Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1998)

Author: John Paul Stevens

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Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1998)

JUSTICE STEVENS, concurring in the judgment.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is a part of an omnibus enactment that occupies 745 pages in the Statutes at Large. 110 Stat. 3009-546. It is not surprising that it contains a scrivener’s error. See Green v. BockLaundry 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 order,{1} 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 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. § 1105a.

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 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. 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.

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 Cong.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 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, to give primary influence to the "notwithstanding" clause would simply beg the question of legislative intent.

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)(1) and § 309(c)(1) would enable us to apply the law in place before the enactment of IIRIRA, as we ought to do on the other grounds here.

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.


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Chicago: John Paul Stevens, "Stevens, J., Concurring," Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1998) in 525 U.S. 471 525 U.S. 499–525 U.S. 501. Original Sources, accessed September 30, 2022,

MLA: Stevens, John Paul. "Stevens, J., Concurring." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1998), in 525 U.S. 471, pp. 525 U.S. 499–525 U.S. 501. Original Sources. 30 Sep. 2022.

Harvard: Stevens, JP, 'Stevens, J., Concurring' in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1998). cited in 1998, 525 U.S. 471, pp.525 U.S. 499–525 U.S. 501. Original Sources, retrieved 30 September 2022, from