 (1869)..... i. 82

vi

TABLE OF AUTHORITIES — Continued

Page

DocKETED CASEs:

Esparza-Treto v. Greene, No. 98-1339 (10th Cir.) ....14

Gutierrez-Martinez v. INS, No. 98-8185 (11th

Cid. 6 8 wb Seba e e eee eee es ee ees 18, 20

Jurado-Gutierrez v. Greene, No. 97-1437 (10th

os | Re nema pment ry Rf AG ae Ab oti oR ee a! 18

Mayers v. Reno, No. 97-5537 (11th Cir.) ...... 18, 20

Pak v. Reno, No. 98-3852 (6th Cir.) .............. 18

Reno v. American-Arab Anti-Discrimination

Commend. SHG. FIPaewe ook sess be ob ek bake abs 4

Sandoval v. Reno, No. 98-1099 (3d Cir.) .......... 18

Shah v. Reno, No. 98-2636 (8th Cir.) ............. 18

CONSTITUTION, STATUTES AND REGULATIONS:

U.S. Const.:

Art. I:

5 F, Kak CRURRRRION CINE) 6 ce Hs passim

an. | Re ne Ire Bae el ae gc Fe

i, LE rr ee eS Ly Pree went? l

Antiterrorism and Effective Death Penalty Act,

rub. L. No. 104-132, 110 Stat. 1214. ..... ccc ness I

ee ae RO Re ee eee = ee

4) eS ee ye, | ere 26

im.) ee A es; Fee eee 5, 19

5 SUC), 110 BOR, TREE cn cee cow ens cc adeus passim

Illegal Immigration Reform and Immigrant

Responsibility Act, Pub. L. No. 104-208, Div.

GL Pee es re ea Sd ae rae bene «canes l

5 APS, CO OU, TONE 65 6c c cts eu asonaneens 22

§ FOOD), PIG Dime. FOO ee oc ccc ccc vccsccs 21

5 SPUR), VIG TR. SN occ cpecessescas 4,5

S DUPED, PIG Des OES vos cece de cccdel evs 22

§ 309(c)(1), 110 Stat. 3009-625 .............. 4,5

§ 309(c)(4), 110 Stat. 3009-626 ................. 5

§ 309(c)(4)(G), 110 Stat. 3009-626 ...5, 14, 15, 19

Vil

TABLE OF AUTHORITIES - Continued

Page

Immigration and Nationality Act, 8 U.S.C. 1101

Matas Le eR re ee Oe a re I

8 U.S.C. 1105a (1994) (repealed 1996)........... 4

8 U.S.C. 1105a(a) (1994) (repealed 1996) ........ 4

8 U.S.C. 1105a(a)(10) (1994) (repealed 1996) ..... 4

8 U.S.C. 1182(c) (1994) (repealed 1996) .... passim

8 U.S.C. 1229b(a) (Supp. II 1996)............... 3

S U.s.C. igag fouee. 1 1996) .................. 4

8 U.S.C. 1252(a)(2)(C) (Supp. II 1996).......... 14

8 U.S.C. 1252(g) ee ae See Se 4

oe Ue ee oe ee eee l

oe ats MNEs ee ce. passim

l

OPINIONS BELOW

Respondents adopt petitioners’ statement of the

opinions below.

JURISDICTION

Respondents do not contest this Court’s jurisdiction

under 28 U.S.C. 1254(1).

STATUTES OR OTHER PROVISIONS INVOLVED

In addition to the provisions referred to in the Peti-

tion for Certiorari and reprinted in the Petitioners’

Appendix:

U.S. Constitution, Art. III: “Section 1. The judicial

power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Con-

gress may from time to time ordain and establish. ... ”

“Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, and Treaties

made, . . . to Controversies to which the United States

snail be 6 Patty;. i...”

U.S. Constitution, Amend. V: “No person shall

be .. . deprived of life, liberty, or property without due

process of law. ... ”

STATEMENT

This case concerns amendments to the Immigration

and Nationality Act (INA) made in 1996 by the Antiter-

rorism and Effective Death Penalty Act (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1214, and the Illegal Immigra-

tion Reform and Immigrant Responsibility Act (IIRIRA),

Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, gov-

erning the deportation of longtime legal permanent resi-

dent immigrants who are deportable based on their past

criminal convictions. The substantive issue is whether a

new restriction on statutory eligibility for relief from

2

deportation applies retroactively. The jurisdictional issue

is whether Congress repealed all federal court jurisdic-

tion over the statutory retroactivity and constitutional

challenges to respondents’ final deportation orders and,

if so, whether such repeal violates the Constitution.

For the reasons stated below, certiorari should be

denied on both the jurisdictional and the merits issues.

If, however, the Court determines that review of the

issues presented here is warranted, respondents submit

that the instant case, through respondent Saul Navas,

properly presents the Court with the appropriate vehicle

for addressing the merits issues, and that JNS v. Magana-

Pizano, No. 98-836 (pet. for cert. filed Nov. 18, 1996), is

the vehicle for complete resolution of the jurisdictional

issue. Reno v. Goncalves, No. 98-835 (pet. for cert. filed

Nov. 18, 1996), does not, as the government acknowl-

edges, present either the jurisdictional or merits issues in

their entirety because the alien in that case filed only a

district court habeas petition and did not file a petition

for review directly in the court of appeals.

THE STATUTORY FRAMEWORK

Respondents generally agree with the government’s

description of the statutory framework and will therefore

limit their Statement to emphasize only certain points.

1. Relief From Deportation. Legal permanent resi-

dents who become deportable based on criminal convic-

tions have long been statutorily eligible to apply for

discretionary relief if the statutory criteria are satisfied.

See 8 U.S.C. 1182(c) (1994) (repealed 1996) (requiring

that the immigrant must be a legal permanent resident,

must have seven consecutive years of residency and must

not have served five years or more for an “aggravated

felony”). Over half of the total number of applications

3

for Section 1182(c) relief were granted during fiscal

years 1989 through 1994.!

In 1996, before repealing Section 1182(c) alto-

gether, Congress expanded the bar to statutory eligibility

for Section 1182(c) relief. AEDPA 440(d) establishes a

new bar to relief that extends to persons who did not

serve any time in prison and includes new categories of

non-violent and non-aggravated offenses. Section 440(d)

renders relief unavailable regardless of the length of the

person’s residence or other ties to the United States.2

The Board of Immigration Appeals (BIA) ruled en banc

that Section 440(d) did not apply retroactively to appli-

cations pending when AEDPA was enacted. /n re Sor-

iano, Int. Dec. No. 3289 (BIA June 27, 1996) (Pet. App.

355a). At the request of the INS, however, the Attorney

General vacated the BIA’s decision (Pet. App. 388a) and

issued a ruling that AEDPA 440(d)’s new restrictions

apply to all Section 1182(c) requests. Matter of Soriano,

Int. Dec. No. 3289 (AG Feb. 21, 1997) (Pet. App. 389a).

Five months after AEDPA, IIRIRA replaced Section

1182(c) altogether for immigration proceedings initiated

on or after April 1, 1997 — now called “removal proceed-

ings” — and instituted a successor form of relief called

“cancellation of removal,” 8 U.S.C. 1229b(a) (Supp. II

1996), with its own eligibility criteria and mandatory

disqualifications. The substantive provision at issue

here, AEDPA 440(d), has no effect on the cancellation of

removal provision.

* Pet. App. 193a-94a (citing U.S. Dep’t. oF Justice Executive

OFFICE FOR IMMIGRATION Review STATISTICAL SHEET | (Jan. 19, 1995)).

2 AEDPA Section 440(d) provided that Section 1182(c) “shall not

apply to an alien who is deportable by reason of having committed any

criminal offense covered in [enumerated INA provisions].”

4

2. Judicial Review. Before AEDPA and IIRIRA,

judicial review of final orders of deportation and exclu-

sion was governed by 8 U.S.C. 1105a, which provided

that review of final orders of deportation — regardless of

the basis for the order — would occur by a petition for

review directly in the courts of appeals (8 U.S.C.

110S5a(a)) and under some circumstances, by habeas

corpus proceedings in the district courts. 8 U.S.C.

1105a(a)(10).3 The habeas corpus provision in Section

1105a supplemented the “sole and exclusive” direct

review procedure in the courts of appeals, and the circuit

courts disagreed about when an alien could invoke such

habeas review. See, e.g., Nakaranurack v. INS, 68 F.3d

290 (9th Cir. 1995); Williams v. INS, 795 F.2d 738 (9th

Cir. 1986): United States ex rel. Marcello v. INS, 634

F.2d 964 (Sth Cir. 1981).

AEDPA repealed the INA habeas corpus provision,

Section 1105a(a)(10), without any mention of the gen-

eral habeas corpus statute, 28 U.S.C. 2241. IIRIRA then

repealed Section 1!05a in its entirety and adopted a new

permanent judicial review statute, Section 1252. This

permanent provision and the various subsections cited by

the government (with the arguable exception of subsec-

tion (g)) (see Pet. Br. 6), apply only to cases where the

immigration proceeding is initiated on or after April 1,

1997.4 IIRIRA, however, also enacted special “transi-

tional” judicial review rules that apply to “pipeline”

cases such as those of respondents Navas, Henderson and

> Section 1105a(a)(10) provided that “any alien held in custody

pursuant to an order of deportation may obtain judicial review thereof

by habeas corpus proceedings.”

4 IIRIRA 309(a) & (c)(1), 110 Stat. 3009-625. In a different

context, the applicability of Section 1252(g) to pending cases is

presented to this Court in Reno v. American-Arab Anti-Discrimination

Committee, No. 97-1252 (argued Nov. 4, 1998).

5

Mojica, where deportation proceedings began before

April 1, 1997, and the deportation order issued after

October 31, 1996. See IIRIRA 309(a), (c)(1) & (4), 110

Stat. 3009-625, 626.° Neither the text nor the history of

IIRIRA’s permanent or transitional judicial review provi-

sions mentions Section 2241.

The applicable jurisdictional provisions, AEDPA

440(a) and IIRIRA 309(c)(4)(G), restrict review of final

deportation orders based on enumerated criminal

grounds. While the government’s position now is that the

circuit courts provide the sole possibility for judicial

review, petitioners fail to mention that the government

took contrary positions in various courts below on the

effect of the AEDPA and IIRIRA provisions on the

jurisdiction of the district courts and the courts of

appeals. First, under AEDPA 440(a), the INS affirma-

tively sought dismissal of petitions for review in the

courts of appeals, including those raising constitutional

claims, on the ground that the circuit courts no longer

had jurisdiction. See Chow v. INS, 113 F.3d 659, 663,

668 (7th Cir. 1997).© In the First Circuit, the INS

> Because his final deportation order issued before October 31,

1996 (Pet. App 12a), respondent Yesil’s case is governed by former

Section 1105a as amended by AEDPA.

6 The government states that Chow did not involve a constitutional

claim. See Reply Brief for the Petitioners [INS et al.] at 6 n.4, INS vy.

Magana-Pizano, No. 98-836 (pet. for cert. filed Nov. 18, 1998)

(hereinafter “Magafia-Pizano Reply Br.”). However, as the Seventh

Circuit observed: “Chow . . . contends that the BIA’s proceedings

violated his due process rights.” Chow, 113 F.3d at 668. The Seventh

Circuit continued: “if Section 440(a) were to preclude all avenues of

judicial review available to a permanent resident alien such as Chow,

we would be faced with the difficult task of determining to what extent

Congress may limit the jurisdiction of the lower federal courts to hear

constitutional claims.” Id. (emphasis added). Because the Chow court

concluded that alternative avenues of judicial review, including habeas

6

assumed that the district courts retained jurisdiction

to review at least some claims in a habeas corpus

proceeding. Goncalves v. Reno, 144 F.3d 110, 115 (lst

Cir.), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Nov.

18, 1998) (No. 98-835) (noting that in an earlier AEDPA

case “INS conceded . . . some form of habeas jurisdiction

in the district court’”).’? In this Court, the government

asserted that any claim to judicial review based on the

Suspension Clause must await the filing of a habeas

corpus petition.’ Subsequently, under IIRIRA’s transi-

tional rules, the INS again sought dismissal of petitions

for review in circuit court cases raising both statutory

and constitutional claims, including cases raising the

precise constitutional equal protection claim raised by

respondents in this case — a claim the government now

contends is reviewable in the courts of appeals.?

corpus, were potentially available, the court avoided this “difficult”

constitutional question. /d. at 668-69.

7 The INS’s concession in the earlier AEDPA case, Kolster v. INS,

101 F.3d 785 (1st Cir. 1996), is in no way diminished (as the

government suggests, Magaria-Pizano Reply Br. at 6-7 n.4) by the fact

that the alien in that case sought review of a non-constitutional claim,

since the government’s position before this Court is that there is no

district court habeas jurisdiction of either constitutional or non-

constitutional claims.

8 See Brief for the Respondent [INS] in Opposition at 23,

Katsoulis v. INS, No. 97-379 (filed Nov. 1997), cert. denied,

__ US. __, 118 S. Ct. 624 (1997) (opposing certiorari and arguing

that any claim under Suspension Clause was not properly presented

because petitioner “did not seek a writ of habeas corpus”); Brief for the

[INS] in Opposition at 15, Chamorro-Torres v. INS, No. 96-985 (filed

Jan. 1997), cert. denied, 520 U.S. 1103 (1997) (same); Brief for the

[INS] in Opposition at 9, Qasguargis v. INS, No. 96-806 (filed Jan.

1997), cert. denied, 519 U.S. 1148 (1997) (same).

9 Compare Pet. Br. 23 with Goncalves v. Reno, 144 F3d T10,

118-19 (1st Cir. 1998) (noting that INS asserted neither the retroactivity

nor the equal protection claim was reviewable in any court).

4

STATEMENT OF FACTS

1. Administrative and District Court Proceedings.

a. Saul Navas. Respondent Saul Navas was law-

fully admitted to the United States from Panama as a

permanent resident in 1987, when he was twelve years

old. Pet. App. 7a. Navas’ entire immediate family resides

in this country either as United States citizens or legal

permanent residents. Jd. On May 2, 1995, Navas pled

guilty to criminal possession of stolen property in the

third degree and robbery in the third degree. Pet. App.

7a-8a. When he pled guilty, Navas was eligible to apply

for a waiver of deportation under 8 U.S.C. 1182(c).

Because of his successful completion of New York’s

Shock Incarceration Program, Navas served only eight

months of his sentence. Pet. App. 8a. The INS com-

menced deportation proceedings against Navas on July

21, 1995, while Navas was still serving his sentence. Pet.

App. 8a, 92a. At the suggestion of the Immigration Judge

(IJ), Navas applied for a Section 1182(c) waiver of

deportation. Pet. App. 8a. Shortly thereafter, the INS

took Navas into custody. Pet. App. 93a.

On May 9, 1996, an IJ granted Navas a Section

1182(c) waiver of deportation, relying on Navas’ resi-

dence in this country since a young age, his substantial

family ties to the United States, and his employment

history. Jd. The INS then released Navas from custody

on his own recognizance, but also appealed the IJ’s grant

of Section 1182(c) relief. Pet. App. 93a. The BIA

reversed the IJ and entered a final deportation order

solely in reliance upon the Attorney General’s opinion in

Matter of Soriano, Int. Dec. No. 3289 (AG Feb. 21,

1997). Pet. App. 8a. Navas filed both a petition for

—_—_————_feview—lo_the—court—ef—appeats—and—a—habeas—eorpus —

petition in district court. Pet. App. 9a. The district court

granted his habeas petition on July 11, 1997, finding

8

jurisdiction under 28 U.S.C. 2241, and holding that, as a

matter of statutory construction, AEDPA 440(d) should

not apply retroactively to his case.!° /d.

b. Franklin Henderson. Franklin Henderson is

fifty-eight years old and has been a lawful permanent

resident for more than thirty years. Pet. App. 5a, 324a.

His wife, children, and grandchildren are all either law-

ful permanent residents or United States citizens. Pet.

App. 5a, 326a-27a. Almost twelve years ago, in May

1987, Henderson pled guilty to criminal possession of a

controlled substance in the second degree. Pet. App. Sa.

When he pled guilty, he was eligible for a Section

1182(c) waiver.

The INS instituted deportation proceedings against

Henderson in February 1994. Pet. App. 5a. In 1995, the

INS stipulated that Henderson’s equities warranted a

grant of Section 1182(c) relief if he was _ statutorily

eligible but contended that the length of his sentence

rendered him ineligible. Pet. App. 326a. In March 1996,

the Second Circuit decided Aguirre v. INS, 79 F.3d 315

(2d Cir. 1996), confirming Henderson’s eligibility for

Section 1182(c) relief regardless of the length of his

sentence. One month later, AEDPA was enacted, and the

INS then argued that the passage of Section 440(d)

rendered Henderson statutorily ineligible for Section

1i82(c) relief. See Pet. App. 328a. The {J nonetheless

granted Henderson a waiver of deportation under Section

1182(c), but the BIA reversed solely based on the basis

of the Attorney General’s subsequent Soriano ruling.

'© Respondents Navas’ and Mojica’s habeas petitions were

decided in one consolidated opinion. See Pet. App. 82a.

9

Pet. App. 331a-32a. Henderson timely filed a petition for

review in the court of appeals.!!

c. Engin Yesil. Respondent Engin Yesil entered this

country in 1979, when he was sixteen years old, and

became a lawful permanent resident in 1988 through his

marriage to a United States citizen. Pet. App. 11a,

253a-54a. In August 1990, Yesil pled guilty to a single

count of aiding and abetting the distribution of cocaine

and cooperated extensively with federal law enforcement

agencies. Pet. App. lla, 254a. The INS commenced

deportation proceedings against Yesil in January 1994, in

Oakdale, Louisiana. Pet. App. 11a. He was later released

from INS custody in April 1994 and sought a change of

venue to New York. Pet. App. Ila. The IJ denied the

motion, found him deportable, and held him statutorily

ineligible for relief under Section 1182(c) under the

seven-years domicile requirement. Pet. App. 11a,

256a-57a. The BIA affirmed. Pet. App. 1la-12a,

225a-3 1a.

Yesil sought review in the court of appeals, which

dismissed the petition (along with a companion petition

seeking review of the denial of a motion to reopen)

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

Pet. App. 12a. Yesil then filed a habeas corpus petition

in district court, which exercised personal jurisdiction

over Yesil’s custodians, concluded that jurisdiction was

proper under 28 U.S.C. 2241, and held that Yesil satis-

fied the seven-years domicile requirement of Section

1182(c). Pet. App. 12a-13a, 248a. After AEDPA’s enact-

ment, the government unsuccessfully moved for recon-

sideration in district court based on the ground that Yesil

'! On August 6, 1997, Henderson also filed a petition for a writ of

habeas corpus in the District Court for the Southern District of New

York, which remains pending. Pet. App. 7a n.3.

10

was Statutorily barred from Section 1182(c) relief under

Matter of Soriano. Pet. App. 294-95Sa.

d. Guillermo Mojica. Guillermo Mojica is a fifty-

six-year-old citizen of Colombia who has been a lawful

permanent resident of the United States for more than

twenty-five years. Pet. App. 9a, 96a. His wife and two

children are United States citizens. Pet. App. 9a. In

February 1989, Mojica pled guilty to conspiracy to dis-

tribute cocaine and served one year in prison. /d. At the

time of his plea, he was eligible for relief from deporta-

tion under Section 1182(c), but the INS did not initiate

proceedings against him. In January 1996, the INS

detained Mojica when he returned from a brief trip

abroad to visit family. Pet. App. 9a-10a, 97a. The INS

initially placed Mojica into exclusion proceedings, but

after AEDPA was passed, the INS placed him into depor-

tation proceedings instead. Pet. App. 58a n.30. Had

Mojica remained in exclusion proceedings, he would

have been eligible for Section 1182(c) relief because

Section 440(d) does not restrict eligibility for Section

1182(c) relief for aliens in exclusion proceedings. See

Pet. Br. 9.

At his deportation hearing, Mojica conceded depor-

tability and requested Section 1182(c) relief, but the IJ

found Mojica barred by AEDPA 440(d). Pet. App. 10a,

100a. The BIA dismissed Mojica’s appeal (Pet. App. 10a),

and Mojica filed a district court habeas petition under 28

U.S.C. 2241. Pet. App. 10a. The next day, at the INS’s

request, the court ordered Mojica to surrender to the INS

in Oakdale, Louisiana, where he remains in detention. /d.

The district court subsequently granted Mojica’s habeas

petition, concluding that it had jurisdiction to review

Mojica’s claims under 28 U.S.C. 2241, that it had per-

sonal jurisdiction over Mojica’s custodians, and that

————

11

Section 440(d) does not apply retroactively to Mojica’s

case. Pet. App. 144a-66a; Pet. Br. 12.

2. Decision of the Court of Appeals

a. Subject Matter Jurisdiction. The court of

appeals consolidated five proceedings: (1) the govern-

ment’s appeal from the district court’s grant of habeas

relief in Navas, (2) Navas’ petition for review, (3) Hen-

derson’s petition for review, (4) the government’s appeal

from the district court’s grant of habeas corpus relief in

Yesil, and (5) the government’s appeal from the district

court’s grant of habeas relief in Mojica. Pet. Br. 14.

Relying on its prior decisions, the court of appeals

held that AEDPA and IIRIRA “repealed the jurisdiction a

court of appeals formerly had over petitions for review

filed by aliens convicted of [certain criminal offenses].”

Pet. App. 27a (citing and quoting Hincapie-Nieto v. INS,

92 F.3d 27 (2d Cir. 1996)). Noting, however, that “pro-

found constitutional questions,” would be presented if

respondents’ claims were not reviewable in any court

(Pet. App. 29a), the court held that, under the express

repeal rule of Felker v. Turpin, 518 U.S. 651 (1996) and

Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869), IIRIRA had

not repealed the district court’s jurisdiction under 28

U.S.C. 2241 to hear respondents’ claims. Pet. App. 29a

(relying on Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir.

1998)).!2 The court further held that the particular con-

stitutional and statutory claims raised by respondents

were “properly within the scope of the habeas corpus

jurisdiction of the federal courts” (Pet. App. 31a-32a),

12 As the government notes (Pet. Br. 16 n.7), the government has

filed a petition for rehearing in Jean-Baptiste. The petition is still

pending, and the Second Circuit recently ordered a response from the

plaintiffs.

12

Stating that the government’s contention that “no court

has the power to review [the Attorney General’s] inter-

pretation of the immigration laws” was “to put it mildly,

not only at war with the historical record . . . [but also]

hard to square with the core conception of habeas corpus

as it has been applied over many centuries.” Pet. App.

33a.

b. Personal Jurisdiction. In regard to Mojica and

Yesil, the government argued that the district court

lacked personal jurisdiction to adjudicate their habeas

petitions. Pet. App. 37a. The court of appeals did not

resolve that issue, and instead certified to the New York

Court of Appeals the question of whether personal juris-

diction was proper under the New York long arm statute.

Pet. App. 42a; Pet. Br. 17-18 n.9. The New York Court

of Appeals has subsequently declined certification, and

on January 6, 1999, the Second Circuit stayed any deci-

sion on the question of personal jurisdiction in Mojica

and Yesil in light of the government’s petition for cer-

tiorari. There is no issue as to the district court’s exer-

cise of personal jurisdiction with respect to respondent

Navas. See Pet. Br. 18.

c. Merits. The court of appeals reached the merits

issues Only as to respondent Navas, because the issue of

personal jurisdiction remained unresolved as to Mojica

and Yesil, and because the court had before it only

Henderson’s petition for review, which the court dis-

missed on jurisdictional grounds. The court analyzed the

Attorney General’s conclusion about the temporal reach

of AEDPA 440(d) under Chevron, U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

Pet. App. 54a-55a. It found that the scope of the statute

was a question of law on which Congress had expressed

its intent. Pet. App. 54a-58a. The court applied Landgraf

v. USI Films Prods., 511 U.S. 244 (1994), as clarified in

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

13

520 U.S. 939 (1997) and Lindh v. Murphy, 521 U.S. 320,

117 S.Ct. 2059 (1997), and used “traditional tools of

statutory construction” (Pet. App. 55a), to find that the

language and structure of AEDPA, as confirmed by the

legislative history, demonstrated that Section 440(d)’s

new restrictions on relief did not apply to Navas’ Section

1182(c) application, because his deportation proceeding

was pending on the date of AEDPA’s enactment. Pet.

App. 57a-58a.

REASONS FOR DENYING THE WRIT

For the reasons set forth in Points 1 and 2, infra,

certiorari should be denied on both the jurisdictional and

merits questions. For the reasons set forth in Point 3,

infra, if review is granted, respondents agree with the

government that respondent Navas (along with his condi-

tional cross-petition in this case), rather than Goncalves,

presents the proper vehicle for addressing the merits

issues. Respondents also agree with the government that

Magana-Pizano, rather than Goncalves, presents the

complete jurisdictional issue, and that the Ninth Circuit

ruled on constitutional grounds.

1. Review is not warranted on the jurisdictional

issue because these cases are governed by interim statu-

tory provisions that apply only to transitional cases, and

because the decision is correct. The temporary INA pro-

visions presented here are sufficiently unclear that the

government itself has interpreted them inconsistently,

and they do not provide an appropriate context in which

to consider far-reaching constitutional questions about

Congress’s power to limit judicial review of executive

detention.

a. This case arises under IIRIRA’s temporary

“transitional” judicial review rules and does not involve

the permanent judicial review provisions of IIRIRA. The

government clouds the temporary nature of the issue by

14

arguing that the permanent counterpart to the applicable

transitional provision, 8 U.S.C. 1252(a)(2)(C), is “sub-

stantively identical,” that the “courts in the future are

likely to construe” the permanent provision in light of

their interpretation of the transitional rule, and that

“there is little reason to doubt” that courts will interpret

the permanent provision as they did the transitional pro-

vision. Magana-Pizano Pet. Br. 16 n.9 (emphasis added);

Magana-Pizano Reply Br. 5. Yet, the INS has already

argued that decisions construing the transitional provi-

sion of IIRIRA 309(c)(4)(G) do not govern cases under

the permanent successor provision, 8 U.S.C.

1252(a)(2)(C).!3

Given the government’s position, if the Court were

to find that Section 2241 remains available under

IIRIRA’s transitional rules, this Court’s ruling would not

resolve disputes about the effect of IIRIRA’s permanent

provisions. Alternatively, a ruling that the transitional

rules did repeal all statutory grants of jurisdiction,

including 28 U.S.C. 2241, would compel the Court to

decide historic constitutional questions regarding Con-

gress’s power to eliminate Article III review for individ-

uals in executive detention in the context of an interim

jurisdictional provision. If the Court is to address those

far-reaching constitutional questions, it should not do so

unless the permanent provisions are found to have

repealed all statutory grants of jurisdiction, including

Section 2241.

13 See, e.g., Brief for Respondent-Appellee [INS] at 17-18 n.10,

Esparza-Treto v. Greene, No. 98-1339 (10th Cir.) (filed Nov. 20, 1998)

(Magana-Pizano is “clearly limited to cases under the transitional rules

and does not apply to cases under new Section 242.”). The government

states that it took this position to preserve its view of the correct

interpretation of the permanent statute. Magaria-Pizano Reply Br. 5 n.3.

That supports our point precisely.

15

~~

b. The court of appeals’ ruling that respondents’

claims are reviewable in a district court habeas corpus

action under 28 U.S.C. 2241 is based on the settled

precedent of this Court. The Second Circuit’s statutory

interpretation of IIRIRA and AEDPA relies on the clear

statement rule of Felker v. Turpin, 518 U.S. 651 (1996)

and Ex Parte Yerger, 75 U.S. (8 Wall.) 85 (1869). Given

the “profound” constitutional questions that would be

presented if the transitional rules were read to preclude

all judicial review of respondents’ claims (Pet. App.

29a), the court of appeals correctly relied on Felker v.

Turpin and Ex Parte Yerger to find that Congress has not

legislated with sufficient specificity to repeal Section

2241. Pet. App. 28a-29a (relying on Jean-Baptiste v.

Reno, 144 F.3d 212 (2d Cir. 1998)).!4

The government’s own shifting interpretation of

these transitional statutes underscores the fact that

AEDPA and IIRIRA are not sufficiently clear to repeal

Section 2241. The INS has previously stated that it

w ould assume that any review that remained would occur

in a district court habeas corpus petition and has asked

other circuits to dismiss the same equal protection claim

it nOW insists is reviewable only in the courts of appeals.

See supra notes 5-6 and accompanying text. The govern-

ment’s conflicting views belie its current insistence that

IIRIRA’s transitional provisions are unambiguous.

The government attempts to circumvent the serious

constitutional issues that would arise if Section 2241

were repealed by arguing, without explanation, that Sec-

tion 309(c)(4)(G) could be construed to allow jurisdic-

tion over constitutional claims directly in the court of

appeals by a petition for review. Pet. Br. 22-23. But even

if construing Section 309(c)(4)(G) to allow review of

constitutional claims were possible, doing so does not

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

16

avoid the constitutional questions raised by the jurisdic-

tional provisions of AEDPA and IIRIRA. Specifically,

the constitutional question remains whether judicial

review of respondents’ non-constitutional question of

Statutory interpretation (i.e., whether the statute applies

retroactively) can be barred. Construing IIRIRA to allow

review of only constitutional claims does nothing to

avoid the constitutional problem created by prohibiting

review of the statutory claim.

c. Decades of consistent judicial adjudication con-

firm that the scope of review mandated by the Suspen-

sion Clause encompasses both constitutional and

statutory claims. The government’s assertion that deny-

ing review of a statutory claim governing discretionary

relief raises no constitutional issue (Pet. Br. 23), is

contradicted by the habeas corpus decisions of the fed-

eral courts, including this Court. See Pet. App. 33a-35a.

The government has not pointed to a single habeas deci-

sion of this Court holding that review of a legal error

concerning eligibility for discretionary relief from depor-

tation can be insulated from all Article III review,

including habeas corpus review. Indeed, “the traditional

Great Writ was largely a remedy against executive deten-

tion.” Swain v. Pressley, 430 U.S. 372, 386 (1977) (Bur-

ger, C.J., concurring).!>

1S In its Magafia-Pizano reply brief, the government wrenches out

of context a quote from Carlson v. Landon, 342 U.S. 524 (1952), where

the Court stated that “[t]he power to expel aliens . . . may be exercised

entirely through executive officers, ‘with such opportunity for judicial

review of their action as Congress may see fit to authorize or permit.’ ”

Magafa-Pizano Reply Br. 8 (quoting Carlson, 342 U.S. at 537). The

government fails to excerpt the sentence immediately following the

quoted sentence, in which the Court expressly stated that Congress’s

power to expel aliens was “subject to judicial intervention under the

‘paramount law of the Constitution,’ ” and supported that statement

17

Judicial review of the legal claim presented here is

also grounded in Article III. See Commodities Future

Trading Comm'n v. Schor, 478 U.S. 833 (1986). This

Court has never permitted Congress to deprive a litigant

of all access to a judicial forum over a generally applica-

ble question of statutory construction where individual

liberty is at stake. Under Article III, respondents’ legal

claims cannot be adjudicated entirely by the Executive

Branch without any access, by appeal or otherwise, to an

Article III court. Likewise, the Due Process Clause

requires access to a judicial forum to present respon-

dents’ statutory claims because deportation of a long-

time legal resident implicates fundamental interests

“basic to human liberty and happiness.” Wong Yang

Sung v. McGrath, 339 U.S. 33, 50 (1950).

d. The disagreement among the circuit courts on

the jurisdictional question does not warrant this Court's

review. Three courts of appeals, the First, Second and

Ninth, have held that judicial review of both the statu-

tory and constitutional claims raised by respondents is

available and that the proper forum is a district court

habeas action pursuant to 28 U.S.C. 2241. See Pet. App.

3a; Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.),

petition for cert. filed, __ U.S.L.W. ___ (U.S. Nov. 18,

1998) (No. 98-836); Goncalves v. Reno, 144 F.3d 110

(1st Cir. 1998). All three circuits have thus rejected both

prongs of the government’s jurisdictional position: that

the exclusive forum for judicial review is in the courts of

with citations to cases in which aliens received habeas review of final

orders of deportation. Carlson, 342 U.S. at 537 & nn.27-28. In any case,

the quoted statement from Carlson is dicta, as Carlson concerned the

power of the Attorney General to detain alien members of the

Communist Party, and not a question regarding the availability of

judicial review.

18

appeals, and that the scope of review is limited to consti-

tutional claims. Five additional courts of appeals are now

considering habeas corpus appeals that raise the same

jurisdictional (and merits) claims presented by this

case. !©

The government has argued that the recent decision

in LaGuerre v. Reno, No. 98-1954, 1998 WL 912107 (7th

Cir. Dec. 22, 1998), decided after the filing of the gov-

ernment’s petition in this case, creates a split in the

circuits that warrants review by this Court. Magana-

Pizano Reply Br. 2. LaGuerre held that AEDPA repealed

district court habeas jurisdiction, and the court placed

review exclusively in the court of appeals through peti-

tions for review. Id. at *4.

The divergent result in LaGuerre regarding the

forum for review does not warrant review of this case.

First, the Seventh Circuit is the only circuit to hold that

the courts of appeals have exclusive jurisdiction and that

habeas review is not available.'’? Second, a petition for

16 See Gutierrez-Martinez v. INS, No. 98-8185 and Mayers y.

Reno, No. 97-5537 (11th Cir.) (argued & submitted Oct. 8, 1998);

Sandoval v. Reno, No. 98-1099 (3d Cir.) (argued & submitted Sept. 28,

1998); Shah v. Reno, No. 98-2636 (8th Cir.) (argued & submitted Jan.

13, 1998); Jurado-Gutierrez v. Greene, No. 97-1437 (10th Cir.); Pak v.

Reno, No. 98-3852 (6th Cir.).

17 Although the First, Second and Ninth Circuits are the only

courts of appeals to decide both the proper forum and the scope of

review available to aliens with criminal convictions, other circuits have

addressed the forum question and have rejected the government’s

position that all review under AEDPA and IIRIRA’s transitional rules

belongs in the courts of appeals. These courts stated or assumed that

habeas corpus jurisdiction (or another avenue) remains available, and

invited or instructed immigrants to seek review through such an action.

See, e.g., Lerma de Garcia v. INS, 141 F.3d 215, 217 (Sth Cir.) (rejecting

government’s position that aliens with criminal convictions can obtain

review in courts of appeals and noting that “criminal deportees retain

19

rehearing and rehearing en banc is being filed in

LaGuerre based not only on the conflict with other

circuits, but also on the fact that LaGuerre’s holding is

in direct conflict with two prior decisions of the Seventh

Circuit. In these earlier decisions, Chow v. INS, 113 F.3d

659 (7th Cir. 1997), and Turkhan v. INS, 123 F.3d 487

(7th Cir. 1997), the Seventh Circuit specifically held that

aliens with criminal convictions subject to AEDPA

440(a) or IIRIRA 309(c)(4)(G) are barred from obtaining

direct review of even constitutional claims by means of

petitions for review, and required such aliens to seek

review by a habeas corpus petition or some other means.

See Turkhan, 123 F.3d at 490; Chow, 113 F.3d at

668-69.'8 In its LaGuerre opinion, the Seventh Circuit

directly contradicts both prior decisions by holding that

immigrants subject to the same jurisdictional statutes as

in Chow and Turkhan are now foreclosed from filing

habeas corpus actions in district court and must instead

bring petitions for review in the courts of appeals to

obtain review of any claims, including constitutional

claims. Jd. at *4. Given that the Seventh Circuit may

resolve this intra-circuit conflict en banc, and that the

circuit split on the forum issue therefore may not survive

rehearing, it is premature for this Court to review the

jurisdictional issue at this point.

some opportunity to apply for writs of habeas corpus”), reh’g en banc

denied, 159 F.3d 1358 (1998); Mansour v. INS, 123 F.3d 423, 426 (6th

Cir. 1997) (holding that review is not available in the court of appeals

through a petition for review while noting that “judicial involvement in

the form of habeas review remains available.’’).

18 In Lerma de Garcia v. INS, 141 F.3d 215 (5th Cir. 1998), the

Fifth Circuit dismissed a petition for review raising constitutional

claims and noted that it was “now join[ing] the Seventh and other

circuits by holding that this court does not have [petition for review]

jurisdiction to hear . . . constitutional claims.” /d. at 217.

20

In any case, the conflict created by LaGuerre is

limited to the forum issue since the Seventh Circuit held

only that a district court habeas action was not the proper

means to seek review of a deportation order. The Seventh

Circuit did not decide the proper scope of review avail-

able to aliens with criminal convictions and, indeed,

strongly suggested that, as a matter of statutory construc-

tion, both the constitutional equal protection claim and

the statutory retroactivity claim raised by LaGuerre (and

respondents in this case) would be reviewable in the

courts of appeals because “[i]t seems unlikely that Con-

gress would have wanted the [BIA] to have the final

word on so pure and fundamental a question of law as

when the statute went into effect.” Jd. at *5. Thus, even

if the rehearing petition leaves LaGuerre unchanged, that

decision does not preclude aliens from seeking judicial

review of their statutory and constitutional claims.

The government also argues that the Eleventh Cir-

cuit’s recent decision in Richardson y. Reno, No.

98-4320, 1998 WL 889376 (11th Cir. Dec. 22, 1998),

amending 1998 WL 850045 (Dec. 9, 1998), creates a

conflict because Richardson states that IIRIRA repealed

Section 2241 and that review of final orders is available

only in the court of appeals. However, Richardson's

discussion of the jurisdictional issue presented in this

case is only dicta; and that question remains pending-in

the Eleventh Circuit. See Gutierrez-Martinez v. INS, No.

98-8185 and Mayers v. Reno, No. 97-5537 (11th Cir.)

(argued & submitted Oct. 8, 1998). Specifically, Rich-

ardson did not involve an alien seeking judicial review

of a final order of deportation. /d. at *3. His claim

concerned only his right to release from detention on

bond during the pendency of his removal proceedings

while his case remained on appeal to the BIA. See id. at

21

*3-*4. The case, therefore, does not resolve the avail-

ability of Section 2241 to review final orders of depo: ta-

tion. And, like the Seventh Circuit in LaGuerre, the

Eleventh Circuit explicitly left open the question of the

scope of review available to immigrants seeking review

in the court of appeals through petitions for review. /d. at

*30 n.182. Thus, even if the Eleventh Circuit were ulti-

mately to follow the dicta in Richardson as to the proper

forum for review, immigrants may still be able to obtain

review of their statutory and constitutional claims

through petitions for review in that circuit.!?

2. The court of appeals’ decision that the amend-

ments made by AEDPA 440(d) to 8 U.S.C. 1182(c) do

not apply retroactively to respondents does not warrant

review.

a. The court of appeals’ decision has limited and

short-lived applicability. The amendments made by

AEDPA 440(d) to 8 U.S.C. 1182(c) apply to a closed and

diminishing set of cases. Section 440(d) restricts eligi-

bility for a form of deportation relief that was repealed

just a few months after enactment of AEDPA. See

IIRIRA 304(b) (repealing Section 212(c), 8 U.S.C.

1182(c)). Under ITRIRA, relief under former 8 U.S.C.

1182(c) is applicable only in proceedings initiated before

‘9 In Reno v. Goncalves and INS v. Magana-Pizano, the

— government has submitted Rodriguez v. Reno, No. 98-4426, 1999 WL

1762 (i{lth Cir. Jan 4, 1999), as supplemental authority for the

proposition that the district courts lack jurisdiction under Section 2241.

That case involves an alien who is statutorily entitled to direct review

by a petition for review, who is not subject to any of the statutory

restrictions on review based on a criminal conviction at issue here and

whose claims, the court specifically noted, “will be resolved by the

[court of appeals’] ruling on [his] petition for review.” /d. at 18 & n.9

(noting that “unlike Richardson, [IIRIRA] does not appear to limit

[petitioner's] opportunity to pursue a petition for review in the court of

appeals’’).

22

April 1, 1997. See IIRIRA 309(c). Thus, the decision

below will have no permanent effect on the administra-

tion of the immigration laws.2°

b. There is no split in the circuits on the merits.

The only other circuit to have issued a holding on these

issues has agreed with the court below. See Goncalves v.

Reno, 144 F.3d 110, 128-29 (lst Cir. 1998); see also

Perez v. Reno, 18 F. Supp.2d 674 (W.D. Tex. 1998); Lee

v. Reno, 15 F. Supp.2d 26 (D.D.C. 1998); Pak v. Reno, 8

F. Supp.2d 1001 (N.D. Ohio 1998); Sandoval v. Reno,

No. 97-7298, 1997 WL 839465 (E.D. Pa. Dec. 30, 1997).

The Seventh Circuit’s contrary observations in dicta in a

case where a petition for rehearing and rehearing en banc

will be filed and on an issue involving an interim statu-

tory provision do not serve as an appropriate basis for

certiorari. See LaGuerre v. Reno, No. 98-1954, 1998 WL

912107, (7th Cir. Dec. 22, 1998), at *4-*5.

c. Contrary to the government’s assertions in its

petition, the lower court’s analysis is based on the speci-

fic language and structure of AEDPA Title IV and not

the applicability of the presumption against retroactive

application of new rules of law. The court of appeals

expressly stated that it “need not decide th[is] issue,

Since it is not necessary to rely on any presumption

against retroactivity in the instant case.” Pet. App. 55a.

d. Because the result in this case rested on Con-

gress’s intent as to this particular statute, the court of

appea!’s opinion has little applicability for cases involv-

ing other statutory provisions. The lower court applied

the principles of Landgraf v. USI Film Prods., 511 U.S.

20 For removal cases initiated on or after April 1, 1997, relief

under 8 U.S.C. 1182(c) has been replaced by a new form of relief called

“cancellation of removal.” See IIRIRA 304. Eligibility for cancellation

of removal is not governed by AEDPA 440(d).

23

244 (1994); Hughes Aircraft Co. v. United States ex rel.

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

U.S. 320, 117 S.Ct. 2059 (1997). In these cases, the

Court has explained that the first inquiry in a case

concerning disputed retroactivity is an examination of

the statute’s text and history to determine Congress's

intent. A court is to employ the “normal rules of con-

struction” and should consider both express statements

of Congress’s intent and evidence that is implied by

analyzing related provisions and other ordinary tools of

statutory construction. Lindh, 117 S.Ct. at 2063. If Con-

gress’s intent to avoid retroactive application can be

discerned from such an analysis, “there is no need to

resort to judicial default rules.” Landgraf, 511 U.S. at

280.

The court of appeals, like this Court in Lindh,

resolved the statutory issues on the first stage of this

inquiry without making a ruling on whether the presump-

tion against retroactive application should be applied in

this case. The court of appeals made clear that its ruling

hinged on the specific text, structure and legislative

history of AEDPA’s amendments, which showed that, as

a matter of congressional intent, AEDPA 440(d) does not

apply to respondents. Pet. App. 55a-58a. Accordingly,

the lower court’s opinion will have little applicability to

other cases.

e. The lower court’s analysis conforms with the

requirements of Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984); see also Pet.

Br. 26. As the court of appeals explained, Chevron does

not usurp the court’s obligation to look at the statute and

determine whether Congress has expressed a view as to

the reach of the statute. Pet. App. 57a. In this case, the

court of appeals found that the text, structure and history

24

of the statute demonstrated Congress’s intent not to apply

Section 440(d) retroactively. Pet. App. 55a-57a.

Furthermore, as both district courts in these cases

observed, there was no interpretation by the Attorney

General to which a court could defer. See Pet. App.

200a-Ola, 317a. The Attorney General improperly

looked only at whether there was express retroactivity

language in Section 440(d) itself, and then went straight

to a discussion of whether application of Section 440(d)

to past conduct and pending cases would have a retroac-

tive effect. That was not the correct inquiry. As Lindh

makes clear, the Attorney General was required to exam-

ine the structure and related provisions of AEDPA Title

IV to determine the proper scope of Section 440(d).

f. Petitioner suggests that review is appropriate

because it believes that the decision of the court below

was in error and that a definitive ruling from this Court

would clarify the government’s obligations to conduct

hearings on respondents’ applications for relief from

deportation. Although asserted errors by the courts of

appeals fall outside the ordinary grounds for granting

certiorari, we will answer the petitioner’s claim that the

decision below was “seriously misguided.” Pet. Br. 25.

i. The statutory analysis conducted by the

court below was a straightforward application of ordi-

nary rules of statutory construction as required by this

Court’s decisions. The Second Circuit’s opinion explains

that Title IV of AEDPA constricted the availability of

relief from deportation for two categories of aliens —

those involved in terrorism and those involved in ordi-

nary crimes. Pet. App. 55a. Congress chose to use speci-

fic language to restrict the relief for terrorists

retroactively. See Pet. App. 55a-56a. With respect to

a ena NN UN ARS els Raila

:

|

:

3

25

Section 440(d) — which covered lawful permanent resi-

dents convicted of non-terrorist crimes (including a first

time conviction for simple drug possession) — no such

retroactivity language was included in the statute. See

Pet. App. 55a-56a. Thus, the Second Circuit concludeé,

“Congress’ use of explicitly retroactive language in [the

terrorist provisions] of the bill, and its failure to employ

any analogous language in the nearby and closely related

[Section] 440(d), by itself strongly indicates that Con-

gress did not intend [Section] 440(d) to apply retroac-

tively.” Pet. App. 56a; accord, Goncalves v. Reno, 144

F.3d 110, 128-29 (1st Cir. 1998).

The government calls this evidence of Congres-

sional intent “ambiguous.” Pet. Br. 25-26 n.14. It con-

tends that the Second Circuit did not address other

sections of Title IV of AEDPA which it describes as

applying “prospectively only.” Jd. (referencing Gon-

calves Pet. at 26-27 & n.17); see also LaGuerre v. Reno,

No. 98-1954, 1998 WL 912107 (7th Cir. Dec. 22, 1998),

at *4-*5 (dicta). The government and the LaGuerre

court’s dicta are simply wrong, however, when they state

that Title [V contained pure prospectivity provisions. See

Pet. App. 178a-80a (showing that for each section in

which Congress specified the temporal application of

any of the immigration provisions in Title [V of AEDPA,

it was specifying the degree to which that section would

be applied retroactively). Furthermore, the lower court

properly compared Section 440(d) with another provi-

sion of Title IV that related to relief from deportation.

See Pet. App. 56a (discussing AEDPA 413(g)). Since

Congress used plain language to make Section 413(g)

retroactive, its silence in Section 440(d) can only reason-

ably be read as precluding retroactive application. See

also Goncalves, 144 F.3d at 128-33 (discussing express

26

language restricting relief from deportation in Sections

413(g) and 421(b)).?!

ii. Even if this Court were to disagree with the

lower court’s analysis of the text and structure of the

Statute, it could not resolve the statutory questions

regarding the temporal scope of Section 440(d) without

first considering the applicability of the presumption

against retroactivity. See Landgraf v. USI Film Prods.,

511 U.S. 244 (1994). Although the court of appeals did

not reach this question, both district courts in this case

offered well-reasoned opinions holding that the presump-

tion against applying new rules to past events applies

to Section 440(d). Pet. App. 181la-98a, 31 1la-16a.22

21 The government also tries to minimize the legislative history

showing that Congress rejected the precise type of retroactivity that the

Attorney General is seeking to impose. Pet. Br. 26-27 n.14. This history

shows that the conference chose to adopt the substantive scheme from

the Senate bill and the retroactivity scheme from the House bill. See Pet.

App. 56a-57a. Had the conference sought to achieve the type of full

retroactivity found in the Senate bill, it would have not removed the

language that called for such full retroactivity.

22 As a practical matter, the applicability of the presumption

against retroactivity to new deportation rules has not proven to be

dispositive for the courts of appeals. The decision of the court below did

not reach this argument, although the court stated that it would be

inclined to agree with respondents that deportation for past convictions

is genuinely retroactive. Pet. App. 55a. The First Circuit agreed that

application of Section 440(d) to past convictions would be retroactive,

but said so in dicta. Goncalves v. Reno, 144 F.3d 110, 128 (1st Cir.

1998). Its decision turned on its analysis of the statute. The Seventh

Circuit expressed the opposite view, but also only discussed this

question in dicta. LaGuerre v. Reno, No. 98-1954, 1998 WL 912107

(7th Cir. Dec. 22, 1998), at *5. Neither of the court of appeals’ decisions

cited by the government (Pet. Br. 25) illustrate settled circuit law.

Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996) has recently been

characterized by the Third Circuit as turning on the text of the statute

and not the presumption against retroactivity. See Mathews v. Kidder-

— ——

a Eee Mis

27

Landgraf requires a considered judgment about the

consequences of applying a new rule of law to past acts.

Landgraf, 511 U.S. at 270. This judgment includes, but

is not limited to, an assessment of whether the new rule

imposes a new disability or creates a new legal conse-

quence for past acts. Id. at 268-73. As the district courts

explained, Section 440(d)’s complete bar on relief from

deportation constitutes such a new legal consequence or

disability. It eliminates the statutory right of longterm

lawful permanent residents to seek relief from deporta-

tion and changes the possibility of deportation into a

certainty. See Pet. App. 183a-93a (Mojica court's

description of retroactive effect of applying Section

440(d) to past convictions); id. 313a-15a (Yesil court

discussing how elimination of statutory eligibility for

relief compromises substantive rights).*9

Peabody & Co., Inc., 161 F.3d 156, 168 n.23 (3d Cir. 1998). De Osorio

v. INS, 10 F.3d 1034 (4th Cir. 1993), preceded Landgraf, Hughes and

Lindh, and is therefore hardly a statement of settled circuit case law on

how those precedents should be applied.

23 In LaGuerre, the Seventh Circuit rejected these arguments in

dicta by saying that it is “absurd” to believe that deportation

consequences would affect a person’s willingness to enter a plea.

LaGuerre v. Reno, No. 98-1954, WL 912107 (7th Cir. Dec. 22, 1998), at

*5. But as the district court in Mojica showed in detail, there are many

reasons why a permanent resident facing possible jail time would prefer

to enter a plea that would hasten his or her return to his or her

employment and family. Pet. App. 186a-93a (discussing consideration

at stage of a plea and ethical duties to advise immigrants of the

immigration consequences of a conviction). To now change the rules

and impose mandatory deportation based solely on the fact of the

conviction — leading to the permanent separation of family members —

is surely to impose a new disability or new legal consequence on the

plea.

28

Contrary to the government’s assertions, this Court’s

decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)

does not establish that new deportation rules should be

assumed to apply to past events. Lopez-Mendoza con-

cerned application of the exclusionary rule in a case

where an alien with no lawful status sought to remain in

the United States. Its analysis bears little relationship to

the considerations in determining whether a new depor-

tation statute has retroactive effect.

The government’s argument that Section 440(d)

must be presumed to apply to old convictions because

Congress expressed concern over criminal aliens (Pet.

Br. 26), ignores the specific policy issues raised by

retroactive application of the new rules. Congress may

well have been interested in streamlining deportation

proceedings without wishing to require deportation for a

person, such as Mojica, who faces deportation proceed-

ings today for a crime he committed over ten years ago

and for which he served a one-year sentence long before

the passage of AEDPA. Pet. App. 96a, 175a. Similarly, it

seems unlikely that Congress sought to overturn the

waiver which had already been granted to Henderson

based on the government’s own stipulation that the equi-

ties favored allowing him to remain in this country. Pet.

App. 326a.

iil. Finally, the government’s suggestion that

review of the statutory issue in this case would be

“definitive” ignores the serious constitutional issues

raised in the courts below.?4

24 Respondents raised two constitutional arguments, neither of

which was reached by the Court below. The first argument is that

Congress must have a legitimate reason for imposing a new rule

retroactively. See Eastern Enterprises v. Apfel, ___ US. , 118 S.Ct.

2131, 2158 (1998) (Kennedy, J., concurring) (noting the Court has

given “serious consideration” to due process challenges to retroactive

oie a SS lal we lala aS ian i

ee ee ane

29

3. If the Court grants certiorari, respondents agree

with the government that the instant case is the proper

vehicle for addressing the merits issue, and that Magana-

Pizano, which ruled on constitutional grounds, is the

proper vehicle for deciding the jurisdictional issue pre-

sented in these cases. See Magana-Pizano Reply Br.

9-10.

Both Navas and the respondent in Reno v. Goncalves

prevailed on the merits in the courts of appeals.

However, unlike Navas, Goncalves filed only a district

application of new rules). If the better reading of congressional intent is

that Congress did not choose to apply Section 440(d) retroactively, it is

difficult to see how there could be a legitimate governmental reason for

that result. Even if Congress’s intent is deemed ambiguous, such

ambiguity can hardly provide the necessary considered congressional

judgment favoring retroactive application needed to withstand a due

process challenge. See Pet. App. 170a-77a.

The second constitutional argument turns on the fact that relief

under Section 1182(c) was eliminated only for those in deportation

proceedings. A permanent resident who traveled abroad and was placed

in exclusion proceedings on his or her return was not subject to the new

bar to relief. It is well-established that this kind of discriminatory

treatment of permanent residents is irrational. See Francis v. INS, 532

F.2d 268, 273 (2d Cir. 1976). Indeed, the INS itself has argued to the

BIA that Section 440(d)’s distinction between permanent residents in

deportation and exclusion proceedings is irrational. See /n re Fuentes-

Campos, Int. Dec. No. 3318, 1997 WL 269368 (BIA May 14, 1997), at

*17. Several courts have agreed. See, e.g., Almon v. Reno, 13 F. Supp.2d

143 (D. Mass. 1998).

The Seventh Circuit in LaGuerre dismissed this argument in dicta

saying that the INS was dangling a “little carrot” to permanent residents

with past crimes to identify themselves by taking a trip abroad.

LaGuerre v. Reno, No. 98-1954, 1998 WL 912107 (7th Cir. Dec. 22,

1998), at *6. But as Mojica’s case illustrates, the rule has little to do

with self-identification. Mojica took a trip abroad but was nonetheless

placed in deportation proceedings (see Pet. App. 96a-97a), and,

according to the government, is barred from seeking relief under

Section 1182(c).

30

court habeas action. As the government notes, Goncalves |

therefore will allow the Court to reach the merits issue |

only if the Court concludes that jurisdiction is proper in

a district court habeas action. See Magana-Pizano Reply

Br. 9-10. If, however, the Court were to conclude that

jurisdiction over the retroactivity claim lies in the courts

of appeals, then the merits issue would not be squarely

presented in Goncalves. Thatissue_is-fully-available for

decision only in Navas because Navas filed both a peti-

tion for review and a district court habeas action and

because Navas — along with Henderson — is now filing a

conditional cross-petition seeking review of the dis-

missal of his petition for review.

CONCLUSION

For the reasons stated above, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

HELAINE BARNETT Lucas GUTTENTAG

Scotr ROSENBERG

GEMMA SOLIMENE

Ouivia CAssIN

Maria NAVARRO

THe Lecat Arp Society

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15th Floor

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(Counsel of Record)

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