1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-27-1999

Sandoval v. Reno

Precedential or Non-Precedential:

Docket 98-1099

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Recommended Citation

"Sandoval v. Reno" (1999). 1999 Decisions. Paper 23.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/23
Filed 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 Judge 

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 

 2 
 Lenni 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 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 jurisdiction 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 exercise 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 the 

District Court. 

 3 
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 interpretation: 

whether AEDPA S 440(d), a statutory change that occurred 

while Sandoval's case was pending and that makes aliens 

who have been found guilty of drug offenses ineligible for 

discretionary relief under S 212(c) of the Immigration and 

Nationality Act ("INA"), 8 U.S.C. S 1182 (Supp. 1996) 

(repealed effective April 1, 1997), applies to Sandoval. Only 

if AEDPA S 440(d) does apply to Sandoval would we need to 

reach his argument that the provision violates equal 

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 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 S 302, 8 U.S.C.S 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 eventually 

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 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) (current 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 because 

at the end of that four months he would have completed 

 4 
seven years as a legal immigrant, a prerequisite for 

eligibility for discretionary relief under INA S 212(c). Section 

212(c), as it stood at the time, granted the Attorney General 

discretion to admit an otherwise deportable 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 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 passed 

AEDPA. Section 440(d) of that Act amended INA S 212(c) so 

as to make discretionary relief unavailable to those aliens 

who have been convicted of, inter alia, any of the drug 

offenses set forth in INA S 241(a)(2)(B)(I). On July 16, 1997, 

the BIA dismissed Sandoval's appeal, noting that AEDPA's 

amendment of S 212(c) rendered Sandoval "statutorily 

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 Soriano, 

Interim Decision 3289 (A.G. Feb. 21, 1997). The BIA's 

decision rendered Sandoval's deportation order 

administratively final on July 16, 1997. Because Sandoval 

had attained seven years of domicile before his deportation 

order became final, the statutory residency requirement has 

been met and is no longer an issue in this case. See 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 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 S 212(c) does not apply to cases 

pending on the date of enactment (and therefore that the 

 5 
Soriano decision was incorrect). He also argued that AEDPA 

S 440(d) violates equal protection. The government moved to 

dismiss for lack of jurisdiction. 

The District Court ruled that it had habeas jurisdiction 

under 28 U.S.C. S 2241, reasoning that the relevant

provisions of AEDPA and IIRIRA did not effect a repeal of 

S 2241 in deportation cases. The court proceeded to rule on 

the merits of the petition and held that AEDPA S 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 (1994), and elaborated in 

Lindh v. Murphy, 521 U.S. 320 (1997), the District Court 

held that Congress expressed its intent not to apply 

S 440(d) to pending cases. In so doing, the court did not 

reach any constitutional issue relating to habeas 

jurisdiction or the equal protection challenge to AEDPA 

S 440(d). Consequently, the District Court granted 

Sandoval's petition in part, ordered the INS to entertain the 

merits of his S 212(c) request and enjoined the government 

from deporting Sandoval pending a decision on the merits 

of his S 212(c) request. 

The government appeals this decision. While this appeal 

was pending, the BIA denied Sandoval's motion to reopen, 

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 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 provisions of the 

 6 
Immigration and Nationality Act (INA) and also made

significant changes in INA's provisions relating 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 S 106(a)(10) 

provided for review of a deportation order by habeas corpus 

proceeding. AEDPA S 401(e) deleted the former text of INA 

S 106(a)(10). AEDPA S 440(a) substituted therefor the 

following language: "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."1 

The judicial review structure for deportation orders was 

altered several months later with the passage of IIRIRA on 

September 30, 1996. IIRIRA contains two different sets of 

rules: the "permanent rules" which generally became

effective on April 1, 1997, see IIRIRA S 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, 1997.2 

_________________________________________________________________ 

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 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 covered by section 241(a)(2)(A)(I), shall 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 after April 1, 1997. See 

IIRIRA SS 306(b), (c), 309. For such proceedings, IIRIRA substitutes new 

judicial review provisions. See IIRIRA S 306(a). Because Sandoval's 

deportation proceedings commenced before April 1, 1997, the repealer 

and the new judicial review rules do not apply to his case. 

2. Both sets of rules were clarified by technical amendments enacted on 

October 11, 1997, Pub. L. 104-302, 110 Stat. 3656, 3657. 

 7 
One 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 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 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).3 

Because Sandoval's deportation proceedings were initiated 

before April 1, 1997 and his appeal was dismissed by 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 action by 

the Attorney General to commence proceedings, adjudicate 

cases, or execute removal orders against any alien under 

this Act."4 

The District Court rejected the government's position that 

this provision applies to Sandoval, basing its decision on 

the general effective date provided by IIRIRA S 309(c)(1). 

However, section 306(c)(1) states that "the amendments 

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 section 242 

_________________________________________________________________ 

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

INA and are not codified in the United States Code.

4. IIRIRA dispenses with the terms "deportation" and "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 transitional rules--that 

distinction continues to have meaning. 

 8 
of 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 conclude 

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 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 district 

court's dismissal of an alien's habeas petition, holding that 

Congress did not eliminate habeas jurisdiction under 

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 committed 

listed crimes. The Second Circuit relied 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 S 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 S 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 executive detention, 

it would violate the Suspension Clause. That circuit had 

previously held, in Hose v. INS, 141 F.3d 932 (9th Cir. 

 9 
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 determination 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 Review in 

the court of appeals, an option not available to MaganaPizano. 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 deprived 

it of its jurisdiction under the general habeas provision of 

28 U.S.C. S 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 WL 850045 (11th Cir. 

Dec. 9, 1998), opinion vacated and superseded, 1998 WL 

889376 (11th Cir. Dec. 22, 1998), the Court of Appeals for 

the Eleventh Circuit concluded that IIRIRA's amendment to 

INA S 242(g) did eliminate habeas jurisdiction under S 2241. 

The court further held that this elimination of jurisdiction 

suffered from no constitutional 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 legal principles. 

The Court of Appeals for the Seventh Circuit quickly 

followed Richardson in LaGuerre v. Reno , 1998 WL 912107 

(7th Cir. December 22, 1998), with a similar holding. It 

agreed with the conclusion that AEDPA S 440(a) deprives 

the district courts of habeas jurisdiction with respect to the 

executive's detention of aliens who have been convicted of 

the enumerated crimes. The court proceeded to read the 

statute as permitting such aliens to bring constitutional 

challenges to their detention in the courts of appeals by 

means of a petition for review, notwithstanding the general 

bar to petitions for review in AEDPA. The court adopted this 

 10 
construction of the statute on the basis of a "presumption 

that executive resolutions of constitutional issues are 

judicially reviewable." Id. at *4. 

For the reasons set forth hereafter, we conclude that the 

district courts continue to have habeas jurisdiction under 

S 2241. Our colleague who dissents on this portion of our 

holding does so on the basis of the reasoning 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 issue 

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 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, 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), we agreed with the other circuits on this issue. 

We too held that AEDPA S 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 S 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 constitutional, 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 

 11 
district courts to review claims by aliens who have been 

ordered deported based on their criminal acts, 

notwithstanding the AEDPA and IIRIRA amendments relied 

on by the government. This question implicates the longstanding doctrine disfavoring repeal of jurisdictional 

statutes by implication. 

The Supreme Court had occasion to apply this doctrine 

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

involved AEDPA S 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 S 106(b)(3)(E), codified 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 over 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 that 

authorized the federal 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 conferred appellate jurisdiction on the 

Supreme Court over habeas proceedings. The McCardle

court held that it had no jurisdiction because the 1867 

 12 
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 specifically 

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 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: 

 [T]here 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 establish 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 congressional 

intent to remove a particular statutory grant of jurisdiction 

will suffice. Informed by this precedent, we examine each of 

the 1996 statutory provisions that the government 

contends individually, or in totality, foreclose the District 

Court's habeas jurisdiction over Sandoval's deportation 

order. 

a. AEDPA S 401(e) 

AEDPA S 401(e), a non-codified provision, struck the text 

of former INA S 106(a)(10), a provision added by the 

 13 
Immigration 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 to an 

order of deportation may obtain judicial review thereof by 

habeas corpus proceedings." The substituted language of 

AEDPA S 440(a) reads: "[a]ny 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 immigration 

matters, and that AEDPA S 401(e) eliminated 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 relief and judicial 

review in immigration cases. Although the specific reference 

to habeas jurisdiction in INA S 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 (1888). A Chinese laborer, who had lost his certificate 

entitling him to reenter the United States and was being 

held in executive detention upon his return, successfully 

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 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 

"[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 

 14 
decisions regarding the exclusion of aliens by providing: "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, 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 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). 

When the Supreme Court addressed the 1891 statute in 

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, 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, 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 Stat. 237 

(codified at 5 U.S.C. S 500 et seq.), was enacted in 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 holding, 

the Court reviewed the period from 1891 (the year in which 

Congress passed the first in a series of statutes conferring 

finality on the Executive's immigration decisions) until 1952 

(the year that Congress authorized APA review of 

 15 
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 by the Immigration and Nationality 

Act of 1952. The Supreme Court considered whether the 

APA applied to immigration cases under the 1952 Act in 

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955). In particular, 

the Court focused on S 12 of the APA, which provided: "No 

subsequent legislation 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. S 559). Noting that"[i]n the

subsequent 1952 Immigration and Nationality Act there is 

no language which `expressly' supersedes or modifies 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 provisions," 

id., the district court could review a deportation challenge 

under the Declaratory Judgment Act. The Court so held 

notwithstanding that the 1952 Act had carried over the 

provision of the 1917 Act that provided that the Attorney 

General's deportation and exclusion 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, S 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 

contending that the 1961 Act curtailed habeas jurisdiction 

in immigration cases. However, the historical sequence 

 16 
outlined 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 (1963) 

("[O]ur 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 S 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 deprive 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), reprinted in 1961 

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 jurisdiction 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 relief is best 

understood as congressional acknowledgment that the

 17 
district courts continued to have habeas jurisdiction even 

though APA review was channeled to the courts of appeals. 

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 review 

deportation orders in habeas corpus proceedings. And since 

AEDPA S 401(e) does not manifest an intent to repeal the 

original grant of habeas corpus jurisdiction, currently 

embodied in 28 U.S.C. S 2241, the elimination of 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 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, but 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 section 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 Court 

has repeatedly noted, a title alone is not controlling. 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 purposes, [it 

is] of use only when [it] shed[s] light on some ambiguous 

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 review. 

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

The government also relies for its jurisdictional challenge 

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 subject to 

review by any court," and in IIRIRA S 309(c)(4)(G), a 

transitional 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 

 18 
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 S 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. at 105. When viewed in light of the 

history of the Court's treatment of habeas jurisdiction in 

deportation cases, the references 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 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 differentiation between 

"judicial review" on the one hand and writs of habeas 

corpus on the other. "It is always appropriate to assume 

that our elected representatives, like other citizens, know 

the law. . . . . [I]t 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 enactment to be 

interpreted in conformity with them." Cannon v. University 

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 review under 

 19 
the 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 amended 

by IIRIRA S 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 

S 242(g) is an expression of congressional intent to channel 

all deportation review into the courts of appeals. Section 

242(g) states: 

 Exclusive Jurisdiction. 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 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.S 2241 in 

this provision, the rule disfavoring implied repeals requires 

us to conclude that jurisdiction under S 2241 is preserved 

under the amended INA S 242(g). Accord Goncalves, 144 

F.3d at 122; Lee, 15 F. Supp. 2d at 39 ("[T]he 

`notwithstanding' provision [of the new S 242(g)] is simply 

insufficient in light of Felker for the Court to imply a repeal 

of S 2241."). 

We are unpersuaded by the government's argument that 

the rule disfavoring repeals by implication does not apply 

here because the new INA S 242(g) sets up a comprehensive 

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). 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 

 20 
Statute, 28 U.S.C. S 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 

immunity in the FSIA, and the express provision[granting 

foreign states immunity in federal and state courts 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 

determination 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 

express 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 

draftsman 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 decision 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 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. 

Over a century's worth of precedent and practice 

unambiguously supports the conclusion that habeas 

 21 
jurisdiction is available to aliens in executive custody. 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 cases of 

 rebellion or invasion, the public safety might require it.' 

 Acting under the immediate influence of this 

 injunction, they must have felt, with peculiar force, the 

 obligation of providing efficient means by which this 

 great constitutional privilege should receive life and 

 activity; for 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 

consistently 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 

statement of congressional intent is required before 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 respect to 

jurisdiction under S 2241 than any of the others canvassed 

in this opinion, we discern no express repealer of the 

district courts' jurisdiction under S 2241. 

We note that this reading comports with our obligation to 

read statutes to avoid serious 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 

 22 
Council, 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 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, 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 district 

courts of habeas jurisdiction and substituted a collateral 

proceeding in that District's Superior Court, patterned after 

28 U.S.C. S 2255. The Court held that the legislation did 

not violate the Suspension Clause because "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 

review 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 

government'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 

government'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 left 

habeas jurisdiction intact 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. S 2241, we conclude that 

S 2241 survives the 1996 amendments. 

 23 
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 sustained 

habeas jurisdiction under S 2241, they reached that issue 

and held that S 2241 jurisdiction covered not only 

constitutional claims but also the aliens' statutory claim 

that the Attorney General had S 212(c) to apply to pending 

cases. 

Inasmuch as the language of 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), we agree that Sandoval's statutory 

claim is cognizable in a habeas corpus proceeding. 5 

Furthermore, the Supreme Court has repeatedly recognized 

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 required 

by the Constitution. See, e.g., United States ex rel. Accardi 

v. Shaughnessy, 347 U.S. 260, 265 (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 (1915) ("The courts 

are not forbidden by the statute to consider whether the 

reasons, 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.").

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 

_________________________________________________________________ 

5. This does not mean that a district court reviewing 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. 

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

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 within 

precedent interpreting the core habeas protection provided 

by S 2241."); Lee, 15 F. Supp. 2d at 42 ("[P]recedent and 

reason fully persuade me that the Constitution 

contemplates that courts inquiring into the legitimacy 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 Review 

from the Board of Immigration Appeals, No. 98-3214, which 

we consolidated with the government's appeal from the 

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 decision in 

Morel, holding that AEDPA S 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 review 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.6 

_________________________________________________________________ 

6. Because of our conclusion that jurisdiction under 28 U.S.C. S 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 alternative. 

 25 
B. 

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 deprive 

Sandoval of the opportunity to seek discretionary relief 

under INA S 212(c). Prior to AEDPA, INA S 212(c) permitted 

deportable aliens, other than those who had committed 

specified crimes (such as aggravated felonies and crimes of 

moral turpitude), to apply to the Attorney General for a 

waiver of deportation. AEDPA S 440(d) added drug offenses 

to the list of deportable offenses that made aliens ineligible 

for discretionary relief.7 The provision precluding

discretionary relief for those convicted of drug offenses was 

not in effect at the time Sandoval sought to petition 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 amended, the statute 

reads in full: 

 Aliens lawfully admitted for permanent residence who temporarily 

 proceeded abroad voluntarily and not under an order of deportation, 

 and who are returning to a lawful unrelinquished domicile of seven 

 consecutive years, may be admitted in the discretion 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 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). 

See AEDPA S 440(d). Section 1182(c) was repealed by IIRIRA with respect 

to cases in which the INS instituted removal proceedings on or after 

April 1, 1997. See IIRIRA S 309. Because the INA initiated removal 

proceedings against Sandoval before April 1, 1997, the repeal of 

S 1182(c) does not apply here. 

 26 
did not possess the requisite seven years lawful residence. 

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, 1997), in 

which she ruled that AEDPA S 440(d) applies to pending 

cases. The BIA, relying on Soriano, dismissed Sandoval's 

appeal on the ground that AEDPA S 440(d) made him 

ineligible for discretionary relief. The District Court 

disagreed, after analyzing the retroactivity decisions in 

Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Lindh 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 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 S 440(d) does not apply to Sandoval. 

The government contends that the Attorney General's

decision in Soriano is correct, and that her decision 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 in 

Landgraf, understood in light of the intervening decision 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 this 

setting. Under Chevron, we are required, in the absence 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 instances 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 effective date appears to present "a pure question 

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

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

We need not decide, however, whether Chevron deference 

applies. Assuming arguendo that Chevron does apply, it 

directs us to ascertain, by "employing traditional tools of 

statutory construction," whether Congress has expressed 

"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 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 enacted after 

 the events in suit, the court's first task is to determine 

 whether Congress has expressly 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 it would impair rights a party possessed when 

 he acted, increase a party's liability for past conduct, 

 or impose new duties with respect to transactions 

 already completed. If the statute would operate 

 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 prescribed 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 S 2254 habeas relief in noncapital 

cases. The Lindh Court, speaking through Justice Souter, 

emphasized early in the opinion that "in determining a 

 28 
statute's temporal reach generally, our normal 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 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 prospectively, stating that "[n]othing, 

indeed, but a different intent explains the different 

treatment." Id. at 2064. In so holding, the Lindh Court 

made clear that the rule of negative implication is part of 

the normal rules of statutory construction. Lindh amplified 

the first step of the Landgraf analysis, making clear that if 

the statutory construction inquiry yields the answer that 

Congress intended prospectivity, 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, No. 97-3164 (3d Cir. 1998) (noting that 

Lindh "essentially add[s] a step" to the Landgraf inquiry). 

When the Attorney General considered the applicability of 

AEDPA S 440(d) to pending cases in Soriano , she found that 

it did not contain an express directive, and then proceeded 

to consider whether its application to pending cases 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 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 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 relief--was 

intended to encompass 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 

 29 
that this interpretation was the only "sensible" one, 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 , where we 

held the 1990 amendment applicable to pre-enactment

conduct, we specified that such construction was applicable 

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 considered. 

However, several other comparable provisions do have 

express effective dates. For example, AEDPA S 413, entitled 

"Denial of Other Relief for Alien Terrorists," (like AEDPA 

S 440(a)) makes relief that was previously available at the 

agency's discretion unavailable to aliens fitting a particular 

description, that of an "alien terrorist." Significantly, S 413 

(unlike S 440(d)) includes a provision making it effective 

with respect to "applications filed before, on or after [the 

date of enactment] if final action has not been taken on 

them before such date." AEDPA S 413(g). This difference in 

treatment between "alien terrorists" underS 413 and aliens 

convicted of the referenced crimes under S 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. "[W]here 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." Cardoza-Fonseca, 480 

U.S. at 432 (alteration in original) (internal quotation 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 reading 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 section 

 30 
of 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 committee 

dropped the language from the Senate bill that would have 

made the amendment to S 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 (exhaustively 

canvassing the legislative history). This legislative history 

confirms that Congress deliberately chose to make AEDPA 

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 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 S 440(d) was not intended to apply to cases pending 

on the date of enactment. Commenting on a similar issue 

of statutory construction, the Supreme Court had 

previously directed that, "If a court, employing traditional 

tools of statutory construction, ascertains 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 construction, the Chevron instruction is satisfied as 

well. 

In sum, we conclude that Congress did indeed express an 

intent that AEDPA's amendment to INA S 212(c) should not 

apply to cases pending on the date of enactment, 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 S 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. 

 31 
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. 

 32 
ALITO, Circuit Judge, concurring in part and dissenting in 

part: 

I agree with LaGuerre v. Reno, 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. S 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 deportation [could] obtain judicial 

review thereof by habeas corpus proceedings." Section 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 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 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 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 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), 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 proceeding, had been pointedly 

repealed in a statutory section labeled "ELIMINATION OF 

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

of this previous exception, there was inserted language 

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 therefore 

unnecessary 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 provisions 

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 

principle that repeals of habeas jurisdiction should not be 

presumed. See Felker v. Turpin, 518 U.S. 651, 658-60 

(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. 

S 2241. This interpretation, however, presents numerous 

problems. First, it ignores the plain meaning of INA Section 

106(a), which, after AEDPA, stated that -- 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. S 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 

 34 
means of a petition for rehearing or certiorari, does not 

state that the Supreme Court cannot review such an order 

in an original habeas proceeding, and the Court refused to 

conclude that S 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 here. 

Accordingly, in No. 98-1099, I would reverse the judgment 

of the District Court and remand with instructions to 

dismiss. This result 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 review of 

claims of `substantial Constitutional error,' " held that such 

an alien is not constitutionally entitled to review of a nonconstitutional claim. Id. at 251. If Morel too narrowly 

construed the scope of the review to which a petitioner 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 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. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 35