OCTOBER TERM, 2000

															Syllabus

															IMMIGRATION AND NATURALIZATION SERVICE v. ST. CYR

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT No. 00-767. Argued April 24, 200l-Decided June 25, 2001 Before the effective dates of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 212(c)
of the Immigration and Nationality Act of 1952 was interpreted to
give the Attorney General broad discretion to waive deportation of
resident aliens. As relevant here, the large class of aliens
depending on § 212(c) relief was reduced in 1996 by §401 of AEDPA,
which identified a broad set of offenses for which convictions
would preclude such relief; and by IIRIRA, which repealed § 212(c)
and replaced it with a new section excluding from the class anyone
"convicted of an aggravated felony," 8 U. S. C. § 1229b(a)(3).
Respondent St. Cyr, a lawful permanent United States resident,
pleaded guilty to a criminal charge that made him deportable. He
would have been eligible for a waiver of deportation under the
immigration law in effect when he was convicted, but his removal
proceedings were commenced after AEDPA's and IIRIRA's effective
dates. The Attorney General claims that those Acts withdrew his
authority to grant St. Cyr a waiver. The Federal District Court
accepted St. Cyr's habeas corpus application and agreed that the
new restrictions do not apply to removal proceedings brought
against an alien who pleaded guilty to a deportable crime before
their enactment. The Second Circuit affirmed.

															Held:

															1. Courts have jurisdiction under 28 U. S. C. § 2241 to decide
the legal issue raised by St. Cyr's habeas petition. Pp.
298-314.

															(a) To prevail on its claim that AEDPA and IIRIRA stripped
federal courts of jurisdiction to decide a pure question of law, as
in this case, petitioner Immigration and Naturalization Service
(INS) must overcome both the strong presumption in favor of
judicial review of administrative action and the longstanding rule
requiring a clear and unambiguous statement of congressional intent
to repeal habeas jurisdiction. Here, that plain statement rule
draws additional reinforcement from other canons of statutory
construction: First, when a statutory interpretation invokes the
outer limits of Congress' power, there must be a clear indication
that Congress intended that result; and 290 Syllabus

															second, if an otherwise acceptable construction would raise
serious constitutional problems and an alternative interpretation
is fairly possible, the statute must be construed to avoid such
problems. Pp. 298-300.

															(b) Construing the amendments at issue to preclude court review
of a pure question of law would give rise to substantial
constitutional questions. The Constitution's Suspension Clause,
which protects the privilege of the habeas corpus writ,
unquestionably requires some judicial intervention in deportation
cases. Heikkila v. Barber, 345 U. S. 229 , 235. Even
assuming that the Clause protects only the writ as it existed in
1789, substantial evidence supports St. Cyr's claim that pure
questions of law could have been answered in 1789 by a common-law
judge with power to issue the writ. Thus, a serious Suspension
Clause issue would arise if the 1996 statutes have withdrawn that
power from federal judges and provided no adequate substitute. The
need to resolve such a serious and difficult constitutional
question and the desirability of avoiding that necessity reinforce
the reasons for requiring a clear and unambiguous statement of
congressional intent. Pp. 300-305.

															(c) To conclude that the writ is no longer available in this
context would also represent a marked departure from historical
immigration law practice. The writ has always been available to
review the legality of Executive detention, see, e. g.,
Felker v. Turpin, 518 U. S. 651 , 663, and,
until the 1952 Act, a habeas action was the sole means of
challenging a deportation order's legality, see, e. g.,
Heikkila, 345 U. S., at 235. Habeas courts have answered
questions of law in alien suits challenging Executive
interpretations of immigration law and questions of law that arose
in the discretionary relief context. Pp. 305-308.

															(d) Neither AEDPA §401(e) nor three IIRIRA provisions, 8 U. S.
C. §§ 1252(a)(I), (a)(2)(C), and (b)(9), express a clear and
unambiguous statement of Congress' intent to bar 28 U. S. C. §2241
petitions. None of these sections even mentions § 2241. Section
401(e)'s repeal of a subsection of the 1961 Act, which provided, inter alia, habeas relief for an alien in custody pursuant
to a deportation order, is not sufficient to eliminate what the
repealed section did not grant-namely, habeas jurisdiction pursuant
to § 2241. See Ex parte Yerger, 8 Wall. 85, 105106. The
three IIRIRA provisions do not speak with sufficient clarity to bar
habeas jurisdiction. They focus on "judicial review" or
"jurisdiction to review." In the immigration context, however,
"judicial review" and "habeas corpus" have historically distinct
meanings, with habeas courts playing a far narrower role. Pp.
308-314.

															2. Section 212(c) relief remains available for aliens, like St.
Cyr, whose convictions were obtained through plea agreements and
who, notwithstanding those convictions, would have been eligible
for § 212(c) relief at the time of their plea under the law then in
effect. Pp. 314-326. 291 (a) A statute's language must require that it be applied
retroactively. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 ,
208. The first step in the impermissible-retroactive-effect
determination is to ascertain whether Congress has directed with
the requisite clarity that the law be applied retrospectively. Martin v. Hadix, 527 U. S. 343 , 352. Such
clarity is not shown by the comprehensiveness of IIRIRA's revision
of federal immigration law, see Landgraf v. USI Film
Products, 511 U.
S. 244 , 260-261, by the promulgation of IIRIRA's effective
date, see id., at 257, or by IIRIRA § 309(c)(1)'s "saving
provision." Pp. 314-320.

															(b) The second step is to determine whether IIRIRA attaches new
legal consequences to events completed before its enactment, a
judgment informed and guided by considerations of fair notice,
reasonable reliance, and settled expectations. Landgraf, 511
U. S., at 270. IIRIRA's elimination of § 212(c) relief for people
who entered into plea agreements expecting that they would be
eligible for such relief clearly attaches a new disability to past
transactions or considerations. Plea agreements involve a quid
pro quo between a criminal defendant and the government, and
there is little doubt that alien defendants considering whether to
enter into such agreements are acutely aware of their convictions'
immigration consequences. The potential for unfairness to people
like St. Cyr is significant and manifest. Now that prosecutors have
received the benefit of plea agreements, facilitated by the aliens'
belief in their continued eligibility for § 212(c) relief, it would
be contrary to considerations of fair notice, reasonable reliance,
and settled expectations to hold that IIRIRA deprives them of any
possibility of such relief. The INS' argument that application of
deportation law can never have retroactive effect because
deportation proceedings are inherently prospective is not
particularly helpful in undertaking Landgraf's analysis, and
the fact that deportation is not punishment for past crimes does
not mean that the Court cannot consider an alien's reasonable
reliance on the continued availability of discretionary relief from
deportation when deciding the retroactive effect of eliminating
such relief. That § 212(c) relief is discretionary does not affect
the propriety of this Court's conclusion, for there is a clear
difference between facing possible deportation and facing certain
deportation. pp. 320-326. 229 F.3d
406 , affirmed.

															STEVENS, J., delivered the opinion of the Court, in which
KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J.,
filed a dissenting opinion, post, p. 326. SCALIA, J., filed
a dissenting opinion, in 292 which REHNQUIST, C. J., and THOMAS, J., joined, and in which
O'CONNOR, J., joined as to Parts I and III, post, p.
326.

															Deputy Solicitor General Kneedler argued the cause for
petitioner. With him on the briefs were Acting Solicitor General
Underwood, Acting Assistant Attorney General Schiffer, Paul R. Q.
Wolfson, Stephen C. Robinson, Donald E. Keener, Alison R. Drucker,
Ernesto H. Molina, and James K. Filan, Jr.

															Lucas Guttentag argued the cause for respondent. With him on the
brief were Lee Gelernt, Judy Rabinovitz, Steven R. Shapiro,
Jayashri Srikantiah, Michael G. Moore, and Paul A. Engelmayer.
*

															JUSTICE STEVENS delivered the opinion of the Court. Both the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
enacted on April 24, 1996, 110 Stat. 1214, and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), enacted on September 30, 1996, 110 Stat. 3009-546,
contain comprehensive amendments to the Immigration and Nationality
Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et
seq. This case raises two important questions about the impact
of those amendments. The first question is a procedural one,
concerning the effect of those amendments on the availability of
habeas corpus jurisdiction under 28 U. S. C. § 2241. The second
question is a substantive one, concerning the impact of the
amendments on conduct that occurred before

															* Daniel J. Popeo and R. Shawn Gunnarson filed a brief for the Washington Legal Foundation as amicus
curiae urging reversal.

															Briefs of amici curiae urging affirmance were filed for
the Florida Immigrant Advocacy Center et al. by Rebecca
Sharpless; and for the National Association of Criminal Defense
Lawyers et al. by Manuel D. Vargas and Joshua L.
Dratel. James Oldham, Michael J. Wishnie, and Douglas W Baruch filed a
brief for Legal Historians as amici curiae. 293 their enactment and on the availability of discretionary relief
from deportation.

															Respondent, Enrico St. Cyr, is a citizen of Haiti who was
admitted to the United States as a lawful permanent resident in
1986. Ten years later, on March 8, 1996, he pleaded guilty in a
state court to a charge of selling a controlled substance in
violation of Connecticut law. That conviction made him deportable.
Under pre-AEDPA law applicable at the time of his conviction, St.
Cyr would have been eligible for a waiver of deportation at the
discretion of the Attorney General. However, removal proceedings
against him were not commenced until April 10, 1997, after both
AEDPA and IIRIRA became effective, and, as the Attorney General
interprets those statutes, he no longer has discretion to grant
such a waiver.

															In his habeas corpus petition, respondent has alleged that the
restrictions on discretionary relief from deportation contained in
the 1996 statutes do not apply to removal proceedings brought
against an alien who pleaded guilty to a deportable crime before
their enactment. The District Court accepted jurisdiction of his
application and agreed with his submission. In accord with the
decisions of four other Circuits, the Court of Appeals for the
Second Circuit affirmed.1 229 F.3d
406 (2000). The importance of both questions warranted our
grant of certiorari. 531 U. S. 1107 (2001).

															I

															The character of the pre-AEDPA and pre-IIRIRA law that gave the
Attorney General discretion to waive deportation in certain cases
is relevant to our appraisal of both the substantive and the
procedural questions raised by

															1 See Mahadeo v. Reno, 226 F.3d
3 (CA1 2000); Liang v. INS, 206 F.3d
308 (CA3 2000); Tasios v. Reno, 204 F.3d
544 (CA4 2000); FloresMiramontes v. INS, 212
F.3d 1133 (CA9 2000). But see Max-George v. Reno, 205 F.3d
194 (CA5 2000); Morales-Ramirez v. Reno, 209
F.3d 977 (CA7 2000); Richardson v. Reno, 180
F.3d 1311 (CA111999). 294 the petition of the Immigration and Naturalization Service
(INS). We shall therefore preface our discussion of those questions
with an overview of the sources, history, and scope of that
law.

															Subject to certain exceptions, § 3 of the Immigration Act of
1917 excluded from admission to the United States several classes
of aliens, including, for example, those who had committed crimes
"involving moral turpitude." 39 Stat. 875. The seventh exception
provided "[t]hat aliens returning after a temporary absence to an
unrelinquished United States domicile of seven consecutive years
may be admitted in the discretion of the Secretary of Labor, and
under such conditions as he may prescribe." Id., at 878.2
Although that provision applied literally only to exclusion
proceedings, and although the deportation provisions of the statute
did not contain a similar provision, the INS relied on § 3 to grant
relief in deportation proceedings involving aliens who had departed
and returned to this country after the ground for deportation
arose. See, e. g., Matter of L, 1 1. & N. Dec. 1,
2 (1940).3

															Section 212 of the Immigration and Nationality Act of 1952,
which replaced and roughly paralleled § 3 of the 1917 Act, excluded
from the United States several classes of aliens, including those
convicted of offenses involving moral turpitude or the illicit
traffic in narcotics. See 66 Stat. 182187. As with the prior law,
this section was subject to a proviso granting the Attorney General
broad discretion to

															2 The INS was subsequently transferred to the Department of
Justice.

															See Matter of L, 1 1. & N. Dec. 1, n. 1 (1940). As a
result, the powers previously delegated to the Secretary of Labor
were transferred to the Attorney General. See id., at 2.

															3 The exercise of discretion was deemed a nunc pro tunc
correction of the record of reentry. In approving of this
construction, the Attorney General concluded that strictly limiting
the seventh exception to exclusion proceedings would be "capricious
and whimsical." Id., at 5. 295 admit excludable aliens. See id., at 187. That proviso, codified
at 8 U. S. C. § 1182(c), stated: "Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General .... " Like § 3 of the 1917 Act, § 212(c) was literally applicable only
to exclusion proceedings, but it too has been interpreted by the
Board of Immigration Appeals (BIA) to authorize any permanent
resident alien with "a lawful unrelinquished domicile of seven
consecutive years" to apply for a discretionary waiver from
deportation. See Matter of Silva, 16 1. & N. Dec. 26, 30
(1976) (adopting position of Francis v. INS, 532 F.
2d 268 (CA2 1976)). If relief is granted, the deportation
proceeding is terminated and the alien remains a permanent
resident.

															The extension of § 212(c) relief to the deportation context has
had great practical importance, because deportable offenses have
historically been defined broadly. For example, under the INA,
aliens are deportable upon conviction for two crimes of "moral
turpitude" (or for one such crime if it occurred within five years
of entry into the country and resulted in a jail term of at least
one year). See 8 U. S. C. §§ 1227(a)(2)(A)(i)-(ii) (1994 ed., Supp.
V). In 1988, Congress further specified that an alien is deportable
upon conviction for any "aggravated felony," Anti-Drug Abuse Act of
1988, 102 Stat. 4469-4470, § 1227(a)(2)(A)(iii), which was defined
to include numerous offenses without regard to how long ago they
were committed.4 Thus, the class of aliens

															4 See 8 U. S. C. § 1l01(a)(43) (1994 ed. and Supp. V). While the
term has always been defined expansively, it was broadened
substantially by IIRIRA. For example, as amended by that statute,
the term includes all convictions for theft or burglary for which a
term of imprisonment 296 whose continued residence in this country has depended on their
eligibility for § 212(c) relief is extremely large, and not
surprisingly, a substantial percentage of their applications for §
212(c) relief have been granted.5 Consequently, in the period
between 1989 and 1995 alone, § 212(c) relief was granted to over
10,000 aliens.6

															of at least one year is imposed (as opposed to five years
pre-IIRIRA), compare § 1l01(a)(43)(G) (1994 ed., Supp. V) with §
1l01(a)(43)(G) (1994 ed.), and all convictions involving fraud or
deceit in which the loss to the victim exceeds $10,000 (as opposed
to $200,000 pre-IIRIRA), compare § 1l01(a)(43)(M)(i) (1994 ed.,
Supp. V) with § 1l01(a)(43)(M)(i) (1994 ed.). In addition, the term
includes any "crime of violence" resulting in a prison sentence of
at least one year (as opposed to five years pre-IIRIRA), compare §
1l01(a)(43)(F) (1994 ed., Supp. V) with § 1l01(a)(43)(F) (1994
ed.), and that phrase is itself broadly defined. See 18 U. S. C. §
16 ("[A]n offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another," or "any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense").

															5 See, e. g., Rannik, The Anti-Terrorism and Effective
Death Penalty Act of 1996: A Death Sentence for the 212(c) Waiver,
28 U. Miami Inter-Am. L. Rev. 123, 150, n. 80 (1996) (providing
statistics indicating that 51.5% of the applications for which a
final decision was reached between 1989 and 1995 were granted); see
also Mattis v. Reno, 212 F.3d
31 , 33 (CA1 2000) ("[I]n the years immediately preceding
the statute's passage, over half the applications were granted"); Tasios, 204 F. 3d, at 551 (same).

															In developing these changes, the BIA developed criteria,
comparable to common-law rules, for deciding when deportation is
appropriate. Those criteria, which have been set forth in several
BIA opinions, see, e. g., Matter of Marin, 16 I.
& N. Dec. 581 (1978), include the seriousness of the offense,
evidence of either rehabilitation or recidivism, the duration of
the alien's residence, the impact of deportation on the family, the
number of citizens in the family, and the character of any service
in the Armed Forces.

															6 See Rannik, 28 U. Miami Inter-Am. L. Rev., at 150, n. 80.
However, based on these statistics, one cannot form a reliable
estimate of the number of individuals who will be affected by
today's decision. Since the 1996 statutes expanded the definition
of "aggravated felony" substantially-and retroactively-the number
of individuals now subject to deportation absent § 212(c) relief is
significantly higher than these figures would sug- 297 Three statutes enacted in recent years have reduced the size of
the class of aliens eligible for such discretionary relief. In
1990, Congress amended § 212(c) to preclude from discretionary
relief anyone convicted of an aggravated felony who had served a
term of imprisonment of at least five years. § 511, 104 Stat. 5052
(amending 8 U. S. C. § 1182(c)). In 1996, in §440(d) of AEDPA,
Congress identified a broad set of offenses for which convictions
would preclude such relief. See 110 Stat. 1277 (amending 8 U. S. C.
§ 1182(c)).7 And finally, that same year, Congress passed IIRIRA.
That statute, inter alia, repealed § 212(c), see § 304(b),
110 Stat. 3009-597, and replaced it with a new section that gives
the Attorney General the authority to cancel removal for a narrow
class of inadmissible or deportable aliens, see id., at 3009-594
(creating 8 U. S. C. § 1229b (1994 ed., Supp. V)). So narrowed,
that class does not include anyone previously "convicted of any
aggravated felony." § 1229b(a)(3) (1994 ed., Supp. V).

															In the Attorney General's opinion, these amendments have
entirely withdrawn his § 212(c) authority to waive deportation for
aliens previously convicted of aggravated felonies. Moreover, as a
result of other amendments adopted in AEDPA and IIRIRA, the
Attorney General also maintains that there is no judicial forum
available to decide whether these statutes did, in fact, deprive
him of the power to grant such relief. As we shall explain below,
we disagree on both points. In our view, a federal court does have
jurisdiction to decide the merits of the legal question, and

															gest. In addition, the nature of the changes (bringing under the
definition more minor crimes which may have been committed many
years ago) suggests that an increased percentage of applicants will
meet the stated criteria for § 212(c) relief.

															7The new provision barred review for individuals ordered
deported because of a conviction for an aggravated felony, for a
drug conviction, for certain weapons or national security
violations, and for multiple convictions involving crimes of moral
turpitude. See 110 Stat. 1277. 298 the District Court and the Court of Appeals decided that
question correctly in this case.

															II

															The first question we must consider is whether the District
Court retains jurisdiction under the general habeas corpus statute,
28 U. S. C. § 2241, to entertain St. Cyr's challenge. His
application for a writ raises a pure question of law. He does not
dispute any of the facts that establish his deportability or the
conclusion that he is deportable. Nor does he contend that he would
have any right to have an unfavorable exercise of the Attorney
General's discretion reviewed in a judicial forum. Rather, he
contests the Attorney General's conclusion that, as a matter of
statutory interpretation, he is not eligible for discretionary
relief.

															The District Court held, and the Court of Appeals agreed, that
it had jurisdiction to answer that question in a habeas corpus
proceeding.8 The INS argues, however, that four sections of the
1996 statutes-specifically, §401(e) of AEDPA and three sections of
IIRIRA (8 U. S. C. §§ 1252(a)(1), 1252(a)(2)(C), and 1252(b)(9)
(1994 ed., Supp. V))-stripped the courts of jurisdiction to decide
the question of law presented by respondent's habeas corpus
application.

															For the INS to prevail it must overcome both the strong
presumption in favor of judicial review of administrative action 9
and the longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction. See Ex parte
Yerger, 8 Wall. 85, 102 (1869) ("We are not at liberty to
except from [habeas corpus jurisdiction] any cases not plainly
excepted by law"); Felker v. Turpin, 518 U. S. 651 , 660-661
(1996) (noting that "[n]o provision of Title I

															8 See n. 1, supra; n. 33, infra. 9 See, e. g., Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 ,
670 (1986); see also McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 ,
498 (1991); Webster v. Doe, 486 U. S. 592 , 603
(1988); Johnson v. Robison, 415 U. S. 361 , 373-374
(1974). 299 mentions our authority to entertain original habeas petitions,"
and the statute "makes no mention of our authority to hear habeas
petitions filed as original matters in this Court").10 Implications
from statutory text or legislative history are not sufficient to
repeal habeas jurisdiction; instead, Congress must articulate
specific and unambiguous statutory directives to effect a repeal. Ex parte Yerger, 8 Wall., at 105 ("Repeals by implication
are not favored. They are seldom admitted except on the ground of
repugnancy; and never, we think, when the former act can stand
together with the new act").l1

															In this case, the plain statement rule draws additional
reinforcement from other canons of statutory construction. First,
as a general matter, when a particular interpretation of a statute
invokes the outer limits of Congress' power, we expect a clear
indication that Congress intended that result. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575
(1988). Second, if an otherwise acceptable construction of a
statute

															10 "In traditionally sensitive areas, ... the requirement of [a]
clear statement assures that the legislature has in fact faced, and
intended to bring into issue, the critical matters involved in the
judicial decision." Gregory v. Ashcroft, 501 U. S. 452 , 461 (1991)
(internal quotation marks and citations omitted); see United
States v. Nordic Village, Inc., 503 U. S. 30 , 33 (1992)
("Waivers of the [Federal] Government's sovereign immunity, to be
effective, must be 'unequivocally expressed' "); Atascadero
State Hospital v. Scanlon, 473 U. S. 234 , 242 (1985)
("Congress may abrogate the States' constitutionally secured
immunity from suit in federal court only by making its intention
unmistakably clear in the language of the statute"); see also
Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement
Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597 (1992)
("[T]he Court ... has tended to create the strongest clear
statement rules to confine Congress's power in areas in which
Congress has the constitutional power to do virtually
anything").

															11 Cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 1018
(1984) ("[W]here two statutes are capable of co-existence, it is
the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective" (internal
quotation marks omitted)). 300 would raise serious constitutional problems, and where an
alternative interpretation of the statute is "fairly possible," see Crowell v. Benson, 285 U. S. 22 , 62 (1932),
we are obligated to construe the statute to avoid such problems.
See Ashwander v. TVA, 297 U. S. 288 , 341,
345-348 (1936) (Brandeis, J., concurring); United States ex rel.
Attorney General A construction of the amendments at issue that would entirely
preclude review of a pure question of law by any court would give
rise to substantial constitutional questions. Article I, § 9, cl.
2, of the Constitution provides: "The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it." Because of
that Clause, some "judicial intervention in deportation cases" is
unquestionably "required by the Constitution." Heikkila v. Barber, 345 U. S. 229, 235 (1953).

															Unlike the provisions of AEDPA that we construed in Felker v. Turpin, 518 U. S. 651 (1996),
this case involves an alien subject to a federal removal order
rather than a person confined pursuant to a state-court conviction.
Accordingly, regardless of whether the protection of the
Suspension

															12"As was stated in Hooper v. California, 155 U. S. 648 , 657
(1895), '[t]he elementary rule is that every reasonable
construction must be resorted to, in order to save a statute from
unconstitutionality.' This approach ... also recognizes that
Congress, like this Court, is bound by and swears an oath to uphold
the Constitution. The courts will therefore not lightly assume that
Congress intended to infringe constitutionally protected liberties
or usurp power constitutionally forbidden it." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988)
(citing Grenada County Supervisors v. Brogden, 112 U. S. 261 ,
269 (1884)); see also NLRB v. Catholic Bishop of
Chicago, 440 U.
S. 490 , 499-501, 504 (1979); Murray v. Schooner
Charming Betsy, 2 Cranch 64, 118 (1804); Machinists v. Street, 367 U.
S. 740 , 749-750 (1961); Crowell v. Benson, 285 U. S. 22 , 62
(1932); Lucas v. Alexander, 279 U. S. 573 , 577
(1929); Panama R. Co. v. Johnson, 264 U. S. 375 , 390
(1924); Delaware & Hudson Co., 213 U. S., at
407-408; Parsons v. Bedford, 3 Pet. 433, 448-449
(1830) (Story, J.). 301 Clause encompasses all cases covered by the 1867 Amendment
extending the protection of the writ to state prisoners, cf. id.,
at 663-664, or by subsequent legal developments, see LaGuerre v. Reno, 164 F.3d
1035 (CA7 1998), at the absolute minimum, the Suspension
Clause protects the writ "as it existed in 1789." 13 Felker, 518 U. S., at 663-664.

															At its historical core, the writ of habeas corpus has served as
a means of reviewing the legality of Executive detention, and it is
in that context that its protections have been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372 , 380, n. 13
(1977); id., at 385-386 (Burger, C. J., concurring) (noting that
"the traditional Great Writ was largely a remedy against executive
detention"); Brown v. Allen, 344 U. S. 443 , 533 (1953)
(Jackson, J., concurring in result) ("The historic purpose of the
writ has been to relieve detention by executive authorities without
judicial trial"). In England prior to 1789, in the Colonies,15 and
in this Nation during the formative years of our Government, the
writ of habeas corpus was available to nonenemy aliens as well as
to citi-

															13 The fact that this Court would be required to answer the
difficult question of what the Suspension Clause protects is in and
of itself a reason to avoid answering the constitutional questions
that would be raised by concluding that review was barred entirely.
Cf. Neuman, Habeas Corpus, Executive Detention, and the Removal of
Aliens, 98 Colum. L. Rev. 961, 980 (1998) (noting that
"reconstructing habeas corpus law ... [for purposes of a Suspension
Clause analysis] would be a difficult enterprise, given fragmentary
documentation, state-by-state disuniformity, and uncertainty about
how state practices should be transferred to new national
institutions").

															14 At common law, "[w]hile habeas review of a court judgment was
limited to the issue of the sentencing court's jurisdictional
competency, an attack on an executive order could raise all issues
relating to the legality of the detention." Note, Developments in
the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1238
(1970).

															15 See W. Duker, A Constitutional History of Habeas Corpus 115
(1980) (noting that "the common-law writ of habeas corpus was in
operation in all thirteen of the British colonies that rebelled in
1776"). 302 zens.16 It enabled them to challenge Executive and private
detention in civil cases as well as criminap7 Moreover, the
issuance of the writ was not limited to challenges to the
jurisdiction of the custodian, but encompassed detentions based on
errors of law, including the erroneous application or
interpretation of statutes.18 It was used to command the discharge
of seamen who had a statutory exemption from impressment into the
British Navy,19 to emancipate slaves,2o and to obtain the freedom
of apprentices 21 and asylum inmates.22 Most important, for our
purposes, those early cases contain no suggestion that habeas
relief in cases in-

															16 See Sommersett v. Stewart, 20 How. St. Tr. 1,
79-82 (K. B. 1772); Case of the Hottentot Venus, 13 East
195, 104 Eng. Rep. 344 (K. B. 1810); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); United States v. Villato, 28 F. Cas. 377 (No. 16,622) (CC Pa. 1797); Commonwealth v. Holloway, 1
Sergo & Rawle 392 (Pa. 1815); Ex parte D'Olivera, 7 F.
Cas. 853 (No. 3,967) (CC Mass. 1813); see also Brief for
Legal Historians as Amici Curiae 10-11; Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens, 98 Colum.
L. Rev., at 990-1004.

															17See King V. Nathan, 2 Strange 880, 93 Eng. Rep.
914 (K. B. 1724); Ex parte Boggin, 13 East 549, 104 Eng.
Rep. 484 (K. B. 1811); Hollingshead's Case, 1 Salkeld 351,
91 Eng. Rep. 307 (K. B. 1702); Dr. Groenvelt's Case, 1 Ld.
Raym. 213, 91 Eng. Rep. 1038 (K. B. 1702); Bushell's Case, Vaughan 135, 124 Eng. Rep. 1006 (C. P. 1670); Ex parte
Randolph, 20 F. Cas. 242 (No. 11,558) (CC Va. 1833)
(Marshall, C. J., on circuit); Ex parte D'Olivera, 7 F. Cas.
853 (No. 3,967) (CC Mass. 1813); Respublica V. Keppele, 2 Dall. 197 (Pa. 1793).

															18 See, e. g., Hollingshead's Case, 1 Salkeld 351, 91
Eng. Rep. 307 (K. B. 1702); King V. Nathan, 2 Strange
880, 93 Eng. Rep. 914 (K. B. 1724); United States V. Bainbridge, 24 F. Cas. 946 (No. 14,497) (CC Mass.
1816); Ex parte Randolph, 20 F. Cas. 242 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on circuit); see also Brief
for Legal Historians as Amici Curiae 3-10 (collecting
cases).

															19 See, e. g., the case of King V. White (1746) quoted in the addendum to

															Sommersett V. Stewart, 20 How. St. Tr., at 1376. 2°Id., at 79-82. 21 King V. Delaval, 3 Burr. 1434,97 Eng. Rep. 913
(K. B. 1763). 22 King V. Turlington, 2 Burr. 1115,97 Eng. Rep.
741 (K. B. 1761). 303 volving Executive detention was only available for
constitutional error.23

															Notwithstanding the historical use of habeas corpus to remedy
unlawful Executive action, the INS argues that this case falls
outside the traditional scope of the writ at common law. It
acknowledges that the writ protected an individual who was held
without legal authority, but argues that the writ would not issue
where "an official had statutory authorization to detain the
individual ... but ... the official was not properly exercising his
discretionary power to determine whether the individual should be
released." Brief for Respondent in Colcano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 33. In this case, the INS
points out, there is no dispute that the INS had authority in law
to hold St. Cyr, as he is eligible for removal. St. Cyr counters
that there is historical evidence of the writ issuing to redress
the

															23 See, e. g., Ex parte Boggin, 13 East 549, n. (b), 104
Eng. Rep. 484, n. (a)2 (K. B. 1811) (referring to Chalacombe's
Case, in which the court required a response from the Admiralty
in a case involving the impressment of a master of a coal vessel,
despite the argument that exemptions for "seafaring persons of this
description" were given only as a matter of "grace and favour," not
"of right"); Hollingshead's Case, 1 Salkeld 351, 91 Eng.
Rep. 307 (K. B. 1702) (granting relief on the grounds that the
language of the warrant of commitment-authorizing detention until "otherwise discharged by due course of law"-exceeded the
authority granted under the statute to commit "till [the bankrupt]
submit himself to be examined by the commissioners"); see also
Brief for Legal Historians as Amici Curiae 8-10, 18-28.

															The dissent, however, relies on Chalacombe's Case as its
sole support for the proposition that courts treated Executive
discretion as "lying entirely beyond the judicial ken." See post, at 343 (opinion of SCALIA, J.). Although Lord
Ellenborough expressed "some hesitation" as to whether the case
should "stand over for the consideration of the Admiralty," he
concluded that, given the public importance of the question, the
response should be called for. 13 East, at 549, n. (b), 104 Eng.
Rep., at 484, n. (a)2. The case ultimately became moot when the
Admiralty discharged Chalacombe, but it is significant that,
despite some initial hesitation, the court decided to proceed. 304 improper exercise of official discretion. See n. 23, supra; Hafetz, The Untold Story of Noncriminal Habeas Corpus
and the 1996 Immigration Acts, 107 Yale L. J. 2509 (1998).

															St. Cyr's constitutional position also finds some support in our
prior immigration cases. In Heikkila v. Barber, the
Court observed that the then-existing statutory immigration scheme
"had the effect of precluding judicial intervention in deportation
cases except insofar as it was required by the
Constitution," 345 U. S., at 234-235 (emphasis added)-and that
scheme, as discussed below, did allow for review on habeas of
questions of law concerning an alien's eligibility for
discretionary relief. Therefore, while the INS' historical
arguments are not insubstantial, the ambiguities in the scope of
the exercise of the writ at common law identified by St. Cyr, and
the suggestions in this Court's prior decisions as to the extent to
which habeas review could be limited consistent with the
Constitution, convince us that the Suspension Clause questions that
would be presented by the INS' reading of the immigration statutes
before us are difficult and significant.24

															In sum, even assuming that the Suspension Clause protects only
the writ as it existed in 1789, there is substantial

															24 The dissent reads into Chief Justice Marshall's opinion in Ex parte Bollman, 4 Cranch 75 (1807), support for a
proposition that the Chief Justice did not endorse, either
explicitly or implicitly. See post, at 339340 (opinion of
SCALIA, J.). He did note that "the first congress of the United
States" acted under "the immediate influence" of the injunction
provided by the Suspension Clause when it gave "life and activity"
to "this great constitutional privilege" in the Judiciary Act of
1789, and that the writ could not be suspended until after the
statute was enacted. 4 Cranch, at 95. That statement, however,
surely does not imply that Marshall believed the Framers had
drafted a Clause that would proscribe a temporary abrogation of the
writ, while permitting its permanent suspension. Indeed, Marshall's
comment expresses the far more sensible view that the Clause was
intended to preclude any possibility that "the privilege itself
would be lost" by either the inaction or the action of Congress.
See, e. g., ibid. (noting that the Founders "must have felt,
with peculiar force, the obligation" imposed by the Suspension
Clause). 305 evidence to support the proposition that pure questions of law
like the one raised by the respondent in this case could have been
answered in 1789 by a common-law judge with power to issue the writ
of habeas corpus. It necessarily follows that a serious Suspension
Clause issue would be presented if we were to accept the INS'
submission that the 1996 statutes have withdrawn that power from
federal judges and provided no adequate substitute for its
exercise. See Hart, The Power of Congress to Limit the Jurisdiction
of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362,
1395-1397 (1953). The necessity of resolving such a serious and
difficult constitutional issue-and the desirability of avoiding
that necessity-simply reinforce the reasons for requiring a clear
and unambiguous statement of congressional intent.

															Moreover, to conclude that the writ is no longer available in
this context would represent a departure from historical practice
in immigration law. The writ of habeas corpus has always been
available to review the legality of Executive detention. See Felker, 518 U. S., at 663; Swain v. Pressley, 430 U. S., at 380, n. 13; id., at 385-386 (Burger, C. J.,
concurring); Brown v. Allen, 344 U. S., at 533
(Jackson, J., concurring in result). Federal courts have been
authorized to issue writs of habeas corpus since the enactment of
the Judiciary Act of 1789, and § 2241 of the Judicial Code provides
that federal judges may grant the writ of habeas corpus on the
application of a prisoner held "in custody in violation of the
Constitution or laws or treaties of the United States." 25 28 U. S.
C. § 2241. Before and after the enactment in 1875 of the first
statute regulating immigration, 18 Stat. 477, that jurisdiction was
regularly invoked on behalf of noncitizens, particularly in the
immigration context. See, e. g., In re 25 In fact, § 2241 descends directly from § 14 of the Judiciary
Act of 1789 and the 1867 Act. See Act of Sept. 24, 1789, ch. 20, §
14, 1 Stat. 82; Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. Its text
remained undisturbed by either AEDPA or IIRIRA. 306 Kaine, 14 How. 103 (1853); United States v. Jung Ah Lung, 124 U. S. 621 , 626-632
(1888).

															Until the enactment of the 1952 Immigration and Nationality Act,
the sole means by which an alien could test the legality of his or
her deportation order was by bringing a habeas corpus action in
district court.26 See, e. g., United States v. Jung Ah
Lung, 124 U. S.
621 (1888); Heikkila, 345 U. S., at 235; Chin Yow v. United States, 208 U. S. 8 (1908); Ng
Fung Ho v. White, 259 U. S. 276 , 284
(1922). In such cases, other than the question whether there was
some evidence to support the order,27 the courts generally did not
review factual determinations made by the Executive. See Ekiu v. United States, 142 U. S. 651 , 659
(1892). However, they did review the Executive's legal
determinations. See Gegiow v. Uhl, 239 U. S. 3 , 9 (1915) ("The
statute by enumerating the conditions upon which the allowance to
land may be denied, prohibits the denial in other cases. And when
the record shows that a commissioner of immigration is exceeding
his power, the alien may demand his release upon habeas
corpus"); see also Neuman, Jurisdiction and the Rule of Law
after the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1965-1969
(2000).28 In case after case, courts answered questions of law in
ha-

															26 After 1952, judicial review of deportation orders could also
be obtained by declaratory judgment actions brought in federal
district court. Shaughnessy v. Pedreiro, 349 U. S. 48 (1955).
However, in 1961, Congress acted to consolidate review in the
courts of appeals. See Foti v. INS, 375

															27 See, e. g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103 , 106 (1927)
(holding that deportation "on charges unsupported by any evidence
is a denial of due process which may be corrected on habeas
corpus"). 28 "And when the record shows that a commissioner of immigration
is exceeding his power, the alien may demand his release upon habeas corpus. The conclusiveness of the decisions of
immigration officers under § 25 is conclusiveness upon matters of
fact. This was implied in Nishimura Ekiu v. United
States, 142 U. S.
651 , relied on by the Government." Gegiow v. Uhl, 239 U. S. 3 , 9
(1915). 307 beas corpus proceedings brought by aliens challenging Executive
interpretations of the immigration laws.29

															Habeas courts also regularly answered questions of law that
arose in the context of discretionary relief. See, e. g., United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954); United States ex rel. Hintopoulos v. Shaughnessy, 353 U. S. 72 , 77 (1957).30
Traditionally, courts recognized a distinction between eligibility
for discretionary relief, on the one hand, and the favorable
exercise of discretion, on the other hand. See Neuman, 113 Harv. L.
Rev., at 1991 (noting the "strong tradition in habeas corpus law
... that subjects the legally erroneous failure to exercise
discretion, unlike a substantively unwise exercise of discretion,
to inquiry on the writ"). Eligibility that was "governed by
spe-

															29 See, e. g., Delgadillo v. Carmichael, 332 U. S. 388 ,391 (1947)
(rejecting on habeas the Government's interpretation of the
statutory term "entry"); Bridges v. Wixon, 326 U. S. 135 , 149 (1945)
(rejecting on habeas the Government's interpretation of the term
"affiliation" with the Communist Party); Kessler v. Strecker, 307
U. S. 22 , 35 (1939) (holding that "as the Secretary erred in
the construction of the statute, the writ must be granted"). Cf. Mahler v. Eby, 264 U. S. 32 , 46 (1924)
(reviewing on habeas the question whether the absence of an
explicit factual finding that the aliens were "undesirable"
invalidated the warrant of deportation).

															30 Indeed, under the pre-1952 regime which provided only what Heikkila termed the constitutional minimum of review, on
habeas lower federal courts routinely reviewed decisions under the
Seventh Proviso, the statutory predecessor to § 212(c), to ensure
the lawful exercise of discretion. See, e. g., United States ex
rel. Devenuto v. Curran, 299 F.2d
6 (CA2 1924); Hee Fuk Yuen v. White, 273 F. 10 (CA9 1921); United States ex rel. Patti v. Curran, 22 F.2d 314 (SDNY 1926); Gabriel v. Johnson, 29 F.2d 347 (CA1 1928). During the same
period, habeas was also used to review legal questions that arose
in the context of the Government's exercise of other forms of
discretionary relief under the 1917 Act. See, e. g., United
States ex rel. Adel v. Shaughnessy, 183 F.2d
371 (CA2 1950); United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d
489 (CA2 1950); Mastrapasqua v. Shaughnessy, 180 F.2d
999 (CA2 1950); United States ex rel. de Sousa v. Day, 22 F.2d 472 (CA2 1927); Gonzalez-Martinez v. Landon, 203 F. 2d 196 (CA9 1953); United States
ex rel. Berman v. Curran, 13 F.2d 96 (CA3
1926). 308 cific statutory standards" provided "a right to a ruling on an
applicant's eligibility," even though the actual granting of relief
was "not a matter of right under any circumstances, but rather is
in all cases a matter of grace." Jay v. Boyd, 351 U. S. 345 ,
353-354 (1956). Thus, even though the actual suspension of
deportation authorized by § 19(c) of the Immigration Act of 1917
was a matter of grace, in United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), we
held that a deportable alien had a right to challenge the
Executive's failure to exercise the discretion authorized by the
law. The exercise of the District Court's habeas corpus
jurisdiction to answer a pure question of law in this case is
entirely consistent with the exercise of such jurisdiction in Accardi. See also United States ex rel. Hintopoulos v. Shaughnessy, 353 U. S., at 77.

															Thus, under the pre-1996 statutory scheme-and consistent with
its common-law antecedents-it is clear that St. Cyr could have
brought his challenge to the BIA's legal determination in a habeas
corpus petition under 28 U. S. C. § 2241. The INS argues, however,
that AEDPA and IIRIRA contain four provisions that express a clear
and unambiguous statement of Congress' intent to bar petitions
brought under § 2241, despite the fact that none of them mention
that section. The first of those provisions is AEDPA's §
401(e).

															While the title of § 401(e)-"ELIMINATION OF CUSTODY REVIEW BY
HABEAS CORPus"-would seem to support the INS' submission, the
actual text of that provision does not.31 As we have previously
noted, a title alone is not controlling. Pennsylvania Dept. of
Corrections v. Yeskey, 524 U. S. 206 ,

															31 The section reads as follows:

															"(e) ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS.-Section
106(a) of the Immigration and Nationality Act (8 U. S. C. 1105a(a))
is amended-

															"(1) in paragraph (8), by adding 'and' at the end;

															"(2) in paragraph (9), by striking '; and' at the end and
inserting a period; and

															"(3) by striking paragraph (10)." 110 Stat. 1268. 309 212 (1998) (" '[T]he title of a statute ... cannot limit the
plain meaning of the text. For interpretive purposes, [it is] of
use only when [it] shed[s] light on some ambiguous word or phrase'"
(quoting Trainmen v. Baltimore & Ohio R.
Co., 331 U. S.
519 , 528-529 (1947))). The actual text of § 401(e), unlike its
title, merely repeals a subsection of the 1961 statute amending the
judicial review provisions of the 1952 Immigration and Nationality
Act. See n. 31, supra. Neither the title nor the text makes
any mention of 28 U. S. C. § 2241.

															Under the 1952 Act, district courts had broad authority to grant
declaratory and injunctive relief in immigration cases, including
orders adjudicating deportability and those denying suspensions of
deportability. See Foti v. INS, 375 U. S. 217 , 225-226
(1963). The 1961 Act withdrew that jurisdiction from the district
courts and provided that the procedures set forth in the Hobbs Act
would be the "sole and exclusive procedure" for judicial review of
final orders of deportation, subject to a series of exceptions. See
75 Stat. 651. The last of those exceptions stated that "any alien
held in custody pursuant to an order of deportation may obtain
review thereof by habeas corpus proceedings." See id., at 652,
codified at 8 U. S. C. § 1l05a(10) (repealed Sept. 30, 1996).

															The INS argues that the inclusion of that exception in the 1961
Act indicates that Congress must have believed that it would
otherwise have withdrawn the pre-existing habeas corpus
jurisdiction in deportation cases, and that, as a result, the
repeal of that exception in AEDPA in 1996 implicitly achieved that
result. It seems to us, however, that the 1961 exception is best
explained as merely confirming the limited scope of the new review
procedures. In fact, the 1961 House Report provides that this
section "in no way disturbs the Habeas Corpus Act." 32 H. R. Rep.
No. 1086, 87th Cong., 1st

															32 Moreover, the focus of the 1961 amendments appears to have
been the elimination of Administrative Procedure Act (APA) suits
that were brought in the district court and that sought declaratory
relief. See, e. g., 310 Sess., 29 (1961). Moreover, a number of the courts that
considered the interplay between the general habeas provision and
INA § 106(a)(10) after the 1961 Act and before the enactment of
AEDPA did not read the 1961 Act's specific habeas provision as
supplanting jurisdiction under § 2241. Orozco v. INS, 911 F.2d
539 , 541 (CAll 1990); United States ex rel. Marcello v. INS, 634 F.2d
964 , 967 (CA5 1981); Sotelo Mondragon v. Ilchert, 653 F.2d
1254 , 1255 (CA9 1980). In any case, whether § 106(a)(10) served as an independent grant
of habeas jurisdiction or simply as an acknowledgment of continued
jurisdiction pursuant to § 2241, its repeal cannot be sufficient to
eliminate what it did not originally grantnamely, habeas
jurisdiction pursuant to 28 U. S. C. § 2241. 33 See Ex parte
Yerger, 8 Wall., at 105-106 (concluding that the repeal of "an
additional grant of jurisdiction" does not "operate as a repeal of
jurisdiction theretofore allowed"); Ex parte McCardle, 7
Wall. 506, 515 (1869) (concluding that the repeal of portions of
the 1867 statute conferring appellate jurisdiction on the Supreme
Court in habeas proceedings did "not affect the jurisdiction which
was previously exercised").

															The INS also relies on three provisions of IIRIRA, now codified
at 8 U. S. C. §§ 1252(a)(1), 1252(a)(2)(C), and

															H. R. No. 2478, 85th Cong., 2d Sess., 9 (1958) ("[H]abeas corpus
is a far more expeditious judicial remedy than that of declaratory
judgment"); 104 Congo Rec. 17173 (1958) (statement of Rep. Walter)
(stating that courts would be "relieved of a great burden" once
declaratory actions were eliminated and noting that habeas corpus
was an "expeditious" means of review).

															33 As the INS acknowledges, the overwhelming majority of Courts
of Appeals concluded that district courts retained habeas
jurisdiction under §2241 after AEDPA. See Goncalves V. Reno, 144 F.3d
110 (CA1 1998); Henderson V. INS, 157 F.3d
106 (CA2 1998); Sandoval V. Reno, 166 F.
3d 225 (CA3 1999); Bowrin V. INS, 194 F.3d
483 (CA4 1999); RequenaRodriguez V. Pasquarell, 190 F.3d
299 (CA5 1999); Pak V. Reno, 196 F. 3d 666 (CA6 1999); Shah V. Reno, 184 F.3d
719 (CA8 1999); Magana-Pizano V. INS, 200 F.3d
603 (CA9 1999); Jurado-Gutierrez V. Greene, 190 F.3d
1135 (CAlO 1999); Mayers V. INS, 175 F.3d
1289 (CAll 1999). But see LaGuerre V. Reno, 164 F.3d
1035 (CA7 1998). 311 1252(b)(9) (1994 ed., Supp. V). As amended by § 306 of IIRIRA, 8
U. S. C. § 1252(a)(1) (1994 ed., Supp. V) now provides that, with
certain exceptions, including those set out in subsection (b) of
the same statutory provision, "[j]udicial review of a final order
of removal ... is governed only by" the Hobbs Act's procedures for
review of agency orders in the courts of appeals. Similarly, §
1252(b)(9), which addresses the "[c]onsolidation of questions for
judicial review," provides that "[j]udicial 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 subchapter shall be available only in judicial
review of a final order under this section." 34 Finally, §
1252(a)(2)(C), which concerns "[m]atters not subject to judicial
review," states: "Notwithstanding any other provision of law, no
court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed"
certain enumerated criminal offenses.

															The term "judicial review" or "jurisdiction to review" is the
focus of each of these three provisions. In the immigration
context, "judicial review" and "habeas corpus" have historically
distinct meanings. See Heikkila v. Barber, 345 U. S.
229 (1953). In Heikkila, the Court concluded that the
finality provisions at issue "preclud[ed] judicial review" to the
maximum extent possible under the Constitution, and thus concluded
that the APA was inapplicable. Id., at 235. Nevertheless,
the Court reaffirmed the right to habeas

															34 Title 8 U. S. C. § 1252(g) (1994 ed., Supp. V), entitled
"Exclusive jurisdiction," is not relevant to our analysis of the
jurisdictional issue. In Reno v. American-Arab
Anti-Discrimination Comm., 525 U. S. 471 (1999) (AADC), we explained that that provision applied only to
three types of discretionary decisions by the Attorney
General-specifically, to commence proceedings, to adjudicate cases,
or to execute removal ordersnone of which are at issue here. 312 corpus. Ibid. Noting that the limited role played by the
courts in habeas corpus proceedings was far narrower than the
judicial review authorized by the AP A, the Court concluded that
"it is the scope of inquiry on habeas corpus that differentiates"
habeas review from "judicial review." Id., at 236; see also, e. g., Terlinden v. Ames, 184 U. S. 270 , 278 (1902)
(noting that under the extradition statute then in effect there was
"no right of review to be exercised by any court or judicial
officer," but that limited review on habeas was nevertheless
available); Ekiu, 142 U. S., at 663 (observing that while a
decision to exclude an alien was subject to inquiry on habeas, it
could not be "impeached or reviewed"). Both §§ 1252(a)(1) and
(a)(2)(C) speak of "judicial review"that is, full, nonhabeas
review. Neither explicitly mentions habeas,35 or 28 U. S. C. §
2241.36 Accordingly, neither pro-

															35 Contrary to the dissent, see post, at 330 (opinion of
SCALIA, J.), we do not think, given the longstanding distinction
between "judicial review" and "habeas," that § 1252(e)(2)'s mention
of habeas in the subsection governing "[j]udicial review of orders
under section 1225(b)(1)" is sufficient to establish that Congress
intended to abrogate the historical distinction between two terms
of art in the immigration context when enacting IIRIRA.

															"[W]here Congress borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it
presumably knows and adopts the cluster of ideas that were attached
to each borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial mind
unless otherwise instructed. In such case, absence of contrary
direction may be taken as satisfaction with widely accepted
definitions, not as a departure from them." Morissette At most, § 1252(e)(2) introduces additional statutory ambiguity,
but ambiguity does not help the INS in this case. As we noted
above, only the clearest statement of congressional intent will
support the INS' position. See supra, at 305.

															36 It is worth noting that in enacting the provisions of AEDPA
and IIRIRA that restricted or altered judicial review, Congress did
refer specifically to several different sources of jurisdiction.
See, e. g., § 381, 110 Stat. 3009-650 (adding to grant of
jurisdiction under 8 U. S. C. § 1329 (1994 ed., Supp. V) a
provision barring jurisdiction under that provision 313 vision speaks with sufficient clarity to bar jurisdiction
pursuant to the general habeas statute.

															The INS also makes a separate argument based on 8 U. S. C. §
1252(b)(9) (1994 ed., Supp. V). We have previously described §
1252(b)(9) as a "zipper clause." AADC, 525 U. S. 471 , 483
(1999). Its purpose is to consolidate "judicial review" of
immigration proceedings into one action in the court of appeals,
but it applies only "[w]ith respect to review of an order of
removal under subsection (a)(l)." 8 U. S. C. § 1252(b) (1994 ed.,
Supp. V).37 Accordingly, this provision, by its own terms, does not
bar habeas jurisdiction over removal orders not subject to judicial
review under § 1252(a)(1)-including orders against aliens who are
removable by reason of having committed one or more criminal
offenses. Subsection (b)(9) simply provides for the consolidation
of issues to be brought in petitions for "[j]udicial review,"
which, as we note above, is a term historically dis-

															for suits against the United States or its officers or agents).
Section 401(e), which eliminated supplemental habeas jurisdiction
under the INA, expressly strikes paragraph 10 of § 106(a) of the
INA, not 28 U. S. C. §2241. Similarly, §306 of IIRIRA, which
enacted the new INA §242, specifically precludes reliance on the
provisions of the APA providing for the taking of additional
evidence, and imposes specific limits on the availability of
declaratory relief. See, e. g., 8 U. S. C. § 1535(e)(2)
(1994 ed., Supp. V) (explicitly barring aliens detained under
"alien terrorist removal" procedures from seeking "judicial review,
including application for a writ of habeas corpus, except for a
claim by the alien that continued detention violates the alien's
rights under the Constitution"). At no point, however, does IIRIRA
make express reference to § 2241. Given the historic use of § 2241
jurisdiction as a means of reviewing deportation and exclusion
orders, Congress' failure to refer specifically to § 2241 is
particularly significant. Cf. Chisom v. Roemer, 501 U. S. 380 ,
396, n. 23 (1991).

															37 As we noted in AADC, courts construed the 1961 amendments as
channeling review of final orders to the courts of appeals, but
still permitting district courts to exercise their traditional
jurisdiction over claims that were viewed as being outside of a
"final order." 525 U. S., at 485. Read in light of this history, §
1252(b)(9) ensures that review of those types of claims will now be
consolidated in a petition for review and considered by the courts
of appeals. 314 tinct from habeas. See Mahadeo v. Reno, 226 F.3d
3 , 12 (GAl 2000); Flores-Miramontes v. INS, 212 F.3d
1133 , 1140 (GA9 2000). It follows that § 1252(b)(9) does not
clearly apply to actions brought pursuant to the general habeas
statute, and thus cannot repeal that statute either in part or in
whole.

															If it were clear that the question of law could be answered in
another judicial forum, it might be permissible to accept the INS'
reading of § 1252. But the absence of such a forum, coupled with
the lack of a clear, unambiguous, and express statement of
congressional intent to preclude judicial consideration on habeas
of such an important question of law, strongly counsels against
adopting a construction that would raise serious constitutional
questions.38 Gf. Felker, 518 U. S., at 660-661. Accordingly,
we conclude that habeas jurisdiction under § 2241 was not repealed
by AEDPA and IIRIRA.

															III

															The absence of a clearly expressed statement of congressional
intent also pervades our review of the merits of St. Gyr's claim.
Two important legal consequences ensued from respondent's entry of
a guilty plea in March 1996: (1) He became subject to deportation,
and (2) he became eligible for a discretionary waiver of that
deportation under the pre-

															38 The dissent argues that our decision will afford more rights
to criminal aliens than to noncriminal aliens. However, as we have
noted, the scope of review on habeas is considerably more limited
than on APA-style review. Moreover, this case raises only a pure
question of law as to respondent's statutory eligibility for
discretionary relief, not, as the dissent suggests, an objection to
the manner in which discretion was exercised. As to the question of
timing and congruent means of review, we note that Congress could,
without raising any constitutional questions, provide an adequate
substitute through the courts of appeals. See, e. g., Swain v. Pressley, 430 U. S. 372 , 381 (1977)
("[T]he substitution of a collateral remedy which is neither
inadequate nor ineffective to test the legality of a person's
detention" does not violate the Suspension Clause). 315 vailing interpretation of § 212(c). When IIRIRA went into effect
in April 1997, the first consequence was unchanged except for the
fact that the term "removal" was substituted for "deportation." The
issue that remains to be resolved is whether IIRIRA § 304(b)
changed the second consequence by eliminating respondent's
eligibility for a waiver.

															The INS submits that the statute resolves the issue because it
unambiguously communicates Congress' intent to apply the provisions
of IIRIRA's Title III-A to all removals initiated after the
effective date of the statute, and, in any event, its provisions
only operate prospectively and not retrospectively. The Court of
Appeals, relying primarily on the analysis in our opinion in Landgrafv. USI Film Prod ucts, 511 U. S. 244 (1994),
held, contrary to the INS' arguments, that Congress' intentions
concerning the application of the "Cancellation of Removal"
procedure are ambiguous and that the statute imposes an
impermissible retroactive effect on aliens who, in reliance on the
possibility of § 212(c) relief, pleaded guilty to aggravated
felonies. See 229 F. 3d, at 416, 420. We agree.

															Retroactive statutes raise special concerns. See Landgraf, 511 U. S., at 266. "The Legislature's unmatched
powers allow it to sweep away settled expectations suddenly and
without individualized consideration. Its responsivity to political
pressures poses a risk that it may be tempted to use retroactive
legislation as a means of retribution against unpopular groups or
individuals." 39 Ibid. Accordingly, "congressional
enactments ... will not be construed to have retroactive effect
unless their language requires this

															39 The INS appears skeptical of the notion that immigrants might
be considered an "'unpopular group.''' See Brief for Petitioner 15,
n. 8. But see Legomsky, Fear and Loathing in Congress and the
Courts: Immigration and Judicial Review, 78 Texas L. Rev. 1615,
1626 (2000) (observing that, because noncitizens cannot vote, they
are particularly vulnerable to adverse legislation). 316 result." Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 208
(1988). "[This] presumption against retroactive legislation is deeply
rooted in our jurisprudence, and embodies a legal doctrine
centuries older than our Republic. Elementary considerations of
fairness dictate that individuals should have an opportunity to
know what the law is and to conform their conduct accordingly;
settled expectations should not be lightly disrupted. For that
reason, the 'principle that the legal effect of conduct should
ordinarily be assessed under the law that existed when the conduct
took place has timeless and universal human appeal.' Kaiser, 494 U. S., at 855 (SCALIA, J., concurring). In a free, dynamic
society, creativity in both commercial and artistic endeavors is
fostered by a rule of law that gives people confidence about the
legal consequences of their actions." Landgraf, 511 U. S.,
at 265-266 (footnote omitted). Despite the dangers inherent in retroactive legislation, it is
beyond dispute that, within constitutional limits, Congress has the
power to enact laws with retrospective effect. See id., at 268. A
statute may not be applied retroactively, however, absent a clear
indication from Congress that it intended such a result. "Requiring
clear intent assures that Congress itself has affirmatively
considered the potential unfairness of retroactive application and
determined that it is an acceptable price to pay for the
countervailing benefits." Id., at 272-273. Accordingly, the
first step in determining whether a statute has an impermissible
retroactive effect is to ascertain whether Congress has directed
with the requisite clarity that the law be applied retrospectively. Martin The standard for finding such unambiguous direction is a
demanding one. "[C]ases where this Court has found truly
'retroactive' effect adequately authorized by statute have 317 involved statutory language that was so clear that it could
sustain only one interpretation." Lindh v. Murphy,
521 U. S. 320, 328, n. 4 (1997). The INS makes several
arguments in favor of its position that IIRIRA achieves this high
level of clarity.

															First, the INS points to the comprehensive nature of IIRIRA's
revision of federal immigration law. "Congress's comprehensive
establishment of a new immigration framework," the INS argues,
"shows its intent that, after a transition period, the provisions
of the old law should no longer be applied at all." Brief for
Petitioner 33-34. We rejected a similar argument, however, in Landgraf, a case that, like this one, involved Congress'
comprehensive revision of an important federal statute. 511 U. S.,
at 260-261. By itself, the comprehensiveness of a congressional
enactment says nothing about Congress' intentions with respect to
the retroactivity of the enactment's individual provisions.40

															The INS also points to the effective date for Title III-A as
providing a clear statement of congressional intent to apply
IIRIRA's repeal of § 212(c) retroactively. See IIRIRA § 309(a), 110
Stat. 3009-625. But the mere promulgation of an effective date for
a statute does not provide sufficient assurance that Congress
specifically considered the potential unfairness that retroactive
application would produce. For that reason, a "statement that a
statute will become effective on a certain date does not even
arguably suggest that it has any application to conduct that
occurred at an earlier date." Landgraf, 511 U. S., at
257.

															The INS further argues that any ambiguity in Congress' intent is
wiped away by the "saving provision" in IIRIRA § 309(c)(1), 110
Stat. 3009-625. Brief for Petitioner 34-36. That provision states
that, for aliens whose exclusion or deportation proceedings began
prior to the Title III-A effec-

															40 The INS' argument that refusing to apply § 304(b)
retroactively creates an unrecognizable hybrid of old and new is,
for the same reason, unconvincing. 318 tive date, "the amendments made by [Title III-A] shall not
apply, and ... the proceedings (including judicial review thereof)
shall continue to be conducted without regard to such
amendments."41 This rule, however, does not communicate with
unmistakable clarity Congress' intention to apply its repeal of §
212(c) retroactively. Nothing in either § 309(c)(1) or the
statute's legislative history even discusses the effect of the
statute on proceedings based on pre- IIRIRA convictions that are
commenced after its effective date.42 Section 309(c)(1) is
best read as merely setting out the procedural rules to be
applied to removal proceedings pending on the effective date of the
statute. Because "[c]hanges in procedural rules may often be
applied in suits arising before their enactment without raising
concerns about retroactivity," Landgraf, 511 U. S., at 275,
it was necessary for Congress to identify which set of procedures
would apply in those circumstances. As the Conference Report
expressly explained, "[§ 309(c)] provides for the transition to new procedures in the case of an alien already in exclusion or
deportation proceedings on the effective date." H. R. Conf. Rep.
No. 104-828, p. 222 (1996) (emphasis added).

															Another reason for declining to accept the INS' invitation to
read § 309(c)(1) as dictating the temporal reach of IIRIRA § 304(b)
is provided by Congress' willingness, in other sections of IIRIRA,
to indicate unambiguously its intention

															41 "(c) 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." § 309,
110 Stat. 3009-625.

															42 The INS' reliance, see Reply Brief for Petitioner 12, on INS v. Aguirre-Aguirre, 526 U. S. 415 , 420
(1999), is beside the point because that decision simply observed
that the new rules would not apply to a proceeding filed before IIRIRA's effective date. 319 to apply specific provisions retroactively. IIRIRA's amendment
of the definition of "aggravated felony," for example, clearly
states that it applies with respect to "conviction[s] ... entered
before, on, or after" the statute's enactment date. § 321(b).43 As
the Court of Appeals noted, the fact that Con-

															43 See also IIRIRA § 321(c) ("The amendments made by this
section shall apply to actions taken on or after the date of the
enactment of this Act, regardless of when the conviction occurred
... "); § 322(c) ("The amendments made by subsection (a) shall
apply to convictions and sentences entered before, on, or after the
date of the enactment of this Act"); § 342(b) (the amendment adding
incitement of terrorist activity as a ground for exclusion "shall
apply to incitement regardless of when it occurs"); § 344(c) (the
amendment adding false claims of U. S. citizenship as ground for
removal "shall apply to representations made on or after the date"
of enactment); § 347(c) (amendments rendering alien excludable or
deportable any alien who votes unlawfully "shall apply to voting
occurring before, on, or after the date" of enactment); § 348(b)
(amendment providing for automatic denial of discretionary waiver
from exclusion "shall be effective on the date of the enactment ...
and shall apply in the case of any alien who is in exclusion or
deportation proceedings as of such date unless a final
administrative order in such proceedings has been entered as of
such date"); § 350(b) (amendment adding domestic violence and
stalking as grounds for deportation "shall apply to convictions, or
violations of court orders, occurring after the date" of
enactment); § 351(c) (discussing deportation for smuggling and
providing that amendments "shall apply to applications for waivers
filed before, on, or after the date" of enactment); § 352(b)
(amendments adding renouncement of citizenship to avoid taxation as
a ground for exclusion "shall apply to individuals who renounce
United States citizenship on and after the date" of enactment); §
380(c) (amendment imposing civil penalties on aliens for failure to
depart "shall apply to actions occurring on or after" effective
date); § 384(d)(2) (amendments adding penalties for disclosure of
information shall apply to "offenses occurring on or after the
date" of enactment); § 531(b) (public charge considerations as a
ground for exclusion "shall apply to applications submitted on or
after such date"); § 604(c) (new asylum provision "shall apply to
applications for asylum filed on or after the first day of the
first month beginning more than 180 days after the date" of
enactment). The INS argues that the Title III-B amendments
containing such express temporal provisions are unrelated to the
subject matter of § 304(b). Brief for Petitioner 37-38. But it is
clear that provisions such as IIRIRA § 321(b), which addresses
IIRIRA's redefinition of "aggravated 320 gress made some provisions of IIRIRA expressly applicable to
prior convictions, but did not do so in regard to § 304(b), is an
indication "that Congress did not definitively decide the issue of
§ 304's retroactive application to pre-enactment convictions." See
229 F. 3d, at 415. The "saving provision" is therefore no more
significant than the specification of an effective date.

															The presumption against retroactive application of ambiguous
statutory provisions, buttressed by "the longstanding principle of
construing any lingering ambiguities in deportation statutes in
favor of the alien," INS v. Cardoza-Fonseca, 480 U. S. 421 , 449
(1987), forecloses the conclusion that, in enacting § 304(b),
"Congress itself has affirmatively considered the potential
unfairness of retroactive application and determined that it is an
acceptable price to pay for the countervailing benefits." 44 Landgraf, 511 U. S., at 272-273. We therefore proceed to the
second step of Landgraf's retroactivity analysis in order to
determine whether depriving removable aliens of consideration for §
212(c) relief produces an impermissible retroactive effect for
aliens who, like respondent, were convicted pursuant to a plea
agreement at a time when their plea would not have rendered them
ineligible for § 212(c) relief.45

															felony," deal with subjects quite closely related to § 304(b)'s
elimination of § 212(c) relief for aliens convicted of aggravated
felonies.

															44 The legislative history is significant because, despite its
comprehensive character, it contains no evidence that Congress
specifically considered the question of the applicability of IIRIRA
§ 304(b) to pre-IIRIRA convictions. Cf. Harrison v. P PG
Industries, Inc., 446 U. S. 578 , 602 (1980)
(REHNQUIST, J., dissenting) (" 'In a case where the construction of
legislative language such as this makes so sweeping and so
relatively unorthodox a change as that made here, I think judges as
well as detectives may take into consideration the fact that a
watchdog did not bark in the night' "), cited in Chisom v. Roemer, 501 U. S., at 396, n. 23 (citing A. Doyle, Silver
Blaze, in The Complete Sherlock Holmes 335 (1927)).

															45 The INS argues that we should extend deference under Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837 (1984), to
the BIA's interpretation of IIRIRA as applying to all de- 321 "The inquiry into whether a statute operates retroactively
demands a commonsense, functional judgment about 'whether the new
provision attaches new legal consequences to events completed
before its enactment.'" Martin, 527 U. S., at 357-358
(quoting Landgraf, 511 U. S., at 270). A statute has
retroactive effect when it "'takes away or impairs vested rights
acquired under existing laws, or creates a new obligation, imposes
a new duty, or attaches a new disability, in respect to
transactions or considerations already past .... "'46 Id., at 269 (quoting Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814)
(Story, J.)). As we have repeatedly counseled, the judgment whether
a particular statute acts retroactively "should be informed and
guided by 'familiar considerations of fair notice, reasonable
reliance, and settled expectations.'" Martin, 527 U. S., at
358 (quoting Landgraf, 511 U. S., at 270).

															IIRIRA's elimination of any possibility of § 212(c) relief for
people who entered into plea agreements with the expectation that
they would be eligible for such relief clearly "'attaches a new
disability, in respect to transactions or considerations already
past.'" Id., at 269. Plea agreements involve a quid pro
quo between a criminal defendant and the government. See Newton v. Rumery, 480 U. S. 386 ,

															portation proceedings initiated after IIRIRA's effective date.
We only defer, however, to agency interpretations of statutes that,
applying the normal "tools of statutory construction," are
ambiguous. Id., at 843, n. 9; INS v. Cardoza-Fonseca, 480 U. S., at 447-448. Because a statute
that is ambiguous with respect to retroactive application is
construed under our precedent to be unambiguously prospective, Landgraf, 511 U. S., at 264, there is, for Chevron purposes, no ambiguity in such a statute for an agency to
resolve.

															46 As we noted in Hughes Aircraft Co. v. United States
ex rel. Schumer, 520 U. S. 939 (1997),
this language by Justice Story "does not purport to define the
outer limit of impermissible retroactivity." Id., at 947.
Instead, it simply describes several "sufficient," as
opposed to "necessary," conditions for finding
retroactivity. Ibid. 322 393, n. 3 (1987). In exchange for some perceived benefit,
defendants waive several of their constitutional rights (including
the right to a trial) and grant the government numerous "tangible
benefits, such as promptly imposed punishment without the
expenditure of prose cut oria I resources." 47 Ibid. There
can be little doubt that, as a general matter, alien defendants
considering whether to enter into a plea agreement are acutely
aware of the immigration consequences of their convictions.48 See Magana-Pizano v. INS, 200 F.3d
603 , 612 (CA9 1999) ("That an alien charged with a crime ...
would factor the immigration consequences of conviction in deciding
whether to plead or proceed to trial is welldocumented"); see also
3 Bender, Criminal Defense Techniques §§ 60A.01, 60A.02[2] (1999)
(" 'Preserving the client's right to remain in the United States
may be more important to the client than any potential jail
sentence'" (quoted in Brief for National Association of Criminal
Defense Law-

															47 "If every criminal charge were subjected to a full-scale
trial, the States and the Federal Government would need to multiply
by many times the number of judges and court facilities." Santobello v. New York, 404 U. S. 257 , 260
(1971).

															48 Many States, including Connecticut, the State in which
respondent pleaded guilty, require that trial judges advise
defendants that immigration consequences may result from accepting
a plea agreement. See Cal. Penal Code Ann. § 1016.5 (West 1985);
Conn. Gen. Stat. § 54-1j (2001); D. C. Code Ann. § 16-713
(1981-1997); Fla. Rule Crim. Proc. 3.172(c)(8) (1999); Ga. Code
Ann. § 17-7-93 (1997); Haw. Rev. Stat. §802E-2 (1993); Md. Rule
4-242 (2001); Mass. Gen. Laws § 278:29D (1996 Supp.); Minn. Rule
Crim. Proc. 15.01 (2000); Mont. Code Ann. §46-12-21O (1997); N. M.
Rule Crim. Form 9-406 (2001); N. Y. Crim. Proc. Law § 220.50(7)
(McKinney 2001 Cum. Supp. Pamphlet); N. C. Gen. Stat. § 15A-1022
(1999); Ohio Rev. Code Ann. § 2943.031 (1997); Ore. Rev. Stat. §
135.385 (1997); R. I. Gen. Laws § 12-12-22 (2000); Tex. Code Crim.
Proc. Ann., Art. 26.13(a)(4) (Vernon 1989 and Supp. 2001); Wash.
Rev. Code § 10.40.200 (1990); Wis. Stat. § 971.08 (1993-1994). And
the American Bar Association's Standards for Criminal Justice
provide that, if a defendant will face deportation as a result of a
conviction, defense counsel "should fully advise the defendant of
these consequences." 3 ABA Standards for Criminal Justice 14-3.2
Comment, 75 (2d ed. 1982). 323 yers et al. as Amici Curiae 13)). Given the frequency
with which § 212(c) relief was granted in the years leading up to
AEDPA and IIRIRA,49 preserving the possibility of such relief would
have been one of the principal benefits sought by defendants
deciding whether to accept a plea offer or instead to proceed to
trial. 50

															The case of Charles Jideonwo, a petitioner in a parallel
litigation in the Seventh Circuit, is instructive. Charged in 1994
with violating federal narcotics law, Jideonwo entered into
extensive plea negotiations with the Government, the sole purpose
of which was to ensure that "'he got less than five years to avoid
what would have been a statutory bar on 212(c) relief.'" Jideonwo v. INS, 224 F.3d
692 , 699 (CA7 2000) (quoting the Immigration Judge's findings
of fact). The potential for unfairness in the retroactive
application of IIRIRA § 304(b) to people like Jideonwo and St. Cyr
is significant and manifest. Relying upon settled practice, the
advice of counsel, and perhaps even assurances in open court that
the entry of the plea would not foreclose § 212(c) relief, a great
number of defendants in Jideonwo's and St. Cyr's position agreed to
plead guilty. 51 Now that prosecutors have received the benefit of
these plea agreements, agreements that were likely facilitated by
the aliens' belief in their continued eligibility for § 212(c)
relief, it would surely be contrary to "familiar considerations of
fair notice, reasonable reliance, and settled expectations," Landgraf, 511 U. S.,

															49 See n. 5, supra. 50 Even if the defendant were not initially aware of § 212(c),
competent defense counsel, following the advice of numerous
practice guides, would have advised him concerning the provision's
importance. See Brief for National Association of Criminal Defense
Lawyers et al. as Amici Curiae 6-8.

															51 Ninety percent of criminal convictions today are obtained by
guilty plea. See U. S. Dept. of Justice, Office of Justice
Programs, Bureau of Justice Statistics, Section 5: Judicial
Processing of Defendants, in United States Sentencing Commission,
1999 Sourcebook of Criminal Justice Statistics (2000) (Tables 5.30,
5.51). 324 at 270, to hold that IIRIRA's subsequent restrictions deprive
them of any possibility of such relief. 52

															The INS argues that deportation proceedings (and the Attorney
General's discretionary power to grant relief from deportation) are
"inherently prospective" and that, as a result, application of the
law of deportation can never have a retroactive effect. Such
categorical arguments are not particularly helpful in undertaking Landgrafs commonsense, functional retroactivity analysis.
See Martin, 527 U. S., at 359. Moreover, although we have
characterized deportation as "look[ing] prospectively to the
respondent's right to remain in this country in the future," INS v. LopezMendoza, 468 U. S. 1032 , 1038
(1984), we have done so in order to reject the argument that
deportation is punishment for past behavior and that deportation
proceedings are therefore subject to the "various protections that
apply in the context of a criminal trial." Ibid. As our
cases make clear, the presumption against retroactivity applies far
beyond the confines of the criminal law. See Landgraf, 511 U. S., at 272. And our mere statement that deportation is not
punishment for past crimes does not mean that we cannot consider an
alien's reasonable reliance on the continued availability of
discretionary relief from deportation when deciding whether the
elimination of such relief has a retroactive effect.53

															52 The significance of that reliance is obvious to those who
have participated in the exercise of the discretion that was
previously available to delegates of the Attorney General under §
212(c). See In re Soriano, 16 BrA Immig. Rptr. Bl-227,
Bl-238 to Bl-239 (1996) (Rosenberg, Board Member, concurring and
dissenting) ("I find compelling policy and practical reasons to go
beyond such a limited interpretation as the one the majority
proposes in this case. All of these people, and no doubt many
others, had settled expectations to which they conformed their
conduct").

															53 We are equally unconvinced by the INS' comparison of the
elimination of § 212(c) relief for people like St. Cyr with the
Clayton Act's elimination of federal courts' power to enjoin
peaceful labor actions. In American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (1921), and Duplex Printing Press Co. v. Deering, 254 U. S. 443 ,464
(1921), 325 Finally, the fact that § 212(c) relief is discretionary does not
affect the propriety of our conclusion. There is a clear
difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation. Cf. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 ,
949 (1997) (an increased likelihood of facing a qui tam action constitutes an impermissible retroactive effect for the
defendant); Lindsey v. Washington, 301 U. S. 397 , 401 (1937)
("Removal of the possibility of a sentence of less than
fifteen years ... operates to [defendants'] detriment" (emphasis
added)). Prior to AEDPA and IIRIRA, aliens like St. Cyr had a
significant likelihood of receiving § 212(c) relief.54 Because
respondent, and other aliens like him, almost certainly relied upon
that likelihood in deciding whether to forgo their right to a
trial, the elimination of any possibility of § 212(c) relief by
IIRIRA has an obvious and severe retroactive effect.55

															we applied the Clayton Act's limitations on injunctive relief to
cases pending at the time of the statute's passage. But unlike the
elimination of § 212(c) relief in this case, which depends upon an
alien's decision to plead guilty to an "aggravated felony," the
deprivation of the District Court's power to grant injunctive
relief at issue in Duplex Printing did not in any way result
from or depend on the past action of the party seeking the
injunction. Thus, it could not plausibly have been argued that the
Clayton Act attached a "'new disability, in respect to transactions
or considerations already past.''' Landgraf, 511 U. S., at
269.

															54 See n. 5, supra. 55 The INS cites several cases affirming Congress' power to
retroactively unsettle such expectations in the immigration
context. See Brief for Petitioner 40-41, and n. 21. But our
recognition that Congress has the power to act retrospectively in
the immigration context sheds no light on the question at issue at
this stage of the Landgraf analysis: whether a particular
statute in fact has such a retroactive effect. Moreover, our
decision today is fully consistent with a recognition of Congress'
power to act retrospectively. We simply assert, as we have
consistently done in the past, that in legislating retroactively,
Congress must make its intention plain.

															Similarly, the fact that Congress has the power to alter the
rights of resident aliens to remain in the United States is not
determinative of the question whether a particular statute has a
retroactive effect. See Chew Heong v. United States, 112 U. S. 536 (1884). Applying a statute barring 326 We find nothing in IIRIRA unmistakably indicating that Congress
considered the question whether to apply its repeal of § 212(c)
retroactively to such aliens. We therefore hold that § 212(c)
relief remains available for aliens, like respondent, whose
convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for §
212(c) relief at the time of their plea under the law then in
effect.

															The judgment is affirmed.

															It is so ordered.

															JUSTICE O'CONNOR, dissenting.

															I join Parts I and III of JUSTICE SCALIA'S dissenting opinion in
this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum
extent of habeas review, the right asserted by the alien in this
case falls outside the scope of that review for the reasons
explained by JUSTICE SCALIA in Part II-B of his dissenting opinion.
The question whether the Suspension Clause assures habeas
jurisdiction in this particular case properly is resolved on this
ground alone, and there is no need to say more.

															JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS
join, and with whom JUSTICE O'CONNOR joins as to Parts I and III,
dissenting.

															The Court today finds ambiguity in the utterly clear language of
a statute that forbids the district court (and all

															Chinese nationals from reentering the country without a
certificate prepared when they left to people who exited the
country before the statute went into effect would have
retroactively unsettled their reliance on the state of the law when
they departed. See id., at 559. So too, applying IIRIRA § 304(b) to
aliens who pleaded guilty or nolo contendere to crimes on
the understanding that, in so doing, they would retain the ability
to seek discretionary § 212(c) relief would retroactively unsettle
their reliance on the state of the law at the time of their plea
agreement. 327 other courts) to entertain the claims of aliens such as
respondent St. Cyr, who have been found deportable by reason of
their criminal acts. It fabricates a superclear statement, "magic
words" requirement for the congressional expression of such an
intent, unjustified in law and unparalleled in any other area of
our jurisprudence. And as the fruit of its labors, it brings forth
a version of the statute that affords criminal aliens more opportunities for delay-inducing judicial review than
are afforded to noncriminal aliens, or even than were afforded to
criminal aliens prior to this legislation concededly designed to expedite their removal. Because it is clear that the law
deprives us of jurisdiction to entertain this suit, I respectfully
dissent.

															I

															In categorical terms that admit of no exception, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), 110 Stat. 3009-546, unambiguously repeals the application
of 28 U. S. C. § 2241 (the general habeas corpus provision), and of
all other provisions for judicial review, to deportation challenges
brought by certain kinds of criminal aliens. This would have been
readily apparent to the reader, had the Court at the outset of its
opinion set forth the relevant provisions of IIRIRA and of its
statutory predecessor, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110 Stat. 1214. I will begin by
supplying that deficiency, and explaining IIRIRA's jurisdictional
scheme. It begins with what we have called a channeling or
"'zipper' clause," Reno v. American-Arab
Anti-Discrimination Comm., 525 U. S. 471 , 483
(1999)namely, 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). This
provision, entitled "Consolidation of questions for judicial
review," provides as follows: "Judicial review of all questions of law and fact,
including interpretation and application of constitutional and
statutory provisions, arising from any action taken 328 or proceeding brought to remove an alien from the United
States under this subchapter shall be available only in
judicial review of a final order under this section." (Emphases
added.) In other words, if any review is available of any
"questio[n] of law ... arising from any action taken or proceeding
brought to remove an alien from the United States under this
subchapter," it is available "only in judicial review of a final
order under this section [§ 1252]." What kind of review does that
section provide? That is set forth in § 1252(a)(1), which
states: "Judicial review of a final order of removal (other than an
order of removal without a hearing pursuant to [the
expedited-removal provisions for undocumented aliens arriving at
the border found in] section 1225(b)(1) of this title) is governed
only by chapter 158 of title 28 [the Hobbs Act], except as provided
in subsection (b) of this section [which modifies some of the Hobbs
Act provisions] and except that the court may not order the taking
of additional evidence under section 2347(c) of [Title 28]." In other words, if judicial review is available, it
consists only of the modified Hobbs Act review specified in
§ 1252(a)(1).

															In some cases (including, as it happens, the one before us),
there can be no review at all, because IIRIRA categorically and
unequivocally rules out judicial review of challenges to
deportation brought by certain kinds of criminal aliens. Section
1252(a)(2)(C) provides: "Notwithstanding any other provision of law, no
court shall have jurisdiction to review any final order
of removal against an alien who is removable by reason of having
committed [one or more enumerated] criminal offense[s] [including
drug-trafficking offenses of the sort of which respondent had been
convicted]." (Emphases added.) 329 Finally, the pre- IIRIRA antecedent to the foregoing
provisions-AEDPA §401(e)-and the statutory background against which
that was enacted, confirm that § 2241 habeas review, in the
district court or elsewhere, has been unequivocally repealed. In
1961, Congress amended the Immigration and Nationality Act of 1952
(INA), 66 Stat. 163, by directing that the procedure for Hobbs Act
review in the courts of appeals "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all
final orders of deportation" under the INA. 8 U. S. C. § 1105a(a)
(repealed Sept. 30, 1996) (emphasis added). Like 8 U. S. C. §
1252(a)(2)(C) (1994 ed., Supp. V), this provision squarely
prohibited § 2241 district-court habeas review. At the same time
that it enacted this provision, however, the 1961 Congress enacted
a specific exception: "any alien held in custody pursuant to an
order of deportation may obtain judicial review thereof by habeas
corpus proceedings," 8 U. S. C. § 1105a(a)(10) (1994 ed.). (This
would of course have been surplusage had § 2241 habeas review not
been covered by the "sole and exclusive procedure" provision.)
Section 401(e) of AEDPA repealed this narrow exception, and there
is no doubt what the repeal was thought to accomplish: the
provision was entitled "ELIMINATION OF CUSTODY REVIEW BY HABEAS
CORPUS." 110 Stat. 1268. It gave universal preclusive effect to the
"sole and exclusive procedure" language of § 1105a(a). And it is
this regime that IIRIRA has carried forward.

															The Court's efforts to derive ambiguity from this utmost clarity
are unconvincing. First, the Court argues that §§ 1252(a)(2)(C) and
1252(b)(9) are not as clear as one might think-that, even though
they are sufficient to repeal the jurisdiction of the courts of
appeals, see Galeano-Martinez v. INS, post, at
351-352,1 they do not cover habeas jurisdiction in the district
court, since, "[i]n the immigration context, 'judicial review' and
'habeas corpus' have historically dis-

															1 In the course of this opinion I shall refer to some of the
Court's analysis in this companion case; the two opinions are
intertwined. 330 tinct meanings," ante, at 311, 312, n. 35. Of course §
1252(a)(2)(C) does not even use the term "judicial review"
(it says "jurisdiction to review")-but let us make believe it does.
The Court's contention that in this statute it does not
include habeas corpus is decisively refuted by the language of §
1252(e)(2), enacted along with §§ 1252(a)(2)(C) and 1252(b)(9): "Judicial review of any determination made under section
1225(b)(1) of this title [governing review of expedited removal
orders against undocumented aliens arriving at the border] is
available in habeas corpus proceedings .... " (Emphases
added.) It is hard to imagine how Congress could have made it any
clearer that, when it used the term "judicial review" in IIRIRA, it
included judicial review through habeas corpus. Research into the
"historical" usage of the term "judicial review" is thus quite
beside the point.

															But the Court is demonstrably wrong about that as well.

															Before IIRIRA was enacted, from 1961 to 1996, the governing
immigration statutes unquestionably treated "judicial review" as
encompassing review by habeas corpus. As discussed earlier, 8 U. S.
C. § l105a (1994 ed.) made Hobbs Act review "the sole and exclusive
procedure for, the judicial review of all final orders of
deportation" (emphasis added), but created (in subsection (a)(10))
a limited exception for habeas corpus review. Section l105a was
entitled "Judicial review of orders of deportation and
exclusion" (emphasis added), and the exception for habeas corpus
stated that "any alien held in custody pursuant to an order of
deportation may obtain judicial review thereof by habeas
corpus proceedings," § l105a(a)(10) (emphases added). Apart
from this prior statutory usage, many of our own immigration cases
belie the Court's suggestion that the term "judicial review," when
used in the immigration context, does not include review by habeas
corpus. See, e. g., United States v. Mendoza-Lopez, 481 U. S. 828 ,
836-837 (1987) ("[A]ny alien held in custody pursuant to an order
of deportation may ob- 331 tain judicial review of that order in a habeas
corpus proceeding" (emphases added)); Shaughnessy v. Pedreiro, 349 U. S. 48, 52 (1955) ("Our holding is that
there is a right of judicial review of deportation orders other than by habeas corpus ... " (emphases added)); see
also id., at 49.

															The only support the Court offers in support of the
asserted "longstanding distinction between 'judicial review' and
'habeas,'" ante, at 312, n. 35, is language from a single
opinion of this Court, Heikkila v. Barber, 345 U. S. 229 (1953).2
There, we "differentiate[d]" "habeas corpus" from "judicial review as that term is used in the Administrative Procedure Act."
Id., at 236 (emphasis added). But that simply asserts that
habeas corpus review is different from ordinary AP A review, which
no one doubts. It does not assert that habeas corpus review
is not judicial review at all. Nowhere does Heikkila make such an implausible contention.3

															2 The recent Circuit authorities cited by the Court, which
postdate IIRIRA, see Mahadeo v. Reno, 226 F.3d
3 , 12 (CA1 2000); and FloresMiramontes v. INS, 212 F.3d
1133 , 1140 (CA9 2000)), cited ante, at 314,
hardly demonstrate any historical usage upon which IIRIRA was
based. Anyway, these cases rely for their analysis upon a third
Court of Appeals decision-Sandoval v. Reno, 166 F.3d
225 , 235 (CA3 1999)-which simply relies on the passage
from Heikkila under discussion.

															3 The older, pre-1961 judicial interpretations relied upon by
the Court, see ante, at 312, are similarly unavailing. Ekiu v. United States, 142 U. S. 651 (1892), never
purported to distinguish "judicial review" from habeas, and the
Court's attempt to extract such a distinction from the opinion is
unpersuasive. Ekiu did state that the statute "prevent[ed]
the question of an alien immigrant's right to land, when once
decided adversely by an inspector, acting within the jurisdiction
conferred upon him, from being impeached or reviewed," id., at 663 (emphasis added; italicized words quoted ante, at
312); but the clear implication was that the question whether the
inspector was "acting within the jurisdiction conferred upon him" was reviewable. The distinction pertained, in short, to the scope of judicial review on habeas-not to whether judicial
review was available. Terlinden v. Ames, 184 U. S. 270 , 278
(1902), likewise drew no distinction between "judicial review" and
habeas; it simply stated that the extradition statute "gives no
right of review to be exercised by any court 332 The Court next contends that the zipper clause, § 1252(b)(9),
"by its own terms, does not bar" § 2241 districtcourt habeas review
of removal orders, ante, at 313, because the opening
sentence of subsection (b) states that "[w]ith respect to review of
an order of removal under subsection (a)(l) of this section, the following requirements apply .... " (Emphasis added.) But in
the broad sense, § 1252(b)(9) does "apply" "to review of an
order of removal under subsection (a)(l)," because it mandates that
"review of all questions of law and fact ... arising from any
action taken or proceeding brought to remove an alien from the
United States under this subchapter" must take place in
connection with such review. This is "application" enough-and
to insist that subsection (b)(9) be given effect only within the review of removal orders that takes place under subsection
(a)(l), is to render it meaningless. Moreover, other of the
numbered subparagraphs of subsection (b) make clear that the
introductory sentence does not at all operate as a limitation upon
what follows. Subsection (b)(7) specifies the procedure by which "a
defendant in a criminal proceeding" charged with failing to depart
after being ordered to do so may contest "the validity of [a
removal] order" before trial; and subsection (b)(8) prescribes some
of the prerogatives and responsibilities of the Attorney General
and the alien after entry of a final removal order. These
provisions have no effect if they must apply (even in the broad
sense that subsection (b)(9) can be said to apply) "to review of an
order of removal under subsection (a)(l)."

															Unquestionably, unambiguously, and unmistakably, IIRIRA
expressly supersedes § 2241's general provision for habeas
jurisdiction. The Court asserts that Felker v. Turpin, 518 U.
S. 651 (1996), and Ex parte Yerger, 8 Wall. 85

															or judicial officer, and what cannot be done directly [under the
extradition statute] cannot be done indirectly through the writ of habeas corpus." Far from saying that habeas is not a
form of judicial review, it says that habeas is an indirect means of review. 333 (1869), reflect a "longstanding rule requiring a clear statement
of congressional intent to repeal habeas jurisdiction," ante, at 298. They do no such thing. Those cases simply
applied the general principle-not unique to habeas-that "[r]epeals
by implication are not favored." Felker, supra, at 660;
Yerger, supra, at 105. Felker held that a statute which
by its terms prohibited only further review by this Court (or by an
en banc court of appeals) of a court-of-appeals panel's "'grant or
denial of ... authorization ... to file a second or successive
[habeas] application,'" 518 U. S., at 657 (quoting 28 U. S. C. §
2244(b)(3)(E) (1994 ed., Supp. II)), should not be read to imply
the repeal of this Court's separate and distinct "authority [under
28 U. S. C. § 2241 and 28 U. S. C. § 2254 (1994 ed. and Supp. V)]
to hear habeas petitions filed as original matters in this Court,"
518 U. S., at 661. Yerger held that an 1868 Act that by its
terms "repeal[ed] only so much of the act of 1867 as authorized
appeals, or the exercise of appellate jurisdiction by this court,"
should be read to "reach no [further than] the act of 1867," and
did not repeal by implication the appellate jurisdiction conferred
by the Judiciary Act of 1789 and other pre-1867 enactments. 8
Wall., at 105. In the present case, unlike in Felker and Yerger, none of the statutory provisions relied upon-§
1252(a)(2)(C), § 1252(b)(9), or 8 U. S. C. § 1l05a(a) (1994
ed.)-requires us to imply from one statutory provision the repeal
of another. All by their terms prohibit the judicial review
at issue in this case.

															The Court insists, however, that since" [n]either [§ 1252(a)(1)
nor § 1252(a)(2)(C)] explicitly mentions habeas, or 28 U. S. C. §
2241," "neither provision speaks with sufficient clarity to bar
jurisdiction pursuant to the general habeas statute." Ante, at 312-313. Even in those areas of our jurisprudence where we have adopted a "clear statement" rule (notably, the
sovereign immunity cases to which the Court adverts, ante, at 299, n. 10), clear statement has never meant the kind of magic
words demanded by the Court 334 today-explicit reference to habeas or to § 2241-rather than
reference to "judicial review" in a statute that explicitly calls
habeas corpus a form of judicial review. In Gregory v. Ashcroft, 501
U. S. 452 , 467 (1991), we said: "This [the Court's clear-statement requirement] does not mean
that the [Age Discrimination in Employment] Act must mention
[state] judges explicitly, though it does not. Cf. Dellmuth v. Muth, 491
U. S. 223 , 233 (1989) (SCALIA, J., concurring). Rather, it must
be plain to anyone reading the Act that it covers judges." In Gregory, as in United States v. Nordic
Village, Inc., 503 U. S. 30, 34-35 (1992), and Atascadero
State Hospital v. Scanlon, 473 U. S. 234 , 241, 246
(1985), we held that the clear-statement requirement was not met,
not because there was no explicit reference to the Eleventh
Amendment, but because the statutory intent to eliminate state
sovereign immunity was not clear. For the reasons discussed
above, the intent to eliminate habeas jurisdiction in the present
case is entirely clear, and that is all that is required.

															It has happened before-too frequently, alas-that courts have
distorted plain statutory text in order to produce a "more
sensible" result. The unique accomplishment of today's opinion is
that the result it produces is as far removed from what is sensible
as its statutory construction is from the language of the text. One
would have to study our statute books for a long time to come up
with a more unlikely disposition. By authorizing § 2241 habeas
review in the district court but foreclosing review in the court of
appeals, see Galeano-Martinez, post, at 351-352, the Court's
interpretation routes all legal challenges to removal orders
brought by criminal aliens to the district court, to be adjudicated
under that court's § 2241 habeas authority, which specifies no time
limits. After review by that court, criminal aliens will presumably
have an appeal as of right to the court of appeals, and can then
petition this Court for a writ of cer- 335 tiorari. In contrast, noncriminal aliens seeking to challenge
their removal orders-for example, those charged with having been
inadmissible at the time of entry, with having failed to maintain
their nonimmigrant status, with having procured a visa through a
marriage that was not bona fide, or with having become, within five
years after the date of entry, a public charge, see 8 U. S. C. §§
1227(a)(1)(A), (a)(l)(C), (a)(l)(G), (a)(5) (1994 ed., Supp.
V)-will still presumably be required to proceed directly to the
court of appeals by way of petition for review, under the
restrictive modified Hobbs Act review provisions set forth in §
1252(a)(1), including the 30-day filing deadline, see § 1252(b)(1).
In fact, prior to the enactment of IIRIRA, criminal aliens also had
to follow this procedure for immediate modified Hobbs Act review in
the court of appeals. See 8 U. S. C. § l105a(a) (1994 ed.). The
Court has therefore succeeded in perverting a statutory scheme
designed to expedite the removal of criminal aliens into one
that now affords them more opportunities for (and layers of)
judicial review (and hence more opportunities for delay) than are
afforded non-criminal aliens-and more than were afforded criminal
aliens prior to the enactment of IIRIRA.4 This outcome speaks for
itself; no Congress ever imagined it.

															To excuse the violence it does to the statutory text, the Court
invokes the doctrine of constitutional doubt, which it asserts is
raised by the Suspension Clause, U. S. Const., Art. I, § 9, cl. 2.
This uses one distortion to justify another, transmogrifying a
doctrine designed to maintain "a just re-

															4 The Court disputes this conclusion by observing that "the
scope of review on habeas is considerably more limited than on
APA-style review," ante, at 314, n. 38 (a statement, by the
way, that confirms our contention that habeas is, along with the
Administrative Procedure Act (APA), one form of judicial review).
It is more limited, to be sure-but not "considerably more limited"
in any respect that would disprove the fact that criminal aliens
are much better off than others. In all the many cases that (like
the present one) involve "question[s] of law," ibid., the Court's
statutory misconstruction gives criminal aliens a preferred
position. 336 spect for the legislature," Ex parte Randolph, 20 F. Cas.
242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on circuit),
into a means of thwarting the clearly expressed intent of the
legislature. The doctrine of constitutional doubt is meant to
effectuate, not to subvert, congressional intent, by giving ambiguous provisions a meaning that will avoid
constitutional peril, and that will conform with Congress's
presumed intent not to enact measures of dubious validity. The
condition precedent for application of the doctrine is that the
statute can reasonably be construed to avoid the
constitutional difficulty. See, e. g., Miller v. French, 530 U.
S. 327 , 341 (2000) (" 'We cannot press statutory construction
"to the point of disingenuous evasion" even to avoid a
constitutional question'" (quoting United States v. Locke, 471 U.
S. 84 , 96 (1985), in turn quoting George Moore Ice Cream
Co. v. Rose, 289 U. S. 373 , 379
(1933))); Salinas v. United States, 522 U. S. 52 , 60 (1997)
(quoting Seminole Tribe of Fla. v. Florida, 517 U. S.
44, 57, n. 9 (1996)). It is a device for interpreting what the
statute says-not for ignoring what the statute says in order
to avoid the trouble of determining whether what it says is
unconstitutional. For the reasons I have set forth above, it is
crystal clear that the statute before us here bars criminal aliens
from obtaining judicial review, including § 2241 district-court
review, of their removal orders. It is therefore also crystal clear
that the doctrine of constitutional doubt has no application.

															In the remainder of this opinion I address the question the
Court should have addressed: Whether these provisions of
IIRIRA are unconstitutional.

															II A

															The Suspension Clause of the Constitution, Art. I, § 9, cl. 2,
provides as follows: 337 "The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it." A straightforward reading of this text discloses that it does
not guarantee any content to (or even the existence of) the writ of
habeas corpus, but merely provides that the writ shall not (except
in case of rebellion or invasion) be suspended. See R. Fallon, D.
Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts
and the Federal System 1369 (4th ed. 1996) ("[T]he text [of the
Suspension Clause] does not confer a right to habeas relief, but
merely sets forth when the 'Privilege of the Writ' may be
suspended"). Indeed, that was precisely the objection expressed by
four of the state ratifying conventions-that the Constitution
failed affirmatively to guarantee a right to habeas corpus. See
Collings, Habeas Corpus for Convicts-Constitutional Right or
Legislative Grace?, 40 Calif. L. Rev. 335, 340, and nn. 39-41
(1952) (citing 1 J. Elliott, Debates on the Federal Constitution
328 (2d ed. 1836) (New York); 3 id., at 658 (Virginia); 4 id., at
243 (North Carolina); 1 id., at 334 (Rhode Island)).

															To "suspend" the writ was not to fail to enact it, much less to
refuse to accord it particular content. Noah Webster, in his
American Dictionary of the English Language, defined it-with
patriotic allusion to the constitutional textas "[t]o cause to
cease for a time from operation or effect; as, to suspend the habeas corpus act." Vol. 2, p.86 (1828 ed.). See also N.
Bailey, An Universal Etymological English Dictionary (1789) ("To
Suspend [in Law] signifies a temporal stop of a man's right"); 2 S.
Johnson, A Dictionary of the English Language 1958 (1773) ("to make
to stop for a time"). This was a distinct abuse of majority power,
and one that had manifested itself often in the Framers'
experience: temporarily but entirely eliminating the "Privilege of
the Writ" for a certain geographic area or areas, or for a certain
class 338 or classes of individuals. Suspension Acts had been adopted (and
many more proposed) both in this country and in England during the
late 18th century, see B. Mian, American Habeas Corpus: Law,
History, and Politics 109-127 (1984)including a 7 -month suspension
by the Massachusetts Assembly during Shay's Rebellion in 1787, id.,
at 117. Typical of the genre was the prescription by the Statute of
1794, 34 Geo. 3, c. 54, § 2, that" '[an Act for preventing wrongous
imprisonment, and against undue delays in trials], insofar as the
same may be construed to relate to the cases of Treason and
suspicion of Treason, be suspended [for one year] .... '" Mian, supra, at 110. See also 16 Annals of Congo 44, 402-425
(1852) (recording the debate on a bill, reported to the House of
Representatives from the Senate on January 26, 1807, and ultimately
rejected, to "suspen[d], for and during the term of three months,"
"the privilege of the writ of habeas corpus" for "any person
or persons, charged on oath with treason, misprision of treason,"
and other specified offenses arising out of the Aaron Burr
conspiracy).

															In the present case, of course, Congress has not temporarily
withheld operation of the writ, but has permanently altered its
content. That is, to be sure, an act subject to majoritarian abuse,
as is Congress's framing (or its determination not to frame) a
habeas statute in the first place. But that is not the majoritarian
abuse against which the Suspension Clause was directed. It is no
more irrational to guard against the common and well known
"suspension" abuse, without guaranteeing any particular habeas
right that enjoys immunity from suspension, than it is, in the
Equal Protection Clause, to guard against unequal application of
the laws, without guaranteeing any particular law which enjoys that
protection. And it is no more acceptable for this Court to write a
habeas law, in order that the Suspension Clause might have some
effect, than it would be for this Court to write other laws, in
order that the Equal Protection Clause might have some effect. 339 The Court cites many cases which it says establish that it is a
"serious and difficult constitutional issue," ante, at 305,
whether the Suspension Clause prohibits the elimination of habeas
jurisdiction effected by IIRIRA. Every one of those cases, however,
pertains not to the meaning of the Suspension Clause, but to the
content of the habeas corpus provision of the United States Code,
which is quite a different matter. The closest the Court can come
is a statement in one of those cases to the effect that the
Immigration Act of 1917 "had the effect of precluding judicial
intervention in deportation cases except insofar as it was required
by the Constitution," Heikkila, 345 U. S., at 234-235. That
statement (1) was pure dictum, since the Court went on to hold that
the judicial review of petitioner's deportation order was
unavailable; (2) does not specify to what extent judicial
review was "required by the Constitution," which could (as
far as the Court's holding was concerned) be zero; and, most
important of all, (3) does not refer to the Suspension Clause, so
could well have had in mind the due process limitations upon the
procedures for determining deportability that our later cases
establish, see Part III, infra. There is, however, another Supreme Court dictum that is
unquestionably in point-an unusually authoritative one at that,
since it was written by Chief Justice Marshall in 1807. It supports
precisely the interpretation of the Suspension Clause I have set
forth above. In Ex parte Bollman, 4 Cranch 75, one of the
cases arising out of the Burr conspiracy, the issue presented was
whether the Supreme Court had the power to issue a writ of habeas
corpus for the release of two prisoners held for trial under
warrant of the Circuit Court of the District of Columbia. Counsel
for the detainees asserted not only statutory authority for
issuance of the writ, but inherent power. See id., at 77-93. The
Court would have nothing to do with that, whether under Article III
or any other provision. While acknowledging an inherent power of
the courts "over their own officers, or 340 to protect themselves, and their members, from being disturbed
in the exercise of their functions," Marshall says that "the power
of taking cognizance of any question between individuals, or
between the government and individuals," "must be given by written law. "The inquiry, therefore, on this motion will be, whether by any
statute compatible with the constitution of the United States, the
power to award a writ of habeas corpus, in such a case as
that of Erick Bollman and Samuel Swartwout, has been given to this
court." Id., at 94. In the ensuing discussion of the Judiciary Act of 1789, the
opinion specifically addresses the Suspension Clause-not invoking
it as a source of habeas jurisdiction, but to the contrary pointing
out that without legislated habeas jurisdiction the
Suspension Clause would have no effect. "It may be worthy of remark, that this act was passed by the
first congress of the United States, sitting under a constitution
which had declared 'that the privilege of the writ of habeas
corpus should not be suspended, unless when, in cases of
rebellion or invasion, the public safety might require it.' "Acting under the immediate influence of this injunction, they
must have felt, with peculiar force, the obligation of providing
efficient means by which this great constitutional privilege should
receive life and activity; for if the means be not in existence,
the privilege itself would be lost, although no law for its
suspension should be enacted. Under the impression of this
obligation, they give to all the courts the power of awarding writs
of habeas corpus." Id., at 95.5 5 The Court claims that I "rea[d] into Chief Justice Marshall's
opinion in Ex parte Bollman ... support for a proposition
that the Chief Justice did not endorse, either explicitly or
implicitly," ante, at 304, n. 24. Its support for this claim
is a highly selective quotation from the opinion, 341 There is no more reason for us to believe, than there was for
the Marshall Court to believe, that the Suspension Clause means
anything other than what it says.

															B

															Even if one were to assume that the Suspension Clause, despite
its text and the Marshall Court's understanding, guarantees some
constitutional minimum of habeas relief, that minimum would
assuredly not embrace the rarified right asserted here: the right
to judicial compulsion of the exercise of Executive discretion (which may be exercised favorably or unfavorably)
regarding a prisoner's release. If one reads the Suspension Clause
as a guarantee of habeas relief, the obvious question presented is: What habeas relief? There are only two alternatives, the
first of which is too absurd to be seriously entertained. It could
be contended that Congress "suspends" the writ whenever it
eliminates any prior ground for the writ that it adopted.
Thus, if Congress should ever (in the view of this Court) have
authorized immediate habeas corpus-without the need to exhaust
administrative remedies-for a person arrested as an illegal alien,
Congress would never be able (in the light of sad
experience) to revise that disposition. The Suspen-

															see ibid. There is nothing "implici[t]" whatsoever about Chief
Justice Marshall's categorical statement that "the power to award
the writ [of habeas corpus] by any of the courts of the United
States, must be given by written law," 4 Cranch, at 94. See also
ibid., quoted supra, at 340 ("[T]he power of taking
cognizance of any question between individuals, or between the
government and individuals ... must be given by written law"). If,
as the Court concedes, "the writ could not be suspended," ante, at 304, n. 24, within the meaning of the Suspension
Clause until Congress affirmatively provided for habeas by statute,
then surely Congress may subsequently alter what it had initially
provided for, lest the Clause become a one-way ratchet, see infra this page and 342. The Court's position that a
permanent repeal of habeas jurisdiction is unthinkable (and hence a
violation of the Suspension Clause) is simply incompatible with its
(and Marshall's) belief that a failure to confer habeas
jurisdiction is not unthinkable. 342 sion Clause, in other words, would be a one-way ratchet that
enshrines in the Constitution every grant of habeas jurisdiction.
This is, as I say, too absurd to be contemplated, and I shall
contemplate it no further.

															The other alternative is that the Suspension Clause guarantees
the common-law right of habeas corpus, as it was understood when
the Constitution was ratified. There is no doubt whatever that this
did not include the right to obtain discretionary release. The
Court notes with apparent credulity respondent's contention "that
there is historical evidence of the writ issuing to redress the
improper exercise of official discretion," ante, at 303-304.
The only framing-era or earlier cases it alludes to in support of
that contention, see ante, at 303, n. 23, referred to ante, at 303-304, establish no such thing. In Ex parte
Boggin, 13 East 549, 104 Eng. Rep. 484 (K. B. 1811), the court
did not even bother calling for a response from the custodian,
where the applicant failed to show that he was statutorily exempt
from impressment under any statute then in force. In Chalacombe's Case, reported in a footnote in Ex parte
Boggin, the court did "let the writ go"-i. e., called
for a response from the Admiralty to Chalacombe's petition-even
though counsel for the Admiralty had argued that the Admiralty's
general policy of not impressing "seafaring persons of
[Chalacombe's] description" was "a matter of grace and favour, [and
not] of right." But the court never decided that it had authority
to grant the relief requested (since the Admiralty promptly
discharged Chalacombe of its own accord); in fact, it expressed
doubt whether it had that authority. See 13 East, at 550, n. (b),
104 Eng. Rep., at 484, n. (a)Z (Lord Ellenborough, C. J.)
("[C]onsidering it merely as a question of discretion, is it not
more fit that this should stand over for the consideration of the
Admiralty, to whom the matter ought to be disclosed?"). And in Hollingshead's Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B.
1702), the "warrant of commitment" issued by the "commissioners of
bankrupt" was "held naught," since it au- 343 thorized the bankrupt's continued detention by the commissioners
until "otherwise discharged by due course of law," whereas the
statute authorized commitment only "till [the bankrupt] submit
himself to be examined by the commissioners." (Emphasis deleted.)
There is nothing pertaining to executive discretion here. All the other framing-era or earlier cases cited in the
Court's opinion-indeed, all the later Supreme Court cases until
United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 , in 1954-provide habeas relief from executive detention only when the
custodian had no legal authority to detain. See 3 J. Story,
Commentaries on the Constitution of the United States § 1333, p.
206 (1833) (the writ lies to ascertain whether a "sufficient ground
of detention appears"). The fact is that, far from forming a
traditional basis for issuance of the writ of habeas corpus, the
whole "concept of 'discretion' was not well developed at common
law," Hafetz, The Untold Story of Noncriminal Habeas Corpus and the
1996 Immigration Acts, 107 Yale L. J. 2509, 2534 (1998), quoted in
Brief for Respondent in Calcano-Martinez v. INS, O.
T. 2000, No. 00-1011, p. 37. An exhaustive search of cases
antedating the Suspension Clause discloses few instances in which
courts even discussed the concept of executive discretion; and on
the rare occasions when they did, they simply confirmed what seems
obvious from the paucity of such discussions-namely, that courts
understood executive discretion as lying entirely beyond the
judicial ken. See, e. g., Chalacombe's Case, supra, at 342.
That is precisely what one would expect, since even the executive's
evaluation of the facts-a duty that was a good deal more than discretionary-was not subject to review on habeas.
Both in this country, until passage of the Habeas Corpus Act of
1867, and in England, the longstanding rule had been that the truth
of the custodian's return could not be controverted. See, e. g., Opinion on the Writ of Habeas Corpus, Wilm. 77,
107,97 Eng. Rep. 29, 43 (H. L. 1758); Note, Developments in 344 the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1113-1114,
and nn. 9-11 (1970) (quoting Act of Feb. 5, 1867, ch. 28, § 1, 14
Stat. 385); Oaks, Legal History in the High Court-Habeas Corpus, 64
Mich. L. Rev. 451, 453 (1966). And, of course, going beyond inquiry
into the legal authority of the executive to detain would have been
utterly incompatible with the well-established limitation upon
habeas relief for a convicted prisoner: "[O]nce a person had been
convicted by a superior court of general jurisdiction, a court
disposing of a habeas corpus petition could not go behind the
conviction for any purpose other than to verify the formal
jurisdiction of the committing court." Id., at 468, quoted
in Swain v. Pressley, 430 U. S. 372 , 384-385
(1977) (Burger, C. J., concurring in part and concurring in
judgment).

															In sum, there is no authority whatever for the proposition that,
at the time the Suspension Clause was ratified-or, for that matter,
even for a century and a half thereafter-habeas corpus relief was
available to compel the Executive's allegedly wrongful refusal to
exercise discretion. The striking proof of that proposition is that
when, in 1954, the Warren Court held that the Attorney General's
alleged refusal to exercise his discretion under the Immigration
Act of 1917 could be reviewed on habeas, see United States ex
rel. Accardi v. Shaughnessy, supra, it did so without
citation of any supporting authority, and over the dissent
of Justice Jackson, joined by three other Justices, who wrote: "Of course, it may be thought that it would be better government
if even executive acts of grace were subject to judicial review.
But the process of the Court seems adapted only to the
determination of legal rights, and here the decision is thrusting
upon the courts the task of reviewing a discretionary and purely
executive function. Habeas corpus, like the currency, can be
debased by over-issue quite as certainly as by too niggardly use.
We would ... leave the responsibility for suspension or 345 execution of this deportation squarely on the Attorney General,
where Congress has put it." Id., at 271. III

															Given the insubstantiality of the due process and Article III
arguments against barring judicial review of respondent's claim
(the Court does not even bother to mention them, and the Court of
Appeals barely acknowledges them), I will address them only
briefly.

															The Due Process Clause does not "[r]equir[e] [j]udicial
[d]etermination [o]f" respondent's claim, Brief for Petitioners in Galeano-Martinez v. INS, O. T. 2000, No. 00-1011, p.
34. Respondent has no legal entitlement to suspension of
deportation, no matter how appealing his case. "[T]he Attorney
General's suspension of deportation [is] "an act of grace" which is
accorded pursuant to her 'unfettered discretion,' Jay v. Boyd, 351 U.
S. 345 , 354 (1956) ... , and [can be likened, as Judge Learned
Hand observed,] to "a judge's power to suspend the execution of a
sentence, or the President's to pardon a convict," 351 U. S., at
354, n. 16 .... " INS v. Yueh-Shaio Yang, 519 U. S. 26 , 30 (1996).
The furthest our cases have gone in imposing due process
requirements upon analogous exercises of Executive discretion is
the following. (1) We have required "minimal procedural
safeguards" for death-penalty clemency proceedings, to prevent them
from becoming so capricious as to involve "a state official
flipp[ing] a coin to determine whether to grant clemency," Ohio
Adult Parole Authority v. Woodard, 523 U. S. 272 , 289 (1998)
(O'CONNOR, J., concurring in part and concurring in judgment). Even
assuming that this holding is not part of our "death-is-different"
jurisprudence, Shafer v. South Garolina, 532 U. S. 36 , 55 (2001)
(SCALIA, J., dissenting) (citation omitted), respondent here is not
complaining about the absence of procedural safeguards; he
disagrees with the Attorney General's judgment on a point of law.
(2) We have recognized the existence of a due process liberty
interest when 346 a State's statutory parole procedures prescribe that a prisoner
"shall" be paroled if certain conditions are satisfied, see Board of Pardons v. Allen, 482 U. S. 369 , 370-371,
381 (1987); Greenholtz v. Inmates of Neb. Penal and
Correctional Complex, 442 U. S. 1 , 12 (1979).
There is no such statutory entitlement to suspension of
deportation, no matter what the facts. Moreover, in neither Woodard, nor Allen, nor Greenholtz did we
intimate that the Due Process Clause conferred jurisdiction of its
own force, without benefit of statutory authorization. All three
cases were brought under 42 U. S. C. § 1983.

															Article III, § l's investment of the "judicial Power of the
United States" in the federal courts does not prevent Congress from
committing the adjudication of respondent's legal claim wholly to
"non-Article III federal adjudicative bodies," Brief for
Petitioners in Caleano-Martinez v. INS, O. T. 2000,
No. 00-1011, at 38. The notion that Article III requires every
Executive determination, on a question of law or of fact, to be
subject to judicial review has no support in our jurisprudence.
Were it correct, the doctrine of sovereign immunity would not
exist, and the AP A's general permission of suits challenging
administrative action, see 5 U. S. C. § 702, would have been
superfluous. Of its own force, Article III does no more than commit
to the courts matters that are "the stuff of the traditional
actions at common law tried by the courts at Westminster in 1789," Northern Pipeline Constr. Co. v. Marathon Pipe Line
Co., 458 U. S.
50 , 90 (1982) (REHNQUIST, J., concurring in judgment)-which (as
I have discussed earlier) did not include supervision of
discretionary Executive action.

															***

															The Court has created a version of IIRIRA that is not only
unrecognizable to its framers (or to anyone who can read) but gives
the statutory scheme precisely the opposite of its intended
effect, affording criminal aliens more opportu- 347 nities for delay-inducing judicial review than others have, or
even than criminal aliens had prior to the enactment of this
legislation. Because § 2241's exclusion of judicial review is
unmistakably clear, and unquestionably constitutional, both this
Court and the courts below were without power to entertain
respondent's claims. I would set aside the judgment of the court
below and remand with instructions to have the District Court
dismiss for want of jurisdiction. I respectfully dissent from the
judgment of the Court.