# Opposition Brief — Reno v. Navas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1004

## Text

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was repealed and, on the merits, that the Attorney Gen-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repealed the jurisdiction of both the district courts and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 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
90 Church Street,

15th Floor
New York, NY 10007

KERRY WILLIAM BrETZz
ALAN STRAUSS

Bretz & ASSOCIATES

299 Broadway, Suite 810
New York, NY 10007

MicHaet P. DiRAIMONDO

30 Rockefeller Plaza,
Suite 1925

New York, NY 10112

(Counsel of Record)
Lee GELERNT
KATHRYN PALAMOUNTAIN
JAYASHRI SRIKANTIAH
AMERICAN Civit LIBERTIES
UNION FOUNDATION
1663 Mission Street
San Francisco, CA 94103
(415) 621-2493

THomas E. MosELEy
One Gateway Center,
Suite 2600

Newark, NJ 07102

MANUEL D. VARGAS
48 Eighth Avenue, No. 404
New York, NY 10014

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1020%3A3. Public record. Not legal advice.