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. e du/thir dc ir c uit_1999/23Filed January 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1099* and 98-1547*

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

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 Ju dge

No. 98-3214

REYNALDO SANDOVAL,

Petitioner

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent

___________________________________________________ ______________ *Nos. 98-1099 and 98-1547 were consolidated for all purposes.On Petition for Review of an Order of

the Board of Immigration Appeals (A90 562 282)

Argued September 28, 1998

Before: SLOVITER, SCIRICA and ALITO, Circuit Judges

(Filed January 26, 1999)

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. 20044

Attorneys for Respondents/Appellants

Lee Gelernt (Argued) Lucas Guttentag Cecillia Wang

American Civil Liberties Union Immigrants' Rights Project New York, N.Y. 10004-2400

Steven A. Morley (Argued) Bagia & Morley Philadelphia, PA 19106

Attorneys for Appellee/Petitioner

2Lenni B. Benson

New York Law School New York, N.Y. 10013

Jeffrey A. Heller Seton Hall University School of Law Newark, N.J. 07102

Attorneys for Amici Law Professors

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

INTRODUCTION

In 1996, the 104th Congress passed, and the Preside nt signed into law, two bills that made sweeping chang es in the immigration laws: the Antiterrorism and Effecti ve Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Refo rm and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pu b. L. No. 104-208, 110 Stat. 3009 (1996). This case concerns the effect of these statutes on the jurisdiction of a d istrict 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 i n part Reynaldo Sandoval's petition for a writ of habeas c orpus. The Attorney General, the INS, the INS Commissioner , and the Acting Regional Director of the INS (collective ly "the government") appeal from the District Court's exerc ise of jurisdiction under 28 U.S.C. S 2241 and from its subsequent decision on the merits. Sandoval's brief as appellee is supported by an amicus brief filed by a group of twenty-three law professors urging affirmance of th e District Court.

3The jurisdictional question is whether, in enacting

AEDPA and IIRIRA, Congress stripped the district co urts of habeas jurisdiction over deportation proceedings, a n inquiry that could implicate the Suspension Clause of the Constitution. If the District Court had jurisdictio n, we will have to decide a question of statutory interpretati on: whether AEDPA S 440(d), a statutory change that occ urred while Sandoval's case was pending and that makes al iens who have been found guilty of drug offenses ineligi ble for discretionary relief under S 212(c) of the Immigrat ion and Nationality Act ("INA"), 8 U.S.C. S 1182 (Supp. 199 6) (repealed effective April 1, 1997), applies to Sand oval. Only if AEDPA S 440(d) does apply to Sandoval would we n eed to reach his argument that the provision violates equa l protection by precluding deportable aliens who have been convicted of certain crimes from obtaining S 212(c) relief but not precluding excludable aliens who are otherwise identically situated from obtaining that relief, an issue not reached by the District Court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Sandoval, a citizen of Mexico, entered the United S tates 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 S 302, 8 U.S.C.S 116 0. Pursuant to the amnesty program, he was granted Law ful Permanent Resident status in 1990. Accordingly, San doval was entitled to remain in the country, and eventual ly qualify for citizenship, provided that he did not c ommit an act subjecting him to deportation. In 1993, Sandova l was convicted in a state court of marijuana possession, which conviction subjected him to deportation under INA S 241(a)(2)(B)(I), 8 U.S.C. S 1251(a)(2)(B)(1) (cur rent version at 8 U.S.C. S 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 comple ted

4seven years as a legal immigrant, a prerequisite fo r

eligibility for discretionary relief under INA S 21 2(c). Section 212(c), as it stood at the time, granted the Attorn ey General discretion to admit an otherwise deportable alien i f the

alien had established lawful domicile for seven or more years; the provision barred such relief where the a lien had committed two or more crimes of moral turpitude, bu t did not then foreclose discretionary relief in cases wh ere the alien was deportable solely for having committed a drug offense. The Immigration Judge ("IJ") denied the st ay and ruled that (1) Sandoval was deportable, and (2) he had not met the seven-year lawful domicile requirement for eligibility for discretionary relief. Sandoval then appealed this decision to the Board of Immigration Appeals ( "BIA").

While Sandoval's appeal was pending, Congress passe d AEDPA. Section 440(d) of that Act amended INA S 212 (c) so as to make discretionary relief unavailable to thos e aliens who have been convicted of, inter alia, any of the drug offenses set forth in INA S 241(a)(2)(B)(I). On Jul y 16, 1997, the BIA dismissed Sandoval's appeal, noting that AE DPA's amendment of S 212(c) rendered Sandoval "statutoril y ineligible for section 212(c) relief." In doing so, the BIA cited the Attorney General's ruling that AEDPA's revision of S 212(c) applies to pending cases. See Matter of So riano, Interim Decision 3289 (A.G. Feb. 21, 1997). The BIA 's decision rendered Sandoval's deportation order administratively final on July 16, 1997. Because Sa ndoval had attained seven years of domicile before his dep ortation order became final, the statutory residency require ment has been met and is no longer an issue in this case. Se e 8 C.F.R. S 3.2(c)(1). Consequently, the amendment to S 212(c) effected by AEDPA is the only ground for statutory ineligibility advanced by the government.

In October, Sandoval filed a motion with the BIA, requesting that the INS reopen his case. He also re quested a stay of deportation from the District Director, w hich was denied. On December 1, 1997, Sandoval filed a petit ion for a writ of habeas corpus in the United States Distri ct Court for the Eastern District of Pennsylvania. His petit ion argued that AEDPA's change to S 212(c) does not apply to c ases pending on the date of enactment (and therefore tha t the

5Soriano decision was incorrect). He also argued tha t AEDPA

S 440(d) violates equal protection. The government moved to dismiss for lack of jurisdiction.

The District Court ruled that it had habeas jurisdi ction under 28 U.S.C. S 2241, reasoning that the relevant provisions of AEDPA and IIRIRA did not effect a rep eal of S 2241 in deportation cases. The court proceeded to rule on the merits of the petition and held that AEDPA S 44 0(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 (1994), and elabor ated in Lindh v. Murphy, 521 U.S. 320 (1997), the District Court held that Congress expressed its intent not to appl y S 440(d) to pending cases. In so doing, the court d id not reach any constitutional issue relating to habeas jurisdiction or the equal protection challenge to A EDPA S 440(d). Consequently, the District Court granted Sandoval's petition in part, ordered the INS to ent ertain the merits of his S 212(c) request and enjoined the gov ernment from deporting Sandoval pending a decision on the m erits of his S 212(c) request.

The government appeals this decision. While this ap peal was pending, the BIA denied Sandoval's motion to re open, and Sandoval then filed a Petition for Review with this court. On August 19, 1998, we consolidated the government's appeal with Sandoval's Petition for Re view.

III.

DISCUSSION

A.

Jurisdiction

1. The Applicable Statutory Changes

On April 24, 1996 the President signed AEDPA into l aw, and on September 30, 1996 IIRIRA was enacted. These two statutes altered many of the substantive provisions of the

6Immigration and Nationality Act (INA) and also made

significant changes in INA's provisions relating to judicial review. Prior to the enactment of AEDPA, judicial r eview of deportation orders ordinarily proceeded by a Petiti on for Review of the INA decision filed in the court of ap peals. See Majority op. at 16 infra. At the same time, INA S 1 06(a)(10) provided for review of a deportation order by habea s corpus proceeding. AEDPA S 401(e) deleted the former text of INA S 106(a)(10). AEDPA S 440(a) substituted therefor t he following language: "Any final order of deportation against an alien who is deportable by reason of having comm itted a criminal offense [covered in the deportation prov isions of the INA] shall not be subject to review by any cour t."1

The judicial review structure for deportation order s was altered several months later with the passage of II RIRA on September 30, 1996. IIRIRA contains two different s ets of rules: the "permanent rules" which generally became effective on April 1, 1997, see IIRIRA S 309(a), an d the "transitional changes in judicial review" ("transit ional rules"), which generally became effective on Octobe r 30, 1996 and which apply to aliens who were placed in r emoval proceedings before April 1, 1997.2

___________________________________________________ ______________

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

Judicial Review.--Section 106 of the Immigra tion 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 c riminal 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 whic h both predicate

offenses are covered by section 241(a)(2)(A)(I), shal l not be subject to

review by any court.

Section 1105a was repealed by IIRIRA S 306(b) with respect to deportation proceedings that were initiated on or a fter April 1, 1997. See IIRIRA SS 306(b), (c), 309. For such proceedings, I IRIRA substitutes new judicial review provisions. See IIRIRA S 306(a). Be cause Sandoval's deportation proceedings commenced before April 1, 1 997, the repealer and the new judicial review rules do not apply to h is case.

2. Both sets of rules were clarified by technical a mendments enacted on October 11, 1997, Pub. L. 104-302, 110 Stat. 3656, 3657.

7One of the transitional rules, IIRIRA S 309(c)(4)(G ),

provides, in relevant part:

[T]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable by r eason 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 effec t as of the date of the enactment of this Act), or any o ffense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicat e offenses are, without regard to their date of commiss ion, otherwise covered by section 241(a)(2)(A)(I) of such Act (as so in effect).3

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

Finally, IIRIRA S 306(a) amends INA S 242(g), 8 U.S .C. S 1252(g), to provide: "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or ac tion by the Attorney General to commence proceedings, adjud icate cases, or execute removal orders against any alien under

this Act."4

The District Court rejected the government's positi on that this provision applies to Sandoval, basing its deci sion on the general effective date provided by IIRIRA S 309 (c)(1). However, section 306(c)(1) states that "the amendme nts made by subsections (a) and (b) [which contain the permanent rules for judicial review] shall apply as provided under section 309, except that subsection (g) of se ction 242

___________________________________________________ ______________

3. By congressional directive, the transitional rul es are not part of the

INA and are not codified in the United States Code.

4. IIRIRA dispenses with the terms "deportation" an d "exclusion," groups these categories under the rubric of "removal," and provides for the uniform administration of removal proceedings. This opinion preserves the distinction between "deportation" and"exclusion " because under AEDPA--which governs this case by virtue of the tra nsitional rules--that distinction continues to have meaning.

8of the Immigration and Nationality Act (as added by

subsection (a)), shall apply without limitation to claims arising from all past, pending, or future exclusion

, deportation, or removal proceedings under such Act" (emphasis added). In light of this provision, we co nclude that the government is correct in arguing that the amended INA S 242(g) applies to this case.

2. Recent Cases Construing the 1996 Amendments

The government argues that as a consequence of thes e three amendments effected by AEDPA and IIRIRA, the District Court had no habeas jurisdiction to review Sandoval's challenges to his final order of deporta tion. In the period following the filing of this appeal, the same question has been decided by five other circuits. T hree of the decisions rejected the government's position; t wo 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 district court's dismissal of an alien's habeas petition, ho lding that Congress did not eliminate habeas jurisdiction unde r S 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 S 2241 to grant writs of habeas corpus to aliens who were deportable because they had committ ed

listed crimes. The Second Circuit relied on its ear lier 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 t he foreclosure of judicial review did not offend the C onstitution

because habeas review under S 2241 remained intact.

Similarly, the Court of Appeals for the Ninth Circu it held in Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 19 98) (per curiam), that the district court retained habeas ju risdiction

under S 2241 to hear the claim of an alien who had committed a drug offense. It reasoned that if IIRIR A were read to eliminate all judicial review of executive detention, it would violate the Suspension Clause. That circui t had previously held, in Hose v. INS, 141 F.3d 932 (9th Cir.

91998), that IIRIRA withdrew the jurisdiction of the district

court to hear a habeas petition by an alien who sou ght to appeal an immigration judge's determination that sh e was excludable. The court noted that the Suspension Cla use was not violated because Hose, who had not been con victed of a listed crime, could have filed a Petition for Review in the court of appeals, an option not available to Ma ganaPizano. On December 2, 1998, the Ninth Circuit gran ted rehearing en banc and withdrew the Hose opinion. S ee 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 distri ct court

in that circuit held that neither AEDPA nor IIRIRA deprived it of its jurisdiction under the general habeas pro vision of 28 U.S.C. S 2241 to hear a similar claim by an alie n. 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 WL 850045 (11t h Cir. Dec. 9, 1998), opinion vacated and superseded, 1998 WL 889376 (11th Cir. Dec. 22, 1998), the Court of Appe als for

the Eleventh Circuit concluded that IIRIRA's amendm ent to INA S 242(g) did eliminate habeas jurisdiction unde r S 2241. The court further held that this elimination of jur isdiction suffered from no constitutional infirmity. Although the petitioner in Richardson was an alien who was detai ned upon re-entry into the United States, and therefore the case arose in a slightly different procedural posture, t he case otherwise involves the same statutory provisions an d applicable legal principles.

The Court of Appeals for the Seventh Circuit quickl y followed Richardson in LaGuerre v. Reno , 1998 WL 9 12107 (7th Cir. December 22, 1998), with a similar holdin g. It agreed with the conclusion that AEDPA S 440(a) depr ives the district courts of habeas jurisdiction with res pect to the

executive's detention of aliens who have been convi cted of the enumerated crimes. The court proceeded to read the statute as permitting such aliens to bring constitu tional challenges to their detention in the courts of appe als by means of a petition for review, notwithstanding the general bar to petitions for review in AEDPA. The court ado pted this

10construction of the statute on the basis of a "pres umption

that executive resolutions of constitutional issues are judicially reviewable." Id. at *4.

For the reasons set forth hereafter, we conclude th at the district courts continue to have habeas jurisdictio n under S 2241. Our colleague who dissents on this portion of our holding does so on the basis of the reasoning in La Guerre. The resulting division among the courts on this imp ortant issue leaves the definitive interpretation for reso lution by the Supreme Court.

In addition to those courts who have directly ruled on the issue, others have addressed the jurisdictional iss ue 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 deported for any of the criminal activity referenced in INA S 241(a)(2)(C), have sta ted that some degree of judicial review under habeas corpus remains available, although they did not specify th e 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, 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 2 48 (3d Cir. 1998), we agreed with the other circuits on th is issue. We too held that AEDPA S 440(a) deprived us of juri sdiction to entertain claims of legal error in a Petition fo r Review brought by an alien who was convicted of one of the crimes referenced in INA that disqualify an alien for S 21 2(c) discretionary relief. We were not faced with the is sue of habeas jurisdiction in Morel and therefore did not address it, but in concluding that the elimination of our r eview jurisdiction was constitutional, we relied on the government's concession that some form of review fo r 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 th e

11district courts to review claims by aliens who have been

ordered deported based on their criminal acts, notwithstanding the AEDPA and IIRIRA amendments rel ied on by the government. This question implicates the longstanding doctrine disfavoring repeal of jurisdictio nal statutes by implication.

The Supreme Court had occasion to apply this doctri ne recently in Felker v. Turpin, 518 U.S. 651 (1996). Felker involved AEDPA S 106(b), which bars state inmates f rom filing "second or successive" habeas corpus petitio ns without first obtaining permission from a three-jud ge panel of the relevant court of appeals. The statute provi des that a panel's grant or denial of authorization to file" shall not be appealable and shall not be the subject of a pet ition for . . . writ of certiorari." AEDPA S 106(b)(3)(E), co dified at 28 U.S.C. S 2241(b)(3)(E). Noting that "[n]o provision of Title I mentions our authority to entertain original habeas petitions," the Court held that because repeals by implication are not favored, AEDPA's prohibition on certiorari jurisdiction over court of appeals panel decisions on second or successive petitions did not preclude the Supreme Court from exercising its original habeas jurisdiction under 28 U.S.C. SS 2241 and 2254. 518 U.S. at

660.

The Felker Court took guidance from Ex Parte Yerger , 75 U.S. 85 (1869), in which the Court, when faced with a similar repeal of its appellate jurisdiction well o ver a century ago, found that its habeas jurisdiction was intact. But to appreciate the significance of Yerger fully , we must go back to Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869). McCardle, like Yerger, involved an 1867 statute tha t authorized the federal courts to entertain habeas p etitions by state or federal prisoners and also authorized t he Supreme Court to hear appeals from the federal cour ts in habeas cases. McCardle, who was in federal custody, sought habeas relief. While the case was pending be fore the Supreme Court in 1868, Congress enacted, over Presi dent Andrew Johnson's veto, a bill repealing the portion of the 1867 statute that conferred appellate jurisdiction on the Supreme Court over habeas proceedings. The McCardle court held that it had no jurisdiction because the 1867

12conferral of appellate review power had been repeal ed by

the 1868 enactment.

The McCardle court, however, was not confronted wit h a statute that foreclosed all review. The Court speci fically 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 i n question, that the whole appellate power of the court, in cas es of habeas corpus, is denied. But this is an error. . . . . [The 1868 repealer] does not affect the jurisdiction whi ch 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 Yerg er the Court addressed its power under the general grant o f habeas jurisdiction in the 1789 Judiciary Act. Find ing that the 1868 enactment did not repeal its review power under the prior general grant of jurisdiction, the Court stated:

[T]here are no repealing words in the Act of 1867. If it repealed the Act of 1789, it did so by impli cation .. . .

Repeals by implication are not favored. The y are seldom admitted except on the ground of repu gnancy; 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 establi sh the propositions that courts should not lightly presume that a congressional enactment containing general language effects a repeal of a jurisdictional statute, and, consequently, that only a plain statement of congre ssional intent to remove a particular statutory grant of ju risdiction will suffice. Informed by this precedent, we examin e each of the 1996 statutory provisions that the government contends individually, or in totality, foreclose th e District Court's habeas jurisdiction over Sandoval's deporta tion

order.

a. AEDPA S 401(e)

AEDPA S 401(e), a non-codified provision, struck th e text of former INA S 106(a)(10), a provision added by th e

13Immigration and Nationality Act of 1961, Pub. L. 87 -301,

S 5(a), 75 Stat. 651, and in its place inserted the language set forth in AEDPA S 440(a). Section 106(a)(10) had provided that "any alien held in custody pursuant t o an order of deportation may obtain judicial review the reof by habeas corpus proceedings." The substituted languag e of AEDPA S 440(a) reads: "[a]ny final order of deport ation against an alien who is deportable by reason of hav ing committed a criminal offense covered in [the deport ation provisions of the INA] shall not be subject to revi ew by any court." The government urges that the 1961 Act significantly curtailed habeas jurisdiction in immi gration matters, and that AEDPA S 401(e) eliminated such ve stigial habeas jurisdiction as existed after the 1961 Act. We are not persuaded by either proposition.

In order to analyze this issue, we begin by reviewi ng some of the history of habeas corpus relief and jud icial review in immigration cases. Although the specific reference to habeas jurisdiction in INA S 106(a)(10) was enac ted 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 , 12 4 U.S. 621 (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, succes sfully

turned to the district court for a writ of habeas c orpus. The government argued that under the Chinese Exclusion Acts, passed in the late nineteenth century, aliens exclu ded under the statute were not being deprived of libert y 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 courts' gene ral statutory habeas power "was taken away by the Chine se Restriction Act, which regulated the entire subject matter, and was necessarily exclusive." Id. The Court state d that "[w]e 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

14decisions regarding the exclusion of aliens by prov iding: "All

decisions made by the inspection officers . . . tou ching the right of any alien to land, when adverse to such ri ght, shall be final unless [appealed to the relevant executive officers]." Act of March 3, 1891, ch. 551, S 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 a pparently prompted by congressional dissatisfaction with judi cial intervention in this area. See Gerald L. Neuman, Ha beas Corpus, Executive Detention, and the Removal of Ali ens, 98 Colum. L. Rev. 961, 1008 (1998).

When the Supreme Court addressed the 1891 statute i n Nishimura Ekiu v. United States, 142 U.S. 651 (1892 ), it reaffirmed the availability of habeas to challenge immigration decisions notwithstanding the finality provision. The Court stated: "An alien immigrant, p revented 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 c orpus to challenge the legal basis of his or her detention b y the Executive Branch was firmly established in preceden t more than a century ago.

The Immigration Act of 1917, ch. 29, S 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 St at. 237 (codified at 5 U.S.C. S 500 et seq.), was enacted i n 1946, it was unclear whether the "judicial review" of agency action that it provided extended to immigration cases. The Court answered that question in the negative in Heikkila v. Barber, 345 U.S. 229 (1953), concluding that the Immigration Act was "a statute precluding judicial review" within the meaning of the APA. Id. at 235. In so ho lding, the Court reviewed the period from 1891 (the year i n which Congress passed the first in a series of statutes c onferring finality on the Executive's immigration decisions) until 1952 (the year that Congress authorized APA review of

15immigration decisions), and stated that the legisla tive

regime in force during that period "clearly had the effect of precluding judicial intervention in deportation cas es except insofar as it was required by the Constitution." Id . at 234- 35. Significantly, the Court expressly concluded th at habeas jurisdiction persisted even during this peri od, stating that in light of its decision that the APA did not enlarge the alien's rights, "he may attack a deport ation order only by habeas corpus." Id. at 235.

Heikkila was decided under the Immigration Act of 1 917, which was superseded by the Immigration and Nationa lity Act of 1952. The Supreme Court considered whether t he APA applied to immigration cases under the 1952 Act in Shaughnessy v. Pedreiro, 349 U.S. 48 (1955). In par ticular, the Court focused on S 12 of the APA, which provide d: "No subsequent legislation shall be held to supersede o r modify the provisions of this Act except to the extent tha t such legislation shall do so expressly." 60 Stat. at 244 (codified as amended at 5 U.S.C. S 559). Noting that"[i]n the subsequent 1952 Immigration and Nationality Act the re is no language which `expressly' supersedes or modifie s the expanded right of review granted by S 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 provi sions," id., the district court could review a deportation challenge under the Declaratory Judgment Act. The Court so he ld notwithstanding that the 1952 Act had carried over the provision of the 1917 Act that provided that the At torney General's deportation and exclusion decisions shall be final. Hence, as a result of the Shaughnessy decision, ali ens 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 th e Immigration and Nationality Act of 1961. Act of Sep t. 26, 1961, Pub. L. No. 87-301, S 5, 75 Stat. 651. In tha t Act, Congress restructured judicial review, giving the c ourts of appeals "sole and exclusive" power to review deport ation orders. The government relies on this language in contending that the 1961 Act curtailed habeas juris diction in immigration cases. However, the historical seque nce

16outlined above shows that this "sole and exclusive"

language was addressed to the review provided under the APA, not to habeas jurisdiction. By locating APA re view power in the courts of appeals, Congress sought to eliminate APA review by means of declaratory judgme nt actions in the district courts, a form of review th at Shaughnessy had permitted. The "sole and exclusive" provision was not, as the government suggests, an e ffort to

make APA review in the circuits work to the exclusi on of habeas actions. See Foti v. INS, 375 U.S. 217, 231 (1963) ("[O]ur decision in this case [that the court of ap peals 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 196 1 Act is evidenced by the inclusion of S 106(a)(10), a ne w provision specifically providing that habeas jurisd iction was available for deportees. The legislative history ma kes clear that this provision was added out of concern that t he "sole and exclusive" language might be read to deprive th e courts of habeas jurisdiction, thereby creating a constitu tional problem. The House Report states:

The section clearly specifies that the right to habeas corpus is preserved to an alien in custody u nder a deportation order. In that fashion, it excep ts habeas corpus from the language which elsewhere dec lares that the procedure prescribed for judicial r eview in

circuit courts shall be exclusive. The secti on in no way disturbs the Habeas Corpus Act in respect to the courts which may issue writs of habeas corpu s: aliens are not limited to courts of appeals in seek ing habeas

corpus.

H.R. Rep. No. 87-1086 at 29 (1961), reprinted in 1 961 U.S.C.C.A.N. 2950, 2973.

Consequently, S 106(a)(10) as it existed under the 1961 Act cannot be said to have conferred habeas jurisdi ction on the district courts. Such jurisdiction, recognized since the late nineteenth century, existed independently of t he 1961

Act. This inclusion of a reference to habeas relief is best understood as congressional acknowledgment that the

17district courts continued to have habeas jurisdicti on even

though APA review was channeled to the courts of ap peals. The foregoing effectively refutes the government's contention that AEDPA's S 401(e) repeal of INAS 106 (a)(10) eliminated the district courts' jurisdiction to rev iew deportation orders in habeas corpus proceedings. An d since AEDPA S 401(e) does not manifest an intent to repea l the original grant of habeas corpus jurisdiction, curre ntly embodied in 28 U.S.C. S 2241, the elimination of IN A's reference to habeas jurisdiction does not overcome the presumption against finding a repeal of habeas corp us by implication. Accord Goncalves, 144 F.3d at 121 ("It does not follow from the repeal of [INA S 106(a)(10)] that S 2241 habeas jurisdiction has been repealed altogether in immigration cases. Had Congress wished to eliminate any possible habeas jurisdiction under 28 U.S.C. S 2241 , it could have easily inserted an explicit reference, b ut it did not."); Lee, 15 F. Supp. 2d at 39 (" `[T]he bark of [AEDPA S 401(e)] is worse than its bite. . . .[T]he sectio n only eliminates the INA habeas provision without mention of S 2241.' ").

Our dissenting colleague places great importance on the fact that AEDPA S 401(e) was titled "Elimination of Custody Review by Habeas Corpus." However, as the Supreme C ourt has repeatedly noted, a title alone is not controll ing. See Pennsylvania Dept. of Corrections v. Yeskey, 118 S. Ct. 1952, 1956 (1998) (" `[T]he title of a statute . . . cannot limit the plain meaning of the text. For interpretive pur poses, [it is] of use only when [it] shed[s] light on some amb iguous word or phrase.' " (quoting Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)). There is no text in the AEDPA amendments referring to habeas corpus rev iew.

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

The government also relies for its jurisdictional c hallenge on Congress's declarations in AEDPA S 440(a) that deportation orders relating to aliens found to have committed the specified offenses "shall not be subj ect to review by any court," and in IIRIRA S 309(c)(4)(G), a transitional rule, that "there shall be no appeal p ermitted" in the case of an alien who is inadmissible or depo rtable by reason of having committed a criminal offense [cove red in

18the deportation provisions of the INA]." These stat ements, it

contends, are express indications that Congress sou ght to preclude habeas jurisdiction. We disagree. Neither of these provisions specifically mentions jurisdiction under S 2241. Hence, under Felker and Yerger, we do not find a sufficiently clear statement of congressional inten t 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 toget her with the new Act." 75 U.S. at 105. When viewed in light of the history of the Court's treatment of habeas jurisdic tion in deportation cases, the references to "review" in th e AEDPA provision and to "appeal" in the IIRIRA provision a re 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 be tween "judicial review"--meaning APA review--and the cour ts' power to entertain petitions for writs of habeas co rpus.

As noted above, the Supreme Court in Heikkila held that although the 1917 Immigration Act was a "statute precluding judicial review" within the contemplatio n 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 1 917 Acts did not include habeas corpus; the Court expressly rejected the conclusions of three courts of appeals 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 differentiatio n between "judicial review" on the one hand and writs of habe as corpus on the other. "It is always appropriate to a ssume that our elected representatives, like other citize ns, know the law. . . . . [I]t is not only appropriate but a lso realistic to presume that Congress was thoroughly familiar wi th these unusually important precedents from this and other federal courts and that it expected its enactment t o be interpreted in conformity with them." Cannon v. Uni versity of Chicago, 441 U.S. 677, 696-97, 699 (1979). Hence AEDPA S 440(a) and IIRIRA S 309(c)(4)(G) are most reasonably understood as foreclosing judicial revie w under

19the APA, and not as relating to habeas jurisdiction under

28 U.S.C. S 2241.

c. IIRIRA S 306(a)'s amendment of INAS 242(g)

The government also urges that INA S 242(g), as ame nded by IIRIRA S 306(a), precludes the federal courts fr om hearing claims arising from removal proceedings unl ess they are brought in a petition for review. It argue s that S 242(g) is an expression of congressional intent t o channel all deportation review into the courts of appeals. Section 242(g) states:

Exclusive Jurisdiction. Except as provided i n this section and notwithstanding any other provis ion of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising f rom the decision or action by the Attorney General t o commence proceedings, adjudicate cases, or e xecute removal orders against any alien under this Chapter.

The principles enunciated in Felker and Yerger appl y with equal force with respect to this provision. As ther e is no express reference to jurisdiction under 28 U.S.C.S 2241 in this provision, the rule disfavoring implied repeal s requires us to conclude that jurisdiction under S 2241 is pr eserved under the amended INA S 242(g). Accord Goncalves, 1 44 F.3d at 122; Lee, 15 F. Supp. 2d at 39 ("[T]he `notwithstanding' provision [of the new S 242(g)] i s simply insufficient in light of Felker for the Court to im ply a repeal of S 2241.").

We are unpersuaded by the government's argument tha t the rule disfavoring repeals by implication does no t apply here because the new INA S 242(g) sets up a compreh ensive jurisdictional scheme which displaces, by virtue of its comprehensiveness, any other jurisdictional grant. In advancing this contention, the government cites as support the Supreme Court's decision in Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). T hat case concerned an action filed by Amerada Hess agai nst 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 T ort

20Statute, 28 U.S.C. S 1350. Argentina moved to dismi ss 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 th at because the FSIA had not repealed the earlier Alien Tort Statute, the prior statute continued to provide a b asis for jurisdiction. The Supreme Court reversed, concludin g that the principle disfavoring repeals by implication ha d no applicability to the FSIA, as "Congress' decision t o deal comprehensively with the subject of foreign soverei gn immunity in the FSIA, and the express provision[gra nting foreign states immunity in federal and state courts except as provided in the FSIA], preclude a construction o f the Alien Tort Statute" that would permit a suit agains t a foreign nation. 488 U.S. at 438.

We believe that Amerada Hess does not tilt the determination here in favor of the government's pos ition. In reaching its holding, the Amerada Hess Court noted that its decision rested in part on the fact that the applic ability of the Alien Tort Statute to suits against sovereign n ations was uncertain from the outset. Id. at 436. Thus, th e Court reasoned, "Congress's failure in the FSIA to enact an express pro tanto repealer of the Alien Tort Statut e speaks only faintly, if at all, to the issue involved in t his case. In light of the comprehensiveness of the statutory sch eme in the FSIA, we doubt that even the most meticulous draftsman would have concluded that Congress also n eeded to amend pro tanto the Alien Tort Statute." Id. at 437.

Furthermore, in Amerada Hess the Court pointedly no ted that the Court of Appeals had not cited "any decisi on in which a United States court exercised jurisdiction over a foreign state under the Alien Tort Statute." Id. at 436. In other words, there was no long history of exercisin g jurisdiction that would have been disturbed by its decision. In this case, by contrast, there is no lack of clar ity about the historic existence of habeas jurisdiction.

Over a century's worth of precedent and practice unambiguously supports the conclusion that habeas

21jurisdiction is available to aliens in executive cu stody. Chief

Justice Marshall recognized the significance of the writ of habeas corpus in Ex Parte Bollman, 8 U.S. (4 Cranch ) 75 (1807). In reference to section 14 of the Judiciary Act of 1789, the original predecessor of 28 U.S.C. S 2241, he

stated:

[T]his act was passed by the first Congress of the United States, sitting under a constitution which had declared `that the privilege of the writ of habeas corpus should not be suspended, unless when, in cas es of rebellion or invasion, the public safety mig ht require it.'

Acting under the immediate influence of thi s injunction, they must have felt, with peculi ar force, the obligation of providing efficient means by w hich this great constitutional privilege should receiv e life and activity; for if the means be not in existen ce, 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 la te nineteenth century to confer finality on the immigr ation decisions of the Attorney General, the Court has consistently recognized the availability of habeas relief to aliens facing deportation. See Majority op. at 12-1 7 supra. In light of this precedent, nothing less than an ex press statement of congressional intent is required befor e a grant of habeas corpus jurisdiction as provided in 28 U.S .C. S 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 INAS 242(g). Accordingly, we apply the rule of Felker and Yerger

. Because this provision is no more specific with res pect to jurisdiction under S 2241 than any of the others ca nvassed in this opinion, we discern no express repealer of the district courts' jurisdiction under S 2241.

We note that this reading comports with our obligat ion to read statutes to avoid serious constitutional probl ems, such

as those we would face were IIRIRA read to take awa y habeas jurisdiction as well as APA review. See Edwa rd J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const r. Trades

22Council, 485 U.S. 568, 575 (1988); United States ex rel.

Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (court should interpret statute to avoid "grave and doubtful constitutional questions").

The Suspension Clause of the United States Constitu tion 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. Co nst. art. I, S 9, cl. 2. In Swain v. Pressley, 430 U.S. 372 ( 1977), the

Court considered an amendment to the District of Columbia Code by which Congress divested the distri ct courts of habeas jurisdiction and substituted a col lateral proceeding in that District's Superior Court, patte rned after 28 U.S.C. S 2255. The Court held that the legislati on did not violate the Suspension Clause because "the substitution of a collateral remedy which is neithe r inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the w rit of habeas corpus." 430 U.S. at 381. A statute removing all review of executive detention, however, would not p rovide an adequate and effective collateral remedy.

Recognizing that its interpretation might lead to j ust such a constitutional dilemma, the government conte nds that under the 1996 amendments there is jurisdictio n in the courts of appeals to entertain claims of "subst antial constitutional error" by aliens in Sandoval's posit ion. This argument must fail because of the absence of any su pport, either in the statute or in the legislative history . The government's briefs cite no provision of AEDPA or I IRIRA that supports its reading and it conceded at oral a rgument that there is no specific provision granting us jur isdiction over substantial constitutional claims. Although th e government's argument would have more force if ther e were a constitutional imperative to read the 1996 statut es in that manner, our conclusion that the statutes have left habeas jurisdiction intact in the district courts r emoves any such imperative.

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

S 2241 survives the 1996 amendments.

234. Scope of Review Under Habeas Jurisdiction

The jurisdictional holdings of the courts in Richar dson and LaGuerre relieved them of any consideration of the scope of review under habeas corpus. Because the co urts in Goncalves, Henderson, Magana-Pizano , and Lee susta ined habeas jurisdiction under S 2241, they reached that issue and held that S 2241 jurisdiction covered not only

constitutional claims but also the aliens' statutor y claim that the Attorney General had S 212(c) to apply to pending

cases.

Inasmuch as the language of the habeas corpus statu te encompasses claims that one "is in custody in viola tion of

the Constitution or laws or treaties of the United States," 28 U.S.C. S 2241(c)(3), we agree that Sandoval's st atutory claim is cognizable in a habeas corpus proceeding. 5 Furthermore, the Supreme Court has repeatedly recog nized that aliens 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 requ ired by the Constitution. See, e.g., United States ex re l. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954) ("The cruc ial question is whether the alleged conduct of the Atto rney General deprived petitioner of any of the rights gu aranteed him by the statute or by the regulations issued pur suant thereto."); Gegiow v. Uhl, 239 U.S. 3, 9 (1915) ("T he courts are not forbidden by the statute to consider whethe r the reasons, when they are given, agree with the requir ements of the act. The statute, by enumerating the conditi ons upon which the allowance to land may be denied, prohibit s the

denial in other cases. And when the record shows th at a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus.").

We therefore agree with the legal conclusion reache d by the District Court here that it had jurisdiction, i n a habeas proceeding, to consider the statutory claim raised by

___________________________________________________ ______________

5. This does not mean that a district court reviewi ng a deportation claim in a habeas proceeding necessarily has the same jur isdiction that a court of appeals previously had under a Petition fo r Review, an issue we

leave for future decision.

24Sandoval. Accord Henderson, 157 F.3d at 122 (Statut ory

claims "affecting the substantial rights of aliens of the sort the courts have secularly enforced" are reviewable on habeas); Goncalves, 144 F.3d at 124-25 ("The pure statutory claims Goncalves makes here are well with in precedent interpreting the core habeas protection p rovided by S 2241."); Lee, 15 F. Supp. 2d at 42 ("[P]recede nt and reason fully persuade me that the Constitution contemplates that courts inquiring into the legitim acy of

executive detention on habeas must be available 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 R eview from the Board of Immigration Appeals, No. 98-3214, which we consolidated with the government's appeal from t he District Court's grant of relief to Sandoval under its habeas corpus jurisdiction. The government argues that we lack subject matter jurisdiction to entertain Sandoval's Petition for Review, and cites in support our recent decisio n in Morel, holding that AEDPA S 440(a) "removes from us jurisdiction to review a claim of legal error in de portation proceedings." 144 F.3d at 251. Sandoval recognizes that a decision by this court that the District Court had jurisdiction under habeas corpus to review his clai m would

obviate the need for us to consider his Petition fo r 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.6

___________________________________________________ ______________

6. Because of our conclusion that jurisdiction unde r 28 U.S.C. S 2241 covers statutory, as well as constitutional claims, we need not decide whether the claimed existence of jurisdiction in th e courts of appeals to review substantial constitutional claims, but not s tatutory claims, would be an adequate alternative.

25B.

Applicability of the AEDPA Amendment to INA S 212(c) to Sandoval

Having determined that the District Court properly exercised habeas jurisdiction, we turn to consider the government's argument that the District Court erred in holding that AEDPA S 440(d) does not apply to depri ve Sandoval of the opportunity to seek discretionary r elief under INA S 212(c). Prior to AEDPA, INA S 212(c) pe rmitted deportable aliens, other than those who had committ ed specified crimes (such as aggravated felonies and c rimes of moral turpitude), to apply to the Attorney General for a waiver of deportation. AEDPA S 440(d) added drug of fenses to the list of deportable offenses that made aliens ineligible for discretionary relief.7 The provision precluding discretionary relief for those convicted of drug of fenses was not in effect at the time Sandoval sought to petiti on under INA S 212(c). The IJ denied Sandoval on the ground that he

___________________________________________________ ______________

7. AEDPA S 440(d) amends 8 U.S.C. S 1182(c). As ame nded, the statute

reads in full:

Aliens lawfully admitted for permanent resid ence who temporarily proceeded abroad voluntarily and not under a n order of deportation, and who are returning to a lawful unrelinqui shed domicile of seven consecutive years, may be admitted in the di scretion of the

Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C )). Nothing contained

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 subsection shall not apply to an alien who is deportable by reason of having committed any criminal offe nse 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 of fenses are covered by section 241(a)(2)(A)(I).

See AEDPA S 440(d). Section 1182(c) was repealed by IIRIRA with respect to cases in which the INS instituted removal procee dings on or after April 1, 1997. See IIRIRA S 309. Because the INA in itiated removal proceedings against Sandoval before April 1, 1997, the repeal of S 1182(c) does not apply here.

26did not possess the requisite seven years lawful re sidence.

Sandoval appealed to the BIA.

Before the BIA rendered its decision on Sandoval's appeal, the Attorney General issued her decision in Matter of Soriano, Interim Decision 3289 (A.G. Feb. 21, 19 97), in which she ruled that AEDPA S 440(d) applies to pend ing cases. The BIA, relying on Soriano, dismissed Sando val's appeal on the ground that AEDPA S 440(d) made him ineligible for discretionary relief. The District C ourt disagreed, after analyzing the retroactivity decisi ons in Landgraf v. USI Film Prods., 511 U.S. 244 (1994); L indh v. Murphy, 117 S.Ct. 2059 (1997); and United States v. Skandier, 125 F.3d 1788 (3d Cir. 1997). Therefore, the court entered an injunction staying Sandoval's depo rtation and ordered the INS to consider Sandoval's applicat ion for

relief on its merits.

The government urges that the District Court erred in finding that AEDPA S 440(d) does not apply to Sando val. The government contends that the Attorney General's decision in Soriano is correct, and that her decisi on is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984 ). Sandoval argues that the Supreme Court's decision i n Landgraf, understood in light of the intervening de cision in Lindh, compels the conclusion that S 440(d) is not to be applied to cases pending on the date of enactment.

As a threshold matter, we note that we are doubtful about the appropriateness of Chevron deference in t his setting. Under Chevron, we are required, in the abs ence of a direct expression of congressional intent on an i ssue, to defer to an agency's reasonable interpretation of i ts governing statute. 467 U.S. at 843. But Chevron ap pears to speak to statutory interpretation in those instance s where Congress delegated rule-making power to an agency a nd 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 th at implicates agency expertise in a meaningful way, an d does not, therefore, appear to require Chevron deference . See Goncalves, 144 F.3d at 127. Rather, the question of a statute's effective date appears to present "a pure question

27of statutory construction for the courts to decide. " INS v.

Cardoza-Fonseca, 480 U.S. 421, 446 (1987).

We need not decide, however, whether Chevron defere nce applies. Assuming arguendo that Chevron does apply, it directs us to ascertain, by "employing traditional tools of statutory construction," whether Congress has expre ssed "an intention on the precise question at issue." 46 7 U.S. at 843 n.9. By following that direction, we conclude t hat AEDPA does contain an expression of congressional i ntent and that Congress's intent was that the AEDPA amend ment to S 212(c) was not to be applied to pending cases.

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

When a case implicates a federal statute ena cted after the events in suit, the court's first task i s to determine whether Congress has expressly prescribed th e statute's proper reach. If Congress has done so, of course, there is no need to resort to judici al default rules. When, however, the statute contains n o such express command, the court must determine wh ether

the new statute would have retroactive effec t, i.e., whether it would impair rights a party posse ssed when he acted, increase a party's liability for p ast conduct, or impose new duties with respect to transac tions already completed. If the statute would oper ate retroactively, our traditional presumption t eaches that it does not govern absent clear congressiona l 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 prescribed the temporal compass of the statute, and, if not, secon d, 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 rea ch of another AEDPA provision--one that heightens the standards for granting S 2254 habeas relief in nonc apital cases. The Lindh Court, speaking through Justice So uter, emphasized early in the opinion that "in determinin g a

28statute's temporal reach generally, our normal rule s of

construction apply." 117 S.Ct. at 2063. It noted th at AEDPA set up one set of rules for noncapital cases- -for which Congress provided no effective date--and anot her for capital cases--for which Congress made express prov ision, i.e., the rules would apply to pending cases. Accor dingly, the Court held that Congress had, by negative impli cation, expressed its intent that the rules pertaining to n oncapital cases apply only prospectively, stating that "[n]ot hing, indeed, but a different intent explains the differe nt treatment." Id. at 2064. In so holding, the Lindh C ourt made clear that the rule of negative implication is part of the normal rules of statutory construction. Lindh a mplified the first step of the Landgraf analysis, making cle ar that if the statutory construction inquiry yields the answe r that Congress intended prospectivity, the inquiry ends a nd the court need not engage in an analysis of whether the re would be a "retroactive effect." Id.; see also Math ews v. Kidder Peabody, No. 97-3164 (3d Cir. 1998) (noting that Lindh "essentially add[s] a step" to the Landgraf i nquiry).

When the Attorney General considered the applicabil ity of AEDPA S 440(d) to pending cases in Soriano , she fo und that it did not contain an express directive, and then p roceeded to consider whether its application to pending case s would have an impermissibly retroactive effect. Applying this second step in the Landgraf analysis, she concluded that AEDPA S 440(d) would not have such an effect. In ur ging the correctness of this decision, the government re lies, as did the Attorney General, on our decision in Scheid emann v. INS, 83 F.3d 1517 (3d Cir. 1996). However, both Soriano

and Scheidemann were issued without the benefit of the Lindh court's elaboration of Landgraf principles.

The issue in Scheidemann was whether a 1990 amendment to INA S 212(c)--one that made"aggravated felonies" a disqualification for discretionary reli ef--was intended to encompass pre-enactment convictions. In examining the text of the relevant statutory provis ions in their context, we concluded that the "design of the [statute] clearly demonstrated that Congress intended the temporally-unrestricted definition of `aggravated f elony' to apply to pre-enactment convictions." Id. at 1524. W e stated

29that this interpretation was the only "sensible" on e, and

that a contrary interpretation would have rendered a congressional provision "absurd." Id. at 1526.

That issue was different than the one before us now under a different statute. Even in Scheidemann , wh ere we held the 1990 amendment applicable to pre-enactment conduct, we specified that such construction was ap plicable only to aliens who applied for discretionary relief after the

effective date of the 1990 amendment. See id. at 1 526 &

n.12.

We thus apply the analysis instructed by Lindh , wh ich

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 consi dered. However, several other comparable provisions do hav e express effective dates. For example, AEDPA S 413, entitled "Denial of Other Relief for Alien Terrorists," (lik e AEDPA S 440(a)) makes relief that was previously availabl e at the agency's discretion unavailable to aliens fitting a particular description, that of an "alien terrorist." Signific antly, S 413 (unlike S 440(d)) includes a provision making it ef fective with respect to "applications filed before, on or a fter [the date of enactment] if final action has not been tak en on them before such date." AEDPA S 413(g). This differ ence in

treatment between "alien terrorists" underS 413 and aliens convicted of the referenced crimes under S 440(d) l eads to the negative implication that Congress intended the AEDPA amendments to apply in pending cases with respect t o the former group of aliens but not the latter. "[W]here Congress includes particular language in one section of a st atute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purpo sely in the disparate inclusion or exclusion." Cardoza-Fons eca, 480 U.S. at 432 (alteration in original) (internal quot ation marks omitted).

The legislative history of the revision to S 212(c) lends firm support to this reading of the statute. See id . at 432 (using legislative history to confirm textual readi ng of statute). The Senate version of the bill had within it language expressly making the amended INA S 212(c) applicable to pending cases, while the comparable s ection

30of the House version did not. Compare S. 735, 104th Cong.

S 303(f) (1995), with H.R. 2703, 104th Cong. S 662 (1996). The final bill that emerged from the conference com mittee dropped the language from the Senate bill that woul d have made the amendment to S 212(c) applicable in pendin g proceedings, but retained the language from the Hou se bill that made the amendments with respect to alien terr orists 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 (exhaustively canvassing the legislative history). This legislati ve history confirms that Congress deliberately chose to make A EDPA S 440(d) apply prospectively. As the Court noted in CardozaFonseca, "Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language tha t 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 th at AEDPA S 440(d) was not intended to apply to cases p ending on the date of enactment. Commenting on a similar i ssue of statutory construction, the Supreme Court had previously directed that, "If a court, employing tr aditional tools of statutory construction, ascertains that Co ngress had an intention on the precise question at issue, that intention is the law and must be given effect." Che vron, 467

U.S. at 843 n. 9. Because the Lindh court has made clear that the rule of negative implication is part of th e normal rules of construction, the Chevron instruction is s atisfied as

well.

In sum, we conclude that Congress did indeed expres s an intent that AEDPA's amendment to INA S 212(c) shoul d not apply to cases pending on the date of enactment, an d so hold. Accord Henderson, 157 F.3d at 129-30; Goncalv es, 144 F.3d at 128-31. Therefore, we need not reach th e question whether AEDPA S 440(d) violates the Equal Protection Clause. Consequently, we conclude that t he District Court did not err in directing the agency to decide the merits of Sandoval's claim for discretionary re lief.

31IV.

CONCLUSION

For the foregoing reasons, in Nos. 98-1099 and 98-1 547

we will affirm the decision of the District Court a nd in No.

98-3214 we will dismiss the Petition for Review.

32ALITO, Circuit Judge, concurring in part and dissen ting in

part:

I agree with LaGuerre v. Reno, 1998 WL 912107, at 1 -2 (7th Cir. 1998), that Congress has eliminated the d istrict 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 19 96 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, Sec tion 106(a) of the Immigration and Nationality Act ("INA "), 8 U.S.C. S 1105a (a), provided that a petition for re view filed in a court of appeals was, with a few specified exc eptions, "the sole and exclusive procedure for . . . the jud icial review of all final orders of deportation." One of the spe cified exceptions provided that "any alien held in custody pursuant to an order of deportation [could] obtain judicial review thereof by habeas corpus proceedings." Secti on 106 (a)(10) of the INA, 8 U.S.C. S 1105a(a)(10).

AEDPA changed this scheme. Section 401(e) of AEDPA,

entitled "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS," struck former subsection (10). Section 440 (a) of AEDPA substituted the following language for the fo rmer text of that subsection:

Any final order of deportation against an al ien who is deportable by reason of having committed a c riminal offense covered in section 241(a)(2) (A)(iii ), (B), (C), or (D), or any offense covered by section 241(a )(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject to rev iew by any

court.

In my view, the text of Section 106(a) as amended b y AEDPA precluded the type of habeas proceeding that is now before us. After AEDPA, the introductory portion 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 subsection (10), wh ich permitted an alien held in custody pursuant to an o rder of deportation to obtain "judicial review" of that ord er by means of a habeas corpus proceeding, had been point edly repealed in a statutory section labeled "ELIMINATIO N OF

33CUSTODY REVIEW BY HABEAS CORPUS"; and in the place

of this previous exception, there was inserted lang uage stating that such deportation orders "shall not be subject to review by any court." These provisions are clear-- they eliminated habeas jurisdiction -- and it is therefo re unnecessary to consider the effect of related provi sions of the subsequently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 1 04-208, 110 Stat. 3009 (1996), for whatever effect these pr ovisions had, they most certainly did not restore the distri ct courts' jurisdiction to entertain the type of habeas petiti on that is

at issue.

In concluding that AEDPA did not touch the district courts' habeas jurisdiction, the majority invokes t he principle that repeals of habeas jurisdiction shoul d not be presumed. See Felker v. Turpin, 518 U.S. 651, 658-6 0 (1996). The majority then reasons that the amendmen t of Section 106(a)(10) did not affect the district cour ts' habeas jurisdiction under a separate statutory provision, 28 U.S.C. S 2241. This interpretation, however, presents nume rous problems. First, it ignores the plain meaning of IN A Section 106(a), which, after AEDPA, stated that -- with a f ew, specified and non-pertinent exceptions -- a petitio n for review by a court of appeals was "the sole and excl usive procedure for . . . judicial review of all final or ders of deportation." Second, the majority's interpretation ignores the heading of Section 401(e) of AEDPA, viz., "ELIM INATION 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), whi ch stated unequivocally that final orders of deportati on such as the one at issue here "shall not be subject to r eview by any court." Fourth, the majority's interpretation h as the perverse effect of lengthening the process of judic ial 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. S 2244(b)(3)(E). This provision, which states that a court of appeals ord er granting or denying authorization to file a second or successive habeas application is not subject to rev iew by

34means of a petition for rehearing or certiorari, do es not

state that the Supreme Court cannot review such an order in an original habeas proceeding, and the Court ref used to conclude that S 2241(b)(3)(E) implicitly effected t hat result. Here, by contrast, Section 106(a) of the INA, as am ended by AEDPA, expressly precluded a district court from ex ercising habeas jurisdiction under the circumstances present here. Accordingly, in No. 98-1099, I would reverse the ju dgment

of the District Court and remand with instructions to dismiss. This result does not implicate the Suspens ion Clause because any judicial review to which Sandova l is constitutionally entitled can and should be provide d by means of a petition for review filed in our court.

Such a petition is before us in No. 98-3214. Howeve r, 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,' " hel d that such an alien is not constitutionally entitled to review of a nonconstitutional claim. Id. at 251. If Morel too narr owly construed the scope of the review to which a petiti oner like Sandoval is constitutionally entitled, 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 p urposes, however, since Morel is binding on this panel, I ag ree with the majority that we must dismiss the petition inso far as it asserts non-constitutional claims. I add that, if w e were free to reach the merits, I would follow the Seventh Cir cuit's analysis in LaGuerre. I would also deny the petitio n insofar as it asserts an equal protection claim. See LaGuer re, 1998

WL 912107 at 4-5.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

35