No. 00-1011

                           In The
   Supreme Court of the United States

      DEBORIS CALCANO-MARTINEZ, ET AL.,
                                       Petitioners,
                             v.

 IMMIGRATION AND NATURALIZATION SERVICE,
                                       Respondent.

      On Writ of Certiorari To The United States
       Court of Appeals For The Second Circuit

      REPLY BRIEF FOR THE PETITIONERS

KERRY W. BRETZ                                      LUCAS GUTTENTAG
JULES E. COVEN                                           Counsel of Record
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                TABLE OF CONTENTS



A. Statutory Construction    2

B. The Suspension Clause     7

C. Due Process and Article III    16

O'Connor, J., dissenting
SUPREME COURT OF THE UNITED STATES
 No. 00-1011
 DEBORIS CALCANO-MARTINEZ, et al.,
PETITIONERS v. IMMIGRATION AND
NATURALIZATION SERVICE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
[June 25, 2001]
Justice O'Connor, dissenting.
For the reasons stated in my dissenting opinion in the companion case of INS v. St. Cyr,
ante, at ___, I agree with Justice Scalia's proposed disposition of the instant case.

Scalia, J., dissenting
SUPREME COURT OF THE UNITED STATES
 No. 00-1011
 DEBORIS CALCANO-MARTINEZ, et al.,
PETITIONERS v. IMMIGRATION AND
NATURALIZATION SERVICE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
[June 25, 2001]
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
For the reasons stated in my dissenting opinion in the companion case of INS v. St. Cyr,
ante, at __, I would vacate the judgment of the court below and remand with instructions
to dismiss for want of jurisdiction, with prejudice to petitioners Calcano-Martinez's and
Madrid's refiling in the District Court.

  SUPREME COURT OF THE UNITED STATES
 No. 00-1011
 DEBORIS CALCANO-MARTINEZ, et al.,
PETITIONERS v. IMMIGRATION AND
NATURALIZATION SERVICE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
[June 25, 2001]
Justice Stevens delivered the opinion of the Court.
Deboris Calcano-Martinez, Sergio Madrid, and Fazila Khan are all lawful permanent
residents of the United States subject to administratively final orders of removal. They
conceded that they are deportable based upon their past criminal convictions, but each
filed both a petition for review in the Second Circuit pursuant to 8 U.S. C.
§1252(a)(1) (1994 ed., Supp. V) and a habeas corpus petition in the District Court
pursuant to §28 U.S.C.  2241  in order to challenge the Board of Immigration Appeals'
determination that, as a matter of law, petitioners were ineligible to apply for a
discretionary waiver of deportation under former §212(c) of the Immigration and
Nationality Act, 66 Stat. 182, §8 U.S.C.  1182 (c) (1994 ed.). Their petitions for review
were consolidated in the Court of Appeals, which subsequently dismissed the petitions
for lack of jurisdiction, holding that petitioners could nevertheless pursue their
constitutional and statutory claims in a district court habeas action brought pursuant to
§28 U.S.C.  2241. 232 F.3d 328 (CA2 2000). We granted certiorari in this case, 531 U.S.
1108 (2001), and in INS v. St. Cyr, No. 00-767, 531 U.S. 1107  (2001), in order to
comprehensively consider whether aliens in the petitioners' position may seek relief in
the Court of Appeals (pursuant to §8 U.S.C.  1252 (a)(1)); in the district court (pursuant
to §28 U.S.C.  2241); or not at all. For the reasons stated below and in our opinion in INS
v. St. Cyr, ante, p.__, we agree with the Court of Appeals that it lacks jurisdiction to hear
the petitions for direct review at issue in this case and that petitioners must, therefore,
proceed with their petitions for habeas corpus if they wish to obtain relief.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), 110 Stat. 3009-546, Congress adopted new provisions governing the judicial
review of immigration orders. See §8 U.S.C.  1252  (1994 ed., Supp. V) (codifying these
procedures). Like the prior statute, the new provision vests the courts of appeals with the
authority to consider petitions challenging "final orders" commanding the "removal" of
aliens from the United States. §1252(a)(1).1 However, unlike the previous provisions, the
new statute expressly precludes the courts of appeals from exercising "jurisdiction to
review any final order of removal against any alien who is removable by reason of " a
conviction for certain criminal offenses, including any aggravated felony.
§1252(a)(2)(C).2
As petitioners in this case were convicted of "aggravated felonies" within the meaning of
the relevant statutes,3 the plain language of §1252(a)(2)(C) fairly explicitly strips the

SUPREME COURT OF THE UNITED STATES
CALCANO-MARTINEZ et al. v. IMMIGRATION AND NATURALIZATION
SERVICE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
 No. 00-1011. Argued April 24, 2001­Decided June 25, 2001
 Petitioners are lawful permanent United States residents subject to administratively final
removal orders because they were convicted of aggravated felonies. Each filed a petition
for review in the Second Circuit pursuant to §8 U.S.C.  1252 (a)(1) and a habeas corpus
petition in the District Court pursuant to §28 U.S.C.  2241  in order to challenge the
Board of Immigration Appeals' determination that, as a matter of law, they were
ineligible to apply for a discretionary waiver of deportation under former §212(c) of the
Immigration and Nationality Act. The Second Circuit dismissed their petitions for lack of
jurisdiction, holding that they could nevertheless pursue their claims in a §2241 action in
district court.
Held: The Second Circuit lacked jurisdiction to hear the petitions for direct review, but
petitioners can proceed with their habeas petitions if they wish to obtain relief. The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
expressly precludes courts of appeals from exercising jurisdiction to review a final
removal order against an alien removable by reason of a conviction for, inter alia, an
aggravated felony. §8 U.S.C.  1252 (a)(2)(C). This plain language explicitly strips the
courts of appeals of the ability to hear petitioners' claims on direct review. However,
because Congress has not spoken with sufficient clarity to strip the district courts of
jurisdiction to hear habeas petitions raising identical claims, see INS v. St. Cyr, ante, at
___, petitioners may pursue their claims in a §2241 action. Pp. 2-4.
232 F.3d 328, 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. Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined.