Opinions of the United
1999 Decisions                                                                                                             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Precedential or Non-Precedential: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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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., 

(1994), and elaborated in
Lindh v. Murphy, 

(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, 

(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, 

(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, 

(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, 

(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, 

(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 Magana-
Pizano. On December 2, 1998, the Ninth Circuit granted
rehearing en banc and withdrew the Hose opinion. See
Hose v. INS, 

(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, 

(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, 

(11th Cir.
Dec. 9, 1998), opinion vacated and superseded, 

(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 , 

(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." 

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, 

, 217 (5th Cir. 1998); Mansour v. INS, 

,
426 (6th Cir. 1997); Ramallo v. Reno, 

, 1214
(D.C. Cir. 1997); Fernandez v. INS, 

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

In this court's opinion in Morel v. INS, 

(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.

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 long-
standing doctrine disfavoring repeal of jurisdictional
statutes by implication.

The Supreme Court had occasion to apply this doctrine
recently in Felker v. Turpin, 

(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 

.

The Felker Court took guidance from Ex Parte Yerger, 

(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 , 

(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. 

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." 

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." 

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, 

(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." 

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, 

(1953), concluding that the
Immigration Act was "a statute precluding judicial review"
within the meaning of the APA. 

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." 

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." 

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, 

(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," 

the Court held in
Shaughnessy (1) that the APA applied to immigration cases
and (2) that under the APA's "generous review provisions,"

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, 

, 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 

("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."); 

(" `[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, 

, 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., 

, 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 

. 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 

. 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." 

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, 

, 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 

; 

("[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., 

(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 

.

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. 

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." 

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." 

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 

.
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, 

, 575 (1988); United States ex rel.
Attorney General v. Delaware & Hudson Co., 

,
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, 

(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 

. 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 

, 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, 

, 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, 

, 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 

(Statutory
claims "affecting the substantial rights of aliens of the sort
the courts have secularly enforced" are reviewable on
habeas); 

("The pure
statutory claims Goncalves makes here are well within
precedent interpreting the core habeas protection provided
by S 2241."); 

("[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

. 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., 

(1994); Lindh v.
Murphy, 

(1997); and United States v.
Skandier, 

(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., 

(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 

. 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 

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

. 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, 

, 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 

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 

. 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 

. 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." 

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, 

(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." 

We stated

                               29
that this interpretation was the only "sensible" one, and
that a contrary interpretation would have rendered a
congressional provision "absurd." 

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 

&
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." 

(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 

(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 

(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 Cardoza-
Fonseca, "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 

(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." 

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 

; 

. 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, 

, 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, 

, 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, 

(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 non-
constitutional claim. 

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, 

at 4-5.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               35