Justice Stevens, delivered the opinion of the Court.
Both the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), enacted on April 24, 1996, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), enacted on September 30, 1996, 110 Stat. 3009-546, contain comprehensive amendments to the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. This case raises two important questions about the impact of those amendments. The first question is a procedural one, concerning the effect of those amendments on the availability of habeas corpus jurisdiction under 28 U. S. C. § 2241. The second question is a substantive one, concerning the impact of the amendments on conduct that occurred before
Respondent, Enrico St. Cyr, is a citizen of Haiti who was admitted to the United States as a lawful permanent resident in 1986. Ten years later, on March 8, 1996, he pleaded guilty in a state court to a charge of selling a controlled substance in violation of Connecticut law. That conviction made him deportable. Under pre-AEDPA law applicable at the time of his conviction, St. Cyr would have been eligible for a waiver of deportation at the discretion of the Attorney General. However, removal proceedings against him were not commenced until April 10, 1997, after both AEDPA and IIRIRA became effective, and, as the Attorney General interprets those statutes, he no longer has discretion to grant such a waiver.
In his habeas corpus petition, respondent has alleged that the restrictions on discretionary relief from deportation contained in the 1996 statutes do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The District Court accepted jurisdiction of his application and agreed with his submission. In accord with the decisions of four other Circuits, the Court of Appeals for the Second Circuit affirmed.
The character of the pre-AEDPA and pre-IIRIRA law that gave the Attorney General discretion to waive deportation in certain cases is relevant to our appraisal of both the substantive and the procedural questions raised by
Subject to certain exceptions, § 3 of the Immigration Act of 1917 excluded from admission to the United States several classes of aliens, including, for example, those who had committed crimes "involving moral turpitude." 39 Stat. 875. The seventh exception provided "[t]hat aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe." Id., at 878.
Section 212 of the Immigration and Nationality Act of 1952, which replaced and roughly paralleled § 3 of the 1917 Act, excluded from the United States several classes of aliens, including those convicted of offenses involving moral turpitude or the illicit traffic in narcotics. See 66 Stat. 182-187. As with the prior law, this section was subject to a proviso granting the Attorney General broad discretion to
Like § 3 of the 1917 Act, § 212(c) was literally applicable only to exclusion proceedings, but it too has been interpreted by the Board of Immigration Appeals (BIA) to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation. See Matter of Silva, 16 I. & N. Dec. 26, 30 (1976) (adopting position of Francis v. INS, 532 F.2d 268 (CA2 1976)). If relief is granted, the deportation proceeding is terminated and the alien remains a permanent resident.
The extension of § 212(c) relief to the deportation context has had great practical importance, because deportable offenses have historically been defined broadly. For example, under the INA, aliens are deportable upon conviction for two crimes of "moral turpitude" (or for one such crime if it occurred within five years of entry into the country and resulted in a jail term of at least one year). See 8 U. S. C. §§ 1227(a)(2)(A)(i)—(ii) (1994 ed., Supp. V). In 1988, Congress further specified that an alien is deportable upon conviction for any "aggravated felony," Anti-Drug Abuse Act of 1988, 102 Stat. 4469-4470, § 1227(a)(2)(A)(iii), which was defined to include numerous offenses without regard to how long ago they were committed.
In the Attorney General's opinion, these amendments have entirely withdrawn his § 212(c) authority to waive deportation for aliens previously convicted of aggravated felonies. Moreover, as a result of other amendments adopted in AEDPA and IIRIRA, the Attorney General also maintains that there is no judicial forum available to decide whether these statutes did, in fact, deprive him of the power to grant such relief. As we shall explain below, we disagree on both points. In our view, a federal court does have jurisdiction to decide the merits of the legal question, and
The first question we must consider is whether the District Court retains jurisdiction under the general habeas corpus statute, 28 U. S. C. § 2241, to entertain St. Cyr's challenge. His application for a writ raises a pure question of law. He does not dispute any of the facts that establish his deportability or the conclusion that he is deportable. Nor does he contend that he would have any right to have an unfavorable exercise of the Attorney General's discretion reviewed in a judicial forum. Rather, he contests the Attorney General's conclusion that, as a matter of statutory interpretation, he is not eligible for discretionary relief.
The District Court held, and the Court of Appeals agreed, that it had jurisdiction to answer that question in a habeas corpus proceeding.
For the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action
In this case, the plain statement rule draws additional reinforcement from other canons of statutory construction. First, as a general matter, when a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). Second, if an otherwise acceptable construction of a statute
A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions. Article I, § 9, cl. 2, of the Constitution provides: "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." Because of that Clause, some "judicial intervention in deportation cases" is unquestionably "required by the Constitution." Heikkila v. Barber, 345 U.S. 229, 235 (1953).
Unlike the provisions of AEDPA that we construed in Felker v. Turpin, 518 U.S. 651 (1996), this case involves an alien subject to a federal removal order rather than a person confined pursuant to a state-court conviction. Accordingly, regardless of whether the protection of the Suspension
At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.
Notwithstanding the historical use of habeas corpus to remedy unlawful Executive action, the INS argues that this case falls outside the traditional scope of the writ at common law. It acknowledges that the writ protected an individual who was held without legal authority, but argues that the writ would not issue where "an official had statutory authorization to detain the individual . . . but . . . the official was not properly exercising his discretionary power to determine whether the individual should be released." Brief for Respondent in Colcano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 33. In this case, the INS points out, there is no dispute that the INS had authority in law to hold St. Cyr, as he is eligible for removal. St. Cyr counters that there is historical evidence of the writ issuing to redress the
St. Cyr's constitutional position also finds some support in our prior immigration cases. In Heikkila v. Barber, the Court observed that the then-existing statutory immigration scheme "had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution, " 345 U. S., at 234-235 (emphasis added)—and that scheme, as discussed below, did allow for review on habeas of questions of law concerning an alien's eligibility for discretionary relief. Therefore, while the INS' historical arguments are not insubstantial, the ambiguities in the scope of the exercise of the writ at common law identified by St. Cyr, and the suggestions in this Court's prior decisions as to the extent to which habeas review could be limited consistent with the Constitution, convince us that the Suspension Clause questions that would be presented by the INS' reading of the immigration statutes before us are difficult and significant.
In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789, there is substantial
Moreover, to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law. The writ of habeas corpus has always been available to review the legality of Executive detention. See Felker, 518 U. S., at 663; Swain v. Pressley, 430 U. S., at 380, n. 13; id., at 385-386 (Burger, C. J., concurring); Brown v. Allen, 344 U. S., at 533 (Jackson, J., concurring in result). Federal courts have been authorized to issue writs of habeas corpus since the enactment of the Judiciary Act of 1789, and § 2241 of the Judicial Code provides that federal judges may grant the writ of habeas corpus on the application of a prisoner held "in custody in violation of the Constitution or laws or treaties of the United States."
Until the enactment of the 1952 Immigration and Nationality Act, the sole means by which an alien could test the legality of his or her deportation order was by bringing a habeas corpus action in district court.
Habeas courts also regularly answered questions of law that arose in the context of discretionary relief. See, e. g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957).
Thus, under the pre-1996 statutory scheme—and consistent with its common-law antecedents—it is clear that St. Cyr could have brought his challenge to the BIA's legal determination in a habeas corpus petition under 28 U. S. C. § 2241. The INS argues, however, that AEDPA and IIRIRA contain four provisions that express a clear and unambiguous statement of Congress' intent to bar petitions brought under § 2241, despite the fact that none of them mention that section. The first of those provisions is AEDPA's § 401(e).
While the title of § 401(e)—"Elimination of Custody Review by Habeas Corpus"—would seem to support the INS' submission, the actual text of that provision does not.
Under the 1952 Act, district courts had broad authority to grant declaratory and injunctive relief in immigration cases, including orders adjudicating deportability and those denying suspensions of deportability. See Foti v. INS, 375 U.S. 217, 225-226 (1963). The 1961 Act withdrew that jurisdiction from the district courts and provided that the procedures set forth in the Hobbs Act would be the "sole and exclusive procedure" for judicial review of final orders of deportation, subject to a series of exceptions. See 75 Stat. 651. The last of those exceptions stated that "any alien held in custody pursuant to an order of deportation may obtain review thereof by habeas corpus proceedings." See id., at 652, codified at 8 U. S. C. § 1105a(10) (repealed Sept. 30, 1996).
The INS argues that the inclusion of that exception in the 1961 Act indicates that Congress must have believed that it would otherwise have withdrawn the pre-existing habeas corpus jurisdiction in deportation cases, and that, as a result, the repeal of that exception in AEDPA in 1996 implicitly achieved that result. It seems to us, however, that the 1961 exception is best explained as merely confirming the limited scope of the new review procedures. In fact, the 1961 House Report provides that this section "in no way disturbs the Habeas Corpus Act."
In any case, whether § 106(a)(10) served as an independent grant of habeas jurisdiction or simply as an acknowledgment of continued jurisdiction pursuant to § 2241, its repeal cannot be sufficient to eliminate what it did not originally grant— namely, habeas jurisdiction pursuant to 28 U. S. C. § 2241.
The INS also relies on three provisions of IIRIRA, now codified at 8 U. S. C. §§ 1252(a)(1), 1252(a)(2)(C), and
The term "judicial review" or "jurisdiction to review" is the focus of each of these three provisions. In the immigration context, "judicial review" and "habeas corpus" have historically distinct meanings. See Heikkila v. Barber, 345 U.S. 229 (1953). In Heikkila, the Court concluded that the finality provisions at issue "preclud[ed] judicial review" to the maximum extent possible under the Constitution, and thus concluded that the APA was inapplicable. Id., at 235. Nevertheless, the Court reaffirmed the right to habeas
The INS also makes a separate argument based on 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). We have previously described § 1252(b)(9) as a "zipper clause." AADC, 525 U.S. 471, 483 (1999). Its purpose is to consolidate "judicial review" of immigration proceedings into one action in the court of appeals, but it applies only "[w]ith respect to review of an order of removal under subsection (a)(1)." 8 U. S. C. § 1252(b) (1994 ed., Supp. V).
If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS' reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions.
The absence of a clearly expressed statement of congressional intent also pervades our review of the merits of St. Cyr's claim. Two important legal consequences ensued from respondent's entry of a guilty plea in March 1996: (1) He became subject to deportation, and (2) he became eligible for a discretionary waiver of that deportation under the prevailing
The INS submits that the statute resolves the issue because it unambiguously communicates Congress' intent to apply the provisions of IIRIRA's Title III—A to all removals initiated after the effective date of the statute, and, in any event, its provisions only operate prospectively and not retrospectively. The Court of Appeals, relying primarily on the analysis in our opinion in Landgraf v. USI Film Products, 511 U.S. 244 (1994), held, contrary to the INS' arguments, that Congress' intentions concerning the application of the "Cancellation of Removal" procedure are ambiguous and that the statute imposes an impermissible retroactive effect on aliens who, in reliance on the possibility of § 212(c) relief, pleaded guilty to aggravated felonies. See 229 F. 3d, at 416, 420. We agree.
Retroactive statutes raise special concerns. See Landgraf, 511 U. S., at 266. "The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals."
Despite the dangers inherent in retroactive legislation, it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect. See id., at 268. A statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result. "Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." Id., at 272-273. Accordingly, the first step in determining whether a statute has an impermissible retroactive effect is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. Martin v. Hadix, 527 U.S. 343, 352 (1999).
The standard for finding such unambiguous direction is a demanding one. "[C]ases where this Court has found truly `retroactive' effect adequately authorized by statute have
First, the INS points to the comprehensive nature of IIRIRA's revision of federal immigration law. "Congress's comprehensive establishment of a new immigration framework," the INS argues, "shows its intent that, after a transition period, the provisions of the old law should no longer be applied at all." Brief for Petitioner 33-34. We rejected a similar argument, however, in Landgraf, a case that, like this one, involved Congress' comprehensive revision of an important federal statute. 511 U. S., at 260-261. By itself, the comprehensiveness of a congressional enactment says nothing about Congress' intentions with respect to the retroactivity of the enactment's individual provisions.
The INS also points to the effective date for Title III—A as providing a clear statement of congressional intent to apply IIRIRA's repeal of § 212(c) retroactively. See IIRIRA § 309(a), 110 Stat. 3009-625. But the mere promulgation of an effective date for a statute does not provide sufficient assurance that Congress specifically considered the potential unfairness that retroactive application would produce. For that reason, a "statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date." Landgraf, 511 U. S., at 257.
The INS further argues that any ambiguity in Congress' intent is wiped away by the "saving provision" in IIRIRA § 309(c)(1), 110 Stat. 3009-625. Brief for Petitioner 34-36. That provision states that, for aliens whose exclusion or deportation proceedings began prior to the Title III—A effective
Another reason for declining to accept the INS' invitation to read § 309(c)(1) as dictating the temporal reach of IIRIRA § 304(b) is provided by Congress' willingness, in other sections of IIRIRA, to indicate unambiguously its intention
The presumption against retroactive application of ambiguous statutory provisions, buttressed by "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien," INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987), forecloses the conclusion that, in enacting § 304(b), "Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits."
IIRIRA's elimination of any possibility of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly "`attaches a new disability, in respect to transactions or considerations already past.' " Id., at 269. Plea agreements involve a quid pro quo between a criminal defendant and the government. See Newton v. Rumery, 480 U.S. 386,
The case of Charles Jideonwo, a petitioner in a parallel litigation in the Seventh Circuit, is instructive. Charged in 1994 with violating federal narcotics law, Jideonwo entered into extensive plea negotiations with the Government, the sole purpose of which was to ensure that "`he got less than five years to avoid what would have been a statutory bar on 212(c) relief.' " Jideonwo v. INS, 224 F.3d 692, 699 (CA7 2000) (quoting the Immigration Judge's findings of fact). The potential for unfairness in the retroactive application of IIRIRA § 304(b) to people like Jideonwo and St. Cyr is significant and manifest. Relying upon settled practice, the advice of counsel, and perhaps even assurances in open court that the entry of the plea would not foreclose § 212(c) relief, a great number of defendants in Jideonwo's and St. Cyr's position agreed to plead guilty.
The INS argues that deportation proceedings (and the Attorney General's discretionary power to grant relief from deportation) are "inherently prospective" and that, as a result, application of the law of deportation can never have a retroactive effect. Such categorical arguments are not particularly helpful in undertaking Landgraf `s commonsense, functional retroactivity analysis. See Martin, 527 U. S., at 359. Moreover, although we have characterized deportation as "look[ing] prospectively to the respondent's right to remain in this country in the future," INS v. LopezMendoza, 468 U.S. 1032, 1038 (1984), we have done so in order to reject the argument that deportation is punishment for past behavior and that deportation proceedings are therefore subject to the "various protections that apply in the context of a criminal trial." Ibid. As our cases make clear, the presumption against retroactivity applies far beyond the confines of the criminal law. See Landgraf, 511 U. S., at 272. And our mere statement that deportation is not punishment for past crimes does not mean that we cannot consider an alien's reasonable reliance on the continued availability of discretionary relief from deportation when deciding whether the elimination of such relief has a retroactive effect.
The judgment is affirmed.
It is so ordered.
Justice O'Connor, dissenting.
I join Parts I and III of Justice Scalia's dissenting opinion in this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum extent of habeas review, the right asserted by the alien in this case falls outside the scope of that review for the reasons explained by Justice Scalia in Part II—B of his dissenting opinion. The question whether the Suspension Clause assures habeas jurisdiction in this particular case properly is resolved on this ground alone, and there is no need to say more.
Justice Scalia, with whom The Chief Justice and Justice Thomas join, and with whom Justice O'Connor joins as to Parts I and III, dissenting.
The Court today finds ambiguity in the utterly clear language of a statute that forbids the district court (and all
In categorical terms that admit of no exception, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, unambiguously repeals the application of 28 U. S. C. § 2241 (the general habeas corpus provision), and of all other provisions for judicial review, to deportation challenges brought by certain kinds of criminal aliens. This would have been readily apparent to the reader, had the Court at the outset of its opinion set forth the relevant provisions of IIRIRA and of its statutory predecessor, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. I will begin by supplying that deficiency, and explaining IIRIRA's jurisdictional scheme. It begins with what we have called a channeling or "`zipper' clause," Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999)— namely, 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). This provision, entitled "Consolidation of questions for judicial review," provides as follows:
In other words, if any review is available of any "questio[n] of law . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter," it is available "only in judicial review of a final order under this section [§ 1252]." What kind of review does that section provide? That is set forth in § 1252(a)(1), which states:
In other words, if judicial review is available, it consists only of the modified Hobbs Act review specified in § 1252(a)(1).
In some cases (including, as it happens, the one before us), there can be no review at all, because IIRIRA categorically and unequivocally rules out judicial review of challenges to deportation brought by certain kinds of criminal aliens. Section 1252(a)(2)(C) provides:
The Court's efforts to derive ambiguity from this utmost clarity are unconvincing. First, the Court argues that §§ 1252(a)(2)(C) and 1252(b)(9) are not as clear as one might think—that, even though they are sufficient to repeal the jurisdiction of the courts of appeals, see Calcano-Martinez v. INS, post, at 351-352,
But the Court is demonstrably wrong about that as well. Before IIRIRA was enacted, from 1961 to 1996, the governing immigration statutes unquestionably treated "judicial review" as encompassing review by habeas corpus. As discussed earlier, 8 U. S. C. § 1105a (1994 ed.) made Hobbs Act review "the sole and exclusive procedure for, the judicial review of all final orders of deportation" (emphasis added), but created (in subsection (a)(10)) a limited exception for habeas corpus review. Section 1105a was entitled "Judicial review of orders of deportation and exclusion" (emphasis added), and the exception for habeas corpus stated that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings," § 1105a(a)(10) (emphases added). Apart from this prior statutory usage, many of our own immigration cases belie the Court's suggestion that the term "judicial review," when used in the immigration context, does not include review by habeas corpus. See, e. g., United States v. Mendoza-Lopez, 481 U.S. 828, 836-837 (1987) ("[A]ny alien held in custody pursuant to an order of deportation may obtain
The only support the Court offers in support of the asserted "longstanding distinction between `judicial review' and `habeas,' " ante, at 312, n. 35, is language from a single opinion of this Court, Heikkila v. Barber, 345 U.S. 229 (1953).
Unquestionably, unambiguously, and unmistakably, IIRIRA expressly supersedes § 2241's general provision for habeas jurisdiction. The Court asserts that Felker v. Turpin, 518 U.S. 651 (1996), and Ex parte Yerger, 8 Wall. 85
The Court insists, however, that since "[n]either [§ 1252(a)(1) nor § 1252(a)(2)(C)] explicitly mentions habeas, or 28 U. S. C. § 2241," "neither provision speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute." Ante, at 312-313. Even in those areas of our jurisprudence where we have adopted a "clear statement" rule (notably, the sovereign immunity cases to which the Court adverts, ante, at 299, n. 10), clear statement has never meant the kind of magic words demanded by the Court
In Gregory, as in United States v. Nordic Village, Inc., 503 U.S. 30, 34-35 (1992), and Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 246 (1985), we held that the clear-statement requirement was not met, not because there was no explicit reference to the Eleventh Amendment, but because the statutory intent to eliminate state sovereign immunity was not clear. For the reasons discussed above, the intent to eliminate habeas jurisdiction in the present case is entirely clear, and that is all that is required.
It has happened before—too frequently, alas—that courts have distorted plain statutory text in order to produce a "more sensible" result. The unique accomplishment of today's opinion is that the result it produces is as far removed from what is sensible as its statutory construction is from the language of the text. One would have to study our statute books for a long time to come up with a more unlikely disposition. By authorizing § 2241 habeas review in the district court but foreclosing review in the court of appeals, see Calcano-Martinez, post, at 351-352, the Court's interpretation routes all legal challenges to removal orders brought by criminal aliens to the district court, to be adjudicated under that court's § 2241 habeas authority, which specifies no time limits. After review by that court, criminal aliens will presumably have an appeal as of right to the court of appeals, and can then petition this Court for a writ of certiorari.
To excuse the violence it does to the statutory text, the Court invokes the doctrine of constitutional doubt, which it asserts is raised by the Suspension Clause, U. S. Const., Art. I, § 9, cl. 2. This uses one distortion to justify another, transmogrifying a doctrine designed to maintain "a just respect
In the remainder of this opinion I address the question the Court should have addressed: Whether these provisions of IIRIRA are unconstitutional.
The Suspension Clause of the Constitution, Art. I, § 9, cl. 2, provides as follows:
A straightforward reading of this text discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended. See R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 1369 (4th ed. 1996) ("[T]he text [of the Suspension Clause] does not confer a right to habeas relief, but merely sets forth when the `Privilege of the Writ' may be suspended"). Indeed, that was precisely the objection expressed by four of the state ratifying conventions—that the Constitution failed affirmatively to guarantee a right to habeas corpus. See Collings, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace?, 40 Calif. L. Rev. 335, 340, and nn. 39-41 (1952) (citing 1 J. Elliott, Debates on the Federal Constitution 328 (2d ed. 1836) (New York); 3 id., at 658 (Virginia); 4 id., at 243 (North Carolina); 1 id., at 334 (Rhode Island)).
To "suspend" the writ was not to fail to enact it, much less to refuse to accord it particular content. Noah Webster, in his American Dictionary of the English Language, defined it—with patriotic allusion to the constitutional text— as "[t]o cause to cease for a time from operation or effect; as, to suspend the habeas corpus act." Vol. 2, p. 86 (1828 ed.). See also N. Bailey, An Universal Etymological English Dictionary (1789) ("To Suspend [in Law ] signifies a temporal stop of a man's right"); 2 S. Johnson, A Dictionary of the English Language 1958 (1773) ("to make to stop for a time"). This was a distinct abuse of majority power, and one that had manifested itself often in the Framers' experience: temporarily but entirely eliminating the "Privilege of the Writ" for a certain geographic area or areas, or for a certain class
In the present case, of course, Congress has not temporarily withheld operation of the writ, but has permanently altered its content. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.
There is, however, another Supreme Court dictum that is unquestionably in point—an unusually authoritative one at that, since it was written by Chief Justice Marshall in 1807. It supports precisely the interpretation of the Suspension Clause I have set forth above. In Ex parte Bollman, 4 Cranch 75, one of the cases arising out of the Burr conspiracy, the issue presented was whether the Supreme Court had the power to issue a writ of habeas corpus for the release of two prisoners held for trial under warrant of the Circuit Court of the District of Columbia. Counsel for the detainees asserted not only statutory authority for issuance of the writ, but inherent power. See id., at 77-93. The Court would have nothing to do with that, whether under Article III or any other provision. While acknowledging an inherent power of the courts "over their own officers, or
"must be given by written law.
In the ensuing discussion of the Judiciary Act of 1789, the opinion specifically addresses the Suspension Clause—not invoking it as a source of habeas jurisdiction, but to the contrary pointing out that without legislated habeas jurisdiction the Suspension Clause would have no effect.
Even if one were to assume that the Suspension Clause, despite its text and the Marshall Court's understanding, guarantees some constitutional minimum of habeas relief, that minimum would assuredly not embrace the rarified right asserted here: the right to judicial compulsion of the exercise of Executive discretion (which may be exercised favorably or unfavorably) regarding a prisoner's release. If one reads the Suspension Clause as a guarantee of habeas relief, the obvious question presented is: What habeas relief? There are only two alternatives, the first of which is too absurd to be seriously entertained. It could be contended that Congress "suspends" the writ whenever it eliminates any prior ground for the writ that it adopted. Thus, if Congress should ever (in the view of this Court) have authorized immediate habeas corpus—without the need to exhaust administrative remedies—for a person arrested as an illegal alien, Congress would never be able (in the light of sad experience) to revise that disposition. The Suspension
The other alternative is that the Suspension Clause guarantees the common-law right of habeas corpus, as it was understood when the Constitution was ratified. There is no doubt whatever that this did not include the right to obtain discretionary release. The Court notes with apparent credulity respondent's contention "that there is historical evidence of the writ issuing to redress the improper exercise of official discretion," ante, at 303-304. The only framing-era or earlier cases it alludes to in support of that contention, see ante, at 303, n. 23, referred to ante, at 303-304, establish no such thing. In Ex parte Boggin, 13 East 549, 104 Eng. Rep. 484 (K. B. 1811), the court did not even bother calling for a response from the custodian, where the applicant failed to show that he was statutorily exempt from impressment under any statute then in force. In Chalacombe's Case, reported in a footnote in Ex parte Boggin, the court did "let the writ go"—i. e., called for a response from the Admiralty to Chalacombe's petition—even though counsel for the Admiralty had argued that the Admiralty's general policy of not impressing "seafaring persons of [Chalacombe's] description" was "a matter of grace and favour, [and not] of right." But the court never decided that it had authority to grant the relief requested (since the Admiralty promptly discharged Chalacombe of its own accord); in fact, it expressed doubt whether it had that authority. See 13 East, at 550, n. (b), 104 Eng. Rep., at 484, n. (a)
All the other framing-era or earlier cases cited in the Court's opinion—indeed, all the later Supreme Court cases until United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, in 1954 —provide habeas relief from executive detention only when the custodian had no legal authority to detain. See 3 J. Story, Commentaries on the Constitution of the United States § 1333, p. 206 (1833) (the writ lies to ascertain whether a "sufficient ground of detention appears"). The fact is that, far from forming a traditional basis for issuance of the writ of habeas corpus, the whole "concept of `discretion' was not well developed at common law," Hafetz, The Untold Story of Noncriminal Habeas Corpus and the 1996 Immigration Acts, 107 Yale L. J. 2509, 2534 (1998), quoted in Brief for Respondent in Calcano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 37. An exhaustive search of cases antedating the Suspension Clause discloses few instances in which courts even discussed the concept of executive discretion; and on the rare occasions when they did, they simply confirmed what seems obvious from the paucity of such discussions—namely, that courts understood executive discretion as lying entirely beyond the judicial ken. See, e. g., Chalacombe's Case, supra, at 342. That is precisely what one would expect, since even the executive's evaluation of the facts —a duty that was a good deal more than discretionary—was not subject to review on habeas. Both in this country, until passage of the Habeas Corpus Act of 1867, and in England, the longstanding rule had been that the truth of the custodian's return could not be controverted. See, e. g., Opinion on the Writ of Habeas Corpus, Wilm. 77, 107, 97 Eng. Rep. 29, 43 (H. L. 1758); Note, Developments in
In sum, there is no authority whatever for the proposition that, at the time the Suspension Clause was ratified—or, for that matter, even for a century and a half thereafter—habeas corpus relief was available to compel the Executive's allegedly wrongful refusal to exercise discretion. The striking proof of that proposition is that when, in 1954, the Warren Court held that the Attorney General's alleged refusal to exercise his discretion under the Immigration Act of 1917 could be reviewed on habeas, see United States ex rel. Accardi v. Shaughnessy, supra, it did so without citation of any supporting authority, and over the dissent of Justice Jackson, joined by three other Justices, who wrote:
Given the insubstantiality of the due process and Article III arguments against barring judicial review of respondent's claim (the Court does not even bother to mention them, and the Court of Appeals barely acknowledges them), I will address them only briefly.
The Due Process Clause does not "[r]equir[e] [j]udicial [d]etermination [o]f" respondent's claim, Brief for Petitioners in Calcano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 34. Respondent has no legal entitlement to suspension of deportation, no matter how appealing his case. "[T]he Attorney General's suspension of deportation [is] "an act of grace" which is accorded pursuant to her `unfettered discretion,' Jay v. Boyd, 351 U.S. 345, 354 (1956) . . . , and [can be likened, as Judge Learned Hand observed,] to "a judge's power to suspend the execution of a sentence, or the President's to pardon a convict," 351 U. S., at 354, n. 16 . . . ." INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996). The furthest our cases have gone in imposing due process requirements upon analogous exercises of Executive discretion is the following. (1) We have required "minimal procedural safeguards" for death-penalty clemency proceedings, to prevent them from becoming so capricious as to involve "a state official flipp[ing] a coin to determine whether to grant clemency," Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998) (O'Connor, J., concurring in part and concurring in judgment). Even assuming that this holding is not part of our "death-is-different" jurisprudence, Shafer v. South Carolina, 532 U.S. 36, 55 (2001) (Scalia, J., dissenting) (citation omitted), respondent here is not complaining about the absence of procedural safeguards; he disagrees with the Attorney General's judgment on a point of law. (2) We have recognized the existence of a due process liberty interest when
Article III, § 1's investment of the "judicial Power of the United States" in the federal courts does not prevent Congress from committing the adjudication of respondent's legal claim wholly to "non-Article III federal adjudicative bodies," Brief for Petitioners in Calcano-Martinez v. INS, O. T. 2000, No. 00-1011, at 38. The notion that Article III requires every Executive determination, on a question of law or of fact, to be subject to judicial review has no support in our jurisprudence. Were it correct, the doctrine of sovereign immunity would not exist, and the APA's general permission of suits challenging administrative action, see 5 U. S. C. § 702, would have been superfluous. Of its own force, Article III does no more than commit to the courts matters that are "the stuff of the traditional actions at common law tried by the courts at Westminster in 1789," Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90 (1982) (Rehnquist, J., concurring in judgment)—which (as I have discussed earlier) did not include supervision of discretionary Executive action.
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The Court has created a version of IIRIRA that is not only unrecognizable to its framers (or to anyone who can read) but gives the statutory scheme precisely the opposite of its intended effect, affording criminal aliens more opportunities
Briefs of amici curiae urging affirmance were filed for the Florida Immigrant Advocacy Center et al. by Rebecca Sharpless; and for the National Association of Criminal Defense Lawyers et al. by Manuel D. Vargas and Joshua L. Dratel.
James Oldham, Michael J. Wishnie, and Douglas W. Baruch filed a brief for Legal Historians as amici curiae.
In developing these changes, the BIA developed criteria, comparable to common-law rules, for deciding when deportation is appropriate. Those criteria, which have been set forth in several BIA opinions, see, e. g., Matter of Marin, 16 I. & N. Dec. 581 (1978), include the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien's residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.
The dissent, however, relies on Chalacombe's Case as its sole support for the proposition that courts treated Executive discretion as "lying entirely beyond the judicial ken." See post, at 343 (opinion of Scalia, J.). Although Lord Ellenborough expressed "some hesitation" as to whether the case should "stand over for the consideration of the Admiralty," he concluded that, given the public importance of the question, the response should be called for. 13 East, at 549, n. (b), 104 Eng. Rep., at 484, n. (a)
"(e) Elimination of Custody Review by Habeas Corpus.—Section 106(a) of the Immigration and Nationality Act (8 U. S. C. 1105a(a)) is amended—
"(1) in paragraph (8), by adding `and' at the end;
"(2) in paragraph (9), by striking `;and' at the end and inserting a period; and
"(3) by striking paragraph (10)." 110 Stat. 1268.
"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263 (1952).
At most, § 1252(e)(2) introduces additional statutory ambiguity, but ambiguity does not help the INS in this case. As we noted above, only the clearest statement of congressional intent will support the INS' position. See supra, at 305.
"(1) General rule that new rules do not apply.—Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings as of the title III—A effective date—
"(A) the amendments made by this subtitle shall not apply, and
"(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments." § 309, 110 Stat. 3009-625.
Similarly, the fact that Congress has the power to alter the rights of resident aliens to remain in the United States is not determinative of the question whether a particular statute has a retroactive effect. See Chew Heong v. United States, 112 U.S. 536 (1884). Applying a statute barring Chinese nationals from reentering the country without a certificate prepared when they left to people who exited the country before the statute went into effect would have retroactively unsettled their reliance on the state of the law when they departed. See id., at 559. So too, applying IIRIRA § 304(b) to aliens who pleaded guilty or nolo contendere to crimes on the understanding that,in so doing, they would retain the ability to seek discretionary § 212(c) relief would retroactively unsettle their reliance on the state of the law at the time of their plea agreement.