Cite as: 525 U. S. 471 (1999)
Souter, J., dissenting
items to exclude others requires considerable determination to indulge in such a reading.
Second, the Court explains that Congress had "good reason," ante, at 483, to focus on commencement, adjudication, and execution, because these are distinct stages of the deportation process at which the Executive was in the habit of exercising its discretion to defer action. To show the existence of this practice, the Court quotes a passage from a treatise on immigration law, which says descriptively that " 'the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,' " ante, at 484 (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03[2][h] (1998)). The treatise also says that the courts have sometimes entertained efforts to challenge the refusal to exercise discretion, ante, at 485. The Court notes, perfectly plausibly, that the purpose of § 1252(g) may well have been to bar such challenges. But this is hardly a smoking gun. The passage in question uses the notions of instituting and terminating proceedings, and declining to execute final removal orders, in the very same inclusive sense that § 1252(g) does. The treatise says that " '[a] case may be selected for deferred action treatment at any stage of the administrative process,' " ante, at 484, by which its authors evidently meant to say simply that from time to time the Executive exercises discretion at various points in the process, and that some courts have considered challenges to the failure to exercise discretion. This is no support for the Court's argument that Congress meant to bar review only of the "discrete" actions of commencement, adjudication, or execution.
Because I cannot subscribe to the Court's attempt to render the inclusive series incomplete, I have to confront the irreconcilable contradiction between § 306(c)(1) and § 309(c)(1). Both context and principle point me to the conclusion that the latter provision must prevail over the former. First, it seems highly improbable that Congress actu-
507
Page: Index Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 NextLast modified: October 4, 2007