OCTOBER TERM, 1998
Syllabus
RENO, ATTORNEY GENERAL, ET AL.
v. AMERICANARAB
ANTI-DISCRIMINATION COMMITTEE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-1252. Argued November 4, 1998-Decided February
24,1999
Respondent resident aliens filed this suit, claiming that
petitioners, the Attorney General and other federal parties,
targeted them for deportation because of their affiliation with a
politically unpopular group, in violation of their First and Fifth
Amendment rights. After the District Court preliminarily enjoined
the proceedings against respondents, but while an appeal by the
Attorney General was pending, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), which,
inter alia, repealed the old
judicial-review scheme in the Immigration and Nationality Act, 8 U.
S. C. § n05a, and instituted a new provision, 8 U. S. C. § 1252(g),
which restricts judicial review of the Attorney General's "decision
or action" to "commence proceedings, adjudicate cases, or execute
removal orders against any alien under this Act" "[e]xcept as
provided in this section." The Attorney General filed motions in
both the District Court and the Ninth Circuit, arguing that §
1252(g) deprived them of jurisdiction over respondents'
selective-enforcement claim. The District Court denied the motion.
The Ninth Circuit, consolidating an appeal from that denial with
the pending appeal, upheld jurisdiction and affirmed the District
Court's decision on the merits.
Held: Section 1252(g) deprives the federal courts of
jurisdiction over respondents' suit. Pp. 476-492.
(a) Although IIRIRA § 309(c)(1)'s general rule is that the
revised procedures for removing aliens, including § 1252's
judicial-review procedures, do not apply in exclusion or
deportation proceedings pending on IIRIRA's effective date, IIRIRA
§ 306(c)(1) directs that a single provision, § 1252(g), shall apply
"without limitation to claims arising from all past, pending, or
future exclusion, deportation, or removal proceedings." Section
1252(g) applies to three discrete actions that the Attorney General
may take: her "decision or action" to
"commence proceedings,
adjudicate cases, or
execute removal orders."
(Emphasis added.) The provision seems designed to give some measure
of protection to such discretionary determinations, providing that
if they are reviewable at all, they at least will not be made the
bases for separate rounds of judicial intervention outside the
streamlined process designed by Congress.
472
472 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
Respondents' challenge to the Attorney General's decision to
"commence proceedings" against them falls squarely within §
1252(g), and § 1252 does not otherwise provide jurisdiction.
Pp.476-487.
(b) The doctrine of constitutional doubt does not require that §
1252(g) be interpreted in such fashion as to permit immediate
review of respondents' selective-enforcement claims. An alien
unlawfully in this country has no constitutional right to assert
such a claim as a defense against his deportation. Pp. 487-492.
119 F.3d
1367, vacated and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined,
and in which GINSBURG and BREYER, JJ., joined as to Parts I and II.
GINSBURG, J., filed an opinion concurring in part and concurring in
the judgment, in which BREYER, J., joined as to Part I,
post, p. 492. STEVENS, J., filed an opinion concurring in
the judgment,
post, p. 498. SOUTER, J., filed a dissenting
opinion,
post, p. 501.
Malcolm L. Stewart argued the cause for petitioners.
With him on the briefs were Solicitor General Waxman, Assistant
Attorney General Hunger, Deputy Solicitor General Kneedler, and
Douglas N. Letter.
David D. Cole argued the cause for respondents. With him on the
brief were Steven R. Shapiro, Lucas Guttentag, Marc Van Der Hout,
and Paul L. Hoffman. *
JUSTICE SCALIA delivered the opinion of the Court.t Respondents
sued petitioners for allegedly targeting them for deportation
because of their affiliation with a politically unpopular group.
While their suit was pending, Congress
*Briefs of
amici curiae urging reversal were filed for
the Criminal Justice Legal Foundation by
Kent S.
Scheidegger; and for the Washington Legal Foundation et al.
by
Daniel J.
Popeo and
Richard A. Samp.
Briefs of
amici curiae urging affirmance were filed for
the American Bar Association by
Philip S.
Anderson,
Jeffrey L. Bleich, and
Carol Wolchok; for the American
Immigration Law Foundation et al. by
Ira J.
Kurzban
and
Nadine K. Wettstein; for the Brennan Center for Justice
at New York University School of Law by
Burt Neuborne; and
for the National Immigration Law Center by
Linton Joaquin
and
Gerald L. Neuman.
tJUSTICE BREYER joins Parts I and II of this opinion.
473
passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, which
contains a provision restricting judicial review of the Attorney
General's "decision or action" to "commence proceedings, adjudicate
cases, or execute removal orders against any alien under this Act."
8 U. S. C. § 1252(g) (1994 ed., Supp. III). The issue before us is
whether, as petitioners contend, this provision deprives the
federal courts of jurisdiction over respondents' suit.
I
The Immigration and Naturalization Service (INS), a division of
the Department of Justice, instituted deportation proceedings in
1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid,
Ayman Obeid, Nairn Sharif, Khader Hamide, and Michel Shehadeh, all
of whom belong to the Popular Front for the Liberation of Palestine
(PFLP), a group that the Government characterizes as an
international terrorist and communist organization. The INS charged
all eight under the McCarran-Walter Act, which, though now
repealed, provided at the time for the deportation of aliens who
"advocate ... world communism." See 8 U. S. C. §§ 1251(a)(6)(D),
(G)(v), and (H) (1982 ed.). In addition, the INS charged the first
six, who were only temporary residents, with routine status
violations such as overstaying a visa and failure to maintain
student status.1 See 8 U. S. C. §§ 1251(a)(2) and (a)(9) (1988
ed.).
Almost immediately, the aliens filed suit in District Court,
challenging the constitutionality of the anticommunism provisions
of the McCarran- Walter Act and seeking declaratory and injunctive
relief against the Attorney General, the INS, and various
immigration officials in their personal and official capacities.
The INS responded by dropping the advocacy-
1 Respondents Barakat and Sharif were subsequently granted
legalization and are no longer deportable based on the original
status violations. Brief for Petitioners 11, n. 5.
474
474 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
of-communism charges, but it retained the technical violation
charges against the six temporary residents and charged Hamide and
Shehadeh, who were permanent residents, under a different section
of the McCarran- Walter Act, which authorized the deportation of
aliens who were members of an organization advocating "the duty,
necessity, or propriety of the unlawful assaulting or killing of
any [government] officer or officers" and "the unlawful damage,
injury, or destruction of property." See 8 U. S. C. §§
1251(a)(6)(F)(ii)(iii) (1982 ed.).2 INS regional counsel William
Odencrantz said at a press conference that the charges had been
changed for tactical reasons but the INS was still seeking
respondents' deportation because of their affiliation with the
PFLP. See
American-Arab Anti-Discrimination Committee v.
Reno, 70 F.3d
1045, 1053 (CA9 1995)
(AADC I). Respondents amended
their complaint to include an allegation that the INS was
selectively enforcing immigration laws against them in violation of
their First and Fifth Amendment rights.3
Since this suit seeking to prevent the initiation of deportation
proceedings was filed-in 1987, during the administration of
Attorney General Edwin Meese-it has made four trips through the
District Court for the Central District of California and the
United States Court of Appeals for the Ninth Circuit. The first two
concerned jurisdictional issues not now before us. See
Hamide v.
United States District Court, No. 87-7249
(CA9, Feb. 24, 1988);
American-Arab Anti-Discrimination
Committee v.
Thornburgh, 970 F. 2d
2When the McCarran-Walter Act was repealed, a new "terrorist
activity" provision was added by the Immigration Act of 1990. See 8
U. S. C. § 1227(a)(4)(B) (1994 ed., Supp. III). The INS charged
Hamide and Shehadeh under this, but it is unclear whether that was
in addition to, or in substitution for, the old McCarran-Walter
charges.
3 The amended complaint was styled as an action for "damages and
for declaratory and injunctive relief," but the only monetary
relief specifically requested was "costs of suit and attorneys
fees." App. 20, 51.
475
501 (CA9 1991). Then, in 1994, the District Court
preliminarily enjoined deportation proceedings against the six
temporary residents, holding that they were likely to prove that
the INS did not enforce routine status requirements against
immigrants who were not members of disfavored terrorist groups and
that the possibility of deportation, combined with the chill to
their First Amendment rights while the proceedings were pending,
constituted irreparable injury. With regard to Hamide and
Shehadeh's claims, however, the District Court granted summary
judgment to the federal parties for reasons not pertinent here.
AADC I, supra, was the Ninth Circuit's first merits
determination in this case, upholding the injunction as to the six
and reversing the District Court with regard to Hamide and
Shehadeh. The opinion rejected the Attorney General's argument that
selective-enforcement claims are inappropriate in the immigration
context, and her alternative argument that the special
statutory-review provision of the Immigration and Nationality Act
(INA), 8 U. S. C. § 1l05a, precluded review of such a claim until a
deportation order issued. See 70 F. 3d, at 1056-1057. The Ninth
Circuit remanded the case to the District Court, which entered an
injunction in favor of Hamide and Shehadeh and denied the Attorney
General's request that the existing injunction be dissolved in
light of new evidence that all respondents participated in
fundraising activities of the PFLP.
While the Attorney General's appeal of this last decision was
pending, Congress passed IIRIRA which,
inter alia, repealed
the old judicial-review scheme set forth in § 1l05a and instituted
a new (and significantly more restrictive) one in 8 U. S. C. §
1252. The Attorney General filed motions in both the District Court
and Court of Appeals, arguing that § 1252(g) deprived them of
jurisdiction over respondents' selective-enforcement claim. The
District Court denied the motion, and the Attorney General's appeal
from that denial
476
476 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
was consolidated with the appeal already pending in the Ninth
Circuit.
It is the judgment and opinion in that appeal which is before us
here:
119 F.3d
1367 (CA9 1997). It affirmed the existence of jurisdiction
under § 1252, see id., at 1374, and reaching the merits of the
injunctions, again affirmed the District Court, id., at 1374-1376.
The Attorney General's petition for rehearing en banc was denied
over the dissent of three judges,
132 F.3d
531 (CA9 1997). The Attorney General sought our review, and we
granted certiorari, 524 U. S. 903 (1998).
II
Before enactment of IIRIRA, judicial review of most
administrative action under the INA was governed by 8 U. S. C. §
1105a, a special statutory-review provision directing that "the
sole and exclusive procedure for ... the judicial review of all
final orders of deportation" shall be that set forth in the Hobbs
Act, 28 U. S. C. § 2341
et seq., which gives exclusive
jurisdiction to the courts of appeals, see § 2342. Much of the
Court of Appeals' analysis in
AADC I was devoted to the
question whether this pre- IIRIRA provision applied to
selective-enforcement claims. Since neither the Immigration Judge
nor the Board of Immigration Appeals has authority to hear such
claims (a point conceded by the Attorney General in
AADC I,
see 70 F. 3d, at 1055), a challenge to a final order of deportation
based upon such a claim would arrive in the court of appeals
without the factual development necessary for decision. The
Attorney General argued unsuccessfully below that the Hobbs Act
permits a court of appeals to remand the case to the agency, see 28
U. S. C. § 2347(c), or transfer it to a district court, see §
2347(b)(3), for further factfinding. The Ninth Circuit, believing
these options unavailable, concluded that an original
district-court action was respondents' only means of obtaining
factual development and thus judicial review of their
selective-
477
enforcement claims. Relying on our decision in
Cheng Fan
Kwok v.
INS, 392 U. S. 206 (1968), it
held that the District Court could entertain the suit under either
its general federal-question jurisdiction, see 28 U. S. C. § 1331,
or the general jurisdictional provision of the INA, see 8 U. S. C.
§ 1329.4
Whether we must delve further into the details of this issue
depends upon whether, after the enactment of IIRIRA, § 1105a
continues to apply to this case. On the surface of things, at
least, it does not. Although the general rule set forth in §
309(c)(1) of IIRIRA is that the revised procedures for removing
aliens, including the judicial-review procedures of § 1252, do not
apply to aliens who were already in either exclusion or deportation
proceedings on IIRIRA's effective date, see note following 8 U. S.
C. § 1101 (1994 ed., Supp. III),5 § 306(c)(1) of IIRIRA directs
that a single provision, § 1252(g), shall apply "without limitation
to claims arising from all past, pending, or future exclusion,
deportation, or removal proceedings." See note following 8 U. S. C.
§ 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows:
"(g) EXCLUSIVE JURISDICTION
"Except as provided in this section and notwithstanding any
other provision of law, no court shall have juris-
4 This latter provision was subsequently amended by IIRIRA to
make clear that it applies only to actions brought by the United
States. See 8
"(c) TRANSITION FOR ALIENS IN PROCEEDINGS.-
"(1) GENERAL RULE THAT NEW RULES DO NOT APPLY.-Subject to the
succeeding provisions of this subsection [§ 309(a) carves out §
306(c) as an exception], 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
"(E) the proceedings (including judicial review thereof) shall
continue to be conducted without regard to such amendments." 110
Stat. 3009-625.
478
478 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
diction 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."
This provision seemingly governs here, depriving the federal
courts of jurisdiction "[e]xcept as provided in this section." But
whether it is as straightforward as that depends upon the scope of
the quoted text. Here, and in the courts below, both petitioners
and respondents have treated § 1252(g) as covering all or nearly
all deportation claims. The Attorney General has characterized it
as "a channeling provision, requiring aliens to bring all
deportation-related claims in the context of a petition for review
of a final order of deportation filed in the court of appeals."
Supplemental Brief for Appellants in No. 96-55929 (CA9), p. 2.
Respondents have described it as applying to "most of what INS
does." Corrected Supplemental Brief for Appellees in No. 96-55929
(CA9), p. 7. This broad understanding of § 1252(g), combined with
IIRIRA's effective-date provisions, creates an interpretive
anomaly. If the jurisdictionexcluding provision of § 1252(g)
eliminates other sources of jurisdiction in
all
deportation-related cases, and if the phrase in § 1252(g) "[e]xcept
as provided in this section" incorporates (as one would suppose)
all the other jurisdiction-related provisions of § 1252, then §
309(c)(1) would be rendered a virtual nullity. To say that there is
no jurisdiction in pending INS cases "except as" § 1252 provides
jurisdiction is simply to say that § 1252's jurisdictional
limitations apply to pending cases as well as future cases-which
seems hardly what § 309(c)(1) is about. If, on the other hand, the
phrase "[e]xcept as provided in this section" were (somehow)
interpreted not to incorporate the other jurisdictional provisions
of § 1252-if § 1252(g) stood alone, so to speak-judicial review
would be foreclosed for all deportation claims in all pending
deportation cases, even after entry of a final order.
479
The Attorney General would have us avoid the horns of this
dilemma by interpreting § 1252(g)'s phrase "[e]xcept as provided in
this section" to mean "except as provided in § 1l05a." Because §
1l05a authorizes review of only final orders, respondents must, she
says, wait until their administrative proceedings come to a close
and then seek review in a court of appeals. (For reasons mentioned
above, the Attorney General of course rejects the Ninth Circuit's
position in
AADC I that application of § 1l05a would leave
respondents without a judicial forum because evidence of selective
prosecution cannot be introduced into the administrative record.)
The obvious difficulty with the Attorney General's interpretation
is that it is impossible to understand how the qualifier in §
1252(g), "[e]xcept as provided in
this section" (emphasis
added), can possibly mean "except as provided in § 1l05a." And
indeed the Attorney General makes no attempt to explain how this
can be, except to observe that what she calls a "literal
application" of the statute "would create an anomalous result."
Brief for Petitioners 30, n. 15.
Respondents note this deficiency, but offer an equally
implausible means of avoiding the dilemma. Section 309(c)(3) allows
the Attorney General to terminate pending deportation proceedings
and reinitiate them under § 1252.6 They argue that § 1252(g)
applies only to those pending cases in which the Attorney General
has made that election. That way, they claim, the phrase "[e]xcept
as provided in this section" can, without producing an anomalous
result, be allowed to refer (as it says) to all the rest of § 1252.
But this approach collides head-on with § 306(c)'s prescription
that § 1252(g) shall apply
"without limitation to claims
arising from
all past, pending, or future exclusion,
deportation, or removal proceedings." See note following 8 U. S. C.
§ 1252 (1994 ed., Supp. III) (emphasis added). (Respondents
argue
6 It is unclear why the Attorney General has not exercised this
option in this case. Respondents have taken the position that the
District Court's injunction prevents her from doing so. Brief for
Respondents 41, n. 38.
480
480 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
in the alternative, of course, that if the Attorney General is
right and § 1105a does apply,
AADC I is correct that their
claims will be effectively unreviewable upon entry of a final
order. For this reason, and because they say that habeas review, if
still available after IIRIRA,7 will come too late to remedy this
First Amendment injury, respondents contend that we must construe §
1252(g) not to bar
constitutional claims.)
The Ninth Circuit, for its part, accepted the parties' broad
reading of § 1252(g) and concluded, reasonably enough, that on that
reading Congress could not have meant § 1252(g) to stand alone:
"Divorced from all other jurisdictional provisions of IIRIRA,
subsection (g) would have a more sweeping impact on cases filed
before the statute's enactment than after that date. Without
incorporating any exceptions, the provision appears to cut off
federal jurisdiction over all deportation decisions. We do not
think that Congress intended such an absurd result." 119 F. 3d, at
1372.
It recognized, however, the existence of the other horn of the
dilemma ("that retroactive application of the entire amended
version of 8 U. s. C. § 1252 would threaten to render meaningless
section 306(c) of IIRIRA," ibid.), and resolved the difficulty to
its satisfaction by concluding that "at least
some of the
other provisions of section 1252" must be included in
7 There is disagreement on this point in the Courts of Appeals.
Compare
Hose v.
INS, 141 F.3d
932, 935
(CA9) (habeas not available), withdrawn and
reh'g en banc granted,
161 F.3d
1225 (1998),
Richardson v.
Reno, 162 F.3d
1338 (CAll 1998) (same), and
Yang v.
INS,
109 F.3d
1185, 1195
(CA7 1997) (same), with
Goncalves v.
Reno, 144 F.3d
110, 122
(CA1 1998) (habeas available), and
Henderson v.
INS, 157 F.3d
106, 117-122
(CA2 1998) (same). See also
Magana-Pizano v.
INS, 152 F.3d
1213, 1220
(CA9 1998) (elimination of habeas
unconstitutional);
Ramallo v.
Reno, 114 F. 3d 1210,
1214 (CADC 1997) (§ 1252(g) removes statutory habeas but leaves
"constitutional" habeas intact).
481
subsection (g) "when it applies to pending cases."
Ibid.
(emphasis added). One of those provisions, it thought, must be
subsection (f), entitled "Limit on Injunctive Relief," which reads
as follows:
"Regardless of the nature of the action or claim or of the
identity of the party or parties bringing the action, no court
(other than the Supreme Court) shall have jurisdiction or authority
to enjoin or restrain the operation of the provisions of chapter 4
of title II, as amended by [IIRIRA], other than with respect to the
application of such provisions to an individual alien against whom
proceedings under such chapter have been initiated."
The Ninth Circuit found in this an affirmative grant of
jurisdiction that covered the present case. The Attorney General
argued that any such grant of jurisdiction would be limited (and
rendered inapplicable to this case) by § 1252(b)(9), which
provides:
"Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this chapter shall be
available only in judicial review of a final order under this
section."
The Ninth Circuit replied that, even if § 1252(b)(9) were one of
those provisions incorporated into the transitional application of
§ 1252(g), it could not preclude this suit for the same reason
AADC I had held that § l105a could not do sonamely, the
Court of Appeals' lack of access to factual findings regarding
selective enforcement.
Even respondents scarcely try to defend the Ninth Circuit's
reading of § 1252(f) as a jurisdictional grant. By its plain terms,
and even by its title, that provision is nothing more or less than
a limit on injunctive relief. It prohibits federal courts from
granting classwide injunctive relief against the operation of §§
1221-1231, but specifies that this
482
482 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
ban does not extend to individual cases. To find in this an
affirmative grant of jurisdiction is to go beyond what the language
will bear.
We think the seeming anomaly that prompted the parties' strained
readings of § 1252(g)-and that at least accompanied the Court of
Appeals' strained reading-is a mirage. The parties' interpretive
acrobatics flow from the belief that § 306(c)(1) cannot be read to
envision a straightforward application of the "[e]xcept as provided
in this section" portion of § 1252(g), since that would produce in
all pending INS cases jurisdictional restrictions identical
to those that were contained in IIRIRA anyway. That belief,
however, rests on the unexamined assumption that § 1252(g) covers
the universe of deportation claims-that it is a sort of "zipper"
clause that says "no judicial review in deportation cases unless
this section provides judicial review." In fact, what § 1252(g)
says is much narrower. The provision applies only to three discrete
actions that the Attorney General may take: her "decision or
action" to
"commence proceedings,
adjudicate cases,
or
execute removal orders." (Emphasis added.) There are of
course many other decisions or actions that may be part of the
deportation process-such as the decisions to open an investigation,
to surveil the suspected violator, to reschedule the deportation
hearing, to include various provisions in the final order that is
the product of the adjudication, and to refuse reconsideration of
that order.
It is implausible that the mention of three discrete events
along the road to deportation was a shorthand way of referring to
all claims arising from deportation proceedings. Not because
Congress is too unpoetic to use synecdoche, but because that
literary device is incompatible with the need for precision in
legislative drafting. We are aware of no other instance in the
United States Code in which language such as this has been used to
impose a general jurisdictionallimitation; and that those who
enacted IIRIRA were familiar with the normal manner of imposing
such a limitation is dem-
483
onstrated by the text of § 1252(b)(9), which stands in stark
contrast to § 1252(g).
It could be argued, perhaps, that § 1252(g) is redundant if it
channels judicial review of only
some decisions and actions,
since § 1252(b)(9) channels judicial review of
all of them
anyway. But that is not so, since only § 1252(g), and not §
1252(b)(9) (except to the extent it is incorporated within §
1252(g)), applies to what § 309(c)(1) calls "transitional cases,"
that is, cases pending on the effective date of IIRIRA. That alone
justifies its existence. It performs the function of categorically
excluding from non-final-order judicial review-even as to
transitional cases otherwise governed by § l105a rather than the
unmistakable "zipper" clause of § 1252(b)(9)-certain specified
decisions and actions of the INS. In addition, even after all the
transitional cases have passed through the system, § 1252(g) as we
interpret it serves the continuing function of making it clear that
those specified decisions and actions, which (as we shall discuss
in detail below) some courts had held not to be included within the
non-final-order review prohibition of § l105a,
are covered
by the "zipper" clause of § 1252(b)(9). It is rather the Court of
Appeals' and the parties' interpretation which renders § 1252(g)
entirely redundant, adding to one "zipper" clause that does not
apply to transitional cases, another one of equal scope that
does apply to transitional cases. That makes it entirely
inexplicable why the transitional provisions of § 306(c) refer to §
1252(g) instead of § 1252(b)(9)-and why § 1252(g) exists at
all.
There was good reason for Congress to focus special attention
upon, and make special provision for, judicial review of the
Attorney General's discrete acts of "commenc[ing] proceedings,
adjudicat[ing] cases, [and] execut[ing] removal orders"-which
represent the initiation or prosecution of various stages in the
deportation process. At each stage the Executive has discretion to
abandon the endeavor, and at the time IIRIRA was enacted the INS
had been engaging in a
484
484 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
regular practice (which had come to be known as "deferred
action") of exercising that discretion for humanitarian reasons or
simply for its own convenience.8 As one treatise describes it:
"To ameliorate a harsh and unjust outcome, the INS may decline
to institute proceedings, terminate proceedings, or decline to
execute a final order of deportation. This commendable exercise in
administrative discretion, developed without express statutory
authorization, originally was known as nonpriority and is now
designated as deferred action. A case may be selected for deferred
action treatment at any stage of the administrative process.
Approval of deferred action status means that, for the humanitarian
reasons described below, no action will thereafter be taken to
proceed against an apparently deportable alien, even on grounds
normally regarded as aggravated." 6 C. Gordon, S. Mailman, & S.
YaleLoehr, Immigration Law and Procedure § 72.03[2][h] (1998).
See also
Johns v.
Department of Justice, 653 F.2d
884, 890892 (CAS 1981). Since no generous act goes unpunished,
however, the INS's exercise of this discretion opened the door to
litigation in instances where the INS chose
not to exercise
it.
"[I]n each such instance, the determination to withhold or
terminate deportation is confined to administrative
8 Prior to 1997, deferred-action decisions were governed by
internal INS guidelines which considered,
inter alia, such
factors as the likelihood of ultimately removing the alien, the
presence of sympathetic factors that could adversely affect future
cases or generate bad publicity for the INS, and whether the alien
had violated a provision that had been given high enforcement
priority. See 16 C. Gordon, S. Mailman, & S. Yale-Loehr,
Immigration Law and Procedure § 242.1 (1998). These were apparently
rescinded on June 27, 1997, but there is no indication that the INS
has ceased making this sort of determination on a case-by-case
basis. See ibid.
485
discretion .... Efforts to challenge the refusal to exercise
such discretion on behalf of specific aliens sometimes have been
favorably considered by the courts, upon contentions that there was
selective prosecution in violation of equal protection or due
process, such as improper reliance on political considerations, on
racial, religious, or nationality discriminations, on arbitrary or
unconstitutional criteria, or on other grounds constituting abuse
of discretion." Gordon, Mailman, & YaleLoehr, supra, §
72.03[2][a] (footnotes omitted).
Such litigation was possible because courts read § 1105a's
prescription that the Hobbs Act shall be "the sole and exclusive
procedure for the judicial review of all final orders of
deportation" to be inapplicable to various decisions and actions
leading up to or consequent upon final orders of deportation, and
relied on other jurisdictional statutes to permit review. See,
e. g., Cheng Fan Kwok v.
INS, 392 U. S. 206 (1968)
(review of refusal to stay deportation);
Ramallo v.
Reno, Civ. No. 95-01851 (D. D.
C., July 23, 1996)
(review of execution of removal order), described in and rev'd on
other grounds,
114 F.3d
1210 (CADC 1997); AADC
I, 70 F. 3d
1045
(CA9 1995) (review of commencement of deportation proceedings);
Lennon v.
INS, 527 F.2d
187, 195
(CA2 1975) (same, dicta). Section 1252(g) seems
clearly designed to give some measure of protection to "no deferred
action" decisions and similar discretionary determinations,
providing that if they are reviewable at all, they at least will
not be made the bases for separate rounds of judicial intervention
outside the streamlined process that Congress has designed.9
9 This history explains why JUSTICE SOUTER ought not find it
"hard to imagine that Congress meant to bar aliens already in
proceedings ... from challenging the commencement of proceedings
against them, but to permit the same aliens to challenge, say, the
decision of the Attorney General to open an investigation of them
or to issue a show-cause order."
Post, at 506 (dissenting
opinion). It was the acts covered by § 1252(g) that had prompted
challenges to the Attorney General's exercise of prosecutorial
486
486 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
Of course
many provisions of IIRIRA are aimed at
protecting the Executive's discretion from the courts-indeed, that
can fairly be said to be the theme of the legislation. See,
e. g., 8 U. S. C. § 1252(a)(2)(A) (limiting review of any
claim arising from the inspection of aliens arriving in the United
States); § 1252(a)(2)(B) (barring review of denials of
discretionary relief authorized by various statutory provisions); §
1252(a)(2)(C) (barring review of final removal orders
discretion. We know of no case involving a challenge to "the
decision ... to open an investigation"-perhaps because such
decisions are rarely made public. And we know of no case
challenging "the decision ... to issue a show cause order" (though
that might well be considered a mere specification of the decision
to "commence proceedings" which some cases do challenge and which §
1252(g) covers). Section 1252(g) was directed against a particular
evil: attempts to impose judicial constraints upon prosecutorial
discretion. It does not tax the imagination to understand why it
focuses upon the stages of administration where those attempts have
occurred.
But in any event, any challenge to imagination posed by reading
§ 1252(g) as written would be small price to pay for escaping the
overwhelming difficulties of JUSTICE SOUTER'S theory. He makes no
effort to explain why his broad, catchall reading of § 1252(g) does
not render it redundant of § 1252(b)(9). And his throw-in-the-towel
approach to § 306(c)(1), which reads it out of the statute because
he finds it difficult to explain, see
post, at 509, not only
strains the imagination but ruptures the faculty of reason. We do
not think our interpretation "parses [§ 1252(g)] too finely,"
post, at 505; but if it did, we would think that modest
fault preferable to the exercise of such a novel power of
nullification.
JUSTICE STEVENS, like JUSTICE SOUTER, rejects § 1252(g)'s
explicit limitation to specific steps in the deportation process.
He then invokes the conflict with § 306(c)(1) that this expansive
interpretation creates as justification for concluding that, when §
1252(g) uses the word "section," it "can't mean what it says,"
Green v.
Bock Laundry Machine Co., 490 U. S. 504, 511 (1989)
(internal quotation marks omitted)-empowering him to declare a
"scrivener's error,"
post, at 498 (opinion concurring in
judgment), and to change the word "section" to "Act." JUSTICE
STEVENS' approach, like JUSTICE SOUTER'S, renders § 1252(g)
redundant of § 1252(b)(9). That problem is solved by our more
conventional solution: reading
both "commence proceedings,
adjudicate cases, or execute removal orders"
and "section"
to mean precisely what they say.
487
against criminal aliens); § 1252(b)(4)(D) (limiting review of
asylum determinations for resident aliens). It is entirely
understandable, however, why Congress would want only the
discretion-protecting provision of § 1252(g) applied even to
pending cases: because that provision is specifically directed at
the deconstruction, fragmentation, and hence prolongation of
removal proceedings.
Our narrow reading of § 1252(g) makes sense of the statutory
scheme as a whole, for it resolves the supposed tension between §
306(c)(1) and § 309(c)(1). In cases to which § 1252(g) applies, the
rest of § 1252 is incorporated through the "[e]xcept as provided in
this section" clause. This incorporation does not swallow §
309(c)(1)'s general rule that §§ 1252(a)-(f) do not apply to
pending cases, for § 1252(g) applies to only a limited subset of
deportation claims. Yet it is also faithful to § 306(c)(1)'s
command that § 1252(g) be applied "without limitation" (i.
e., including the "[e]xcept as provided" clause) to "claims
arising from all past, pending, or future exclusion, deportation,
or removal proceedings."
Respondents' challenge to the Attorney General's decision to
"commence proceedings" against them falls squarely within §
1252(g)-indeed, as we have discussed, the language seems to have
been crafted with such a challenge precisely in mind-and nothing
elsewhere in § 1252 provides for jurisdiction. Cf. § 1252(a)(1)
(review of final orders); § 1252(e)(2) (limited habeas review for
excluded aliens); § 1252(e)(3)(A) (limited review of statutes and
regulations pertaining to the exclusion of aliens). As we concluded
earlier, § 1252(f) plainly serves as a limit on injunctive relief
rather than a jurisdictional grant.
III
Finally, we must address respondents' contention that, since the
lack of prior factual development for their claim will render the §
1252(a)(1) exception to § 1252(g) unavailing; since habeas relief
will also be unavailable; and since even if
488
488 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
one or both were available they would come too late to prevent
the "chilling effect" upon their First Amendment rights; the
doctrine of constitutional doubt requires us to interpret § 1252(g)
in such fashion as to permit immediate review of their
selective-enforcement claims. We do not believe that the doctrine
of constitutional doubt has any application here. As a general
matter-and assuredly in the context of claims such as those put
forward in the present case-an alien unlawfully in this country has
no constitutional right to assert selective enforcement as a
defense against his deportation.10
10 Instead of resolving this constitutional question, JUSTICE
GINSBURG chooses to resolve the constitutional question whether
Congress can exclude the courts from remedying an alleged First
Amendment violation with immediate effects, pending the completion
of administrative proceedings. It is not clear to us that this is
easier to answer than the question we address-as is evident from
the fact that in resolving it JUSTICE GINSBURG relies almost
exclusively on cases dealing with the quite different question of
federal-court intervention in state proceedings. (Even in that
area, most of the cases she cites where we did not intervene
involved no claim of present injury from the state action-and none
involved what we have here: an admission by the Government that the
alleged First Amendment activity was the basis for selecting the
individuals for adverse action. Cf.
Dombrowski v.
Pfister, 380
U. S. 479, 487-488, n. 4 (1965).) The one case not involving
federal-state relations in fact
overrode a congressional
requirement for completion of administrative proceedingseven
though, unlike here, no immediate harm was apparent. See
Oestereich v.
Selective Servo System Local Bd. No.
11,
393 U. S. 233
(1968). JUSTICE GINSBURG counts the case as one for
her side
on the basis of nothing more substantial than the Court's
characterization of the agency action at issue as "blatantly
lawless,"
id., at 238. See
post, at 494 (opinion
concurring in part and concurring in judgment).
Nor is it clear that the constitutional question JUSTICE
GINSBURG addresses has narrower application and effect than the one
we resolve. Our holding generally deprives deportable aliens of the
defense of selective prosecution. Hers allows all citizens and
resident aliens to be deprived of constitutional rights (at least
where the deprivation is not "blatantly lawless") pending the
completion of agency proceedings.
Finally, JUSTICE GINSBURG acknowledges that her constitutional
conclusion might be different if "a court of appeals reviewing
final orders of
489
Even in the criminal-law field, a selective prosecution claim is
a
rara avis. Because such claims invade a special province
of the Executive-its prosecutorial discretion-we have emphasized
that the standard for proving them is particularly demanding,
requiring a criminal defendant to introduce "clear evidence"
displacing the presumption that a prosecutor has acted lawfully.
United States v.
Armstrong, 517 U. S. 456, 463-465
(1996). We have said:
"This broad discretion [afforded the Executive] rests largely on
the recognition that the decision to prosecute
removal against respondents could not consider their selective
enforcement claims."
Post, at 495. But she never establishes
that a court of appeals
can consider their selective
enforcement claims, though she expresses "confiden[ce]" (despite
the Ninth Circuit's holding to the contrary) that that would be the
outcome.
Post, at 496, n. 2. How well-founded that
confidence is may be assessed by considering the first and most
substantial option upon which it is based, namely, "the Attorney
General's position that the reviewing court of appeals may transfer
a case to a district court ... and counsel's assurance at oral
argument that petitioners will adhere to that position .... "
Post, at 495-496. What petitioners primarily rely upon for
this concession is the provision of the Hobbs Act that authorizes
remand to the agency or transfer to a district court "[w]hen the
agency has not held a hearing." 28 U. S. C. §2347(b). It is not at
all clear that this should be interpreted to mean "when the
agency's hearing has not addressed the particular point at
issue"-especially since that situation is specifically covered by §
2347(c) (providing for remand in such circumstances), which the new
amendments explicitly render inapplicable to deportation cases, see
8 U. S. C. § 1252(a)(1) (1994 ed., Supp. III). Petitioners'
position is cast further in doubt by the fact that the Hobbs Act
remedy for failure to hold a hearing "required by law" is not the
transfer which petitioners assert, but
remand, see 28 U. S.
C. §2347(b)(1). Of course petitioners' promise not to quibble over
this transfer point is of no value, since the point goes to
jurisdiction and must be raised by the District Court
sua
sponte. It is quite possible, therefore, that what JusTICE
GINSBURG'S approach would ultimately accomplish in this litigation
is requiring us to address
both the constitutional issue she
now addresses
and (upon termination of the administrative
proceedings) the constitutional issue we now resolve. We think it
preferable to resolve only the one (and we think narrower) issue at
once.
490
490 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
is particularly ill-suited to judicial review. Such factors as
the strength of the case, the prosecution's general deterrence
value, the Government's enforcement priorities, and the case's
relationship to the Government's overall enforcement plan are not
readily susceptible to the kind of analysis the courts are
competent to undertake. Judicial supervision in this area,
moreover, entails systemic costs of particular concern. Examining
the basis of a prosecution delays the criminal proceeding,
threatens to chill law enforcement by subjecting the prosecutor's
motives and decisionmaking to outside inquiry, and may undermine
prosecutorial effectiveness by revealing the Government's
enforcement policy. All of these are substantial concerns that make
the courts properly hesitant to examine the decision whether to
prosecute." Wayte v. United States, 470 U. S. 598, 607608
(1985).
These concerns are greatly magnified in the deportation context.
Regarding, for example, the potential for delay:
Whereas in criminal proceedings the consequence of delay is
merely to postpone the criminal's receipt of his just deserts, in
deportation proceedings the consequence is to permit and prolong a
continuing violation of United States law. Postponing justifiable
deportation (in the hope that the alien's status will change-by,
for example, marriage to an American citizen-or simply with the
object of extending the alien's unlawful stay) is often the
principal object of resistance to a deportation proceeding, and the
additional obstacle of selective-enforcement suits could leave the
INS hard pressed to enforce routine status requirements. And as for
"chill[ing] law enforcement by subjecting the prosecutor's motives
and decisionmaking to outside inquiry": What will be involved in
deportation cases is not merely the disclosure of normal domestic
law enforcement priorities and tech-
491
niques, but often the disclosure of foreign-policy objectives
and (as in this case) foreign-intelligence products and techniques.
The Executive should not have to disclose its "real" reasons for
deeming nationals of a particular country a special threat-or
indeed for simply wishing to antagonize a particular foreign
country by focusing on that country's nationals-and even if it did
disclose them a court would be ill equipped to determine their
authenticity and utterly unable to assess their adequacy. Moreover,
the consideration on the other side of the ledger in deportation
cases-the interest of the target in avoiding "selective"
treatment-is less compelling than in criminal prosecutions. While
the consequences of deportation may assuredly be grave, they are
not imposed as a punishment, see
Carlson v.
Landon,
342 U. S. 524,
537 (1952). In many cases (for six of the eight aliens here)
deportation is sought simply because the time of permitted
residence in this country has expired, or the activity for which
residence was permitted has been completed. Even when deportation
is sought because of some act the alien has committed, in principle
the alien is not being punished for that act (criminal charges may
be available for that separate purpose) but is merely being held to
the terms under which he was admitted. And in all cases,
deportation is necessary in order to bring to an end
an ongoing
vio lation of United States law. The contention that a
violation must be allowed to continue because it has been
improperly selected is not powerfully appealing.
To resolve the present controversy, we need not rule out the
possibility of a rare case in which the alleged basis of
discrimination is so outrageous that the foregoing considerations
can be overcome. Whether or not there be such exceptions, the
general rule certainly applies here. When an alien's continuing
presence in this country is in violation of the immigration laws,
the Government does not offend the
492
492 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
Opinion of GINSBURG, J.
Constitution by deporting him for the additional reason that it
believes him to be a member of an organization that supports
terrorist activity.
***
Because 8 U. S. C. § 1252(g) deprives the federal courts of
jurisdiction over respondents' claims, we vacate the judgment of
the Ninth Circuit and remand with instructions for it to vacate the
judgment of the District Court.
It is so ordered.
JUSTICE GINSBURG, with whom JUSTICE BREYER joins as to Part I,
concurring in part and concurring in the judgment.
I agree with JUSTICE SCALIA that 8 U. S. C. § 1252(g) (1994 ed.,
Supp. III) applies to this case and deprives the federal courts of
jurisdiction over respondents' pre-final-order suit. Under § 1252,
respondents may obtain circuit court review of final orders of
removal pursuant to the Hobbs Act, 28 U. S. C. § 2341
et
seq. (1994 ed. and Supp. II). See 8 U. S. C. § 1252(a)(1) (1994
ed., Supp. III). I would not prejudge the question whether
respondents may assert a selective enforcement objection when and
if they pursue such review. It suffices to inquire whether the
First Amendment necessitates
immediate judicial
consideration of their selective enforcement plea. I conclude that
it does not.
I
Respondents argue that they are suffering irreparable injury to
their First Amendment rights and therefore require instant review
of their selective enforcement claims. We have not previously
determined the circumstances under which the Constitution requires
immediate judicial intervention in federal administrative
proceedings of this order. Respondents point to our cases
addressing federal injunctions
493
that stop state proceedings, in order to secure constitutional
rights. They feature in this regard
Dombrowski v.
Pfister, 380
U. S. 479 (1965), as interpreted in
Younger v.
Harris, 401 U. S. 37,47-53 (1971). Respondents also refer to
Oestereich v.
Selective Servo System Local Bd. No.
11,
393 U. S. 233
(1968). Those cases provide a helpful framework.
In
Younger, this Court declared that federal restraint of
state prosecutions is permissible only if the state defendant
establishes "great and immediate" irreparable injury, beyond "that
incidental to every criminal proceeding brought lawfully and in
good faith." 401 U. S., at 46,47 (internal quotation marks
omitted). A chilling effect, the Court cautioned, does not "by
itself justify federal intervention."
Id., at 50.
Younger recognized, however, the prospect of extraordinary
circumstances in which immediate federal injunctive relief might be
obtained. The Court referred, initially, to bad faith, harassing
police and prosecutorial actions pursued without "any expectation
of securing valid convictions."
I d., at 48 (internal
quotation marks omitted).l Further, the Court observed that there
may be other "extraordinary circumstances in which the necessary
irreparable injury can be shown even in the absence of the usual
prerequisites of bad faith and harassment," for example, where a
statute is "flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence and
paragraph, and in whatever manner and against whomever an effort
might be made to apply it."
Id., at 53-54 (internal
quotation marks omitted).
1 Specifically, the
Younger Court noted that Dombrowski's
complaint made substantial allegations that "'threats to enforce
the statutes ... [were] not made with any expectation of securing
valid convictions, but rather [were] part of a plan to employ
arrests, seizures, and threats of prosecution under color of the
statutes to harass appellants and discourage them and their
supporters from asserting and attempting to vindicate the
constitutional rights of Negro citizens of Louisiana.''' 401 U. S.,
at 48 (quoting
Dombrowski V.
Pfister, 380 U. S. 479, 482
(1965)).
494
494 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
Opinion of GINSBURG, J.
In
Oestereich, the Selective Service Board had withdrawn
a ministry student's statutory exemption from the draft after he
engaged in an act of protest. See 393 U. S., at 234. The student
brought suit to restrain his induction, and this Court allowed the
suit to go forward, notwithstanding a statutory bar of preinduction
judicial review. Finding the Board's action "blatantly lawless,"
the Court concluded that to require the student to raise his claim
through habeas corpus or as a defense to a criminal prosecution
would be "to construe the Act with unnecessary harshness."
Id., at 238.
The precedent in point suggests that interlocutory intervention
in Immigration and Naturalization Service (INS) proceedings would
be in order, notwithstanding a statutory bar, if the INS acts in
bad faith, lawlessly, or in patent violation of constitutional
rights. Resembling, but more stringent than, the evaluation made
when a preliminary injunction is sought, see,
e. g.,
Doran v.
Salem Inn, Inc., 422 U. S. 922, 931 (1975)
("The traditional standard for granting a preliminary injunction
requires the plaintiff to show that in the absence of its issuance
he will suffer irreparable injury and also that he is likely to
prevail on the merits."), this test would demand, as an essential
element, demonstration of a strong likelihood of success on the
merits. The merits of respondents' objection are too uncertain to
establish that likelihood. The Attorney General argued in the court
below and in the petition for certiorari that the INS may select
for deportation aliens who it has reason to believe have carried
out fundraising for a foreign terrorist organization. See App. to
Pet. for Cert. 20a; Pet. for Cert. 21-25. Whether the INS may do so
presents a complex question in an uncharted area of the law, which
we should not rush to resolve here.
Relying on
Middlesex County Ethics Comm. v.
Garden
State Bar Assn., 457 U. S. 423 (1982),
respondents argue that their inability to raise their selective
enforcement claims
495
during the administrative proceedings, see
ante, at 476,
makes immediate judicial intervention necessary. As we explained in
Middlesex County, Younger abstention is appropriate only
when there is "an adequate opportunity in the state proceedings to
raise constitutional challenges." 457 U. S., at 432; see
Ohio
Civil Rights Comm'n v.
Dayton Christian Schools, Inc.,
477 U. S. 619,
629 (1986) (even if complainants could not raise their First
Amendment objections in the administrative hearing, it sufficed
that objections could be aired in state-court judicial review of
any administrative decision). Here, Congress has established an
integrated scheme for deportation proceedings, channeling judicial
review to the final order, and deferring issues outside the
agency's authority until that point. Given Congress' strong
interest in avoiding delay of deportation proceedings, see
ante, at 490, I find the opportunity to raise a claim during
the judicial review phase sufficient.
If a court of appeals reviewing final orders of removal against
respondents could not consider their selective enforcement claims,
the equation would be different. See
Webster v.
Doe,
486 U. S. 592,
603 (1988) (a "serious constitutional question ... would arise if a
federal statute were construed to deny any judicial forum for a
colorable constitutional claim" (internal quotation marks
omitted)). Respondents argue that that is the case, because their
claims require factfinding beyond the administrative record.
Section 1252(a)(1) authorizes judicial review of "final order[s]
of removal." We have previously construed such "final order"
language to authorize judicial review of "all matters on which the
validity of the final order is contingent, rather than only those
determinations actually made at the hearing."
INS v.
Chadha, 462 U.
S. 919, 938 (1983) (internal quotation marks omitted). Whether
there is here a need for factfinding beyond the administrative
record is a matter properly postponed. I note, however, the
Attorney Gener-
496
496 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
Opinion of GINSBURG, J.
aI's position that the reviewing court of appeals may transfer a
case to a district court for resolution of pertinent issues of
material fact, see Brief for Petitioners 44, 48-49, and n. 23,2 and
counsel's assurance at oral argument that petitioners will adhere
to that position, see Tr. of Oral Arg. 5-6.3
2 The Hobbs Act authorizes a reviewing court of appeals to
transfer the proceedings to a district court for the resolution of
material facts when "the agency has not held a hearing before
taking the action of which review is sought," 28 U. S. C. §2347(b),
and "a hearing is not required by law," § 2347(b)(3). Sensitive to
the constitutional concerns that would be presented by complete
preclusion of judicial review, the Attorney General argues that
"[s]ection 2347(b)(3) on its face permits transfer to a district
court, in an appropriate case, for resolution of a substantial
selective enforcement challenge to a final order of deportation,"
because the INS is not required to hold a hearing before filing
deportation charges. Reply Brief 12, 14. The Attorney General also
suggests that other provisions, in particular Federal Rule of
Appellate Procedure 48's authorization of special masters, might be
available. See Reply Brief 12-13. Finally, the Attorney General
argues that, upon a finding of constitutional necessity, a court of
appeals could "fashion an appropriate mechanism-most likely a
procedure similar to a Section 2347(b)(3) transfer."
Id., at
13. While it is best left to the courts of appeals in the first
instance to determine the appropriate mechanism for factfinding
necessary to the resolution of a constitutional claim, I am
confident that provision for such factfinding is not beyond the
courts of appeals' authority.
3 The following exchange at oral argument so confirms:
Counsel for petitioners: " ... [I]f there were ultimately final
orders of deportation entered, and the respondents raised a
constitutional challenge based on selective enforcement, and if the
court of appeals then concluded that fact-finding was necessary in
order to resolve the constitutional issue, it would then be
required to determine whether a mechanism existed under the
applicable statute.
"Now, we believe 28 U. S. C. 2347(b)(3) would provide that
mechanism, but-
Court: "It might provide the mechanism if the issue is properly
raised, but can the issue be properly raised when it would not be
based on anything in the record of the proceedings at the
administrative level?"
Counsel for petitioners: " ... [I]f the respondents claimed that
execution of the deportation order would violate their
constitutional rights because the charges were initiated on the
basis of unconstitutional consid-
497
II
The petition for certiorari asked this Court to review the
merits of respondents' selective enforcement objection, but we
declined to do so, granting certiorari on the jurisdictional
question only. See Pet. for Cert. I, 20-30; 524 U. S. 903 (1998).
We thus lack full briefing on respondents' selective enforcement
plea and on the viability of such objections generally. I would
therefore leave the question an open one. I note, however, that
there is more to "the other side of the ledger,"
ante, at
491, than the Court allows.
It is well settled that "[f]reedom of speech and of press is
accorded aliens residing in this country."
Bridges v.
Wixon, 326 U.
S. 135, 148 (1945). Under our selective prosecution doctrine,
"the decision to prosecute may not be deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary
classification, including the exercise of protected statutory and
constitutional rights."
Wayte v.
United States,
470 U. S. 598,
608 (1985) (internal citations and quotation marks omitted). I am
not persuaded that selective enforcement of deportation laws should
be exempt from that prescription. If the Government decides to
deport an alien "for reasons forbidden by the Constitution,"
United States v.
Armstrong, 517 U. S. 456, 463
(1996), it does not seem to me that redress for the constitutional
violation should turn on the gravity of the governmental sanction.
Deportation, in any event, is a grave sanction. As this Court has
long recognized, "[t]hat deportation is a penaltyat times a most
serious one-cannot be doubted."
Bridges, 326 U. S., at 154;
see also
ibid. (Deportation places "the lib-
erations, I think that is a claim that would properly be before
the court of appeals."
Court: "So is that the Government's position, that we may rely
on that representation that you have just made about the legal
position that the Government would take in those
circumstances?"
Counsel for petitioners: "That is correct." Tr. of Oral Arg.
5-6.
498
498 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
STEVENS, J., concurring in judgment
erty of an individual ... at stake .... Though deportation is
not technically a criminal proceeding, it visits a great hardship
on the individual and deprives him of the right to stay and live
and work in this land of freedom."); G. Neuman, Strangers to the
Constitution: Immigrants, Borders, and Fundamental Law 162 (1996)
("Deportation has a far harsher impact on most resident aliens than
many conceded 'punishment[sJ' .... Uprooting the alien from home,
friends, family, and work would be severe regardless of the country
to which the alien was being returned; breaking these attachments
inflicts more pain than preventing them from being made.").
***
In sum, were respondents to demonstrate strong likelihood of
ultimate success on the merits and a chilling effect on current
speech, and were we to find the agency's action flagrantly
improper, precedent and sense would counsel immediate judicial
intervention. But respondents have made no such demonstration.
Further, were respondents to assert a colorable First Amendment
claim as a now or never matterwere that claim not cognizable upon
judicial review of a final order-again precedent and sense would
counsel immediate resort to a judicial forum. In common with the
Attorney General, however, I conclude that in the final judicial
episode, factfinding, to the extent necessary to fairly address
respondents' claims, is not beyond the federal judiciary's ken.
For the reasons stated, I join in Parts I and II of the Court's
opinion and concur in the judgment.
JUSTICE STEVENS, concurring in the judgment.
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA or Act) is a part of an omnibus enactment that
occupies 750 pages in the Statutes at Large. Pub. L. 104-208, 110
Stat. 3009-546. It is not surprising that it contains a scrivener's
error. See
Green v.
Bock
499
Laundry Machine Co., 490 U. S. 504, 511
(1989). Despite that error, Congress' intended disposition of cases
like this is plain. It must be dismissed.
The textual difficulty that is debated by my colleagues concerns
the impact of IIRIRA on proceedings that were pending on the
effective date of the Act. Putting those cases to one side for the
moment, the meaning of 8 U. S. C. §§ 1252(b)(9) and (g) (1994 ed.,
Supp. III) is perfectly clear. The former postpones judicial review
of removal proceedings until the entry of a final order1 and the
latter deprives federal courts of jurisdiction over collateral
challenges to ongoing administrative proceedings.2 Thus, if § 1252
applies to these respondents, the deportation proceedings pending
before the Immigration and Naturalization Service (INS) are not yet
ripe for review, and this collateral attack on those proceedings
must be dismissed.
If we substitute the word "Act" for the word "section" in the
introductory clause of § 1252(g), the impact of this provision on
pending proceedings is equally clear. That substitution would
remove any obstacle to giving effect to the plain meaning of IIRIRA
§§ 306(c)(1) and 309(c)(1). The former defines the effective date
of the Act and makes § 1252(g)'s
1 Section 1252(b)(9) provides:
"CONSOLIDATION OF QUESTIONS FOR JUDICIAL REVIEW.-Judicial review
of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising
from any action taken or proceeding brought to remove an alien from
the United States under this title shall be available only in
judicial review of a final order under this section." 110 Stat.
3009-610.
2 Section 1252(g) provides:
"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 Act."
Id., at
3009-612.
500
500 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
STEVENS, J., concurring in judgment
prohibition against collateral attacks effective immediately; 3
the latter makes the new rules inapplicable to aliens in exclusion
or deportation proceedings pending before the INS on the effective
date of the Act.4 Judicial review of those administrative
proceedings remains available in the courts of appeal under the old
statutory regime. See 8 U. S. C. § 1l05a.
Admittedly, there is a slight ambiguity in the text of § 309
because it refers to the "case of an alien who is in exclusion or
deportation proceedings" before the effective date of the new Act.
Respondents are such aliens, and therefore the word "case" arguably
could be read to include their present collateral attack on the INS
proceedings as well as to an eventual challenge to the final order
of deportation. Because that reading would be inconsistent with §
306, however, it is clear that Congress intended § 309 to apply
only to the INS "exclusion or deportation" proceedings that it
expressly mentions.
To summarize, I think a fair reading of all relevant provisions
in the statute makes it clear that Congress intended its
prohibition of collateral attacks on ongoing INS proceedings
3 Section 306(c)(1) provides:
"EFFECTIVE DATE.-
"(1) IN GENERAL.-Subject to paragraph (2), the amendments made
by subsections (a) and (b) shall apply [as provided under section
309, except that] subsection (g) of section 242 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."
Ibid.
4 Section 309(c)(1) provides:
"TRANSITION FOR ALIENS IN PROCEEDINGS.-
"(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."
Id., at 3009-625.
501
to become effective immediately while providing that pending
administrative proceedings should be completed under the scheme of
judicial review in effect when they were commenced.
I should add that I agree with JUSTICE SOUTER'S explanation of
why § 1252(g) applies broadly to removal proceedings rather than to
only three discrete parts of such proceedings. See
post, at
505-507 (dissenting opinion). I do not, however, share his
constitutional doubt concerning the prohibition of collateral
proceedings such as this one. Of course, Congress could not
authorize punishment of innocent persons because they happen to be
members of an organization that engaged in terrorism. For the
reasons stated in Part III of the Court's opinion, however, I have
no doubt that the Attorney General may give priority to the removal
of deportable aliens who are members of such an organization. See
ante, at 487-492. Accordingly, I agree that the judgment of
the District Court must be vacated.
JUSTICE SOUTER, dissenting.
The unhappy history of the provisions at issue in this case
reveals that Congress, apparently unintentionally, enacted
legislation that simultaneously grants and denies the right of
judicial review to certain aliens who were in deportation
proceedings before April 1, 1997. Finding no trump in the two
mutually exclusive statutory provisions, I would invoke the
principle of constitutional doubt and apply the provision that
avoids a potential constitutional difficulty. Because the Court
today instead purports to resolve the contradiction with a reading
that strains the meaning of the text beyond what I think it can
bear, I respectfully dissent.
I
The first of the contradictory provisions is put in play by §
306(c)(1) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-612, as
502
502 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
SOUTER, J., dissenting
amended by § 2 of the Act of Oct. 11, 1996, 110 Stat. 3657,
which makes new 8 U. S. C. § 1252(g) (1994 ed., Supp. III)
immediately applicable as of the date of its enactment (i.
e., October 11, 1996) to "claims arising from all past,
pending, or future" removal proceedings. Subsection (g), for its
part, bars review in any court of "the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien," except as provided in §
1252. The exception, however, is cold comfort to applicants for
review of proceedings pending when IIRIRA took effect, because the
rest of § 1252 is inapplicable to "an alien who is in exclusion or
deportation proceedings" on the effective date of IIRIRA, April 1,
1997. Section 309(c)(1)(A) of IIRIRA, 110 Stat. 3009-625, as
amended by § 2 of the Act of Oct. 11, 1996, 110 Stat. 3657. Hence,
by operation of § 306(c)(1), it would appear that aliens who did
not obtain judicial review as of the enactment date of October 11,
1996, and who were in proceedings as of IIRIRA's effective date of
April 1, 1997, can never obtain judicial review of "the decision or
action by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien" in any forum.
In short, § 306(c)(1) appears to bar members of this class of
aliens from any review of any aspect of their claims.
Yet § 306(c)(1) is not the only statutory provision applicable
to aliens in proceedings before April 1, 1997. Section 309(c)(1)(B)
provides that, in the case of aliens in proceedings before the
effective date, "the proceedings (including judicial review
thereof) shall continue to be conducted without regard to [new §
1252]." The parenthetical expression in this section specifically
provides that the judicial review available to aliens before the
April 1, 1997, effective date of § 1252 continues to be available
even after the effective date to aliens who were already in
proceedings before the effective date. In other words, the terms of
§ 309(c)(1)(B) preserve
503
pre-existing judicial review for the self-same class of aliens
to whom § 306(c)(1) bars review.
We do not have to dwell on how this contradiction arose.1 What
matters for our purposes is that §§ 306(c)(1)
1 Section 306(c)(1) was originally enacted on September 30,
1996. As it then read, it first provided that new 8 U. S. C. § 1252
(1994 ed., Supp. III) would apply "to all final orders of
deportation or removal and motions to reopen filed on or after the
date of the enactment of this Act," 110 Stat. 3009-612, and then
provided that subsection (g) would apply without limitation. Under
this transitional arrangement, no review was available to an alien
in proceedings after September 30, 1996, until such time as a final
order was issued against the alien. When a final order issued, the
alien would be entitled to any judicial review available under new
§ 1252. The intent of this provision was thus presumably to
preclude judicial review of nonfinal steps in the removal procedure
in the interim before IIRIRA's effective date of April 1, 1997.
This arrangement, however, conflicted with the different
transitional provision set out in § 309(c)(4). This section,
entitled "Transitional Changes in Judicial Review," provides that
where a final order was "entered more than 30 days after the date
of enactment of this Act," subsection (b) of the old 8 U. S. C. §
1105a does not apply. This subsection provides for habeas corpus
proceedings for "any alien against whom a final order of exclusion
has been made." In other words, § 309(c)(4) expressly contemplates
that old § 1105a, less its habeas provision, applies to cases where
a final order is issued more than 30 days after September 30, 1996,
whereas the original § 306(c)(1) as enacted contemplated that when
a final order was issued on or after September 30, 1996, the new §
1252 would apply.
It appears that Congress noticed this discrepancy. On October 4,
1996, Representative Lamar Smith of Texas explained on the floor of
the House that he had "become aware of an apparent technical error
in two provisions" of IIRIRA. 142 Congo Rec. H12293. He explained
that "[i]t was the clear intent of the conferees that, as a general
matter, the full package of changes made by [new 8 U. S. C. § 1252]
effect [sic] those cases filed in court after the enactment of the
new law, leaving cases already pending before the courts to
continue under existing law."
Ibid. By "before the courts,"
Representative Smith seems to have meant the immigration courts. He
went on to explain § 309(c)(4): "The conferees also intended,
however, to accelerate the implementation of certain of the reforms
[in new § 1252]. This intent is clearly spelled out in section 309
of the act. Specifically, section 309(c)(4) calls for accelerated
implementation of some of the reforms made in section 306 regarding
judicial review, but does not
504
504 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
SOUTER, J., dissenting
and 309(c)(1) cannot be reconciled. Either aliens in proceedings
on April 1, 1997, have no access to judicial review or else they
have the access available under the law that applied before § 1252
came into effect.2
call for immediate implementation of all of these reforms."
Ibid. Representative Smith then proposed the first technical
change, which does not concern us. He then added that "there is a
need to clarify the scope of section 306(c) to ensure that it does
not conflict with section 309(c)(4)," and introduced an amendment
to § 306(c)(1).
Ibid. That amendment, enacted October 11,
1996, eliminated the part of the original § 306(c)(1) that applied
new § 1252 to final orders filed on or after the date of enactment,
but left untouched the immediate application of subsection (g). 110
Stat. 3657. The result of this amendment was that § 306(c)(1) no
longer qualified its preclusion of judicial review for aliens from
the date of enactment with the application of the new judicial
review provisions of § 1252 to those aliens once final orders were
issued against them. Instead, the amended language of § 306(c)(1)
now simply barred judicial review altogether. Thus the anomaly
appears to have resulted from incomplete technical amendment.
2 Although the parties have not so argued, it might at first
blush be thought that because § 1252(g) includes the language
"notwithstanding any other provision of law," it carves an
exception out of the general rule of § 309(c)(1). The two problems
with this notion are, first, that such an exception would swallow
the rule, and, second, that § 309(c)(1)(A) makes "the amendments
made by this subtitle," including § 1252(g) itself, inapplicable to
aliens in proceedings as of April 1, 1997. If § 1252(g) is not
applicable to such aliens, then the words "notwithstanding any
other provision of law" cannot have any special force regarding
such aliens.
It might also be thought that, because § 309(a) announces that
IIRIRA shall take effect on April 1, 1997, except as provided in
various sections, including § 306(c), and § 309(c)(1) is enacted
"[s]ubject to the succeeding provisions of this subsection,"
somehow § 309(c)(1) does not apply to § 306(c).
Ante, at
477, n. 5. This cannot be so, of course, because the "subsection"
in question is § 309(c), not § 309(a). The exception in § 309(a)
means only to acknowledge that § 306(c) is effective immediately
upon enactment, not on April 1, 1997.
Finally, neither § 306(c) nor § 309(c) may be said to be enacted
later than the other for purposes of implicit repeal. Both were
enacted on September 30, 1996, and both were amended by the removal
or alteration of some language on October 11, 1996. Because of this
simultaneous enactment,
505
The Court acknowledges the existence of an "interpretive
anomaly,"
ante, at 478, and attempts to avoid the
contradiction by a creative interpretation of § 1252(g). It reads
the § 1252(g) bar to review of "the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien" to "appl[y] only to three
discrete actions that the Attorney General may take."
Ante,
at 482. The Court claims that a bar to review of commencement of
proceedings, adjudication of cases, and execution of removal orders
does not bar review of every sort of claim, because "many other
decisions or actions that may be part of the deportation process,"
ibid., remain unaffected by the limitation of § 1252(g). On
this reading, the Court says, review of some aspects of the
Attorney General's possible actions regarding aliens in proceedings
before April 1, 1997, is preserved, even though the rest of § 1252
does not apply. The actions that still may be reviewed when
challenged by aliens already in proceedings before the effective
date of IIRIRA include, the Court tells us, "decisions to open an
investigation, to surveil the suspected violator, to reschedule the
deportation hearing, to include various provisions in the final
order that is the product of the adjudication, and to refuse
reconsideration of that order."
Ibid.
The Court's interpretation, it seems to me, parses the language
of subsection (g) too finely for the business at hand. The
chronological march from commencing proceedings, through
adjudicating cases, to executing removal orders, surely gives a
reasonable first impression of speaking exhaustively. While it is
grammatically possible to read the series without total inclusion,
ibid., the implausibility of doing this appears the moment
one asks why Congress would have wanted to preserve interim review
of the particular set of decisions by the Attorney General to which
the Court
to give primary influence to the "notwithstanding" clause would
simply beg the question of legislative intent.
506
506 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
SOUTER, J., dissenting
adverts. It is hard to imagine that Congress meant to bar aliens
already in proceedings before the effective date from challenging
the commencement of proceedings against them, but to permit the
same aliens to challenge, say, the decision of the Attorney General
to open an investigation of them or to issue a show-cause order.
Nor is there a plausible explanation of why the exclusivity
provisions of subsection (g) should not apply after the effective
date to review of decisions to open investigations or invite cause
to be shown.
The Court offers two arguments in support of its ingenious
reading, neither of which suffices to convince me of its
plausibility. First, the Court suggests that Congress could not
have intended the words "commence proceedings, adjudicate cases,
and execute removal orders" to refer to all deportation-related
claims, because this would require these parts of deportation
proceedings to stand for the whole of the process, and such a use
of language "is incompatible with the need for precision in
legislative drafting."
Ibid. But without delving into the
wisdom of using rhetorical figures in statutory drafting, one can
still conclude naturally that Congress employed three subject
headings to bar review of all those stages in the deportation
process to which challenges might conceivably be brought. Indeed,
each one of the Court's examples of reviewable actions of the
Attorney General falls comfortably into one or another of the three
phases of the deportation process captured under the headings of
commencement, adjudication, and removal. The decisions to open an
investigation or subject an alien to surveillance belong to the
commencement of proceedings (which presumably differs from
adjudication, separately mentioned); issuing an order to show
cause, composing the final order, and refusing reconsideration all
easily belong to an adjudication. Far from employing synecdoche,
Congress used familiar, general terms to refer to the familiar
stages of the exclusion process, and the acceptability of
interpreting the three
507
items to exclude others requires considerable determination to
indulge in such a reading.
Second, the Court explains that Congress had "good reason,"
ante, at 483, to focus on commencement, adjudication, and
execution, because these are distinct stages of the deportation
process at which the Executive was in the habit of exercising its
discretion to defer action. To show the existence of this practice,
the Court quotes a passage from a treatise on immigration law,
which says descriptively that" 'the INS may decline to institute
proceedings, terminate proceedings, or decline to execute a final
order of deportation,'"
ante, at 484 (quoting 6 C. Gordon,
S. Mailman, & S. YaleLoehr, Immigration Law and Procedure §
72.03[2][h] (1998)). The treatise also says that the courts have
sometimes entertained efforts to challenge the refusal to exercise
discretion,
ante, at 485. The Court notes, perfectly
plausibly, that the purpose of § 1252(g) may well have been to bar
such challenges. But this is hardly a smoking gun. The passage in
question uses the notions of instituting and terminating
proceedings, and declining to execute final removal orders, in the
very same inclusive sense that § 1252(g) does. The treatise says
that" '[a] case may be selected for deferred action treatment at
any stage of the administrative process,'"
ante, at 484, by
which its authors evidently meant to say simply that from time to
time the Executive exercises discretion at various points in the
process, and that some courts have considered challenges to the
failure to exercise discretion. This is no support for the Court's
argument that Congress meant to bar review only of the "discrete"
actions of commencement, adjudication, or execution.
Because I cannot subscribe to the Court's attempt to render the
inclusive series incomplete, I have to confront the irreconcilable
contradiction between § 306(c)(1) and § 309(c)(1). Both context and
principle point me to the conclusion that the latter provision must
prevail over the former. First, it seems highly improbable that
Congress actu-
508
508 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
SOUTER, J., dissenting
ally intended to raise a permanent barrier to judicial review
for aliens in proceedings ongoing on April 1, 1997. Judicial review
was available under old 8 U. S. C. § 1105a to those aliens whose
proceedings concluded before the enactment of the amended §
306(c)(1) on October 11, 1996, and judicial review of a different
scope is also available under new 8 U. S. C. § 1252 (1994 ed.,
Supp. III) to those whose proceedings commenced after the effective
date of IIRIRA, April 1, 1997. There is no reason whatever to
believe that Congress intentionally singled out for especially
harsh treatment the hapless aliens who were in proceedings during
the interim. This point is underscored by transitional §
309(c)(4)(A), which expressly applies subsections (a) and (c) of
old 8 U. S. C. § 1105a (but not subsection (b) thereof) to judicial
review of final orders of deportation or exclusion filed more than
30 days after the date of enactment. Section 309(c)(4)(A), in other
words, contemplates judicial review of final orders of exclusion
against aliens who were in proceedings as of the date of
enactment.
Second, complete preclusion of judicial review of any kind for
claims brought by aliens subject to proceedings for removal would
raise the serious constitutional question whether Congress may
block every remedy for enforcing a constitutional right. See
Bowen v.
Michigan Academy of Family Physicians,
476 U. S. 667,
681, n. 12 (1986). The principle of constitutional doubt counsels
against adopting the interpretation that raises this question.
"[W]here a statute is susceptible of two constructions, by one of
which grave and doubtful constitutional questions arise and by the
other of which such questions are avoided, our duty is to adopt the
latter."
United States ex rel. Attorney General v.
Delaware &
Hudson Co., 213 U. S. 366, 408
(1909); see also
United States v.
Jin Fuey Moy,
241 U. S. 394,
401 (1916). Here, constitutional doubt lends considerable weight to
the view that § 309(c)(1) ought to prevail over § 306(c)(1) and
preserve judicial review under the law as it was before the en-
509
actment of IIRIRA for aliens in proceedings before April 1,
1997. While I do not lightly reach the conclusion that § 306(c)(1)
is essentially without force, my respect for Congress's intent in
enacting § 309(c)(1) is necessarily balanced by respect for
Congress's intent in enacting § 306(c)(1). No canon of statutory
construction familiar to me specifically addresses the situation in
which two simultaneously enacted provisions of the same statute
flatly contradict one another. 3 We are, of course, bound to avoid
such a dilemma if we can, by glimpsing some uncontradicted meaning
for each provision. But the attempt to salvage an application for
each must have some stopping place, and the Court's attempt here
seems to me to go beyond that point. In this anomalous situation
where the two statutory provisions are fundamentally at odds,
constitutional doubt will have to serve as the best guide to
breaking the tie.
Because I think that § 309(c)(1) applies to aliens in
proceedings before April 1, 1997, I think it applies to respondents
in this case. The law governing their proceedings and subsequent
judicial review should therefore be the law prevailing before
IIRIRA. That law, in my view, afforded respondents an opportunity
to litigate their claims before the District Court. Former 8 U. s.
C. § 1l05a(a) governed "judicial review of all final orders of
deportation." For actions that fell outside the scope of this
provision, an "alien's remedies would, of course, ordinarily lie
first in an action brought in an appropriate district court."
Cheng Fan Kwok v.
INS, 392 U. S. 206, 210
(1968). In
McNary v.
Haitian Refugee Center, Inc.,
498 U. S. 479
(1991), we applied this principle in
3 In such a situation, one court held some 70 years ago that
"[i]t being conceded that the two acts are contradictory and
irreconcilable, and being unable to determine that either became
effective, in point of time, before the other, it results that both
are invalid."
Maddux v.
Nashville, 158 Tenn. 307,
312, 13 S. W. 2d 319, 321 (1929). In our case, invalidating §§
306(c)(I) and 309(c)(I) would enable us to apply the law in place
before the enactment of IIRIRA, as we ought to do on the other
grounds here.
510
510 RENO
v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM.
SOUTER, J., dissenting
finding a right of action before the district court in a
constitutional challenge to procedures of the Immigration and N
aturalization Service. Respondents' challenge to the
constitutionality of their prosecution was filed prior to the entry
of a final order of deportation, and so district court jurisdiction
was appropriate here.4
II
The approach I would take in this case avoids a troubling
problem that the Court chooses to address despite the fact that it
was not briefed before the Court: whether selective prosecution
claims have vitality in the immigration context. Of course, in
principle, the Court's approach itself obviates the need to address
that issue: if respondents' suit is barred by § 1252(g), the Court
need not address the merits of their claims. Yet the Court goes on,
in what I take as dictum,5 to argue that the alien's interest in
avoiding selective treatment in the deportation context "is less
compelling than in criminal prosecutions,"
ante, at 491,
either because the alien is not
4 Respondents' challenge fell outside the scope of § 1105a, and
was not subject to the requirement of exhaustion contained therein
in the former § 1105a(c). As in
McNary, the waiver of
sovereign immunity is to be found in 5 U. S. C. § 702, which waives
the immunity of the United States in actions for relief other than
money damages. This waiver of immunity is not restricted by the
requirement of final agency action that applies to suits under the
Administrative Procedure Act. See
The Presbyterian Church
(u. S.
A.) v.
United States, 870
F.2d 518, 523-526 (CA9 1989).
5 The Court says it "must address" respondents' various
contentions,
ante, at 487, and on that basis it takes up the
selective prosecution issue. Notwithstanding the usefulness of
addressing the parties' arguments, a line of argument unnecessary
to the decision of the case remains dictum. See
United
States v.
Dixon, 509 U. S. 688, 706 (1993)
(quoting with approval
United States Nat. Bank of Ore. v.
Independent Ins. Agents of America, Inc., 508 U. S. 439, 463, n. 11
(1993), on '''the need to distinguish an opinion's holding from its
dicta' "). Respondents' contention that their speech has been
impermissibly chilled cannot require the Court to say that no
action for selective prosecution may lie in this case; a claim of
chilled speech cannot place the selective prosecution claim within
the statutory jurisdiction that § 1252(g) forecloses on the Court's
view.
511
being punished for an act he has committed, or because the
presence of an alien in the United States is, unlike a past crime,
"an ongoing violation of United States law,"
ibid. (emphasis
deleted). While the distinctions are clear, the difference is not.
The interest in avoiding selective enforcement of the criminal law,
shared by the government and the accused, is that prosecutorial
discretion not be exercised to violate constitutionally prescribed
guaranties of equality or liberty. See
United States v.
Armstrong, 517
U. S. 456, 464465 (1996);
Wayte v.
United States,
470 U. S. 598,
608 (1985). This interest applies to the like degree in immigration
litigation, and is not attenuated because the deportation is not a
penalty for a criminal act or because the violation is ongoing. If
authorities prosecute only those tax evaders against whom they bear
some prejudice or whose protected liberties they wish to curtail,
the ongoing nature of the nonpayers' violation does not obviate the
interest against selective prosecution.
No doubt more could be said with regard to the theory of
selective prosecution in the immigration context, and I do not
assume that the Government would lose the argument. That this is so
underscores the danger of addressing an unbriefed issue that does
not call for resolution even on the Court's own logic. Because I am
unconvinced by the Court's statutory interpretation, and because I
do not think the Court should reach the selective prosecution
issue, I respectfully dissent.
512
The next page is purposely numbered 801. The numbers between 511
and 801 were intentionally omitted, in order to make it possible to
publish the orders with permanent page numbers, thus making the
official citations available upon publication of the preliminary
prints of the United States Reports.
513
OCTOBER 5, 1998 Dismissal Under Rule 46
No. 98-346. STROHMEYER V. NEVADA. Sup. Ct. Nev. Certiorari
dismissed under this Court's Rule 46. Reported below: 114 Nev.
1749, 988 P. 2d 868.
Certiorari Granted-Vacated and Remanded
No. 97-1623. UNITED STATES V. FOSTER. C. A. 9th Cir. Motion of
respondent for leave to proceed
in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of
Muscarello v.
United States,
524
No. 97-1656. SLOAN V. SHARP, COMPTROLLER OF PUBLIC AcCOUNTS OF
TEXAS, ET AL. C. A. 5th Cir. Certiorari granted, judgment vacated,
and case remanded for further consideration in light of
Faragher v.
Boca Raton, 524 U. S. 775 (1998), and
Burlington Industries, Inc. v.
Ellerth, 524 U. S. 742 (1998).
Reported below:
136 F.3d
136.
No. 97-1751. PFAU V. REED, DIRECTOR, DEFENSE CONTRACT AUDIT
AGENCY. C. A. 5th Cir. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of
Faragher
v.
Boca Raton, 524 U. S. 775 (1998), and
Burlington Industries, Inc. v.
Ellerth, 524 U. S. 742 (1998).
Reported below:
125 F.3d
927.
No. 97-1969. WILSON V. CITY OF PLANO. C. A. 5th Cir. Certiorari
granted, judgment vacated, and case remanded for further
consideration in light of
Faragher v.
Boca Raton,
524 U. S. 775
(1998), and
Burlington Industries, Inc. v.
Ellerth,
524 U. S. 742
(1998). Reported below:
139 F.3d
899.
No. 97-2018. KIOWA TRIBE OF OKLAHOMA V. HOOVER. Sup.
Ct. Okla. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of
Kiowa Tribe
of 801
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