Demore v. Kim, 538 U.S. 510, 25 (2003)

Page:   Index   Previous  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  Next

534

DEMORE v. KIM

Opinion of O'Connor, J.

to deem a criminal alien such as respondent ineligible for release during the limited duration of his or her removal proceedings.

I recognize both the "strong presumption in favor of judicial review of administrative action" and our "longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." INS v. St. Cyr, 533 U. S. 289, 298 (2001). I also acknowledge that Congress will not be deemed to have repealed habeas jurisdiction in the absence of a specific and unambiguous statutory directive to that effect. See id., at 312-313; Ex parte Yerger, 8 Wall. 85, 105 (1869). Here, however, the signal sent by Congress in enacting § 1226(e) could not be clearer: "No court may set aside any action or decision . . . regarding the detention or release of any alien." (Emphasis added.) There is simply no reasonable way to read this language other than as precluding all review, including habeas review, of the Attorney General's actions or decisions to detain criminal aliens pursuant to § 1226(c).

In St. Cyr, the Court held that certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) do not strip federal courts of their jurisdiction to review an alien's habeas claim that he or she is eligible for a waiver of deportation. 533 U. S., at 312. I dissented in that case, and continue to believe it was wrongly decided. Nothing in St. Cyr, however, requires that we ignore the plain language and clear meaning of § 1226(e).

In St. Cyr, the Court stressed the significance of Congress' use of the term "judicial review" in each of the jurisdictional-limiting provisions at issue. In concluding that Congress had not intended to limit habeas jurisdiction by limiting "judicial review," the Court reasoned as follows:

"The term 'judicial review' or 'jurisdiction to review' is the focus of each of these three provisions. In the im-

Page:   Index   Previous  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  Next

Last modified: October 4, 2007