Contents    Prev    Next    Last

            Title Sandoval v. Reno

 

            Date 1999

            By

            Subject Other\Concurring & Dissenting

                

 Contents

 

 

Page 1

29 of 79 DOCUMENTS

REYNALDO SANDOVAL, Petitioner/Appellee v. JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE; AND J. SCOTT BLACKMAN, ACTING DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, Respondents/Appellants; REYNALDO SANDOVAL, Petitioner v. IMMIGRATION & NATURALIZATION SERVICE, Respondent

Nos. 98-1099 * and 98-1547 *, No. 98-3214

* Nos. 98-1099 and 98-1547 were consolidated for all purposes.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

166 F.3d 225; 1999 U.S. App. LEXIS 989

September 28, 1998, Argued

January 26, 1999, Filed

SUBSEQUENT   HISTORY:               **1        As   Corrected

January  29,  1999.  Withdrawn  by  the  Court  November

20, 2000.

PRIOR HISTORY: On Appeal from the United States

District  Court  for  the  Eastern  District  of  Pennsylvania.

(D.C.  Nos.  97-cv--07298  and  98-cv--02218).  District

Court Judge: Hon. Edward N. Cahn, Chief Judge.

On  Petition  for  Review  of  an  Order  of  the  Board  of

Immigration Appeals. (A90 562 282).

DISPOSITION:  Nos.  98-1099  and  98-1547  affirmed. Petition for Review dismissed in No. 98-3214.

CASE SUMMARY:

PROCEDURAL POSTURE: In a deportation case, ap- pellant  officials  sought  review  of  the  decisions  of  the United  States  District  Court  for  the  Eastern  District  of Pennsylvania that granted appellee alien's petition for a writ  of  habeas  corpus,  under  28  U.S.C.S.  §  2241,  and that  enjoined  deportation  of  appellant  pending  the  out- come  of  a  review  of  appellee's  discretionary  relief  re- quest. Appellee filed a petition for review of a Board of Immigration Appeals decision.

OVERVIEW: Appellee alien was subject to deportation, under § 241 of the Immigration and Naturalization Act,

8 U.S.C.S. § 1227(a)(2)(B)(I), because appellee was con- victed of drug possession. The district court granted ap- pellee's writ of habeas corpus, under 28 U.S.C.S. § 2241,

ordered a review of appellee's request for discretionary relief, and enjoined deportation pending the outcome of the determination. Appellant officials sought review of the decision, arguing that the district court lacked jurisdiction. While the appeal was pending, appellee filed a petition for  review  of  a  board  of  immigration  appeals  decision that denied appellee's request to reopen appellee's case. Appellants' challenge and appellee's petition were consol- idated for review. The appellate court held that the district court had jurisdiction under § 2241 because it survived the amendments of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208. Because the district court had jurisdiction under § 2241 to review the case, the dis- trict  court's  decision  was  affirmed  and  the  petition  for review dismissed.

OUTCOME:  The  appellate  court  affirmed  the  district court  decision  that  granted  appellee  alien's  request  for habeas corpus relief, ordered review of the discretionary relief request, and enjoined deportation pending outcome of  the  determination,  because  the  district  court  had  ju- risdiction  over  the  case.  Because  the  district  court  had jurisdiction, appellee's petition for review of an adminis- trative appeal board determination was dismissed.

LexisNexis(R) Headnotes

Immigration Law > Judicial Review > Scope of Review

HN1  See 8 U.S.C.S. § 1105a(a)(10).

Immigration Law > Deportation & Removal > General

166 F.3d 225, *; 1999 U.S. App. LEXIS 989, **1

Page 2

Overview

Immigration Law > Judicial Review > Scope of Review

HN2   The  Illegal  Immigration  Reform  and  Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-

208, contains two different sets of rules:  the "permanent rules" which have a general effective date of April 1, 1997, IIRIRA § 309(a), and the "transitional changes in judicial review," which have a general effective date of October

30,  1996,  and which apply to aliens who are placed in removal proceedings before April 1, 1997.

Immigration Law > Judicial Review > Scope of Review Immigration Law > Inadmissibility > General Overview Immigration Law > Deportation & Removal > General Overview

HN3   Section  309(c)(4)(G)  of  the  Illegal  Immigration

Reform   and   Immigrant   Responsibility   Act   of   1996

(IIRIRA),  Pub.  L.  No.  104-208,  provides,  in  relevant part, that there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of  having  committed  a  criminal  offense  covered  in  §§

212(a)(2), 241(a)(2)(A)(iii), 241(a)(2)(B), 241(a)(2)(C), or 241(a)(2)(D) of the Immigration and Nationality Act

(INA),  8  U.S.C.S.  §  1101  et  seq.,  (as  in  effect  as  of the date of the enactment of IIRIRA, Pub. L. No. 104-

208), or any offense covered by § 241(a)(2)(A)(ii) of the INA,  8  U.S.C.S.  §  1101  et  seq.,  (as  in  effect  on  such date) for which both predicate offenses are, without re- gard to their date of commission, otherwise covered by §

241(a)(2)(A)(I) of the INA, 8 U.S.C.S. § 1101 et seq., (as so in effect).

Immigration   Law   >   Deportation   &   Removal   > Administrative Proceedings > Jurisdiction

Immigration Law > Judicial Review > Scope of Review

HN4  Section 306(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, amends § 242(g) of the Immigration and Nationality Act, 8 U.S.C.S. § 1252(g), to provide that ex- cept as provided in § 306(a) of the IIRIRA, Pub. L. No.

104-208, and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action  by  the  Attorney  General  to  commence  proceed- ings, adjudicate cases, or execute removal orders against any alien under the IIRIRA, Pub. L. No. 104-208. Immigration   Law   >   Deportation   &   Removal   > Administrative Proceedings > Jurisdiction

Immigration Law > Judicial Review > Scope of Review

HN5   Section  306(c)(1)  of  the  Illegal  Immigration

Reform   and   Immigrant   Responsibility   Act   of   1996

(IIRIRA), Pub. L. No. 104-208,  states that the amend- ments  made  by  §§  306(a)  and  (b)  of  IIRIRA,  Pub.  L. No. 104-208, which contain the permanent rules for ju-

dicial  review,  shall  apply  as  provided  under  §  309  of IIRIRA,  Pub.  L.  No.  104-208,  except  that  §  242(g)  of the Immigration and Nationality Act (INA), 8 U.S.C.S. §

1252(g), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under the INA, 8 U.S.C.S. § 1101 et seq.

Governments > Legislation > Interpretation

HN6  Courts should not lightly presume that a congres- sional  enactment  containing  general  language  effects  a repeal of a jurisdictional statute, and, consequently, that only a plain statement of congressional intent to remove a particular statutory grant of jurisdiction will suffice. Immigration Law > Deportation & Removal > Judicial Review

Immigration Law > Judicial Review > Habeas Corpus

> Jurisdiction

Immigration Law > Judicial Review > Scope of Review

HN7  Section 440(a) of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, states that any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in the deportation provisions of the Immigration and Nationality Act, 8 U.S.C.S. § 1101 et seq., shall not be subject to review by any court. Immigration Law > Judicial Review > Habeas Corpus

> Jurisdiction

Immigration   Law   >   Deportation   &   Removal   > Administrative Proceedings > Jurisdiction

HN8  When viewed in light of the history of the treat- ment of habeas jurisdiction in deportation cases, the ref- erences  to  "review"  in  the  Antiterrorism  and  Effective Death Penalty Act of 1996, Pub. L. No. 104-132, provi- sion and to "appeal" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, provision are properly understood as relating to judicial review under the Administrative Procedure Act

(APA), 5 U.S.C.S. § 500 et seq. This is so because in the immigration  context,  a  sharp  distinction  is  historically drawn between "judicial review," meaning APA review, and the courts' power to entertain petitions for writs of habeas corpus.

Immigration Law > Judicial Review > Habeas Corpus

> General Overview

HN9  It is always appropriate to assume that our elected representatives,  like  other  citizens,  know  the  law.  It  is not  only  appropriate,  but  also  realistic  to  presume  that Congress is thoroughly familiar with these unusually im- portant precedents from this and other federal courts and that it expected its enactment to be interpreted in confor- mity with them. Hence § 440(a) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

166 F.3d 225, *; 1999 U.S. App. LEXIS 989, **1

Page 3

and § 309(c)(4)(G) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208,  are most reasonably understood as foreclosing ju- dicial review under the Administrative Procedure Act, 5

U.S.C.S. § 500 et seq., and not as relating to habeas juris- diction under 28 U.S.C.S. § 2241.

Immigration   Law   >   Deportation   &   Removal   > Administrative Proceedings > Jurisdiction

HN10  See 8 U.S.C.S. § 1252(g).

Immigration Law > Judicial Review > Habeas Corpus

> General Overview

HN11   Over  a  century's  worth  of  precedent  and  prac- tice unambiguously supports the conclusion that habeas jurisdiction is available to aliens in executive custody. Governments > Legislation > Interpretation

HN12  Courts should interpret a statute to avoid grave and doubtful constitutional questions.

Criminal Law & Procedure > Habeas Corpus > Habeas

Corpus Procedure

HN13  The Suspension Clause of U.S. Const. art. I, § 9, cl. 2, states that the privilege of a writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. U.S. Const. art. I, § 9, cl. 2.

Criminal   Law   &   Procedure   >   Habeas   Corpus   > Standards of Review

HN14  The substitution of a collateral remedy,  that is neither inadequate nor ineffective to test the legality of a person's detention, does not constitute a suspension of the writ of habeas corpus. A statute removing all review of ex- ecutive detention, however, does not provide an adequate and effective collateral remedy.

Criminal                Law         &             Procedure              >              Postconviction

Proceedings > Habeas Corpus (sec. 2241)

HN15  The habeas corpus statute encompasses claims that  one  is  in  custody  in  violation  of  the  Constitution or  laws  or  treaties  of  the  United  States.  28  U.S.C.S.  §

2241(c)(3).

Immigration Law > Judicial Review > Habeas Corpus

> General Overview

HN16   The  Supreme  Court  repeatedly  recognizes  that aliens may press statutory claims in habeas proceedings, even during the period when, judicial review in the im- migration  context  is  reduced  to  the  minimum  required by the Constitution. The crucial question is whether the alleged conduct of the Attorney General deprived peti- tioner of any of the rights guaranteed him by the statute or by the regulations issued pursuant thereto. Courts are not forbidden by the statute to consider whether the rea- sons, when they are given, agree with the requirements of

the act. The statute, by enumerating the conditions upon which the allowance to land may be denied, prohibits the denial in other cases. And when the record shows that a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus. Immigration Law > Duties & Rights of Aliens > General Overview

Immigration Law > Judicial Review > Habeas Corpus

> General Overview

HN17  Statutory claims affecting the substantial rights of aliens of the sort that courts secularly enforce are re- viewable on habeas.

Immigration Law > Deportation & Removal > Relief > Waivers

Immigration   Law   >   Inadmissibility   >   Grounds   > Criminal Activity

HN18  See 8 U.S.C.S. § 1182(c).

Immigration Law > Judicial Review > Scope of Review

HN19  Section 440(d) of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, applies to pending cases.

Immigration Law > Judicial Review > Habeas Corpus

> General Overview

HN20   In  determining  a  statute's  temporal  reach  gen- erally,   the   normal   rules   of   construction   apply.   The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, sets up one set of rules for noncap- ital cases, for which Congress provides no effective date, and another for capital cases, for which Congress makes express  provision,  that  is,  the  rules  apply  to  pending cases.  Accordingly,  Congress,  by  negative  implication, expresses its intent that the rules pertaining to noncapital cases apply only prospectively. The rule of negative impli- cation is part of the normal rules of statutory construction. The first step of the Landgraf analysis is amplified, such that if the statutory construction inquiry yields the answer that Congress intended prospectivity, the inquiry ends and a court need not engage in an analysis of whether there would be a "retroactive effect."

Governments > Legislation > Interpretation Immigration  Law  >  Deportation  &  Removal  >  Alien Terrorist Removal

Immigration   Law   >   Constitutional   Foundations   > Statutory Application & Interpretation

HN21  Where Congress includes particular language in one section of a statute, but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.

Governments > Legislation > Interpretation

HN22  Few principles of statutory construction are more

166 F.3d 225, *; 1999 U.S. App. LEXIS 989, **1

Page 4

compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language. Governments > Legislation > Interpretation

HN23  If a court, employing traditional tools of statutory construction, ascertains that Congress has an intention on a precise question at issue, that intention is the law and must be given effect.

COUNSEL:   Frank   W.   Hunger,   Assistant   Attorney General,              Christopher   C.   Fuller,       Senior   Litigation Counsel,   Michael  P.  Lindemann,   Assistant  Director, Madeline  Henley  (Argued),  United  States  Department of             Justice,   Washington,         D.C.,                         Attorneys              for Respondents/Appellants.

Lee Gelernt (Argued), Lucas Guttentag, Cecillia Wang, American  Civil  Liberties  Union,   Immigrants'  Rights Project,  New  York,  N.Y.  Steven  A.  Morley  (Argued), Bagia   &   Morley,   Philadelphia,   PA,   Attorneys   for Appellee/Petitioner.

Lenni B. Benson, New York Law School, New York, N.Y. Jeffrey A. Heller, Seton Hall University School of Law, Newark, N.J., Attorneys for Amici Law Professors.

JUDGES: Before:  SLOVITER, SCIRICA and ALITO, Circuit Judges. ALITO, Circuit Judge, concurring in part and dissenting in part.

OPINIONBY: SLOVITER

OPINION:   **2

*227   OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. INTRODUCTION

In 1996, the 104th Congress passed, and the President signed into law, two bills that made sweeping changes in the  immigration  laws:   the  Antiterrorism  and  Effective

Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-

132, 110 Stat. 1214 (1996), and the Illegal Immigration

Reform   and   Immigrant   Responsibility   Act   of   1996

("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996). This case concerns the effect of these statutes on the ju- risdiction  of  a  district  court  to  issue  a  writ  of  habeas corpus sought by an alien because of a decision by the Immigration and Naturalization Service ("INS") to deport the alien by reason of his having committed a criminal act listed in IIRIRA.

In the case before us, the District Court granted in part Reynaldo Sandoval's petition for a writ of habeas corpus. The Attorney General, the INS, the INS Commissioner, and the Acting Regional Director of the INS (collectively

"the government") appeal from the District Court's exer- cise of jurisdiction under 28 U.S.C. § 2241 and from its subsequent decision on the merits. Sandoval's brief **3  as  appellee  is  supported  by  an  amicus  brief  filed  by  a group of twenty-three law professors urging affirmance of the District Court.

The  jurisdictional  question  is  whether,  in  enacting AEDPA and IIRIRA, Congress stripped the district courts of habeas jurisdiction over deportation proceedings,  an inquiry  that  could  implicate  the  Suspension  Clause  of the  Constitution.  If  the  District  Court  had  jurisdiction, we will have to decide a question of statutory interpre- tation:   whether  AEDPA  §  440(d),  a  statutory  change that occurred while Sandoval's case was pending and that makes  aliens  who  have  been  found  guilty  of  drug  of- fenses ineligible for discretionary relief under § 212(c) of the Immigration and Nationality Act ("INA"),  8 U.S.C.

§ 1182 (Supp. 1996) (repealed effective April 1, 1997), applies to Sandoval. Only if AEDPA § 440(d) does apply to Sandoval would we need to reach his argument that the provision violates equal protection by precluding de- portable aliens who have been convicted of certain crimes from obtaining § 212(c) relief but not precluding exclud- able aliens who are otherwise identically situated from obtaining that relief, an issue not reached **4    by the District Court.

166 F.3d 225, *228; 1999 U.S. App. LEXIS 989, **4

Page 5

*228   II.

FACTUAL             AND        PROCEDURAL BACKGROUND

Sandoval,  a  citizen  of  Mexico,  entered  the  United States without inspection in 1986. In 1987, he was granted temporary resident status as a Special Agricultural Worker under  the  amnesty  program  set  up  by  the  Immigration Reform  and  Control  Act  of  1986  §  302,  8  U.S.C.  §

1160. Pursuant to the amnesty program, he was granted Lawful Permanent Resident status in 1990. Accordingly, Sandoval was entitled to remain in the country, and even- tually  qualify  for  citizenship,  provided  that  he  did  not commit  an  act  subjecting  him  to  deportation.  In  1993, Sandoval was convicted in a state court of marijuana pos- session,  which conviction subjected him to deportation under INA § 241(a)(2)(B)(I), 8 U.S.C. § 1251(a)(2)(B)(1)

(current version at 8 U.S.C. § 1227(a)(2)(B)(I)).

The deportation hearing was held on June 14, 1994. Sandoval  requested  a  four-month  stay,  apparently  be- cause at the end of that four months he would have com- pleted  seven  years  as  a  legal  immigrant,  a  prerequisite for eligibility for discretionary relief under INA § 212(c).

**5    Section  212(c),  as  it  stood  at  the  time,  granted the Attorney General discretion to admit an otherwise de- portable alien if the alien had established lawful domicile for seven or more years; the provision barred such relief where  the  alien  had  committed  two  or  more  crimes  of moral turpitude, but did not then foreclose discretionary relief in cases where the alien was deportable solely for having committed a drug offense. The Immigration Judge

("IJ") denied the stay and ruled that (1) Sandoval was de- portable,  and (2) he had not met the seven-year lawful domicile requirement for eligibility for discretionary re- lief. Sandoval then appealed this decision to the Board of Immigration Appeals ("BIA").

While  Sandoval's  appeal  was  pending,   Congress passed  AEDPA.  Section  440(d)  of  that  Act  amended INA  §  212(c)  so  as  to  make  discretionary  relief  un- available  to  those  aliens  who  have  been  convicted  of, inter  alia,  any  of  the  drug  offenses  set  forth  in  INA  §

241(a)(2)(B)(I).  On  July  16,  1997,  the  BIA  dismissed

Sandoval's appeal, noting that AEDPA's amendment of §

212(c) rendered Sandoval "statutorily ineligible for sec- tion 212(c) relief." In doing so, the BIA cited the Attorney General's **6   ruling that AEDPA's revision of § 212(c) applies to pending cases. See Matter of Soriano, Interim Decision 3289 (A.G. Feb. 21, 1997). The BIA's decision rendered Sandoval's deportation order administratively fi- nal on July 16, 1997. Because Sandoval had attained seven years of domicile before his deportation order became fi- nal, the statutory residency requirement has been met and is no longer an issue in this case. See 8 C.F.R. § 3.2(c)(1). Consequently,  the  amendment  to  §  212(c)  effected  by AEDPA is the only ground for statutory ineligibility ad- vanced by the government.

In October, Sandoval filed a motion with the BIA, re- questing that the INS reopen his case. He also requested a stay of deportation from the District Director, which was denied. On December 1, 1997, Sandoval filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. His petition argued that AEDPA's change to § 212(c) does not apply to cases pending on the date of enactment (and therefore that the Soriano decision was incorrect). He also argued that AEDPA § 440(d) violates equal protection. The gov- ernment moved to dismiss for lack of jurisdiction.   **7  The District Court ruled that it had habeas jurisdic- tion under 28 U.S.C. § 2241, reasoning that the relevant provisions of AEDPA and IIRIRA did not effect a repeal of § 2241 in deportation cases. The court proceeded to rule on the merits of the petition and held that AEDPA §

440(d) does not apply to cases that were pending when the statute was enacted. Employing the principles set forth in Landgraf v. USI Film Prods., 511 U.S. 244, 128 L. Ed.

2d 229, 114 S. Ct. 1483 (1994), and elaborated in Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct.

2059  (1997),  the  District  Court  held  that  Congress  ex- pressed its intent not to apply § 440(d) to pending cases. In so doing, the court did not reach any constitutional is- sue relating to habeas jurisdiction or the equal protection challenge to AEDPA § 440(d). Consequently, the District Court granted Sandoval's petition

166 F.3d 225, *229; 1999 U.S. App. LEXIS 989, **7

Page 6

*229   in part, ordered the INS to entertain the merits of his § 212(c) request and enjoined the government from deporting Sandoval pending a decision on the merits of his § 212(c) request.

The government appeals this decision. While this ap- peal **8   was pending, the BIA denied Sandoval's mo- tion  to  reopen,  and  Sandoval  then  filed  a  Petition  for Review with this court. On August 19, 1998, we consol- idated the government's appeal with Sandoval's Petition for Review.

III. DISCUSSION A.

Jurisdiction

1. The Applicable Statutory Changes

On April 24, 1996 the President signed AEDPA into law,  and  on  September  30,  1996  IIRIRA  was  enacted. These two statutes altered many of the substantive provi- sions of the Immigration and Nationality Act (INA) and also made significant changes in INA's provisions relat- ing to judicial review. Prior to the enactment of AEDPA, judicial review of deportation orders ordinarily proceeded by a Petition for Review of the INA decision filed in the court  of  appeals.  See  Majority  op.  at  16  infra.  At  the same  time,  INA  §  106(a)(10)  provided  for  review  of  a deportation order by habeas corpus proceeding. AEDPA

§  401(e)  deleted  the  former  text  of  INA  §  106(a)(10). AEDPA § 440(a) substituted therefor the following lan- guage:  "Any final order of deportation against an alien who is deportable by reason of having committed a crim- inal offense covered in the deportation provisions **9  of the INA  shall not be subject to review by any court." n1

n1 HN1  AEDPA § 440(a), which was codified at 8 U.S.C. § 1105a(a)(10), states in part:

Judicial  Review.--Section  106  of  the Immigration and Nationality Act . . . is amended to read as follows:

(10)  Any  final  order  of  deportation against an alien who is deportable by reason of having committed a criminal offense  covered  in  section  241(a)(2)

(A)(iii), (B), (C), or (D) or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are cov- ered by section 241(a)(2)(A)(I), shall not be subject to review by any court.

Section 1105a was repealed by IIRIRA § 306(b) with respect to deportation proceedings that were initiated on or after April 1, 1997. See IIRIRA §§

306(b), (c), 309. For such proceedings, IIRIRA sub- stitutes new judicial review provisions. See IIRIRA

§ 306(a). Because Sandoval's deportation proceed- ings commenced before April 1, 1997, the repealer and the new judicial review rules do not apply to his case.

**10

The  judicial  review  structure  for  deportation  orders was  altered  several  months  later  with  the  passage  of IIRIRA on September 30, 1996. HN2  IIRIRA contains two different sets of rules:  the "permanent rules" which generally became effective on April 1, 1997, see IIRIRA

§ 309(a), and the "transitional changes in judicial review"

("transitional rules"),  which generally became effective on October 30, 1996 and which apply to aliens who were placed in removal proceedings before April 1, 1997. n2

n2 Both sets of rules were clarified by technical amendments enacted on October 11, 1997, Pub. L.

104-302, 110 Stat. 3656, 3657.

One   of   the   transitional   rules,   HN3    IIRIRA   §

309(c)(4)(G), provides, in relevant part:

There  shall  be  no  appeal  permitted  in  the case of an alien who is inadmissible or de- portable  by  reason  of  having  committed  a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of

**11   this Act), or any offense covered by section  241(a)(2)(A)(ii)  of  such  Act  (as  in effect on such date) for which both predicate offenses are, without regard to their date of commission,  otherwise  covered  by  section

241(a)(2)(A)(I) of such Act (as so in effect). n3

Because Sandoval's deportation proceedings were ini- tiated before April 1, 1997 and his appeal was dismissed by the BIA after October 30, 1996, that rule is applicable here.

n3 By congressional directive, the transitional rules are not part of the INA and are not codified in the United States Code.

Finally,   HN4   IIRIRA  §  306(a)  amends  INA  §

166 F.3d 225, *229; 1999 U.S. App. LEXIS 989, **11

Page 7

242(g), 8 U.S.C. § 1252(g), to provide:  "Except as pro- vided in this section and notwithstanding any other pro-

vision of law, no

166 F.3d 225, *230; 1999 U.S. App. LEXIS 989, **11

Page 8

*230    court  shall  have  jurisdiction  to  hear  any  cause or  claim  by  or  on  behalf  of  any  alien  arising  from  the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act."   **12   n4

n4  IIRIRA  dispenses  with  the  terms  "depor- tation"  and  "exclusion,"  groups  these  categories under  the  rubric  of  "removal,"  and  provides  for the  uniform  administration  of  removal  proceed- ings.  This  opinion  preserves  the  distinction  be- tween "deportation"  and "exclusion" because un- der AEDPA--which governs this case by virtue of the transitional rules--that distinction continues to have meaning.

The District Court rejected the government's position that this provision applies to Sandoval,  basing its deci- sion on the general effective date provided by IIRIRA §

309(c)(1). However, HN5  section 306(c)(1) states that

"the amendments made by subsections (a) and (b) which contain the permanent rules for judicial review  shall ap- ply as provided under section 309, except that subsection

(g) of section 242 of the Immigration and Nationality Act

(as added by subsection (a)), shall apply without limita- tion to claims arising from all past, pending, or future ex- clusion, deportation, or removal proceedings under such Act" (emphasis **13   added). In light of this provision, we conclude that the government is correct in arguing that the amended INA § 242(g) applies to this case.

2. Recent Cases Construing the 1996 Amendments

The  government  argues  that  as  a  consequence  of these three amendments effected by AEDPA and IIRIRA, the  District  Court  had  no  habeas  jurisdiction  to  review Sandoval's challenges to his final order of deportation. In the period following the filing of this appeal,  the same question has been decided by five other circuits. Three of the decisions rejected the government's position; two have adopted the government's arguments.

In Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), the Court of Appeals for the First Circuit reversed the dis- trict court's dismissal of an alien's habeas petition, holding that Congress did not eliminate habeas jurisdiction under

§ 2241.

Shortly  thereafter,  in  Henderson  v.  Reno,  157  F.3d

106 (2d Cir. 1998), the Court of Appeals for the Second Circuit affirmed the decisions of two district courts that they had jurisdiction under § 2241 to grant writs of habeas corpus to aliens who were deportable because they had committed listed **14   crimes. The Second Circuit re- lied on its earlier decision in Jean-Baptiste v. Reno, 144

F.3d 212 (2d Cir. 1998), where it affirmed the dismissal of  an  alien's  Petition  for  Review.  In  Jean-Baptiste,  the court held that the foreclosure of judicial review did not offend the Constitution because habeas review under §

2241 remained intact.

Similarly, the Court of Appeals for the Ninth Circuit held in Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.

1998) (per curiam), that the district court retained habeas jurisdiction under § 2241 to hear the claim of an alien who  had  committed  a  drug  offense.  It  reasoned  that  if IIRIRA were read to eliminate all judicial review of exec- utive detention, it would violate the Suspension Clause. That circuit had previously held, in Hose v. INS, 141 F.3d

932 (9th Cir.1998), that IIRIRA withdrew the jurisdiction of the district court to hear a habeas petition by an alien who sought to appeal an immigration judge's determina- tion  that  she  was  excludable.  The  court  noted  that  the Suspension Clause was not violated because Hose, who had not been convicted of a listed crime, could have filed a Petition for **15   Review in the court of appeals, an option not available to Magana-Pizano. On December 2,

1998,  the  Ninth  Circuit  granted  rehearing  en  banc  and withdrew the Hose   opinion. See Hose v. INS, 161 F.3d

1225 (9th Cir. 1998).

Although  the  Court  of  Appeals  for  the  District  of Columbia has not yet reached the question, a district court in that circuit held that neither AEDPA nor IIRIRA de- prived it of its jurisdiction under the general habeas pro- vision of 28 U.S.C. § 2241 to hear a similar claim by an alien. Lee v. Reno, 15 F. Supp. 2d 26 (D.D.C. 1998).

In recent months, two Courts of Appeals have taken a contrary position to that taken by the other three Courts of Appeals. In Richardson v. Reno, 1998 U.S. App. LEXIS

1415, 1998 WL 850045 (11th

166 F.3d 225, *231; 1999 U.S. App. LEXIS 989, **15

Page 9

*231    Cir. Dec. 9,  1998),  opinion vacated and super- seded, 162 F.3d 1338, 1998 WL 889376 (11th Cir. 1998), the Court of Appeals for the Eleventh Circuit concluded that IIRIRA's amendment to INA § 242(g) did eliminate habeas jurisdiction under § 2241. The court further held that this elimination of jurisdiction suffered from no con- stitutional   **16    infirmity.  Although  the  petitioner  in Richardson was an alien who was detained upon re-entry into the United States, and therefore the case arose in a slightly different procedural posture, the case otherwise involves the same statutory provisions and applicable le- gal principles.

The Court of Appeals for the Seventh Circuit quickly followed Richardson in LaGuerre v. Reno, 164 F.3d 1035,

1998 WL 912107 (7th Cir. 1998), with a similar holding. It agreed with the conclusion that AEDPA § 440(a) deprives the district courts of habeas jurisdiction with respect to the  executive's  detention  of  aliens  who  have  been  con- victed of the enumerated crimes. The court proceeded to read the statute as permitting such aliens to bring con- stitutional challenges to their detention in the courts of appeals by means of a petition for review, notwithstand- ing the general bar to petitions for review in AEDPA. The court adopted this construction of the statute on the basis of a "presumption that executive resolutions of constitu- tional issues are judicially reviewable." Id. at *4.

For the reasons set forth hereafter, we conclude that the district courts continue to have habeas **17   juris- diction under § 2241. Our colleague who dissents on this portion of our holding does so on the basis of the reason- ing in LaGuerre. The resulting division among the courts on this important issue leaves the definitive interpretation for resolution by the Supreme Court.

In  addition  to  those  courts  who  have  directly  ruled on the issue, others have addressed the jurisdictional is- sue  tangentially  in  another  context.  All  of  the  Courts of  Appeals  who  have  decided  that  because  of  AEDPA and IIRIRA, they no longer had jurisdiction to entertain a  Petition  for  Review  from  an  alien  who  has  been  de- ported for any of the criminal activity referenced in INA

§ 241(a)(2)(C), have stated that some degree of judicial review under habeas corpus remains available, although

they did not specify the scope of that review. See, e.g.,

Lerma  de  Garcia  v.  INS,  141  F.3d  215,  217  (5th  Cir.

1998); Mansour v. INS, 123 F.3d 423, 426 (6th Cir. 1997); Ramallo v. Reno, 325 U.S. App. D.C. 2, 114 F.3d 1210,

1214 (D.C. Cir. 1997); Fernandez v. INS, 113 F.3d 1151,

1154 n.3 (10th Cir. 1997).

In this court's opinion in Morel v. INS, 144 F.3d 248

(3d  Cir.  1998),   **18     we  agreed  with  the  other  cir- cuits  on  this  issue.  We  too  held  that  AEDPA  §  440(a) deprived  us  of  jurisdiction  to  entertain  claims  of  legal error in a Petition for Review brought by an alien who was convicted of one of the crimes referenced in INA that disqualify an alien for § 212(c) discretionary relief. We were  not  faced  with  the  issue  of  habeas  jurisdiction  in Morel and therefore did not address it, but in concluding that the elimination of our review jurisdiction was con- stitutional, we relied on the government's concession that some form of review for constitutional questions survived the enactment of AEDPA.  Id. at 251.

3. Availability of Habeas Jurisdiction

We now address the issue we never reached in Morel: whether habeas jurisdiction remains available in the dis- trict courts to review claims by aliens who have been or- dered deported based on their criminal acts, notwithstand- ing the AEDPA and IIRIRA amendments relied on by the government. This question implicates the long-standing doctrine  disfavoring  repeal  of  jurisdictional  statutes  by implication.

The Supreme Court had occasion to apply this doc- trine recently in Felker v. Turpin, 518 U.S. 651, 135 L. Ed.

2d 827, 116 S. Ct. 2333 (1996). **19   Felker involved

AEDPA § 106(b),  which bars state inmates from filing

"second or successive" habeas corpus petitions without first  obtaining  permission  from  a  three-judge  panel  of the relevant court of appeals. The statute provides that a panel's grant or denial of authorization to file "shall not be appealable and shall not be the subject of a petition for

. . . writ of certiorari." AEDPA § 106(b)(3)(E), codified at

28 U.S.C. § 2241(b)(3)(E). Noting that "no provision of Title I mentions our authority to entertain original habeas petitions," the Court held

166 F.3d 225, *232; 1999 U.S. App. LEXIS 989, **19

Page 10

*232    that  because  repeals  by  implication  are  not  fa- vored, AEDPA's prohibition on certiorari jurisdiction over court of appeals panel decisions on second or successive petitions did not preclude the Supreme Court from exer- cising its original habeas jurisdiction under 28 U.S.C. §§

2241 and 2254.  518 U.S. at 660.

The Felker Court took guidance from Ex Parte Yerger,

75 U.S. 85, 19 L. Ed. 332 (1869), in which the Court, when faced  with  a  similar  repeal  of  its  appellate  jurisdiction well over a century ago, found that its habeas jurisdiction

**20    was intact. But to appreciate the significance of

Yerger  fully, we must go back to Ex Parte McCardle, 74

U.S. (7 Wall.)  506, 19 L. Ed. 264 (1869). McCardle, like Yerger, involved an 1867 statute that authorized the fed- eral courts to entertain habeas petitions by state or federal prisoners and also authorized the Supreme Court to hear appeals from the federal courts in habeas cases. McCardle, who was in federal custody, sought habeas relief. While the case was pending before the Supreme Court in 1868, Congress enacted, over President Andrew Johnson's veto, a bill repealing the portion of the 1867 statute that con- ferred appellate jurisdiction on the Supreme Court over habeas proceedings. The McCardle court held that it had no  jurisdiction  because  the  1867  conferral  of  appellate review power had been repealed by the 1868 enactment. The  McCardle  court,  however,  was  not  confronted with a statute that foreclosed all review. The Court specif- ically noted that the full extent of its jurisdiction,  as it stood before the 1867 statute, remained:  "Counsel seem to have supposed, if effect be given to the repealing act in  question,  that  the  whole  appellate   **21    power  of the court, in cases of habeas corpus, is denied. But this is an error. . . . . The 1868 repealer  does not affect the jurisdiction which was previously exercised." 74 U.S. (7

Wall.) at 515.

The Yerger decision, issued one year after McCardle, dealt with the same statute on similar facts, but in Yerger the Court addressed its power under the general grant of habeas jurisdiction in the 1789 Judiciary Act. Finding that the 1868 enactment did not repeal its review power under the prior general grant of jurisdiction, the Court stated:

There are no repealing words in the Act of

1867. If it repealed the Act of 1789, it did so by implication .. . .

Repeals by implication are not favored. They are seldom admitted except on the ground of repugnancy; and never, we think, when the former Act can stand together with the new Act.

Ex  Parte Yerger, 75 U.S. (8 Wall.) at 105.

Read together, McCardle, Yerger, and Felker estab- lish the propositions that HN6  courts should not lightly presume that a congressional enactment containing gen- eral language effects a repeal of a jurisdictional statute, and,  consequently,   **22    that only a plain statement of congressional intent to remove a particular statutory grant of jurisdiction will suffice. Informed by this prece- dent, we examine each of the 1996 statutory provisions that  the  government  contends  individually,  or  in  total- ity, foreclose the District Court's habeas jurisdiction over Sandoval's deportation order.

a. AEDPA § 401(e)

AEDPA  §  401(e),  a  non-codified  provision,  struck the text of former INA § 106(a)(10), a provision added by the Immigration and Nationality Act of 1961, Pub. L. 87-

301, § 5(a), 75 Stat. 651, and in its place inserted the lan- guage set forth in AEDPA § 440(a). Section 106(a)(10) had provided that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." The substituted language of   HN7   AEDPA  §  440(a)  reads:   "any  final  order  of deportation against an alien who is deportable by reason of having committed a criminal offense covered in the deportation provisions of the INA  shall not be subject to review by any court." The government urges that the

1961 Act significantly curtailed habeas jurisdiction in im- migration matters, and that AEDPA § 401(e) eliminated

**23   such vestigial habeas jurisdiction as existed after the 1961 Act. We are not persuaded by either proposition. In order to analyze this issue, we begin by reviewing

some of the history of habeas corpus

166 F.3d 225, *233; 1999 U.S. App. LEXIS 989, **23

Page 11

*233    relief and judicial review in immigration cases. Although the specific reference to habeas jurisdiction in INA § 106(a)(10) was enacted as part of the 1961 Act, habeas jurisdiction over the Executive's detention of aliens has a considerably longer lineage. This jurisdiction was expressly  recognized  by  the  Supreme  Court  in  United States v. Jung Ah Lung, 124 U.S. 621, 31 L. Ed. 591, 8 S. Ct. 663 (1888). A Chinese laborer, who had lost his cer- tificate entitling him to reenter the United States and was being held in executive detention upon his return,  suc- cessfully turned to the district court for a writ of habeas corpus. The government argued that under the Chinese Exclusion  Acts,  passed  in  the  late  nineteenth  century, aliens excluded under the statute were not being deprived of liberty within the contemplation of the habeas statute. Id.  at  626.  The  Court  rejected  this  argument  and  also turned aside the government's argument that the federal

**24   courts' general statutory habeas power "was taken away by the Chinese Restriction Act, which regulated the entire subject matter, and was necessarily exclusive." Id. The Court stated that "we see nothing in these Acts which in any manner affects the jurisdiction of the courts of the United States to issue a writ of habeas corpus." Id. at 627-

28.

Subsequently,  Congress,  as part of the Immigration Act  of  1891,  sought  to  ensure  the  finality  of  executive branch decisions regarding the exclusion of aliens by pro- viding:  "All decisions made by the inspection officers . .

. touching the right of any alien to land, when adverse to such right, shall be final unless appealed to the relevant executive officers ." Act of March 3, 1891, ch. 551, § 8,

26 Stat. 1084,  1085. In 1894,  this provision was made applicable in Chinese Exclusion Act proceedings. Act of Aug. 18, 1894, ch. 301, 28 Stat. 372, 390. These finality provisions  were  apparently  prompted  by  congressional dissatisfaction with judicial intervention in this area. See Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1008

(1998). **25

When the Supreme Court addressed the 1891 statute in Nishimura Ekiu v. United States, 142 U.S. 651, 35 L. Ed.

1146, 12 S. Ct. 336 (1892), it reaffirmed the availability of habeas to challenge immigration decisions notwithstand- ing  the  finality  provision.  The  Court  stated:   "An  alien immigrant,  prevented from landing by any such officer claiming authority to do so under an act of Congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful." Id. at 660. Hence, an alien's right to petition for a writ of habeas corpus to challenge the legal basis of his or her detention by the Executive Branch was firmly established in precedent more than a century ago.

The Immigration Act of 1917, ch. 29, § 19, 39 Stat.

874, 890 (repealed 1952), carried forward the provisions of  the  1891  and  1894  Acts  that  made  the  decisions  of the  Attorney  General  on  deportation  "final."  When  the Administrative Procedure Act ("APA"), ch. 24, 60 Stat.

237  (codified  at  5  U.S.C.  §  500  et  seq.),  was  enacted in 1946, it was unclear whether the "judicial review" of agency **26   action that it provided extended to immi- gration  cases.  The  Court  answered  that  question  in  the negative in Heikkila v. Barber, 345 U.S. 229, 97 L. Ed.

972, 73 S. Ct. 603 (1953), concluding that the Immigration Act was "a statute precluding judicial review" within the meaning  of  the  APA.      Id.  at  235.  In  so  holding,  the Court reviewed the period from 1891 (the year in which Congress passed the first in a series of statutes confer- ring  finality  on  the  Executive's  immigration  decisions) until 1952 (the year that Congress authorized APA review of immigration decisions), and stated that the legislative regime in force during that period "clearly had the effect of  precluding  judicial  intervention  in  deportation  cases except insofar as it was required by the Constitution." Id. at 234-35. Significantly, the Court expressly concluded that habeas jurisdiction persisted even during this period, stating that in light of its decision that the APA did not enlarge  the  alien's  rights,  "he  may  attack  a  deportation order only by habeas corpus." Id. at 235.

Heikkila was decided under the Immigration Act of

1917, which was superseded **27   by the Immigration and Nationality Act of 1952.

166 F.3d 225, *234; 1999 U.S. App. LEXIS 989, **27

Page 12

*234   The Supreme Court considered whether the APA applied  to  immigration  cases  under  the  1952  Act  in Shaughnessy  v.  Pedreiro,  349  U.S.  48,  99  L.  Ed.  868,

75 S. Ct. 591 (1955). In particular, the Court focused on

§ 12 of the APA, which provided:  "No subsequent legis- lation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do  so  expressly."  60  Stat.  at  244  (codified  as  amended at 5 U.S.C. § 559). Noting that "in the subsequent 1952

Immigration  and  Nationality  Act  there  is  no  language which  'expressly'  supersedes  or  modifies  the  expanded right  of  review  granted  by  §  10  of  the  Administrative Procedure Act," id. at 51, the Court held in Shaughnessy

(1) that the APA applied to immigration cases and (2) that under  the  APA's  "generous  review  provisions,"  id.,  the district court could review a deportation challenge under the Declaratory Judgment Act. The Court so held notwith- standing that the 1952 Act had carried over the provision of the 1917 Act that provided that the Attorney General's deportation and exclusion **28   decisions shall be final. Hence,  as  a  result  of  the  Shaughnessy  decision,  aliens were free to seek APA judicial review both in the courts of appeals and in the district courts.

It is against this backdrop that Congress passed the

Immigration and Nationality Act of 1961. Act of Sept. 26,

1961, Pub. L. No. 87-301, § 5, 75 Stat. 651. In that Act, Congress restructured judicial review, giving the courts of appeals "sole and exclusive" power to review deportation orders. The government relies on this language in con- tending that the 1961 Act curtailed habeas jurisdiction in immigration cases. However, the historical sequence out- lined above shows that this "sole and exclusive" language was addressed to the review provided under the APA, not to habeas jurisdiction. By locating APA review power in the courts of appeals, Congress sought to eliminate APA review by means of declaratory judgment actions in the district  courts,  a  form  of  review  that  Shaughnessy  had permitted. The "sole and exclusive" provision was not, as the government suggests, an effort to make APA review in the circuits work to the exclusion of habeas actions. See  Foti  v.  INS,  375  U.S.  217,  231,  84  S.  Ct.  306,  11

L. Ed. 2d 281 (1963) **29   ("Our decision in this case

that the court of appeals has initial, exclusive jurisdiction

to review denial of suspension of deportation  in no way impairs the preservation and availability of habeas corpus relief.").

That habeas jurisdiction was left intact by the 1961

Act is evidenced by the inclusion of § 106(a)(10), a new provision specifically providing that habeas jurisdiction was available for deportees. The legislative history makes clear that this provision was added out of concern that the "sole and exclusive" language might be read to de- prive the courts of habeas jurisdiction, thereby creating a constitutional problem. The House Report states:

The  section  clearly  specifies  that  the  right to habeas corpus is preserved to an alien in custody  under  a  deportation  order.  In  that fashion,  it  excepts  habeas  corpus  from  the language which elsewhere declares that the procedure  prescribed  for  judicial  review  in circuit courts shall be exclusive. The section in no way disturbs the Habeas Corpus Act in respect to the courts which may issue writs of habeas corpus:  aliens are not limited to courts of appeals in seeking habeas corpus.

H.R. Rep. No. 87-1086 at 29 (1961), **30  reprinted in  1961 U.S.C.C.A.N. 2950, 2973.

Consequently,  §  106(a)(10)  as  it  existed  under  the

1961 Act cannot be said to have conferred habeas jurisdic- tion on the district courts. Such jurisdiction, recognized since the late nineteenth century, existed independently of the 1961 Act. This inclusion of a reference to habeas re- lief is best understood as congressional acknowledgment that the district courts continued to have habeas jurisdic- tion even though APA review was channeled to the courts of appeals. The foregoing effectively refutes the govern- ment's contention that AEDPA's § 401(e) repeal of INA

§ 106(a)(10) eliminated the district courts' jurisdiction to review deportation orders in habeas corpus proceedings. And since AEDPA § 401(e) does not manifest an intent to repeal the original grant of habeas corpus jurisdiction, currently embodied in 28 U.S.C. § 2241, the elimination of

166 F.3d 225, *235; 1999 U.S. App. LEXIS 989, **30

Page 13

*235    INA's reference to habeas jurisdiction does not overcome  the  presumption  against  finding  a  repeal  of habeas  corpus  by  implication.  Accord  Goncalves,  144

F.3d at 121 ("It does not follow from the repeal of INA

§  106(a)(10)   that  §  2241   **31     habeas  jurisdiction has been repealed altogether in immigration cases. Had Congress  wished  to  eliminate  any  possible  habeas  ju- risdiction under 28 U.S.C. § 2241, it could have easily inserted an explicit reference,  but it did not.");  Lee,  15

F. Supp. 2d at 39 (" 'The bark of AEDPA § 401(e)  is worse than its bite. . . .The section only eliminates the INA habeas provision without mention of § 2241.'").

Our dissenting colleague places great importance on the  fact  that  AEDPA  §  401(e)  was  titled  "Elimination of  Custody  Review  by  Habeas  Corpus."  However,  as the Supreme Court has repeatedly noted, a title alone is not controlling. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 141 L. Ed. 2d 215, 118 S. Ct. 1952,

1956 (1998) (" 'The title of a statute . . . cannot limit the plain meaning of the text. For interpretive purposes,   it is  of use only when it  sheds light on some ambiguous word or phrase.' " (quoting Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29, 91 L. Ed. 1646, 67 S. Ct.

1387 (1947)). There is no text in the AEDPA amendments referring to habeas corpus review.   **32

b. AEDPA § 440(a) and IIRIRA § 309(c)(4)(G)

The government also relies for its jurisdictional chal- lenge on Congress's declarations in AEDPA § 440(a) that deportation orders relating to aliens found to have com- mitted the specified offenses "shall not be subject to re- view by any court," and in IIRIRA § 309(c)(4)(G), a tran- sitional rule, that "there shall be no appeal permitted" in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in the deportation provisions of the INA ." These statements, it contends, are express indications that Congress sought to preclude habeas jurisdiction. We disagree. Neither of these provisions specifically mentions jurisdiction under

§ 2241. Hence, under Felker and Yerger, we do not find a sufficiently clear statement  of congressional  intent to

repeal the general grant of habeas jurisdiction.

This conclusion is bolstered by the fact that here, as was the case in Yerger, "the former Act can stand together with the new Act." 75 U.S. 85 at 105. HN8  When viewed in light of the history of the Court's treatment of habeas jurisdiction  in  deportation  cases,  the  references   **33  to "review" in the AEDPA provision and to "appeal" in the IIRIRA provision are properly understood as relating to judicial review under the APA. This is so because in the immigration context, the Court has historically drawn a sharp distinction between "judicial review"--meaning APA review--and the courts' power to entertain petitions for writs of habeas corpus.

As noted above, the Supreme Court in Heikkila  held that  although  the  1917  Immigration  Act  was  a  "statute precluding judicial review" within the contemplation of the APA, an alien could challenge his or her executive detention via habeas.   345 U.S. at 235. In doing so, the Court was clear that the "judicial review" precluded by the 1917 Acts did not include habeas corpus; the Court expressly rejected the conclusions of three courts of ap- peals that had "taken the position that habeas corpus itself represented judicial review." Id. at 235-36.

We can presume that Congress, in enacting AEDPA and IIRIRA, was cognizant of the Court's differentiation between "judicial review" on the one hand and writs of habeas corpus on the other. HN9  "It is always appropri- ate to assume that our elected representatives, **34  like other citizens, know the law. . . . . It is not only appropriate but also realistic to presume that Congress was thoroughly familiar with these unusually important precedents from this and other federal courts and that it expected its enact- ment to be interpreted in conformity with them." Cannon v. University of Chicago, 441 U.S. 677, 696-97, 699, 60

L. Ed. 2d 560, 99 S. Ct. 1946 (1979). Hence AEDPA §

440(a) and IIRIRA § 309(c)(4)(G) are most reasonably understood as foreclosing judicial review under the APA, and not as relating to habeas jurisdiction under 28 U.S.C.

§ 2241.

166 F.3d 225, *236; 1999 U.S. App. LEXIS 989, **34

Page 14

*236     c.  IIRIRA  §  306(a)'s  amendment  of  INA  §

242(g)

The  government  also  urges  that  INA  §  242(g),  as amended by IIRIRA § 306(a), precludes the federal courts from  hearing  claims  arising  from  removal  proceedings unless they are brought in a petition for review. It argues that § 242(g) is an expression of congressional intent to channel all deportation review into the courts of appeals.

HN10  Section 242(g) states:

Exclusive  Jurisdiction.  Except  as  provided in this section and notwithstanding any other provision of law,  no court shall have juris- diction   **35    to  hear  any  cause  or  claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Chapter.

The principles enunciated in Felker and Yerger apply with equal force with respect to this provision. As there is no express reference to jurisdiction under 28 U.S.C. §

2241 in this provision, the rule disfavoring implied repeals requires  us  to  conclude  that  jurisdiction  under  §  2241 is preserved under the amended INA § 242(g). Accord Goncalves,  144 F.3d at 122; Lee,  15 F. Supp. 2d at 39

("The 'notwithstanding' provision of the new § 242(g)  is simply insufficient in light of Felker for the Court to imply a repeal of § 2241.").

We  are  unpersuaded  by  the  government's  argument that  the  rule  disfavoring  repeals  by  implication  does not  apply  here  because  the  new  INA  §  242(g)  sets  up a comprehensive jurisdictional scheme which displaces, by  virtue  of  its  comprehensiveness,  any  other  jurisdic- tional grant. In advancing this contention, the government cites as support the Supreme Court's **36   decision in Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S.  428,  102  L.  Ed.  2d  818,  109  S.  Ct.  683  (1989). That  case  concerned  an  action  filed  by  Amerada  Hess against Argentina in federal court alleging that Argentina was responsible in tort for bombing Amerada Hess's ship

without justification during the conflict over the Falkland Islands.  Jurisdiction  was  predicated  on  the  Alien  Tort Statute, 28 U.S.C. § 1350. Argentina moved to dismiss on the basis of immunity granted to foreign sovereigns under the Foreign Sovereign Immunities Act of 1976 (FSIA), Pub. L. No. 94-583, 90 Stat. 2891 (codified in scattered sections of 28 U.S.C.).

The  Court  of  Appeals  for  the  Second  Circuit  held that because the FSIA had not repealed the earlier Alien Tort Statute, the prior statute continued to provide a basis for jurisdiction. The Supreme Court reversed, concluding that the principle disfavoring repeals by implication had no applicability to the FSIA, as "Congress' decision to deal comprehensively with the subject of foreign sovereign im- munity in the FSIA, and the express provision granting foreign states immunity in federal and state courts **37  except as provided in the FSIA , preclude a construction of the Alien Tort Statute" that would permit a suit against a foreign nation.  488 U.S. at 438.

We believe that Amerada Hess does not tilt the de- termination here in favor of the government's position. In reaching its holding, the Amerada Hess Court noted that its decision rested in part on the fact that the applicability of the Alien Tort Statute to suits against sovereign nations was uncertain from the outset.  Id. at 436. Thus, the Court reasoned, "Congress's failure in the FSIA to enact an ex- press pro tanto repealer of the Alien Tort Statute speaks only faintly, if at all, to the issue involved in this case. In light of the comprehensiveness of the statutory scheme in the FSIA, we doubt that even the most meticulous drafts- man would have concluded that Congress also needed to amend pro tanto the Alien Tort Statute." Id. at 437.

Furthermore,  in  Amerada  Hess  the  Court  pointedly noted that the Court of Appeals had not cited "any deci- sion in which a United States court exercised jurisdiction over a foreign state under the Alien Tort Statute." Id. at

436. **38   In other words, there was no long history of exercising jurisdiction that would have been disturbed by its decision. In this case, by contrast, there is no lack of clarity about the historic existence of habeas jurisdiction.

166 F.3d 225, *237; 1999 U.S. App. LEXIS 989, **38

Page 15

*237      HN11   Over  a  century's  worth  of  precedent and practice unambiguously supports the conclusion that habeas jurisdiction is available to aliens in executive cus- tody. Chief Justice Marshall recognized the significance of the writ of habeas corpus in Ex Parte Bollman, 8 U.S.

(4 Cranch) 75, 2 L. Ed. 554 (1807). In reference to section

14 of the Judiciary Act of 1789, the original predecessor of 28 U.S.C. § 2241, he stated:

This act was passed by the first Congress of the  United  States,  sitting  under  a  constitu- tion which had declared 'that the privilege of the writ of habeas corpus should not be sus- pended, unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt, with pe- culiar force, the obligation of providing ef- ficient  means  by  which  this  great  constitu- tional  privilege  should  receive  life  and  ac- tivity;  for   **39     if  the  means  be  not  in existence, the privilege itself would be lost, although no law for its suspension should be

enacted.

8 U.S. (4 Cranch) at 95.

Despite repeated congressional efforts since the late nineteenth century to confer finality on the immigration decisions of the Attorney General, the Court has consis- tently recognized the availability of habeas relief to aliens facing deportation. See Majority op. at 12-17 supra. In light of this precedent, nothing less than an express state- ment  of  congressional  intent  is  required  before  a  grant of  habeas  corpus  jurisdiction  as  provided  in  28  U.S.C.

§  2241  will  be  found  to  have  been  repealed.  We  will not  presume  that  this  grant  of  jurisdiction  is  removed by  general  language  such  as  that  used  in  the  new  INA

§ 242(g). Accordingly, we apply the rule of Felker and Yerger. Because this provision is no more specific with respect to jurisdiction under § 2241 than any of the others canvassed in this opinion, we discern no express repealer of the district courts' jurisdiction under § 2241.

We note that this reading comports with our obliga- tion to read statutes to avoid serious **40   constitutional problems, such as those we would face were IIRIRA read to take away habeas jurisdiction as well as APA review. See  Edward  J.  DeBartolo  Corp.  v.  Florida  Gulf  Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S.

366, 408, 53 L.   Ed. 836, 29 S. Ct. 527 (1909) HN12

(court should interpret statute to avoid "grave and doubtful constitutional questions").

HN13  The Suspension Clause of the United States Constitution states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. In Swain v. Pressley, 430 U.S.

372, 51 L. Ed. 2d 411, 97 S. Ct. 1224 (1977), the Court considered  an  amendment  to  the  District  of  Columbia Code by which Congress divested the district courts of habeas jurisdiction and substituted a collateral proceed- ing  in  that  District's  Superior  Court,  patterned  after  28

U.S.C. § 2255. The Court held that the legislation did not violate the Suspension Clause **41    because HN14

"the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." 430 U.S. at 381. A statute removing all re- view of executive detention, however, would not provide an adequate and effective collateral remedy.

Recognizing that its interpretation might lead to just such a constitutional dilemma, the government contends that under the 1996 amendments there is jurisdiction in the courts of appeals to entertain claims of "substantial constitutional error" by aliens in Sandoval's position. This argument must fail because of the absence of any support, either in the statute or in the legislative history. The gov- ernment's briefs cite no provision of AEDPA or IIRIRA that supports its reading and it conceded at oral argument that there is no specific provision granting us jurisdiction over substantial constitutional claims. Although the gov- ernment's argument would have more force if there were a constitutional imperative to read the 1996 statutes in that manner, our conclusion that the statutes have

166 F.3d 225, *238; 1999 U.S. App. LEXIS 989, **41

Page 16

*238  left habeas jurisdiction intact **42  in the district courts removes any such imperative.

In sum, because neither AEDPA nor IIRIRA contains a clear statement that Congress sought to eliminate habeas jurisdiction under 28 U.S.C. § 2241, we conclude that §

2241 survives the 1996 amendments.

4. Scope of Review Under Habeas Jurisdiction

The jurisdictional holdings of the courts in Richardson and LaGuerre relieved them of any consideration of the scope of review under habeas corpus. Because the courts in Goncalves, Henderson, Magana-Pizano, and Lee sus- tained habeas jurisdiction under § 2241, they reached that issue and held that § 2241 jurisdiction covered not only constitutional claims but also the aliens' statutory claim that the Attorney General had § 212(c) to apply to pending cases.

Inasmuch as the language of HN15  the habeas cor- pus statute encompasses claims that one "is in custody in violation of the Constitution or laws or treaties of the United  States,"  28  U.S.C.  §  2241(c)(3),  we  agree  that Sandoval's statutory claim is cognizable in a habeas cor- pus  proceeding.  n5  Furthermore,   HN16   the  Supreme Court has repeatedly recognized that aliens **43   may press statutory claims in habeas proceedings, even during the period when, according to the Heikkila Court, 345 U.S. at 234-35, judicial review in the immigration context was reduced  to  the  minimum  required  by  the  Constitution. See,  e.g.,  United States ex rel. Accardi v. Shaughnessy,

347 U.S. 260, 265, 98 L. Ed. 681, 74 S. Ct. 499 (1954)

("The crucial question is whether the alleged conduct of the  Attorney  General  deprived  petitioner  of  any  of  the rights guaranteed him by the statute or by the regulations issued  pursuant  thereto.");  Gegiow  v.  Uhl,  239  U.S.  3,

9,  60  L.  Ed.  114,  36  S.  Ct.  2  (1915)  ("The  courts  are not forbidden by the statute to consider whether the rea- sons, when they are given, agree with the requirements of the act. The statute, by enumerating the conditions upon which the allowance to land may be denied, prohibits the denial in other cases. And when the record shows that a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus.").

n5 This does not mean that a district court re- viewing a deportation claim in a habeas proceeding necessarily has the same jurisdiction that a court of appeals previously had under a Petition for Review,

an issue we leave for future decision.

**44

We therefore agree with the legal conclusion reached by  the  District  Court  here  that  it  had  jurisdiction,  in  a habeas proceeding, to consider the statutory claim raised by Sandoval. Accord Henderson, 157 F.3d at 122 HN17

(Statutory claims "affecting the substantial rights of aliens of  the  sort  the  courts  have  secularly  enforced"  are  re- viewable  on  habeas);  Goncalves,  144  F.3d  at  124-25

("The  pure  statutory  claims  Goncalves  makes  here  are well within precedent interpreting the core habeas pro- tection  provided  by  §  2241.");  Lee,  15  F.  Supp.  2d  at

42  ("Precedent  and  reason  fully  persuade  me  that  the Constitution contemplates that courts inquiring into the legitimacy of executive detention on habeas must be avail- able to hear claims of statutory as well as constitutional wrong.").

5. The Pending Petition for Review

Also  pending  before  us  is  Sandoval's  Petition  for

Review from the Board of Immigration Appeals, No. 98-

3214, which we consolidated with the government's ap- peal from the District Court's grant of relief to Sandoval under its habeas corpus jurisdiction. The government ar- gues that we lack subject matter jurisdiction **45    to entertain Sandoval's Petition for Review, and cites in sup- port our recent decision in Morel, holding that AEDPA §

440(a) "removes from us jurisdiction to review a claim of legal error in deportation proceedings." 144 F.3d at 251. Sandoval recognizes that a decision by this court that the District Court had jurisdiction under habeas corpus to re- view his claim would obviate the need for us to consider his  Petition  for  Review.  In  light  of  our  conclusion  that the District Court had such jurisdiction,  and in light of our decision in Morel,  we will dismiss the Petition for Review. n6

n6 Because of our conclusion that jurisdiction under 28 U.S.C. § 2241 covers statutory, as well as constitutional claims, we need not decide whether the claimed existence of jurisdiction in the courts of appeals to review substantial constitutional claims, but not statutory claims, would be an adequate al- ternative.

166 F.3d 225, *239; 1999 U.S. App. LEXIS 989, **45

Page 17

*239   B.

Applicability of the AEDPA Amendment to INA §

212(c)   **46       to Sandoval

Having  determined  that  the  District  Court  properly exercised habeas jurisdiction, we turn to consider the gov- ernment's argument that the District Court erred in holding that AEDPA § 440(d) does not apply to deprive Sandoval of the opportunity to seek discretionary relief under INA

§ 212(c). Prior to AEDPA, INA § 212(c) permitted de- portable aliens, other than those who had committed spec- ified crimes (such as aggravated felonies and crimes of moral turpitude), to apply to the Attorney General for a waiver of deportation. AEDPA § 440(d) added drug of- fenses to the list of deportable offenses that made aliens ineligible for discretionary relief. n7 The provision pre- cluding discretionary relief for those convicted of drug offenses  was  not  in  effect  at  the  time  Sandoval  sought to petition under INA § 212(c). The IJ denied Sandoval on the ground that he did not possess the requisite seven years lawful residence. Sandoval appealed to the BIA.

n7 AEDPA § 440(d) amends HN18  8 U.S.C.

§ 1182(c). As amended, the statute reads in full: Aliens  lawfully  admitted  for  perma- nent  residence  who  temporarily  pro- ceeded   abroad   voluntarily   and   not under  an  order  of  deportation,  and who are returning to a lawful unrelin- quished domicile of seven consecutive years, may be admitted in the discre- tion of the Attorney General without regard to the provisions of subsection

(a)  of  this  section  (other  than  para- graphs (3) and (9)(C)). Nothing con- tained in this subsection shall limit the authority  of  the  Attorney  General  to exercise  the  discretion  in  him  under section 1181(b) of this title. This sub- section shall not apply to an alien who is deportable by reason of having com- mitted any criminal offense covered in section 241(a)(2)(A)(iii),  (B), (C), or

(D), or any offense covered by section

241(a)(2)(A)(ii) for which both pred- icate offenses are covered by section

241(a)(2)(A)(I).

See AEDPA § 440(d). Section 1182(c) was re- pealed by IIRIRA with respect to cases in which

the INS instituted removal proceedings on or after April 1, 1997. See IIRIRA § 309. Because the INA initiated removal proceedings against Sandoval be- fore April 1, 1997, the repeal of § 1182(c) does not apply here.

**47

Before the BIA rendered its decision on Sandoval's ap- peal, the Attorney General issued her decision in Matter of Soriano, Interim Decision 3289 (A.G. Feb. 21, 1997), in  which  she  ruled  that   HN19   AEDPA  §  440(d)  ap- plies to pending cases. The BIA, relying on Soriano, dis- missed Sandoval's appeal on the ground that AEDPA §

440(d) made him ineligible for discretionary relief. The District Court disagreed,  after analyzing the retroactiv- ity decisions in Landgraf v. USI Film Prods.,  511 U.S.

244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994); Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d

481 (1997); and United States v. Skandier, 125 F.3d 178

(3d  Cir.  1997).  Therefore,  the  court  entered  an  injunc- tion staying Sandoval's deportation and ordered the INS to consider Sandoval's application for relief on its merits. The government urges that the District Court erred in finding that AEDPA § 440(d) does not apply to Sandoval. The government contends that the Attorney General's de- cision in Soriano is correct, and that her decision is en- titled to deference under Chevron U.S.A., Inc. v. Natural Resources  Defense  Council,  Inc.,  467  U.S.  837,  81  L. Ed.  2d  694,  104  S.  Ct.  2778  (1984).   **48    Sandoval argues  that  the  Supreme  Court's  decision  in  Landgraf, understood in light of the intervening decision in Lindh, compels the conclusion that § 440(d) is not to be applied

to cases pending on the date of enactment.

As  a  threshold  matter,  we  note  that  we  are  doubt- ful  about  the  appropriateness  of  Chevron  deference  in this setting. Under Chevron, we are required, in the ab- sence  of  a  direct  expression  of  congressional  intent  on an issue, to defer to an agency's reasonable interpretation of its governing statute.   467 U.S. at 843. But Chevron appears to speak to statutory interpretation in those in- stances where Congress delegated rule-making power to an agency and thereby sought to rely on agency expertise in the formulation of substantive policy. See id. at 865. An issue concerning a statute's effective date is not one that implicates agency expertise in a meaningful way, and does not, therefore, appear to require Chevron deference. See Goncalves, 144 F.3d at 127. Rather, the question of a statute's

166 F.3d 225, *240; 1999 U.S. App. LEXIS 989, **48

Page 18

*240   effective date appears to present "a pure question of statutory construction for the courts **49   to decide." INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 94 L. Ed. 2d

434, 107 S. Ct. 1207 (1987).

We need not decide, however, whether Chevron def- erence  applies.  Assuming  arguendo  that  Chevron  does apply, it directs us to ascertain, by "employing traditional tools of statutory construction," whether Congress has ex- pressed "an intention on the precise question at issue." 467

U.S. at 843 n.9. By following that direction, we conclude that AEDPA does contain an expression of congressional intent  and  that  Congress's  intent  was  that  the  AEDPA amendment to § 212(c) was not to be applied to pending cases.

In Landgraf, the Court set forth the now-familiar prin- ciples for determining the temporal reach of a statute:

When a case implicates a federal statute en- acted after the events in suit, the court's first task is to determine whether Congress has ex- pressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether **50    it would impair rights a  party  possessed  when  he  acted,  increase a  party's  liability  for  past  conduct,  or  im- pose new duties with respect to transactions already completed. If the statute would oper- ate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

511 U.S. at 280. Thus, Landgraf contemplates a two- step inquiry:  First,  a determination,  using the ordinary tools  of  statutory  construction,  whether  Congress  pre- scribed the temporal compass of the statute, and, if not, second, a determination whether application would have a "retroactive effect."

The Court elaborated upon Landgraf in Lindh, where the  Court  was  called  upon  to  determine  the  temporal

reach of another AEDPA provision--one that heightens the standards for granting § 2254 habeas relief in non- capital cases. The Lindh Court, speaking through Justice Souter, emphasized early in the opinion that HN20  "in determining a statute's temporal reach generally, our nor- mal rules of construction apply." 117 S. Ct. at 2063. It noted that AEDPA set up one set of rules for noncapital cases--for which Congress provided **51   no effective date--and another for capital cases--for which Congress made  express  provision,  i.e.,  the  rules  would  apply  to pending cases. Accordingly, the Court held that Congress had, by negative implication, expressed its intent that the rules pertaining to noncapital cases apply only prospec- tively, stating that "nothing, indeed, but a different intent explains the different treatment." Id. at 2064. In so hold- ing, the Lindh Court made clear that the rule of negative implication is part of the normal rules of statutory con- struction. Lindh amplified the first step of the Landgraf analysis,  making clear that if the statutory construction inquiry yields the answer that Congress intended prospec- tivity, the inquiry ends and the court need not engage in an analysis of whether there would be a "retroactive effect." Id.;  see also Mathews v. Kidder Peabody, 161 F.3d 156

(3d Cir. 1998) (noting that Lindh "essentially adds a step"

to the Landgraf inquiry).

When the Attorney General considered the applicabil- ity of AEDPA § 440(d) to pending cases in Soriano, she found that it did not contain an express directive, and then proceeded to consider **52   whether its application to pending cases would have an impermissibly retroactive effect. Applying this second step in the Landgraf analy- sis, she concluded that AEDPA § 440(d) would not have such an effect. In urging the correctness of this decision, the government relies,  as did the Attorney General,  on our decision in Scheidemann v. INS, 83 F.3d 1517 (3d Cir.

1996). However, both Soriano and Scheidemann were is- sued without the benefit of the Lindh court's elaboration of Landgraf principles.

The  issue  in  Scheidemann  was  whether  a  1990 amendment to INA § 212(c)--one that made "aggravated felonies" a disqualification for discretionary relief--was intended to encompass

166 F.3d 225, *241; 1999 U.S. App. LEXIS 989, **52

Page 19

*241     pre-enactment  convictions.  In  examining  the text of the relevant statutory provisions in their context, we  concluded  that  the  "design  of  the   statute   clearly demonstrated  that  Congress  intended  the  temporally- unrestricted definition of 'aggravated felony' to apply to pre-enactment convictions." Id. at 1524. We stated that this interpretation was the only "sensible" one, and that a contrary interpretation would have rendered a congres- sional provision **53   "absurd." Id. at 1526.

That issue was different than the one before us now under a different statute. Even in Scheidemann, where we held  the  1990  amendment  applicable  to  pre-enactment conduct, we specified that such construction was appli- cable only to aliens who applied for discretionary relief after the effective date of the 1990 amendment. See id.  at

1526 & n.12.

We thus apply the analysis instructed by Lindh, which was  unavailable  both  in  Scheidemann  and  in  Soriano. Section 440(d) bears no effective date, although it does provide  that  pre-enactment  offenses  should  be  consid- ered. However,  several other comparable provisions do have express effective dates. For example, AEDPA § 413, entitled "Denial of Other Relief for Alien Terrorists," (like AEDPA § 440(a)) makes relief that was previously avail- able at the agency's discretion unavailable to aliens fit- ting a particular description, that of an "alien terrorist." Significantly, § 413 (unlike § 440(d)) includes a provision making it effective with respect to "applications filed be- fore, on or after the date of enactment  if final action has not been taken on them before **54  such date." AEDPA

§ 413(g). This difference in treatment between "alien ter- rorists" under § 413 and aliens convicted of the referenced crimes under § 440(d) leads to the negative implication that Congress intended the AEDPA amendments to apply in pending cases with respect to the former group of aliens but not the latter. HN21  "Where Congress includes par- ticular language in one section of a statute but omits it in another section of the same Act,  it is generally pre- sumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Cardoza-Fonseca,

480 U.S. at 432 (alteration in original) (internal quotation marks omitted).

The legislative history of the revision to § 212(c) lends firm support to this reading of the statute. See id. at 432

(using  legislative  history  to  confirm  textual  reading  of statute). The Senate version of the bill had within it lan- guage expressly making the amended INA § 212(c) appli- cable to pending cases, while the comparable section of the House version did not. Compare S. 735, 104th Cong. §

303(f) (1995), with H.R. 2703, 104th Cong. § 662 (1996). The final bill that emerged from the **55    conference committee dropped the language from the Senate bill that would have made the amendment to § 212(c) applicable in pending proceedings, but retained the language from the House bill that made the amendments with respect to alien terrorists applicable to pending cases. See H.R. Rep. No.

104-518, at 119 (1996), reprinted in 1996 U.S.C.C.A.N.

944,  952;  see also Gonclaves,  144 F.3d at 131-32 (ex- haustively  canvassing  the  legislative  history).  This  leg- islative history confirms that Congress deliberately chose to  make  AEDPA  §  440(d)  apply  prospectively.  As  the Court noted in Cardoza-Fonseca,   HN22  "Few princi- ples of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language." 480 U.S. at 442-43 (internal quotation marks omitted).

Thus,  according to the Lindh Court's explication of Landgraf,  we  can  discern  by  negative  implication  that AEDPA  §  440(d)  was  not  intended  to  apply  to  cases pending on the date of enactment. Commenting on a sim- ilar  issue  of  statutory  construction,  the  Supreme  Court had previously **56   directed that, HN23  "If a court, employing traditional tools of statutory construction, as- certains  that  Congress  had  an  intention  on  the  precise question at issue,  that intention is the law and must be given  effect."  Chevron,  467  U.S.  at  843  n.  9.  Because the Lindh court has made clear that the rule of negative implication is part of the normal rules of

166 F.3d 225, *242; 1999 U.S. App. LEXIS 989, **56

Page 20

*242   construction, the Chevron instruction is satisfied as well.

In  sum,  we  conclude  that  Congress  did  indeed  ex- press an intent that AEDPA's amendment to INA § 212(c) should not apply to cases pending on the date of enact- ment, and so hold. Accord Henderson, 157 F.3d at 129-

30; Goncalves, 144 F.3d at 128-31. Therefore, we need not reach the question whether AEDPA § 440(d) violates the Equal Protection Clause. Consequently, we conclude that the District Court did not err in directing the agency to decide the merits of Sandoval's claim for discretionary relief.

IV. CONCLUSION

For the foregoing reasons, in Nos. 98-1099 and 98-

1547 we will affirm the decision of the District Court and in No. 98-3214 we will dismiss the Petition for Review.

CONCURBY:   **57   ALITO (In Part) DISSENTBY: ALITO (In Part) DISSENT:

ALITO, Circuit Judge, concurring in part and dissent- ing in part:

I agree with LaGuerre v. Reno, 164 F.3d 1035, 1998

WL  912107,  at  1-2  (7th  Cir.  1998),  that  Congress  has eliminated  the  district  courts'  jurisdiction  to  entertain habeas  petitions  such  as  the  one  at  issue  here.  Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,

110  Stat.  1214,  Section  106(a)  of  the  Immigration  and Nationality Act ("INA"), 8 U.S.C. § 1105a (a), provided that a petition for review filed in a court of appeals was, with a few specified exceptions, "the sole and exclusive procedure for . . . the judicial review of all final orders of deportation." One of the specified exceptions provided that "any alien held in custody pursuant to an order of de- portation could  obtain judicial review thereof by habeas corpus proceedings." Section 106 (a)(10) of the INA, 8

U.S.C. § 1105a(a)(10).

AEDPA  changed  this  scheme.  Section  401(e)  of AEDPA,   entitled   "ELIMINATION   OF   CUSTODY REVIEW BY HABEAS CORPUS," struck former sub-

section **58    (10). Section 440(a) of AEDPA substi- tuted the following language for the former text of that subsection:

Any  final  order  of  deportation  against  an alien who is deportable by reason of having committed a criminal offense covered in sec- tion 241(a)(2) (A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for  which  both  predicate  offenses  are  cov- ered by section 241(a)(2)(A)(i), shall not be subject to review by any court.

In my view,  the text of Section 106(a) as amended by AEDPA precluded the type of habeas proceeding that is  now  before  us.  After  AEDPA,  the  introductory  por- tion  of  Section  106(a)  still  provided  that  a  petition  for review by a court of appeals was "the sole and exclusive procedure  for.  .  .  the  judicial  review  of  all  final  orders of deportation"; the exception previously set out in sub- section  (10),  which  permitted  an  alien  held  in  custody pursuant  to  an  order  of  deportation  to  obtain  "judicial review" of that order by means of a habeas corpus pro- ceeding, had been pointedly repealed in a statutory section labeled "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS";  and in the place of this previous exception,  there  was  inserted  language   **59    stating that such deportation orders "shall not be subject to re- view  by  any  court."  These  provisions  are  clear --  they eliminated habeas jurisdiction --  and it is therefore un- necessary to consider the effect of related provisions of the subsequently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, 110 Stat. 3009 (1996), for whatever effect these pro- visions had, they most certainly did not restore the district courts' jurisdiction to entertain the type of habeas petition that is at issue.

In concluding that AEDPA did not touch the district courts' habeas jurisdiction, the majority invokes the prin- ciple  that  repeals  of  habeas  jurisdiction  should  not  be presumed. See Felker v. Turpin,  518 U.S. 651,  658-60,

135 L. Ed. 2d 827, 116 S. Ct. 2333 (1996). The majority then reasons that the amendment of Section 106(a)(10) did not affect the district courts' habeas jurisdiction under a separate statutory provision, 28 U.S.C. § 2241. This in- terpretation, however, presents numerous problems. First, it ignores the plain meaning of INA Section 106(a), which, after AEDPA,

166 F.3d 225, *243; 1999 U.S. App. LEXIS 989, **59

Page 21

*243    stated that --   **60    with a few, specified and non-pertinent  exceptions  --  a  petition  for  review  by  a court of appeals was "the sole and exclusive procedure for . . . judicial review of all final orders of deportation." Second, the majority's interpretation ignores the heading of Section 401(e) of AEDPA, viz., "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS." Third, the majority's interpretation ignores the clear meaning of the new text that was placed in Section 106(a)(10), which stated unequivocally that final orders of deportation such as the one at issue here "shall not be subject to review by  any  court."  Fourth,  the  majority's  interpretation  has the perverse effect of lengthening the process of judicial review of deportation orders based on the commission of a criminal offense.

The         majority's                analysis  is              not           supported              by

Felker,  which  concerned  the  meaning  of  28  U.S.C.  §

2244(b)(3)(E). This provision, which states that a court of appeals order granting or denying authorization to file a second or successive habeas application is not subject to review by means of a petition for rehearing or certiorari, does not state that the Supreme Court cannot review such an **61   order in an original habeas proceeding, and the Court refused to conclude that § 2241(b)(3)(E) implicitly effected that result. Here, by contrast, Section 106(a) of the INA, as amended by AEDPA, expressly precluded a district  court  from  exercising  habeas  jurisdiction  under

the  circumstances  present  in  this  case.  Accordingly,  in No. 98-1099, I would reverse the judgment of the District Court and remand with instructions to dismiss. This re- sult  does  not  implicate  the  Suspension  Clause  because any judicial review to which Sandoval is constitutionally entitled can and should be provided by means of a petition for review filed in our court.

Such a petition is before us in No. 98-3214. However, in  Morel  v.  INS,  144  F.3d  248  (3d  Cir.  1998),  another panel of our court, while recognizing that an alien subject to an order of deportation is entitled to "Article III re- view of claims of 'substantial Constitutional error,' " held that such an alien is not constitutionally entitled to review of a non-constitutional claim.   Id. at 251. If Morel too narrowly construed the scope of the review to which a pe- titioner like Sandoval is constitutionally entitled,   **62  Morel should be overruled. The problem should not be compounded by authorizing the district courts to exercise a type of habeas jurisdiction that Congress curtailed. For present purposes, however, since Morel is binding on this panel, I agree with the majority that we must dismiss the petition insofar as it asserts non-constitutional claims. I add that, if we were free to reach the merits, I would follow the Seventh Circuit's analysis in LaGuerre. I would also deny the petition insofar as it asserts an equal protection claim. See LaGuerre, 1998 WL 912107 at 4-5.

	Contents    Prev    Next    Last