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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Changes To Judicial Review Under The Real ID Act – Second Circuit Issues Instructions On Transfer Of Cases From The District Court

by Christina B. LaBrie

The REAL ID Act, signed into law on May 11, 2005, eliminates all habeas corpus review of removal orders in district courts. A petition for review in the court of appeals will be the “sole and exclusive means for judicial review of an order of removal entered or issued under any provision of [the Immigration and Nationality Act].” Under the REAL ID Act, certain habeas cases filed before May 11, 2005 will be transferred to the court of appeals for the circuit where a petition for review would have been filed.

Changes to Judicial Review Provisions of the Immigration and Nationality Act (INA)

The REAL ID Act amends INA §242 to restrict habeas corpus review and judicial review of immigration decisions by mandamus or the "all writs" statute. Jurisdiction over all constitutional issues and questions of law related to orders of removal will now rest with the courts of appeals. The proper procedure for seeking review is to file a petition for review in the court of appeals for the circuit where the removal order was issued. The petition for review must be filed within 30 days of the final order of removal.

The jurisdictional changes apply to removal orders issued prior to the enactment of the REAL ID Act. Therefore, if a removal order was issued more than 30 days ago, there will be no opportunity to challenge that removal order in the court of appeals or by habeas petition in the district court. However, future litigation will determine how these cases will be resolved by the court of appeals and if any possible avenues for review remain open.

Many questions about the jurisdictional provisions of the REAL ID Act remain unanswered at this point. Arguments can be made that the REAL ID Act does not eliminate habeas review of immigration detention and that it does not otherwise limit judicial review that was previously available. The courts of appeals will have jurisdiction over constitutional claims and questions of law relating to removal orders. It is not yet clear how the courts will address cases involving mixed questions of law and fact. The courts of appeals will likely address these issues in the coming months and years.

Second Circuit Notice

There is still much uncertainty about how the transfer of cases will be conducted and what effect the transfer will have on pending cases. On June 8, 2005, the US Court of Appeals for the Second Circuit issued a notice instructing the lower courts on the transfer of cases from to the Second Circuit.[1] The instructions ask the district courts to give the parties an opportunity to “stipulate to, or to brief the propriety of, the transfer.” Although the REAL ID Act has clearly stripped the district courts of jurisdiction to review removal orders, some cases may present issues that could remain within the district court. For example, the district courts appear to maintain jurisdiction over challenges to detention. If a case involves a challenge to detention and to a final order of removal, only the portion of the case involving the removal order will be transferred to the court of appeals.

If the district court determines that transfer is appropriate, the Second Circuit instructs the court to send the case to the Second Circuit as a petition for review. The record of a habeas proceeding is likely to be very different than the administrative record normally filed in connection with a petition for review. The record of a habeas proceeding is likely to involve substantial new evidence submitted to the district court. A petition for review, on the other hand, is based on the record of the administrative proceedings. It is not clear how the Second Circuit, and other courts of appeals, will address evidence submitted to the district courts in a habeas proceeding. In addition, it is not clear whether a petitioner in a transferred case will be required to submit copies of the administrative record, as is required with petitions for review.

The issues with the record of a transferred case could be significant for detained individuals because it often takes the government many months to obtain the certified administrative record. In a habeas proceeding, there is no certified administrative record required and thus no concern of delay for detained individuals. In addition, the Second Circuit has not yet indicated whether full briefing will be conducted on all transferred cases or whether briefs submitted to the district court will be accepted by the court of appeals.

Some cases may be transferred to the court of appeals in a different circuit from where the habeas petition was filed. Applicable case law may be different and thus additional briefing will be required to reflect the change in location.

The Second Circuit states that the district court “should stay the petitioner’s removal or deportation pending further order form the Court of Appeals.” Other courts of appeals have issued instructions for transfer, but the Second Circuit is the only court to include such strong language about the issuance of stays.[2]


Endnotes

1This notice is available at http://www.ca2.uscourts.gov/.

2The Fifth Circuit and the Ninth Circuit have also issued transfer instructions. These instructions will be found at http://www.ailf.org/lac/lac_5thcircuitmemo_061305.pdf and http://www.ca9.uscourts.gov/.

This article originally appeared on http://www.cyrusmehta.com/.


About The Author

Christina B. LaBrie received her J.D. in 2000 from New York University School of Law. She has been practicing immigration law since 2001 and is currently an Associate at Cyrus D. Mehta & Associates, PLLC.She is a member of the American Immigration Lawyers Association and is Secretary of the Committee on Immigration and Nationality Law of the Association of the Bar of the City of New York.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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