332
Scalia, J., dissenting
The Court next contends that the zipper clause, § 1252(b)(9), "by its own terms, does not bar" § 2241 district-court 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)(1) 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)(1)," 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)(1), 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)(1)."
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.
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