Calcano-Martinez v. INS - Oral Argument

Argument of Lucas Guttentag

Chief Justice Rehnquist: We'll hear argument now in Number 00-1011, Deboris Calcano-Martinez v. The Immigration and Naturalization Service.

Mr. Guttentag.

Mr. Guttentag: Mr. Chief Justice, and may it please the Court:

The jurisdictional issue presented in this case is whether a legal ruling by the Attorney General on a pure question of law compelling the deportation of long-time legal permanent residents is reviewable in any court.

Never in our country's history has an alien been subject to deportation without the judicial branch determining the legal validity of the administrative deportation order.

We submit that the Constitution does not permit denying judicial scrutiny of the Attorney General's ruling, and that the statute did not deprive this Court and the district court and the courts of appeals of considering the pure question of law presented in this case.

Justice Scalia: You say the legal validity of his deportation is at issue.

In what respect do you claim he is not properly deportable?

Mr. Guttentag: Your Honor...

Justice Scalia: As I understood it, it is conceded that he met the qualifications for deportation.

Mr. Guttentag: He is... our clients are subject to the deportability grounds, but they are not subject to deportation without an adjudication of the application for discretionary relief.

The final order of deportation...

Justice Scalia: What you're complaining about is that the Attorney General did not accord them discretionary relief, but all of your grounds for asserting that you're not deportable you had an opportunity to challenge in court, didn't you?

Mr. Guttentag: Well, Your Honor, the question is whether the final order of deportation was properly entered and, under this Court's case law...

Justice Scalia: It was properly entered if all of the qualifications for deportation existed.

Your complaint is that the Attorney General did not exercise his discretion to let your client stay in the country nonetheless.

Mr. Guttentag: No, Your Honor, we disagree with that, respectfully.

The final order of deportation cannot be entered until there is an adjudication on the application for discretionary relief if the person is eligible to apply.

In this case, the Attorney General...

Chief Justice Rehnquist: What is your authority for that proposition, Mr. Guttentag, your case authority?

Mr. Guttentag: The Chadha case, Your Honor, the Foti case, all said that the final order of deportation is contingent on...

Chief Justice Rehnquist: But that was not talking about the Attorney General's discretion, was it?

Mr. Guttentag: Yes.

In all those cases, Your Honor, the question was whether a final order of deportation, and whether the discretionary element that's... on which the final order is contingent was reviewable in court, and the way the Immigration Act is...

Chief Justice Rehnquist: Well, that was before the IIRIRA, or however you pronounce it.

Mr. Guttentag: Yes, but the IIRIRA has not changed that element, Your Honor.

Under the Immigration Act, both before and after, there is a two-part process for issuing a final order of deportation.

There's the question of deportability, and that's the question of whether a person falls within the grounds enumerated in the statute.

Chief Justice Rehnquist: And you concede those have been met here?

Mr. Guttentag: We do concede that, Your Honor.

There's no question that our clients conceded that they fit within the grounds of deportation.

Then the second question...

Justice Scalia: And also that all of those grounds can be challenged in court, that IIRIRA does not prevent judicial review of all of those grounds of deportation, right?

Mr. Guttentag: Well, that's a construction of the statute, Your Honor, that the Government's offered.

We don't dispute that, although we come to that conclusion for different reasons, but the question is whether the final order of deportation itself is reviewable, and the final order cannot be entered... and I believe the Government will concede this, Your Honor...

Justice Stevens: Could I just interrupt you with one quick... do you concede that a conviction prior to the date of the enactment of the statute is proper ground for deportation without having an opportunity for discretionary review?

Mr. Guttentag: Well, the conviction itself is a basis for triggering the grounds of deportability.

Justice Stevens: Well, I understand, but are you conceding convictions prior to the enactment of the statute have the same legal effect as convictions after the enactment of the statute?

Mr. Guttentag: Not for purposes of discretionary relief, Your Honor.

That's our claim on the merits in the St. Cyr case.

Justice Souter: But your claim is that you are entitled to an adjudication at the administrative level, ultimately by the Attorney General, under a statute that contains this discretion.

That's... isn't that your basic claim?

Mr. Guttentag: Yes.

Our basic claim, Your Honor, is...

Justice Souter: Now... okay.

Let me ask you part 2 of my question.

Do you also claim that if you are, or if your client in this case is entitled to an exercise of discretion, that the exercise of discretion itself is reviewable for abuse of discretion?

Mr. Guttentag: No, we do not, Your Honor.

Chief Justice Rehnquist: Okay.

Mr. Guttentag: Our claim is that the question of legal eligibility to apply for the discretionary relief is reviewable.

The Attorney General...

Justice Ginsburg: Mr. Guttentag, may I just add a post script on that question to... suppose the Attorney General were to say, in light of AEDPA, and however you pronounce the other statute, I have decided that henceforth I will exercise my discretion never to be gracious, and I will simply deny these applications.

It is as an exercise of discretion, and it's in tune with what I think is the current climate in the legislature.

You just answered Justice Souter that you would not challenge an exercise of discretion.

Mr. Guttentag: Your Honor, we believe that the question of a categorical denial raises a different issue, and whether that's permissible or not, raises a distinct question.

But just to be clear, the Attorney General has not done that in this case.

What the Attorney General has said is that he lacks the legal authority to exercise discretion, on a pure question of interpreting the statute that Congress has divested him of the legal authority to consider applications for discretionary relief.

We do not believe that the Attorney General, if he interpreted this statute correctly, would adopt a categorical rule.

There's no reason to believe that.

He has determined that he lacks any discretionary authority.

How he exercises that authority would be a separate and distinct question.

Justice Kennedy: Suppose there's a case in which it's conceded that the Attorney General has discretionary authority.

Before he exercises... and the immigration judge has found that the person is deportable.

Before the Attorney General exercises that discretion, is there a final order of deportation?

Mr. Guttentag: No, there's not, Your Honor.

Justice Kennedy: Why do you concede there's a final order of deportation here, or do you?

Mr. Guttentag: Well, we do not...

Justice Kennedy: Because it seems to me that may be important under the interpretation of the statute.

It seems to me you can argue that where, as in your case, the alien requests the Attorney General to exercise the Attorney General's discretion, there is no final order of deportability until he does so.

Mr. Guttentag: Well, we certainly agree that there's not a legally valid final order of deportation.

There was an order issued by the Board of Immigration Appeals, so in that sense there's a piece of paper that constitutes a final order, but we agree that there's not a legally valid final order.

Justice Kennedy: Well, do you think there's a final order under the statute, 1252?

Mr. Guttentag: The (a)(2)... well, we believe there's a final order for purposes of seeking judicial review of the BIA's decision.

We do believe that that constitutes a final order.

We believe that it is not a legally valid final order because of the Attorney General's ruling.

Justice Kennedy: Do you think this is a final order of removal against an alien who is removable?

Mr. Guttentag: Well, Your Honor, we believe that the statute, the (a)(2)(C) does not apply to bar review of this claim.

What the... we believe that the provision barring review does not apply.

Whether it's because it doesn't constitute a final order within the meaning of the statute as intended, because there's a legal error underlying the adjudication, or whether there is a final order but it's reviewable nonetheless for that legal... because it lacks legal validity, either way there's review of that determination.

Justice Kennedy: Well, I'm just... in just looking at this statute, it seems to me that the Attorney General does not give much force to the phrase, who is removable.

Mr. Guttentag: Right, and that is an...

Justice Kennedy: It makes for an awkward statute, frankly, if you take it out, but it's... I thought that your argument might be that this... your client is not an alien who is removable under a final order.

Mr. Guttentag: We would certainly accept that interpretation, Your Honor, if removable is not the term that normally appears in the Immigration Act, because the technical term would be deportable.

Justice Kennedy: But you're saying that because removable means a person who is potentially deportable, that your client is removable?

Mr. Guttentag: No.

We would... I... Your Honor, we believe that it's very difficult to interpret this statute, that...

[Laughter]

That the one thing it doesn't do is preclude review of the legal claim presented here.

Whether that's because the term is removable...

Justice Kennedy: Well, I'm asking if you could make the argument that your client is not removable because the statute does not prevent discretion being exercised as to him, you've asked for discretion, it hasn't been exercised, so there is no final order against an alien who is removable.

Mr. Guttentag: We would certainly accept that interpretation.

Justice Scalia: But you didn't... you don't...

I'm sure you would, but unfortunately...

Justice Kennedy: But did you argue... you don't argue that?

Mr. Guttentag: We've argued principally that the term review does not preclude the scope of inquiry that's traditionally be encompassed by habeas corpus because of the constitutional problems that would be raised by barring all review.

We believe that...

Justice Kennedy: Well, under my submission, and frankly I don't think this works, because the statute is pretty awkward and because of what you've already said about removal, but under... if there was some merit to this interpretation and it could be adopted to avoid the constitutional problem, then the review wouldn't even be by habeas, it would be just under the review mechanisms of the statute.

Mr. Guttentag: And we...

Justice Kennedy: You don't seem to be too happy with that.

Mr. Guttentag: No, we absolutely will accept that, Your Honor...

Justice Scalia: Well...

Mr. Guttentag: because we believe that there can be review in the court of appeals, and that if the term removable means only a properly entered final order of removable... removal, then our clients are not removable.

Justice Scalia: Mr. Guttentag...

Mr. Guttentag: They are subject to...

Justice Scalia: May I suggest that the reason you didn't make that argument is that it's not a very good one, because there is more than one section which excludes the judicial review that you're seeking.

Not all of them contain that phrase, who is removable.

Subsection (g), entitled, Exclusive Jurisdiction, does not use the term.

It says, 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.

It does not contain the language that you now want to rely upon.

Mr. Guttentag: But Your Honor, we don't... that language does not preclude review of our claim, because what 242(g) does is place all review in the court of appeals, and we agree that review can be in the court of appeals.

We have no... our construction of the statute permits that, because we agree that the final order of removal is reviewable in the court of appeals.

The only provision that bars review of that order in the court of appeals is (a)(2)(C).

Chief Justice Rehnquist: Well, do you say there's also then habeas review in the district court?

Mr. Guttentag: No, Your Honor.

We... our contention is only that there would be review in the district court as a fail-safe mechanism if review in the court of appeals is not possible.

Justice Breyer: Well...

Mr. Guttentag: We recognize that the...

Chief Justice Rehnquist: Under what... but not under habeas, you just said, as I understood.

Do you or do you not think habeas review in the district court is available?

Mr. Guttentag: We believe that district court review in the... excuse me.

We believe that habeas corpus review in the district courts is not barred by the language of this statute, but that the scope of review that would be heard in the district courts can certainly be placed in the court of appeals, as this Court has always said that the...

Chief Justice Rehnquist: Well then, you don't agree with the Second Circuit's decision here.

Mr. Guttentag: We... the Second Circuit held that there was district court habeas corpus jurisdiction because it first concluded that there was no review possible in the court of appeals.

We believe that if review is possible in the court of appeals, and we believe that it is, because (a)(2)(C) should be construed as to permit review in the court of appeals, then the district court habeas corpus procedure need not be available.

Chief Justice Rehnquist: Well, what do you think the term, removable, in (a)(2)(C) means?

Mr. Guttentag: Your Honor, I think the term is ambiguous, because it is not the term, deportable, which is what the immigration statute uses to determine what... to say that someone is subject to deportation.

It does not say, subject to a final order of removal, which is...

Chief Justice Rehnquist: So what do you... what do you... how do you interpret it?

Mr. Guttentag: Your Honor, we believe it means that someone who could be removable, but is not subject to final order of removal, so therefore the statute would not apply to that individual.

It's a term that appears in various places in the Immigration Act.

And it doesn't have, as far as we can tell, a consistent meaning throughout the Act.

Chief Justice Rehnquist: Was it adopted just in connection with this provision that provided an alien who was convicted of a felony should be deported?

Mr. Guttentag: I believe it appears in other places in the Act.

It appears in relation to detention provisions and other places.

It's not in other places in the...

Justice Scalia: Let me ask this, if who is removable, if that embraces the requirement that the Attorney General first have exercised his discretion, why doesn't it also, under that kind of a reading, embrace the requirement that he actually committed a criminal offense covered in section 1182(a)(2)?

I mean, if you're going to read removable, who is removable that broadly, that is to say that any defect in the proceedings which rendered the order of removal invalid causes him not to be removable, you simply open up the whole statute.

You say any defect which causes him not to be removable takes him out of (a)(2)(C).

I mean, it just cuts a swath through the entire statute.

Mr. Guttentag: Well, we don't believe it does, Your Honor, but the critical question is whether this claim must be reviewed in some court, and we believe that the answer to that question is clear.

Justice Scalia: That's your constitutional argument, but we're trying to discuss first a proposed statutory argument which would avoid our reaching that, and I'm suggesting that if you read who is removable to embrace... to make a person unremovable where anything that should have been done has not been done, you open up the whole prior proceedings.

Mr. Guttentag: Well, but I believe it's possible to read it, Your Honor, providing a properly entered final order of removal, and that would include the proper, legally authorized exercise of discretionary relief, that if the statute entitles...

Justice O'Connor: But, of course, the discretionary relief provision was changed, too, wasn't it, and doesn't afford it now for people convicted of this type of crime.

Mr. Guttentag: Right, but our contention on the merits, Your Honor, is that our clients are eligible for the discretionary relief as it existed at the time of the preenactment event.

That's a pure legal question.

The Attorney General has determined that they're not eligible.

The question of eligibility for that relief was decided by a legal ruling of the Attorney General that... and that determines whether or not it was a properly entered final order of removal.

When that question is resolved, then... one way or the other on the merits, then there'll be a decision on whether it was a properly entered order.

Justice Kennedy: Getting back to the statute, and Justice Scalia's question, the question was, well, suppose he hadn't committed a criminal offense, would that be grounds for saying that the statute doesn't apply?

I thought your answer would be yes, even the Government concedes that...

Mr. Guttentag: Right, and that...

Justice Kennedy: in the habeas portion of the case.

Mr. Guttentag: Yes, and that whether or not the person actually committed the offense is a question of whether they fit within one of the enumerated categories that are set forth in the statute, and I believe the Government does concede that.

Chief Justice Rehnquist: Well, are you saying you could go behind a judgment of conviction?

Mr. Guttentag: No, absolutely not, Your Honor.

That's a determination that's made in the criminal procedure, and when that certified conviction is brought before the immigration judge, that's dispositive on the question of whether or not there's a disqualifying conviction.

But then the question is whether that conviction constitutes a deportable offense within the meaning of the Immigration Act, and that's a question that the Government agrees is reviewable and, as I indicated, that the question of whether or not the final order of removal was properly entered must be reviewable as well, and if there's been a failure to allow the person to apply for the discretionary relief for which they are entitled by statute, then that cannot be a legally valid order of removal, and again I...

Justice Souter: But the one difference, then, that has been made, that as I understand it that you concede, is that on your view, once it is determined that the Attorney General did apply the statute that authorizes discretion, that would be the end of the review.

There could not be a further step in which you say, the refusal to exercise it in favor of my client was an abuse of discretion.

You concede that, I take it?

Mr. Guttentag: Yes, we do, Your Honor.

Justice Breyer: Okay.

Mr. Guttentag: We believe that Congress did significantly restrict the scope of judicial review of final orders issued against so-called criminal aliens.

We recognize that.

Our contention is only that the core review that has always existed and that has never been prohibited as to questions of law and as to the legal validity of the deportation order, that that issue must remain reviewable; that there's never been a time during the entire period when review was severely curtailed under the finality provisions that we detail in our brief at some length; that there was a long period of time when there was no review of orders of deportation except in habeas corpus proceedings, and what this Court repeatedly recognized is that that scope of review is extremely narrow, but it does encompass a question of the legal validity of the order, and questions of the construction of the Immigration Act, and that's what's at issue here.

The Attorney General has construed the Immigration Act to say that our clients are not eligible to apply for the exercise of discretion to which the statute entitles them.

That question must be reviewable in a court to determine whether the Attorney General improperly excluded an entire class of people from eligibility for discretionary relief, and this Court's decision in Foti and in Chadha and in other cases recognized that the final order is contingent on the issuance... the adjudication of discretionary relief, and that means two questions.

One is...

Justice Kennedy: Again, does that mean there is no final order here, or is it a contingent final order, because this is very important for the statutory argument.

Mr. Guttentag: Your Honor, if there is no legally issued adjudication, then I suppose it's accurate to say there's no legally valid order, and so therefore there isn't a final order.

Justice Kennedy: But that... but then Justice Souter's question is, suppose the discretion was just abused.

Mr. Guttentag: Well, we don't...

Justice Kennedy: Would there then be a final order?

Mr. Guttentag: It depends on if the final order is a question of a piece of paper that the Board of Immigration Appeals issues, in which case there is a final order, or whether the... there's a legally valid final order...

Justice Souter: Well, I think you're...

Chief Justice Rehnquist: Don't you need a final order to go to the court of appeals in the first place?

Mr. Guttentag: Yes, Your Honor.

As I indicated, there must be that piece of paper from the Board of Immigration Appeals saying this person is ordered removed from the United States.

That's what triggers section 1252.

Justice Souter: So you've got a final order for purposes of seeking review, but if you get the review, you say, well, it is not a valid final order because it was entered without application of the authority to grant discretion.

Mr. Guttentag: That's correct, Your Honor.

Justice Souter: Yes.

Mr. Guttentag: That's exactly our... and the question of eligibility for relief is entirely distinct from the exercise of discretion.

Once the Attorney General makes an accurate decision, a legally valid decision as to eligibility for discretionary relief, then the exercise of discretion follows.

Chief Justice Rehnquist: If this is a final order, as you're talking about, 1252 says no court shall have jurisdiction to review any final order of this sort.

I mean, are you using final order in two different senses?

Mr. Guttentag: No, Your Honor, we're not, and we're certainly not intending to.

We believe that there's ambiguity in the statute, given the severe constitutional questions that would be raised if there were no review at all of this pure question of law, the Attorney General's decision, and that ambiguity can come from the term, removable.

We set forth in our brief the reason why we think the term, review, is not sufficiently clear to bar the scope of inquiry that's always been available to review a final order.

Chief Justice Rehnquist: So you're got three different ambiguities in one sentence that you've focused on?

Mr. Guttentag: We think there are many ambiguities.

I believe the Government as well is finding ambiguities in this statute.

It is a statute that seeks to limit the role of the courts, and our contention is that it can do that, but it cannot preclude the courts from reviewing and determining the legal validity of the order, and that that is a question that is, whether there are legal... in this case, that is a question of whether there is a legal eligibility determination.

We think the Accardi case is very significant in this respect, because in the Accardi case, this Court confronted the question of the scope of habeas corpus inquiry to review a final order of deportation.

It was a case of an alien who was admittedly deportable, there was no issue about that, and claimed that he had not gotten a lawful exercise of discretion because the Attorney General had refused to exercise his discretion, as was required.

In this case... and the Court held that that was reviewable in habeas corpus during the period when the review was as restricted as it could possibly be, the year after this Court said in the Heikkila case that the only review that was available was that which was constitutionally required.

Now, this claim is even more fundamental.

Justice Scalia: Did Accardi say that review was constitutionally required?

Mr. Guttentag: Accardi exercised review.

Justice Scalia: I understand that...

Mr. Guttentag: It did not...

Justice Scalia: And I don't know the basis on which it exercised jurisdiction, and our cases are clear that cases which do not address the jurisdictional question are not authority for the existence of jurisdiction.

I don't know on what basis Accardi took the case...

Mr. Guttentag: I...

Justice Scalia: but it certainly didn't say that there had been a constitutional violation.

Mr. Guttentag: I think, Your Honor... it did not specifically say that, but I think there's two points that are important.

One, it was a habeas corpus proceeding decided the term after this Court said in the Heikkila case that the only review that was available was that which was required by the Constitution.

Justice Scalia: Did Accardi cite Heikkila?

Mr. Guttentag: I don't believe it did, Your Honor.

Justice Scalia: It didn't.

It didn't.

I have no idea on what basis Accardi...

Mr. Guttentag: But may I point out...

Justice Scalia: took jurisdiction.

Mr. Guttentag: May I point out what the dissent said in Accardi, Your Honor, which is that it specifically objected to the Court's exercise of jurisdiction on the ground that habeas corpus did not encompass the claim raised in that case, and it objected to the exercise of jurisdiction on precisely the same grounds that the Government argues here, that a person is deportable, that it concerns discretionary relief.

And the Court rejected that, and exercised discretion, and said there's a fundamental difference between reviewing the exercise of discretion and reviewing the refusal to exercise discretion, and this is a case about the refusal to exercise discretion based on the Attorney General's legal ruling that an entire class of individuals is not eligible for relief.

And it's our... our only challenge is to that determination by the Attorney General, that his legal determination as to who is eligible to apply and who is not is legally incorrect, and we believe that claim must be reviewable in a court.

It can be the court of appeals, and we set forth why we believe that is entirely possible and appropriate, but it must be reviewable in a court.

I'd like to save...

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Very well, Mr. Guttentag.

Mr. Kneedler, we'll hear from you.

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

In 1996, in two separate statutes, Congress fundamentally restructured the Nation's immigration laws.

There are amendments of general applicability, and also ones specifically dealing with criminal aliens to ensure that criminal aliens were expeditiously removed from the United States.

Briefly, the three amendments of general applicability that are most relevant to these two cases this morning are Congress's elimination of deportation and exclusion proceedings, and replacing them with a single proceeding called removal.

Secondly, Congress repealed the prior 1182(c) under which petitioners here seek relief, and replaced it with a new proceeding, or form of discretionary relief called cancellation of removal, and third, Congress reenacted, or enacted a new judicial review provision which channeled judicial review, if it's to be had at all, to the courts of appeals.

The two amendments specifically dealing with criminal aliens that are relevant here is that Congress not only repealed the prior 1182(c), but rendered aggravated felons and in some cases other criminal aliens altogether ineligible for cancellation of removal, and secondly, Congress provided in section 1252(a)(2)(C) of the Act that no court, which includes both the court of appeals and the district court, shall have jurisdiction to remove... to review an order of removal entered against an alien who had committed one of the specified criminal offenses.

The theory was that an alien, just like a citizen, would have full access to the courts to contest the criminal conviction in the criminal proceedings, both direct review and collateral attack, but once that was done, the validity of the conviction was established, and therefore, with respect to access to the courts, there was really no further need to test the central basis on which the alien was to be removed.

Justice Kennedy: Could you just remind me, what happens if a collateral attack is underway and the Justice Department institutes deportation proceedings?

Mr. Kneedler: Unless and until the criminal conviction was set aside, it would be a conviction on which the removal order could be based.

Justice Kennedy: Suppose there were a very strong showing of deficiency in the conviction, a Brady violation, Gideon violation, would the collateral review court have the authority to stay the deportation?

Mr. Kneedler: I wouldn't think that would be true, but I think typically what would happen is the immigration judge would stay the removal proceedings.

I think that happens.

I'm aware of some cases where that has happened.

What the alien should do is...

Justice Kennedy: Suppose it didn't.

Would an Article III court have that authority?

Mr. Kneedler: There would be, I think, probably... I'm not certain about that, but there may be access to the court to stay the removal.

Ordinarily you couldn't go to the court of appeals on the direct...

Justice Kennedy: To which court, the collateral review court in the criminal proceeding?

Mr. Kneedler: No, I meant the... I meant the review in the immigration proceedings going to the court of appeals.

I'm not certain which avenue...

Justice Kennedy: Oh, but I thought there was no review...

Mr. Kneedler: Right.

There is... if the claim was... if the alien was in a position that the substantive ground for removal may be invalid, and that's... not the eligibility for discretionary relief, but the substantive ground of removal may be invalid because there's an ongoing collateral attack, then I... my assumption is that some court... first of all, I think the immigration court would stop it, or the BIA could prevent the proceedings from going forward, either one, or the Attorney General, but failing that, I'm confident that some court would probably have review.

I'm not sure whether... perhaps the collateral review court, although I'm not sure why that would be so, because it could be a State collateral proceeding that the alien was trying to have his conviction, State court conviction set aside in, and I wouldn't think that court would have any authority to enjoin a removal under Federal immigration law, so it may be that the alien could apply to the district director and perhaps...

Justice Kennedy: Mr. Kneedler...

Mr. Kneedler: seek a stay of removal in that way.

Justice Stevens: this suggestion, because Justice Kennedy poses a case that, you know, right on the brink of deciding that he's going to have his earlier conviction set aside.

What if he's just filed his habeas corpus petition in State court, and it's going to... on the docket, and it's going to sit there for 3 years before it's decided?

Would the immigration judge have authority to say, I think I want to wait to see what happens in that case?

Mr. Kneedler: Sure.

The immigration judge would have the authority to stay the proceedings.

That was the answer that I...

Justice Stevens: I see.

Mr. Kneedler: thought I was giving.

But the more fundamental point is, the alien wouldn't be removed until there was a final order of removal entered against him by the BIA.

If at that point the alien was saying, wait a minute, I'm seeking to have my criminal conviction set aside, don't execute the order of removal, while there may be an invalidity here, the alien could seek a stay of removal in the court of appeals, could move to reopen the proceedings...

Chief Justice Rehnquist: Well, what if the alien has already had a couple of habeas petitions challenging his criminal conviction, which have decided against him, he now gets a final order, and he says, well, I just filed a third habeas application?

Mr. Kneedler: The court of appeals would not be required to issue a stay of removal, but if it was the first... I was just addressing the question of power, not whether it should be...

Chief Justice Rehnquist: Well, yes, but ordinarily you don't need a habeas review or collateral review to establish the validity of a conviction.

Mr. Kneedler: That is...

Chief Justice Rehnquist: That's done on direct review, and when that judgment becomes final, the conviction is...

Mr. Kneedler: Right, no, absolutely, and I think as a general rule there would be no question.

I was just addressing there might, in an extreme case, be some cases...

Justice Kennedy: Well, if the court of appeals has authority to stay the removal in that case, why doesn't it have the authority to stay the removal here, when it says, I'm in a class of persons to whom this statute simply doesn't apply?

Mr. Kneedler: There's a fundamental difference between the case I think you were positing and this one.

That case had to do with the substantive ground for removability.

In other words, is the person removable for having committed an aggravated felony?

Here, the question is quite different.

As counsel for petitioners has said, petitioners concede that they are removable.

The only question here is whether the Attorney General properly denied...

Justice Scalia: They don't concede that they're removable any more.

They concede that they are removable but for the fact that the Attorney General didn't take the final step of exercising his discretion.

What's your response to that argument?

Mr. Kneedler: Well...

Justice Scalia: That they are not removable within the meaning of that statute because the last step hasn't been taken?

Mr. Kneedler: Well, the last step was taken.

There was a final order of removal entered against the aliens.

Justice Souter: No, but they're saying the last step is the exercise... they're saying, the statute that invests him with discretion still applies to my case.

He's not applying that statute.

He is categorically refusing to exercise discretion because he says he doesn't have it, and he's wrong.

Justice Breyer: That's what they mean by the last step.

Mr. Kneedler: Right.

If I could just give two responses to that.

The preclusion of review under 1252(a)(2)(C), which was set out at 106(a) of our certiorari petition, it refers to an alien who is removable by reason of having committed a criminal offense covered in certain sections of the Act.

The word removable doesn't stand alone there.

It is removable by reason of having committed an offense.

It is identifying the aliens who...

Justice Kennedy: But under your reading the statute is the same as if who is removable isn't even there.

There's kind of a missing pronoun.

It's awkward.

But you give no effect to who is removable.

Mr. Kneedler: Well, I think this would only...

Justice Kennedy: Because your position is, there's a final order of removal against an alien by reason of having committed a criminal offense.

That's your position, so under your position the who is removable has no force.

Mr. Kneedler: Well, it's identifying the subset of aliens against whom a final order has been entered, to whom this preclusion of review applies, and it's...

Justice Souter: Oh, but the statute identifies them by reference to what may be done to them.

I mean, I think I'm bothered by the same thing that Justice Kennedy is getting at.

The word removable refers not merely to their alien status, and not merely to their conviction.

It refers necessarily to a statute which makes them removable, and if, as you concede, they can challenge the alien status, they can challenge the fact of the conviction, why, by a parity of reasoning, may they not also challenge the fact that the statute that the Attorney General is operating under doesn't make them removable until discretion has been exercised?

How do you draw that line?

Mr. Kneedler: Well, this was a preclusion of review that was obviously intended to accomplish something, and petitioners...

Justice Souter: And their answer is, what it accomplished is, no more review of the exercise of discretion when the discretion is exercised.

Mr. Kneedler: That is not governed by paragraph (C).

That is governed by the preceding paragraph, 1252(a)(2)(B) on the same page, which independently bars any judgment regarding the granting of relief under certain specified sections, or any other decision that is vested in the discretion of the Attorney General, so that category of decisions that are... that petitioners are conceding is not even addressed by this provision.

This provision must mean something else, and we think it quite clearly encompasses denial of discretionary relief by the Attorney General, whether that denial is based on an exercise of discretion or the Attorney General's determination that Congress has not conferred on him the power to exercise discretion.

In either event, the alien has been denied relief that Congress has specified is discretionary, and as that...

Justice Breyer: What Justice Kennedy started out with, I thought, was that their claim here is, there is a section of a new statute, and that section doesn't apply, because it isn't retroactive.

Now, that's like saying, this Court doesn't have jurisdiction to adjudicate a claim under that section because it doesn't apply.

Now, maybe they're right, maybe they're wrong, but it sounds as if they're making a claim that is a claim of jurisdiction, or very similar to one, and how do you distinguish that very basic claim that there is no jurisdiction because there is no applicable law from the claims that you admit you could hear, which include, I am not the alien, I am not removable... you say in your brief they could hear whether the alien is removable, whether the ground of removal is one which precludes judicial review, whether the statute is unconstitutional, and whether the proceeding is fundamentally unfair.

All of those, you say, could be heard under this statute...

Mr. Kneedler: Because they...

Justice Breyer: and I want to know what is different about a claim, there is no jurisdiction because this whole section of the new statute simply doesn't apply.

Mr. Kneedler: Well, The Attorney General certainly has jurisdiction to decide whether to grant discretionary relief.

The Attorney General can decide that on a variety of factors, including the Attorney General's understanding of the statute, just as a discretionary determination to exercise prosecutorial discretion not to bring an administrative proceeding that was before this Court in Food and Nutrition Workers you could decide, the agency could decide not to bring the case because they didn't think the equities warranted it, or because of an interpretation of the statute.

That interpretation may be wrong, but when something... when Congress intends to vest something in the discretion of an administrative officer, that includes legal issues that may bear on the exercise of discretion...

Justice Ginsburg: And that includes saying you didn't intend us to have discretion?

That seems to me very odd.

If the question is, is there discretion, then how is it compatible with that scheme for the secretary to say, I'm going to determine as a matter of administrative fiat that there is no discretion.

Mr. Kneedler: No, what Congress has done is vest in the Attorney General of the United States the responsibility for interpreting and administering the immigration laws, and in section 1103, that this Court relied upon in the Ageri-Ageri case, this Court said that the Attorney General's interpretation of the immigration laws is controlling.

Congress... in other words, what Congress did with respect to the question at issue here was to vest the final determination whether to grant discretionary relief in the Attorney General, whether that is based on an interpretation of the statute, or the exercise of discretion, or sometimes a combination of the two.

Justice O'Connor: But this claim comes very close to being covered by the combination of the Heikkila and Accardi cases, which together indicate that the Constitution requires some kind of judicial review over a claim that an executive actor unlawfully failed to exercise any discretion.

Mr. Kneedler: Well, in Accardi, as Justice Scalia pointed out, it's difficult to figure out exactly on what basis jurisdiction was exercised in Accardi.

The Supreme Court... this Court...

Justice O'Connor: True, it didn't spell it out, but if you look at Heikkila and Accardi together, there's some indication of support for the position of your opposing counsel.

Mr. Kneedler: Well, one thing to bear in mind is that the petitioner in Accardi argued the case in terms of a due process violation.

What was alleged there was that the Attorney General had engaged in prejudgment and had deliberately subverted an administrative scheme for adjudicating discretionary applications, and the petitioner argued that that was a violation of due process.

Now, this Court subsequently has said in the University of Missouri, in 435 U.S., that Accardi did not state a rule of constitutional law binding on the States, so in light of subsequent understandings of what Accardi stood for, it would seem odd that if it didn't state a fundamental rule of constitutional law that is binding on the States, that it would nonetheless be the sort of thing that Congress would be compelled to provide judicial review of under the immigration laws.

I wanted to respond to two statutory questions, and then perhaps explore this point further.

Petitioners have relied on the Foti and Chadha cases with respect to the final order of removal being contingent upon the exercise of discretion, in those cases suspension of deportation.

That... the Court explored that, though, solely for purposes of deciding which court would, as a statutory matter, have jurisdiction over the particular claim there, and what the Court said is, sensibly it only... it makes sense for suspension of deportation claims to be heard in the courts of appeals because the Attorney General has chosen to adjudicate applications for suspension of deportation together with the substantive basis for deportation in one single proceeding.

But the Court made pretty clear in Foti that the Attorney General was not required to do that, and it would have been equally consistent with the Act for the Attorney General to determine whether to grant relief to particular aliens outside of the affirmative removal proceeding as a matter of discretion, maybe on a sort of certiorari jurisdiction to the Attorney General to decide at the close of the case whether to do that or not, and that remains the case under the current law.

Nothing in the Act requires that the Attorney General adjudicate an application for 1182(c) relief, or for cancellation of removal before entering a final order of removal.

The regulations provide that method of adjudication, but nothing in the Act does, and the question, I think, for purposes of whether judicial review is compelled is whether there is a statutory right, because after all, Congress has plenary power over immigration, over the jurisdiction of the lower Federal courts, and broad power over the fashioning of the writ of habeas corpus, as this Court said in Felker, and Congress could legitimately decide if there is not a statutory right to have an application for cancellation or 1182(c) relief adjudicated in a particular...

Justice Breyer: But there are five, five instances in this case in which, despite the language, you think Congress has decided to permit the very review that the language seems to forbid.

Mr. Kneedler: Well, but in this respect, what... with respect to whether the person is an alien, and with respect to whether he is removable...

Justice Breyer: Yes.

Mr. Kneedler: by reason of having committed an offense.

A reviewing court has to decide those questions in deciding whether the statutory preclusion...

Justice Breyer: Fine, then why wouldn't they also have to decide the question of whether they have jurisdiction at all because this major section of the new statute just doesn't apply?

Mr. Kneedler: For the reasons that I said, that... for the reason that I said, is that the Act does not require that.

All 1182(c) said is the Attorney General may admit an alien.

It doesn't say anything about what proceeding that will be held in.

Justice Ginsburg: If she... he exercised his discretion in a totally arbitrary way to say, admitting people, setting grace on people of one race or one religion, even so, that's just not reviewable?

Mr. Kneedler: Well, whether or not there would be... whether or not there would be a review of a constitutional claim we think would be a different matter.

For example, in Chadha, Chadha was a constitutional challenge to the statute governing suspension of deportation.

It may be that Congress would have intended that a constitutional challenge to the statute under which the Attorney General was granting or denying...

Justice Ginsburg: What about the argument that Congress never gave the Attorney General such authority?

We don't get to any grand constitutional issue, but discretion must be exercised reasonably.

Mr. Kneedler: Well, the... all the Act says is that the Attorney General may admit an alien and, with that sort of discretionary grant of authority, this Court has said in cases like Jay v. Boyd, and maybe five terms ago, I think it was, in the Yang case, that that is like the power of pardon.

It's a power of dispensation.

It is a power of the Attorney General to relieve an alien of the admitted consequences of an order of removal, to lift the consequence of removal and allow the alien to remain here.

It is a matter of grace, in no sense a matter of right.

Justice Ginsburg: But is the concept of abuse of discretion... his authority to exercise discretion, there's lots of discretion in Federal agencies, but there's also a concept of abuse of discretion, and you seem to be saying no, there isn't.

Mr. Kneedler: Well, not every situation in which someone, an administrative officer has been afforded a right to exercise discretion, is there judicial review of that.

I mean, this Court has on a number of occasions, like Heikkila v. Cheney, and like Food and Nutrition Workers, and with respect to the census, an issue of major magnitude, this Court held that there was no review of statutory questions or discretionary issues in that situation.

Justice Scalia: The refusal to grant a pardon, since you're analogizing this...

Mr. Kneedler: Yes.

to the pardon power.

I assume we wouldn't review the President's refusal to exercise the pardon power for abuse of discretion.

Absolutely, and this isn't to say that the Attorney General may not... or the President at some point may decline to exercise the pardon power for a reason that would be thought contrary to law, but that doesn't mean that the possibility of getting a pardon, or in this case a discretionary dispensation from removal, gives right to a personal right that the Constitution requires Congress to provide access to the courts to litigate.

And Congress enacted IIRIRA against the background of great frustration with the inability of the system to remove criminal aliens from the United States, and because of the potential for criminal aliens to tie up the courts in trying to stave off the removal.

This is an example of this in this very case, that these aliens unquestionably are removal... removable, have conceded it, and yet we are litigating a number of years later on the question of whether the...

Justice Stevens: May I just interrupt you, Mr. Kneedler, with this question.

They are unquestionably removable, and there's no right to discretion if your construction of the statute is right, but sort of in the background of this case is the question whether convictions obtained before the enactment of this statute have the same legal significance as convictions obtained afterwards, and am I correct in understanding that the Government's position is there's no way in which a Federal court can decide whether that's correct or not?

Mr. Kneedler: That is true, because again, what Congress has done has granted a discretionary authority to the Attorney General to decide whether to dispense with removal or not, and let me...

Justice Souter: What you are doing when you say that, it seems to me, is reading the words of the statute that says, removable by virtue of the criminal convictions and so on, to mean not removable, but to mean ordered removed by the Attorney General.

You are taking a statute that says removable, and you are reading it to say, ordered removed, thereby insulating the courts, or the alien from the possibility of challenging the correctness of the statute under which the Attorney General is acting.

Mr. Kneedler: Well, again, going back to the language of paragraph (c), there are two different clauses.

One says, review any final order, so that's the passage that deals with there having been an order entered, and then it says, against an alien who is removable by reason of having committed a criminal offense.

That is simply identifying which aliens, which ground of removal triggers the preclusion of review...

Justice Souter: No, but that's... no, but that's the question in the case.

Mr. Kneedler: No, the question...

Justice Souter: Is it doing anything other than identifying the kind of order by the Attorney General, or is it doing something more?

Is it saying, the Attorney General must be acting under a statute under which it is proper for him to make an order of removal without admitting any discretion.

Justice Kennedy: That's...

Mr. Kneedler: Well, I...

Justice Souter: That's the issue in the case.

Mr. Kneedler: Well, but again, I... removable does not stand alone.

It says, removable by reason of having committed the offense.

I think it does no more than identify the... if I could mention one other thing.

The word removable is defined in the Act, but for... this is in 8 U.S.C. 1229a(e)(2), which is not reproduced in the papers, but since the question was raised, it is part of the provision that deals with removal proceedings, and it says... now, again, it says in this section, meaning the section dealing with removal, and the next section, which deals with cancellation of removal, the statute says, the term removable means, in the case of an alien who hasn't been admitted, that the alien is inadmissable under 1182 of the Act, or, in the case of an alien admitted to the United States, such as the aliens here, that the alien is deportable under section 1227 of this title.

In other words, the term is meant to identify the substantive ground on removal that...

Justice Souter: Well, the term requires two things.

It requires a substantive ground.

It also requires a statute under which the substantive ground is sufficient by the Attorney General operating under the statute...

Mr. Kneedler: But a...

Justice Souter: and they're saying... they're not challenging the ground that says, I'm an alien, or the ground that says, I have a conviction.

They're challenging the Attorney General's operation under a statute that they say doesn't apply, and removable can cover that just as well as it can cover the substantive grounds relied upon for the removal.

Mr. Kneedler: But the paragraph (c) goes on to identify the specific statutory provisions that it is referring to, and they are all substantive grounds of removal.

They are not...

Justice Scalia: Nobody is removable by reason of that alone.

I mean, if you take removable in the broad sense to mean all of the conditions have been complied with to make the removal proper, if you take it in that broad sense, this provision makes no sense, because in that broad sense, nobody is removable solely by reason of having committed a criminal offense.

Mr. Kneedler: That's true.

I mean, as you pointed out, read expansively it could go to any question that might be thought to call into question the propriety of the Attorney General's action.

Justice Souter: So if Congress wanted to make that point, clearly, Congress would have said, anybody who is ordered removed by reason of being an alien with a criminal conviction.

That's not what Congress...

Mr. Kneedler: But it separately addresses that in the preceding line by saying, review of a final order, and then it's which final order, so I think it's already... I think Congress has already spoken to that question.

I...

Justice Ginsburg: Mr. Kneedler, may I ask you just to clarify what you... you say there are a number of categories where there is court review before the person is removed, and one of them is a substantial constitutional challenge to an aggravated felony, removal order.

I was trying to envision what such a challenge would be, given the tightness of the statute.

Mr. Kneedler: Well, I suppose there could be... we don't think it would fail, but I mean... we don't think it would succeed, but if there were some argument that it would be constitutionally impermissible to apply a ground of deportation to conduct that arose before the statute was passed, or that there was some sort of equal protection violation in singling out one ground of removal over another in providing a ground for removal, that could be a constitutional challenge to the statute under which the person is being ordered removed.

Justice Stevens: If you concede that, why couldn't the litigants in this case say, we make that constitutional argument and, secondly, we say you should construe the statute to avoid that constitutional question, so now we're in court...

Mr. Kneedler: They have not made a constitutional...

Justice Stevens: But if they did that, do you think we could then decide the question?

Mr. Kneedler: We... I think not.

I think that the... I think the only thing that could be done would be to challenge the constitutional ground of removal.

Congress... as we point out in our brief, the one thing that is clear from the legislative background of the passage of IIRIRA and AEDPA is that Congress wanted to expeditiously remove criminal aliens from the United States, and it regarded the entry of the judgment of conviction as a sufficient ground for doing so.

It did not want to provide... first, in our view, we believe Congress eliminated discretionary grounds for removal, but it surely would not have intended to have litigation over that.

Justice Stevens: Yes, but that's all perfectly clear with respect to convictions after the statute is passed, but the problem is, it's not quite as clear, as least, as to convictions before the statute was passed, and that's why we have the problem.

Mr. Kneedler: It is, but it wouldn't be at all surprising that in the climate in which Congress acted, what Congress wanted to do was to vest the final determination on questions such as that in the Attorney General.

As Justice Ginsburg pointed out, the Attorney General could have just decided, taking into account the recent legislative enactment, simply, even if the Act applied, to say, I'm not granting relief to anyone whom Congress has identified as an unworthy to remain here, and there's no question that that would be a permissible exercise of discretion, which shows that it can't be a fundamental right...

Justice Kennedy: Well, I have some question about that.

Mr. Kneedler: Well, this Court held in the Lopez case...

Justice Kennedy: I thought the Chennary case, which I never fully understood, says that if the exercise of discretion is committed to an official, the official must exercise that discretion in some instances.

Mr. Kneedler: Well, this is a statute... again, looking at the statute, in which Congress has given the power to the Attorney General, but unlike, for example, the asylum provision, the asylum provision says in section 208, the Attorney General shall establish a procedure for aliens to file applications for asylum, meaning that the Attorney General has to at least be in a position to receive an application and do something with it.

There is no such provision in this Act that requires the Attorney General to receive and consider a particular application for relief from deportation, just as there is nothing to require the President to actually entertain and pass upon an application for a pardon, and this Court said in Jay v. Boyd that this relief is to be regarded much as the application for a pardon to the President of the United States.

One final point I want to make clear is that, whatever else may be true with respect to judicial review, the court of appeals was certainly wrong to say that judicial review would be in the district court.

It would stand this Act on its head to suggest that criminal aliens whom Congress wanted to remove from the country with particular emphasis would be able to go to the district courts, get a level of review there, go to the court of appeals, and then perhaps to this Court.

Justice Ginsburg: Well, what was wrong with the court of appeals saying, if there's nothing else, there's always the general habeas, unless Congress says specifically... mentioning the statutory provision by number or name.

That essentially was the Second Circuit's position, was it not?

Mr. Kneedler: Well, there's no requirement that Congress, in order to channel all review to a court of appeals, has to specifically mention 2241, but...

Justice Ginsburg: Yes, but the answer... the Second Circuit was saying, we accept what the Government tells us, there's no review in the court of appeals, but Congress has not deleted the general habeas authority.

Mr. Kneedler: Congress did two things before IIRIRA was enacted in section 401(e), in a provision called, Elimination of Habeas Corpus, Congress repealed the prior provision for habeas corpus relief and secondly, in the provision enacted here, it channeled all review to the courts of appeals.

Rebuttal of Lucas Guttentag

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Guttentag, you have 4 minutes remaining.

Mr. Guttentag: Thank you.

I want to be clear that, under the statute, there's no final order of deportation until the application for discretionary relief is adjudicated.

That has been the case since these statutes were first enacted in 1917, when discretionary...

Justice Kennedy: Can you give me some authority for that proposition, either under the statute, or under our cases?

Mr. Guttentag: The Chadha case stands for that proposition, Your Honor.

The Foti case clearly stands for that proposition.

Justice Scalia: The Government says that those cases came out that way simply because the Attorney General had, as a discretionary matter, decided to determine the discretionary element together with the merits determination, so as a matter of fact, it happened to have been preceding the order of deportation, but that there was no legal requirement that that be the case.

Mr. Guttentag: There continues to be the case that the regulations require that, Your Honor.

There's no doubt about that, that the regulations require the immigration judge to adjudicate an application for relief.

That, in and of itself, is a duty.

Secondly, the cases do say that the final order is contingent on the determination, and this is not about the exercise...

Justice Scalia: Do you have a regulation number for that, or...

Mr. Guttentag: It's 212... it was 212e(b)(2), I believe, and it's currently also the regulation governing the current version of that, which is the cancellation of removal, and I'd be happy to provide it at the next case, if that's... that that final order... and I don't believe the Government would actually contend that under the statute as it's currently implemented, and as it has been since 1917, and under the regulations that govern, that a final order could be entered with the immigration judge or the Board of Immigration Appeals and the Attorney General simply say, I refuse to adjudicate your application for relief.

If the Attorney General determines that the individual is not legally eligible, then so be it, but that claim is reviewable.

If the Attorney General exercises discretion, then that is not reviewable, and we concede that.

The... what the... what this Court has said about the pardon analogy to the discretionary decision goes to the exercise of discretion.

That's very clear from the Jay v. Boyd case.

It's clear from the Yang case, Your Honor, where the exercise of discretion is not reviewable, but the question of whether the Attorney General has properly construed who is eligible, the Attorney General in this case has said that an entire class of individuals is ineligible because I determined that, Congress instructed me to apply this law retroactively.

Whether the statute applies retroactively or not is a question that the courts must decide.

That's what Landgraf said, and it's for Congress to legislate clearly and specifically what the temporal scope of the statute is, and that's not for the Attorney General to determine.

I also, in regard to the particular provision governing the review of discretionary decisions that Mr. Kneedler referred to, that refers to particular determinations there in the... that are in the discretion of the Attorney General.

For example, asylum claims remain reviewable, so it's clear that the preclusion provision here still would do a significant amount of work, and as far as the definition of what constitute... of what removable means, that definition does not specifically apply to the term in section 1252, in the judicial review provision.

It is a definition, but it does not specifically apply to what we have at issue here.

And finally, in terms of the Government arguing that the Attorney General could simply decide to deny any exercise of discretion, that is the Chennary principle, that the decision of the Attorney General must be, correct or not...

Chief Justice Rehnquist: Thank you, Mr. Guttentag.

The case is submitted.