SISKIND'S IMMIGRATION BULLETIN - 02/99 (1/7) - Articles 1-3

[Gregory Siskind, Attorney at Law]

This is part 1 of a 7 part document. This newsletter is never sent out
unsolicited and is only sent to people who have subscribed. UNSUBSCRIBE
instructions can be found at http://www.visalaw.com/subscribe2.html. The
complete newsletter will also be posted shortly at
http://www.visalaw.com/bulletin/ if you do not receive each part. Please do
not send requests to resend individual parts.


Siskind's Immigration Bulletin

February 1999

E-mail subscribers as of February 26, 1998: 19,978 persons (50 states/125
countries)

Published by Greg Siskind, partner at the Immigration Law Offices of
Siskind, Susser, Haas & Devine, Attorneys at Law; telephone: 800-748-3819,
901-737-3194 or 615-345-0225; facsimile: 901-737-3837 or 615-843-0424,
email: [EMAIL PROTECTED], WWW home page: http://www.visalaw.com. SSHD
serves immigration clients throughout the world from its offices in the US,
Canada and the People's Republic of China. To schedule a telephone or
in-person consultation with the firm, go to http://www.visalaw.com/intake.html.

To receive a free e-mail subscription to Siskind's Immigration Bulletin,
fill out the form at http://www.visalaw.com/subscribe2.html or send an
email message to mailto:[EMAIL PROTECTED] with the
message in the body of the e-mail "subscribe your e-mail address". TO
UNSUBSCRIBE GO TO http://www.visalaw.com/subscribe2.html. To subscribe to
the free Siskind's Immigration Professional Newsletter, send e-mail to
[EMAIL PROTECTED] and tell us your name, location,
e-mail address, and the type of immigration occupation you are in
(immigration lawyer, paralegal, foreign student advisor, journalist,
Congressional staffer, etc.).

_______________________________________________________________________

SPONSORED BY VISAJOBS.COM - THE BETTER WAY TO FIND A JOB IN AMERICA
(http://www.visajobs.com) - All listing employers willing to undertake the
visa application process for immigrants.

______________________________________________________________________


1. MESSAGE FROM SISKIND, SUSSER, HAAS & DEVINE
2. LEGISLATIVE UPDATE 
3. RENO V. AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE: SUPREME COURT DEALS
BLOW TO IMMIGRANT RIGHTS
4. DEPARTMENT OF LABOR BUDGET PLAN DRAWS PROTESTS FROM IMMIGRATION LAWYERS
5. INS OFFERS FURTHER GUIDANCE ON IRANIAN CASES
6. EXCHANGE VISITOR FEE INCREASED ANNOUNCED
7. INS REPORTS PROGRESS IN REDUCING NATURALIZATION BACKLOG
8. NATURALIZATION AND CITIZENSHIP UPDATE
9. PRESIDENT CLINTON SEEKS TO EXTEND FEDERAL AID TO LEGAL IMMIGRANTS WHO
WERE CUT OFF IN 1996
10. DETAILS OF PROPOSED FISCAL YEAR 2000 INS BUDGET RELEASED
11. LAWSUITS AGAINST THE INS LATEST TOOL IN RESOLVING PROBLEM CASES
12. BORDER AND DEPORTATION NEWS
13. HEARD ON THE STREET - H-1B, LABOR CERTIFICATION DEVELOPMENTS
14. INS SCRAPS PLAN TO BEGIN RELEASING NONVIOLENT CRIMINAL ALIENS
15. GOVERNMENT PROCESSING TIMES
16. STATE DEPARTMENT VISA BULLETIN - MARCH 1999
17. NEWS BYTES
18. CONTINUING EFFECTS OF HURRICANE MITCH ON U.S. IMMIGRATION
19. IMMIGRATION AND THE INTERNET: AYER PUBLISHING
20.VISA SPOTLIGHT: INS ISSUES REGULATIONS IMPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TORTURE
21. INS RELEASES LEGAL IMMIGRATION NUMBERS FOR 1997
22. CANADIAN ON TEXAS DEATH ROW LOSES SUPREME COURT APPEAL
23. CALIFORNIA GOVERNOR GRAY DAVIS VISITS MEXICO
24. DETAINEE'S DEATH RAISES QUESTIONS ABOUT CONDITIONS IN DETENTION FACILITIES
25. THOUSANDS PROTEST KILLING OF GUINEAN IMMIGRANT BY NEW YORK CITY POLICE
26. NEW ROSTER OF HOUSE AND SENATE IMMIGRATION SUBCOMMITTES NAMED
27. LARGE NUMBERS OF CUBANS AND HAITAINS ARRIVING IN FLORIDA
28. POLL SHEDS LIGHT ON CALIFORNIANS' FEELINGS ON MEXICAN IMMIGRATION
29. IMMIGRATION COURT ISSUES NEW ENFORCEMENT REGULATIONS
30. NEWS FROM THE COURTS
31. U.S. CITIZEN CHILDREN OF NON-CITIZEN PARENTS SUE TO ENFORCE RIGHTS
32. AGENT RECEIVES $400,000 SETTLEMENT IN BIAS SUIT AGAINST INS
33. DEPARTMENT OF LABOR INVESTIGATION NETS $2.1 MILLION IN BACK WAGES FOR
IMMIGRANT WORKERS IN SAIPAN
34. INS DISTRICT DIRECTORS PURSUE COMPLAINTS OF RETALIATION
35. ARIZONA STATE LEGISLATURE RESPONDS TO 1997 ALIEN ROUNDUP
36. CONSULAR FOCUS: TASHKENT, UZBEKISTAN
37. HOMOSEXUALS PROTEST FOR EQUAL IMMIGRATION RIGHTS
38. GREEN CARD MARRIAGE FRAUD SUIT FILED IN NEW JERSEY
39. INS RELEASES NEW NATURALIZATION GUIDE 
40. ILLEGAL IMMIGRANT SUES THE COUPLE ACCUSED OF SHOOTING HIM
41. GUEST COLUMN: ISN'S 5-POINT PROPOSAL TO STREAMLINE EMPLOYMENT BASED
IMMIGRATION


1. MESSAGE FROM SISKIND, SUSSER, HAAS & DEVINE

Dear Readers:

This issue is filled with hopeful news as well as distressing news. The
good news is that the generally good feelings the public now has about
immigration is starting to trickle down to Congress and there have been
bills introduced that could have very positive results. S. 173, for
example, was introduced by outgoing New York Senator Daniel Patrick
Moynihan (the one Hilary Clinton is considering replacing) and would
reverse some of the harshest provisions of the 1996 immigration acts. We
cover this bill in our regular Legislative Update Section. There may be
some very good news as well coming from the Labor Department regarding
dramatically reducing the backlogs in labor certification cases. See our
Heard on the Street column for more on this.

But there have been disappointing developments as well. As we were wrapping
up this issue, the Supreme Court came out with its decision in the Reno v.
AAADC  case and the news is not good. The Court has basically ruled in
favor of the government and held that immigrants do not retain access to
the courts for some types of cases affected by the 1996 immigration acts.
In this issue, we provide an in depth review of the decision. Also, even
though many thought the raising of the H-1B cap to 115,000 would solve the
problems of last year, it looks like the cap will be hit early again,
possibly as early as May. We'll cover this issue as well in a special
article on the looming H-1B crisis.

In our regular features, we provide processing times, a Visa Spotlight
article on new asylum regulations, news from the courts, Consular Focus and
more. 

We also want to remind readers about two of our newer features on the site.
First, our Advocacy Updates page is up and readers should find it a helpful
resource for keeping up with the latest legislative developments. Go to
http://www.visalaw.com/intake.html. And our Visalaw Discussion Board has
been a big hit. You can access it from the main page of our web site at
http://www.visalaw.com. 

Last fall, we marked the debut of our new free newsletter, Siskind's
Immigration Professional. The newsletter provides notices of job openings,
reporters seeking story leads, conference announcements, book and software
reviews and other announcements that will be of interest to immigration
lawyers, paralegals, foreign student advisors and anyone else who handles
immigration matters for a living. If you wish to be added to our email
distribution list, just email us at [EMAIL PROTECTED]
and be sure to tell us a little bit about what kind of work you do and
where you work. More than 500 of our readers who are immigration
professionals have already subscribed. We only include professionals on
this list so it is important to specify the type of work in which you are
engaged. 

And as always, we remind readers that this publication is put out by
Siskind, Susser, Haas & Devine, an immigration law firm, and we are
available for telephone or in-person consultations to answer immigration
questions and discuss our representing individuals and employers in
immigration matters. If interested, please go to
http://www.visalaw.com/intake.html.

Sincerely,

Greg Siskind

_______________________________________



2. LEGISLATIVE UPDATE

Now that the impeachment trial has ended, Congress is starting to focus
more on the legislative process. And the tone of this year's immigration
debate in Congress has begun to become clearer as leaders of the House and
Senate Immigration Subcommittees have announced their legislative priorities. 

House Immigration Subcommittee Chairman Lamar Smith has already set an
agenda that includes coverage of the following:

* INS detention policies (see the article later in this issue about a storm
of controversy surrounding the INS' scrapped proposal to release INS
detainees),

* the effects of Hurricane Mitch on US immigration, 

* INS enforcement on the Mexico-US border,

* proposals to reorganize or disband the INS and establishment of a high
school education requirement in family immigration cases, 

* NACARA implementation (this is the Central American/Eastern European
relief bill),

* alien smuggling,

* deportation and enforcement in the country's interiors,

* implementation of a proposed border entry/exit control system,

* alien terrorism,

* affirmative action,

* dual citizenship,

* the EB-5 Immigrant Investor program


Spencer Abraham, the Republican Chairman of the Senate's Immigration
Subcommittee, plans to place reorganization of the INS at the top of his
agenda. Other items on Abraham's agenda include

* INS detention rules for criminals and asylum applicants,

* extending the Refugee Act,

* the enactment of the 1998 H-1B legislation,

* immigration issues for battered spouses and children

Other legislative leaders are also pressing immigration agendas.  House
minority whip David Bonior (D-MI) has joined a small but growing contingent
of lawmakers protesting the INS's detention of immigrants based on
undisclosed evidence of terrorist connections.  Almost every one of the
nearly two dozen immigrants thus detained are Arab and Muslim.  Bonior
plans to co-sponsor legislation, with Rep. Tom Campbell (R-CA), later this
spring that would bar the use of such secret evidence.   Most of the people
detained as suspected terrorists have been in custody for over one year.


A number of key bills have been introduced in Congress since our last issue
and below you will find summaries of the legislative proposals. 

H.R. 334, a bill introduced by Rep. Robert Andrews, Democrat of New Jersey,
would amend the Immigration and Naturalization Act to clarify deportation
provisions relating to terrorist activities.  The bill would add a new
subsection to INA section 237(a)(4)(B), calling for the deportation of any
alien who associates with any person the alien knows or has reason to
believe is designated as a terrorist in "Patterns of Global Terrorism,' a
yearly publication of the State Department.  The bill has been referred to
the House Judiciary Committee.

H.R. 371, introduced by Bruce F. Vento, Democrat of Minnesota, would
expedite naturalization of Laotians who fought with the United States in
Southeast Asia during the Vietnam War.  Those Laotians who entered the U.S.
as refugees under section 207 of the INA and who participated in guerrilla
activities with the support of the U.S. military would be exempted from the
English language requirement.  Spouses of these people would also be
eligible for waiver of the language requirement.  

H.R. 441, the Nursing Relief for Disadvantaged Areas Act of 1999,
introduced by Bobby L. Rush and Henry Hyde, both Republican of Illinois,
would introduce a new category of nonimmigrant nurses that would go be
called the H-1C visa.  There would be a limit of 500 visas for each fiscal
year of the program, which is to last for four years.  Employers would be
required to made additional attestations, including that they have taken
and will continue to take steps to recruit for U.S. citizen and immigrant
nurses, that nonimmigrant workers of this category will not equal more that
33% of the total number of registered nurses at the facility, and that the
nurse thus employed will not be transferred from the worksite.  The filing
fee for the attestation would be a maximum of $250.  The placement of the
nurses would be strictly controlled, with states with a population of less
than 9 million limited to 25 visas and states of over 9 million people, 50
visas in each fiscal year.  In order to qualify for a nurse under this law,
the facility must be located in a healthcare professional shortage area,
and must have at least 190 acute care beds, and must render about 30% of
its inpatient days to patients eligible for benefits under Part A of Title
18 of the Social Security Act. The bill, introduced last year as well, has
been criticized as being carefully crafted to benefit an extremely small
special interest since the 190 acute care beds requirement would only be
met by a tiny group of facilities.

H.R. 428, introduced by Nick J. Rahall, Democrat of West Virginia, would
ease the requirements for adjustment of status for certain named people who
have fled from the Persian Gulf region.  The 62 affected families would be
granted immediate permanent resident status and given work authorization
upon application for adjustment.

H.R. 628, introduced by James A. Trafficant, Democrat of Ohio, John P.
Murtha, Democrat of Pennsylvania, Brian Bilbray, Republican of California
and Dana Rohrabacher, Republican of California would authorize the
Secretary of Defense to, under certain circumstances, assign members of the
Armed Forces to assist the INS and the U.S. Customs Service in border
protection.  Such assistance would be given only upon request of the
Attorney General or the Secretary of the Treasury.  Whenever such
assistance is rendered the Attorney General or the Secretary must, with the
Secretary of Defense, develop a training program to ensure that the
military personnel understand law enforcement issues relating to the
border.  Also, military personnel would be required to always be
accompanied by civilian personnel from the interested agency, the INS or
the Customs Service.

S. 173, a bill introduced by Daniel Patrick Moynihan, Democrat of New York,
would make significant revisions to the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. This will be one of the most closely
watched bills this year.  First, there would be changes relating to the
cancellation of removal.  Under the current INA section 240A(a)(3), an
alien is not eligible for cancellation of removal if convicted of any
aggravated felony; the new version would allow aliens convicted of
aggravated felonies, but whose sentences were less than five years, to be
considered for cancellation of removal.  Also, INA section 240A(d)(1)
currently provides that a continuous residence period ends when the alien
is served with notice of removal proceedings, or when the alien is
convicted of certain criminal offenses that, under INA section 212(a)(2)
would render the alien inadmissible or deportable.  The new amendments
would terminate the continuous residence period only upon notice from the
INS.  Second, under INA section 236(c)(2) as currently written, the
Attorney General has discretion to release an alien from custody only if
the release is necessary to protect witnesses or participants in a court
proceeding or investigation, and the alien is not a danger to the community
and will appear for all future hearings.  The new version would require
only that the alien not be a danger to the community, and that he will
appear for future hearings.  The bill would also repeal section 303(b) of
IIRAIRA, which authorized the Attorney General to revoke an alien's bond or
parole and keep the alien in detention.  Another key provision would
greatly extend the availability of judicial review by amending INA section
242(a)(2)(C) to give courts of appeals review of final orders of
deportation.  As currently written there is no judicial review.  The
proposed amendments would provide for court-appointed counsel at the
government's expense in removal proceedings, and would also remove the
numerical limitations on the diversity visa (DV) program.  

S. 245, introduced by Orrin Hatch, Republican of Utah, would reauthorize
federal programs and funding designed to protect battered women.  The bill
includes provisions designed to help immigrants who are victims of domestic
violence.  The law would amend section 245 of the INA to allow for easier
adjustment of status to permanent residency for spouses and children of
U.S. citizens and legal permanent residents.  The law would also remove
some barriers to cancellation of removal.  First, the period of continuous
physical presence required for eligibility for cancellation would not end
when the INS issues an Order to Show Cause.  Second, the annual limit on
cancellations of removal and adjustment to permanent residency would not
apply.  The law would remove the time limit on motions to reopen for
application for adjustment of status, and would also remove the time limits
to reopen deportation proceedings for covered immigrants.

S. 318, introduced by Daniel Inouye, Democrat of Hawaii, would ease
immigration requirements for Philippine and Japanese aliens who were
fathered by U.S. citizens by including them in INA section 204(f)(2)(A),
thus allowing them to be classified as immigrants under INA sections
201(b), 203(a)(1), or 203(a)(3).

_______________________________________


3. RENO V. AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE: SUPREME COURT DEALS
BLOW TO IMMIGRANT RIGHTS

On February 24, 1999, the United States Supreme Court issued its first
decision dealing with one of the jurisdictional limitations created by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRAIRA).  In an opinion authored by Justice Scalia, the Court held that
section 242(g) of the Immigration and Nationality Act, which eliminates
judicial review of any case motivated by a "decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute
removal orders against any alien" applies only to actions relating those
three types of action - commencing proceedings, adjudicating cases, and
executing removal order.  The provision thus eliminates collateral review
of deportation proceedings, and limits review to that of the final decision
of the Attorney General.  Because Congress made section 242(g) apply
"without limitation [to] all past, pending, or future claims," it operated
in this case to deprive the federal courts of jurisdiction of the
plaintiffs' claims of discriminatorily selective enforcement of immigration
laws.

The decision in this case, with only one dissenting opinion, does not bode
well for the many other cases challenging the jurisdictional provisions of
IIRAIRA working their way through the federal courts.

The plaintiffs in this suit were the subjects of deportation proceedings
initiated in 1987.  They were all members of the Popular Front for the
Liberation of Palestine, a group characterized by the government as
supporting terrorism and communism.  At the time, a provision of the INA
allowed for deportation on the basis of advocacy of communism, and each was
charged under this provision.  Six of the eight were also charged with
minor status violations.  They filed suit in federal district court,
claiming the anti-Communist deportation provision was unconstitutional, and
seeking an injunction against further INS action.  In response the INS
dropped the anti-Communist charges and charged two of the eight plaintiffs,
the only permanent residents of the group, with deportability as an alien
who is a member of an organization that advocates violence against the
government.  The charges of technical violations were retained.  The
plaintiffs responded by adding a claim that the INS was selectively
enforcing immigration laws against them because of their political
opinions, which are protected by the First Amendment.

In 1994 the District Court issued a preliminary injunction against the INS,
finding that the plaintiffs were likely to prove their claim that routine
status requirements were not used as a basis for deportation against
persons who were not members of groups like theirs, and that this, combined
with the chill the threat of deportation poses to the exercise of First
Amendment rights, constituted the irreparable injury necessary to issue an
injunction.  In 1995 the Ninth Circuit Court of Appeals reviewed and upheld
the injunction.  In doing so, the Ninth Circuit focused on the fact that
while the INA provided that the sole means of review was judicial review of
the agency's final action (8 U.S.C. § 1105a (repealed)), the record such
proceedings would create would be insufficient to determine a selective
enforcement claim, and thus the case was properly in federal court under
general federal question jurisdiction (28 U.S.C. 1331).

The Attorney General appealed this decision, but while the appeal was still
pending, IIRAIRA was passed.  On the basis of the new law, the Attorney
General filed motions in both the District Court and the Ninth Circuit
arguing that new INA § 242 deprived them of jurisdiction over the selective
enforcement claim.  Both courts denied the motion, holding jurisdiction
still existed even after the passage of § 242(g).  The Supreme Court
reversed this ruling.  

The Court began its analysis by noting that most of the changes in judicial
review created by IIRAIRA do not apply retroactively (IIRAIRA § 309(c)(1)).
 However, there is a specific provision requiring the application of §
242(g) to all claims relating deportation proceedings. (IIRAIRA §
306(c)(1)).  The Court disagreed with both parties' characterization of §
242(g) "as covering all or nearly all deportation claims."  This
all-encompassing view of the statute forced both parties, the Court said,
into the view that the provision providing for non-retroactivity of most of
IIRAIRA's judicial review provisions conflicted with the retroactivity of
§242(g).  Neither of the parties, nor the Ninth Circuit, according to the
Court, presented a satisfactory resolution to the dilemma.  

The Supreme Court avoided the dilemma by holding that §242(g) "applies only
to three discrete actions that the Attorney general may take: he 'decision
or action' or 'commence proceedings, adjudicate cases, or execute removal
orders."  The provision does not apply to many aspects of the deportation
process, "such as the decision to open an investigation, to surveil the
suspected violator, to reschedule the deportation hearing, to include
various provisions in the final order that is the product of the
adjudication, and to refuse reconsideration of that order."  The assumption
of the parties that the language of § 242(g) was a shorthand way of
referring to the entire deportation proceeding was, the Court found,
unwarranted.  Such a statute does exist, IIRAIRA § 306(b)(9) (INA §
242(b)(9)), but this statute applies only prospectively.  To read § 242(g)
as the parties did, to cover all actions relating to deportation, rendered
§ 242(b)(9), which limits judicial review of all questions arising from
"any action taken . . . to remove an alien" to judicial review of the final
agency action, superfluous.  

Section 242(g), the Court held, was enacted to preclude judicial review of
certain actions involving the exercise of discretion, particularly INS
decisions relating to "deferred action."  Deferred action is the INS
practice of refraining from commencing proceedings, terminating
proceedings, or declining to enforce final orders of deportation, based on
an individualized determination that refraining from action is a fairer
course of conduct.  Aliens who were denied deferred action often attempted
to sue to force a change of decision, and courts at times responded
favorably to such suits.  According to the Court, "section 242(g) seems
clearly designed to give some measure of protection to 'no deferred action'
decisions and similar discretionary determinations, providing that if they
are reviewable at all, they at least will not be made the bases for
separate rounds of judicial intervention outside the streamlined process
that Congress has designed."  

Under this view of § 242(g), the plaintiffs' claims of selective
enforcement were clearly barred, arising as they did from the decision to
commence deportation proceedings.  Despite finding the plaintiffs' claims
barred by § 242(g), the Court went on to address the merits of their claim
of selective enforcement.  Plaintiffs had argued that the doctrine of
constitutional doubt required interpretation of § 242(g) to allow their
claim, saying that the administrative deportation proceeding would be
inadequate to develop the facts of their constitutional claim, the absence
of habeas corpus review, and the chill to the exercise of First Amendment
rights posed by the threat of deportation combined to require immediate
review of their claims, without waiting for a final order.  This argument
was rejected because "an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense to his
deportation."

Selective prosecution claims are immensely difficult to prove even in the
criminal law context, because of the great discretion vested in prosecutors
concerning the conduct of criminal indictments and trials.  Allowing review
of the prosecutor's discretionary decision would have a chilling effect on
law enforcement, making prosecutors hesitant to bring cases and overall
undermining the efforts of the government in enforcing criminal law.  These
concerns are, for the Court, magnified in an immigration context.  Not only
are the same concerns counseling against allowing selective prosecutions in
criminal cases present, there is the additional concern that delaying
deportation proceedings by allowing review prolongs the continuing legal
violation of the alien's unlawful presence.  The government's interest in
enforcing immigration laws without interference or second-guessing is quite
compelling, and the alien's interest in avoiding deportation to which he is
legally subject on the basis that he has been wrongfully selected for
deportation is not very great.

The Court did leave open the possibility that some deportation proceedings
could be so motivated by improper discrimination that judicial review by a
selective enforcement claim would be allowed, but did not give any clues at
to what evidence would be required to make such claim.  

Justices Ginsburg, Breyer and Stevens concurred in the judgment.  Ginsburg
and Breyer agreed that § 242(g) worked to deprived the federal courts of
jurisdiction over plaintiffs' collateral attack on their deportation, but
disagreed with the Court's disposition of the selective enforcement claim.
While the plaintiffs in this case did not make the required showing, the
two Justices maintained that were a showing of bad faith, lawlessness, or
blatant constitutional violations by the INS made, collateral attack would
be proper, despite § 242(g).  Otherwise, judicial review of matters
relating to deportation is best left until review of the final INS action.
These review proceedings must be adequate to fully address the
constitutional claims presented, and whether it is possible for the court
of appeals reviewing the final order to send the case to a district court
for further fact-finding "is a matter properly postponed."

Justice Stevens resolved the apparent clash between IIRAIRA § 306(c)(1) and
§ 309(c)(1) by reading § 242(g) to bar all collateral attacks on
deportation proceedings, whenever they arose, effective as soon as IIRAIRA
was passed.  Section 242(b)(9), on the other hand, which is not
retroactive, does not apply to cases pending when it was passed, so
judicial review of the administrative deportation proceedings remains for
those cases as it was prior to IIRAIRA.  Because the plaintiffs in this
case made a collateral attack on the deportation proceedings, § 242(g)
barred it.

Justice Souter was the only dissenter.  He maintained that there was no way
to reconcile the conflict between IIRAIRA §§ 306(c)(1) and 309(c)(1).  He
criticized the majority's attempt to do so by reading § 242(g) 'narrowly'
to apply only to commencement, adjudication and execution.  These words,
Souter believed, did not refer to any particular phase of the proceeding,
but to the entire course of deportation; indeed, each of the examples used
by the majority as an example of a decision not covered by § 242(g) falls
into one of those three categories.  Investigation and surveillance relate
to the commencement of proceedings, and issuing show cause orders and
refusing to reconsider cases are adjudicative actions.  Furthermore, the
actions included in § 242(g) involve no more discretion than any other
decision of the Attorney General related to deportation.  

Because the conflict between the two provisions could not be reconciled,
one of them had to trump the other; in Souter's opinion, this was §
309(c)(1), the non-retroactivity provision.  He gave two reasons for this:
first, there is no reason to believe Congress singled out those who were in
proceedings when IIRAIRA was enacted to deprive them of all judicial
review, second, complete preclusion of judicial review of claims relating
to deportation "would raise the serious constitutional question of whether
Congress may block every remedy for enforcing a constitutional right."
These considerations led Souter to believe judicial review, including
collateral attack, should remain the same for proceedings pending when
IIRAIRA was enacted as it was prior to the new law.

Souter, like Ginsburg, Breyer and Stevens, disagreed with the Court's
treatment of the claim of selective prosecution.  Souter's opinion reveals
that the Court had not asked the parties to brief the issue of the place of
selective prosecution claims in the immigration context.  But because the
Court addresses it, Souter does as well.  In Souter's view, the concern
behind an action for selective prosecution is the interest, shared by
individuals and the government alike, that prosecutorial discretion not be
used to violate constitutional rights.  This concern is not altered by the
presence of an ongoing violation of immigration law, or by the fact that
deportation is not considered punishment.  Souter notes that ultimately
this issue is in need of further discussion and thus not appropriate for
the summary treatment given it by the Court.