502
Souter, J., dissenting
amended by § 2 of the Act of Oct. 11, 1996, 110 Stat. 3657, which makes new 8 U. S. C. § 1252(g) (1994 ed., Supp. III) immediately applicable as of the date of its enactment (i. e., October 11, 1996) to "claims arising from all past, pending, or future" removal proceedings. Subsection (g), for its part, bars review in any court of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien," except as provided in § 1252. The exception, however, is cold comfort to applicants for review of proceedings pending when IIRIRA took effect, because the rest of § 1252 is inapplicable to "an alien who is in exclusion or deportation proceedings" on the effective date of IIRIRA, April 1, 1997. Section 309(c)(1)(A) of IIRIRA, 110 Stat. 3009-625, as amended by § 2 of the Act of Oct. 11, 1996, 110 Stat. 3657. Hence, by operation of § 306(c)(1), it would appear that aliens who did not obtain judicial review as of the enactment date of October 11, 1996, and who were in proceedings as of IIRIRA's effective date of April 1, 1997, can never obtain judicial review of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien" in any forum. In short, § 306(c)(1) appears to bar members of this class of aliens from any review of any aspect of their claims.
Yet § 306(c)(1) is not the only statutory provision applicable to aliens in proceedings before April 1, 1997. Section 309(c)(1)(B) provides that, in the case of aliens in proceedings before the effective date, "the proceedings (including judicial review thereof) shall continue to be conducted without regard to [new § 1252]." The parenthetical expression in this section specifically provides that the judicial review available to aliens before the April 1, 1997, effective date of § 1252 continues to be available even after the effective date to aliens who were already in proceedings before the effective date. In other words, the terms of § 309(c)(1)(B) preserve
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