Removing Aliens from the United States: Judicial Review of Removal Orders
Removing Aliens from the United States:
Judicial Review of Removal Orders
Updated April 14, 2008
American Law Division
Removing Aliens from the United States:
Judicial Review of Removal Orders
Aliens may be removed from the United States for a variety of reasons, such as
entering into the country unlawfully, overstaying a visa, or committing a crime. Prior
to removal, however, aliens usually have access to a removal hearing or some other
form of adjudication that determines whether an alien is subject to removal. Although
judicial review by a federal court of appeals of a removal order is generally available,
Congress has denied the federal courts jurisdiction to review many types of removals,
such as expedited removal orders, crime-related removals, discretionary
determinations, and matters involving prosecutorial discretion.
Jurisdictional issues related to removal are further complicated because of the
constitutional requirement that some adequate substitute for habeas corpus be
available for all removal orders. In order to satisfy this requirement, Congress
specifically preserved the jurisdiction of the courts of appeals to review constitutional
claims and questions of law for all removals, even those arising from an area where
judicial review is generally barred.
This report shall attempt to wend a way through the jurisdictional thicket created
by the Immigration and Nationality Act (INA) by focusing on the procedural
mechanisms used to initiate judicial review and the reach of an Article III court’s
jurisdiction to review a removal order. Discussion concerning the procedures
underlying removal hearings and administrative review is limited to their relation to
judicial review and will not be expatiated.
In troduction ..................................................1
General Procedural Framework for Judicial Review...................1
The Petition for Review.....................................2
Stay of Deportation........................................3
Standard of Review........................................4
Jurisdictional Bars on Judicial Review.............................5
Judicial Review Generally Available...........................5
Expedited Removal Orders..................................5
Denials of Discretionary Relief...............................6
Orders Against Criminal Aliens...............................8
Exceptions to the Jurisdictional Bars..............................10
Constitutional Claims and Questions of Law...................10
from the United States:
Judicial Review of Removal Orders
Aliens may be removed from the United States for a variety of reasons, such as
entering into the country unlawfully, overstaying a visa, or committing a crime. Prior
to removal, however, aliens usually have access to a removal hearing or some other
form of adjudication that determines whether an alien is subject to removal. If the
removal hearing results in an order to remove an alien from the country, the alien
may have recourse to seek administrative review of the removal order. Assuming,
after administrative review, that the removal order becomes administratively final,
even further judicial review by an Article III court may be warranted. However, even
though judicial review of administratively final removal orders is generally available,
there are many exceptions to this general rule that depend on the facts and
circumstances of the removal. Consequently, there is now a convoluted skein of
decisional law construing these exceptions working in conjunction with the already
labyrinthine statutory regime governing judicial review.
This report shall attempt to wend a way through this jurisdictional thicket by
focusing on the procedural mechanisms used to initiate judicial review and the reach
of an Article III court’s jurisdiction to review a removal order. Discussion concerning
the procedures underlying removal hearings and administrative review is limited to
their relation to judicial review and will not be expatiated.
General Procedural Framework for Judicial Review
History. Prior to the enactment of the Immigration and Nationality Act (INA)
in 1952, federal district courts reviewed deportation1 cases via the federal writ of
habeas corpus, which is a procedural mechanism that allows federal district courts
to review the legality of a person’s detention.2 After the passage of the INA, the
Supreme Court held that judicial review could be obtained by seeking declaratory
judgment or injunctive relief under the Administrative Procedure Act (APA), which
1 The process of ejecting an alien from the United States used to be called “deportation,” but
is now primarily referred to as “removal” by the Immigration and Nationality Act.
2 See generally, Henry Hart, The Power of Congress to Limit the Jurisdiction of the Federal
Courts: An Exercise in Dialectic, 66 Harvard L. Rev. 1362, 1389-1396 (1953).
begins the judicial review process in the federal district courts.3 Subsequently, in
1961, Congress replaced APA review of deportation orders with the “petition for
review” offered by the Hobbs Act, a preexisting law that expedites judicial review
by bypassing the district courts and placing review directly in the federal courts of
appeals. The Antiterrorist and Effective Death Penalty Act (AEDPA), enacted in
Hobbs Act. The INA is the primary source for the bulk of the federal
immigration laws, including the substantive law involving the removal of aliens
unlawfully present within the United States. However, when outlining the procedural
framework for the judicial review of removal orders, the INA primarily references
the framework of the Hobbs Act, found in chapter 158 of title 28 of the U.S. Code.5
The Hobbs Act, which governs the judicial review of a select group of administrative
proceedings, gives exclusive jurisdiction to review all final administrative orders6
under its purview to the federal courts of appeals. This effectively channels most
judicial review of removal orders to the courts of appeals and bypasses review from7
the federal district courts. The treatment of removal orders, however, largely differs
from other administrative orders under the Hobbs Act because the INA subjects8
removal orders to additional procedures and rules. One significant departure from
the Hobbs Act is that the INA expressly forbids the court of appeals to take additional
evidence even if it finds the new evidence material and that there were reasonable
grounds for failure to adduce the evidence before the agency.9 Others include changes10
in deadlines, choice of venue, and other procedural rules.
The Petition for Review. The principal vehicle for judicial review is a
petition for review, which must be filed in the circuit in which the removal hearing
was held.11 Before a petition for review can be filed, an alien must first exhaust all
administrative remedies that are available as of right.12 Moreover, the principles of
res judicata or collateral estoppel can bar the petition for review if the validity of the
3 Shaughnessy v. Pedreiro, 349 U.S. 48 (1955).
4 See P.L. 104-132, 110 Stat. 1214 (1996).
5 INA § 242(a)(1) (codified at 8 U.S.C. § 1252(a)(1)) (“Judicial review of a final order of
removal...is governed only by chapter 158 of title 28 of the United States code...”).
6 28 U.S.C. § 2342.
7 Although the Hobbs Act gives the federal court of appeals exclusive jurisdiction to review
removal orders, aliens can still challenge some aspects of their removal in federal district
court via a habeas corpus proceeding.
8 INA § 242(a)(1) (codified at 8 U.S.C. § 1252(a)(1)).
10 See INA § 242(b) (codified at 8 U.S.C. § 1252(b)).
11 INA § 242(b)(2) (codified at 8 U.S.C. § 1252(b)(2)).
12 INA § 242(d)(1) (codified at 8 U.S.C. § 1252(d)(1)).
removal order was established in a prior judicial proceeding.13 This bar to review can
be overcome only if the petitioned court finds new grounds that could not have been
presented in the prior proceeding or that the remedy provided by the prior proceeding
was inadequate to test the validity of the removal order.14
Assuming that there was exhaustion of available administrative remedies and
the review is not barred by res judicata or collateral estoppel, the petition for review
must then be filed no later than 30 days after the date in which the removal order
becomes administratively final.15 The petition must also be served on the Attorney
General, who is the respondent in this cause of action, and on “an officer or employee
of the Service in charge of the Service district in which the final order of removal
was entered,” which usually means the ICE official in charge of detention and
removal in the area where the order was made final.16 After the petition for review
is filed, an alien’s brief to the federal court of appeals in support of his petition must
also be filed within 40 days after the administrative record becomes available; a reply
brief must be served within 14 days of service of the Attorney General’s brief.17 The
deadlines may not be extended except upon motion for good cause shown.18 Failure
to file a brief within the deadline will result in the court dismissing the appeal unless
a manifest injustice would result.19 The Attorney General, on the other hand, has no
statutory deadline to file his brief, but instead relies on a deadline established by a
rule of the court.
Stay of Deportation. An alien’s removal is not automatically stayed when he
files his petition for review.20 Rather, the alien must file a separate motion to move21
the court to order a stay. As a matter of practice, aliens typically couple their
petition for review with motions for stays of removal pending decision. At least one
circuit, the Ninth, upon receipt of the motion, will grant a temporary stay until it rules
on the motion.22 The substantive standard used to determine whether a court should
grant a stay appears to vary by circuit; the Ninth Circuit, for example, grants a stay
of removal if the alien shows “either (1) a probability of success on the merits and
the possibility of irreparable injury or (2) that serious legal questions are raised and
the balance of hardships tips sharply in the petitioner’s favor.”23 Most of the other
13 INA § 242(d)(2) (codified at 8 U.S.C. § 1252(d)(2)).
15 INA § 242(b)(1) (codified at 8 U.S.C. § 1252(b)(1)).
16 INA § 242(b)(3)(A) (codified at 8 U.S.C. § 1252(b)(3)(A)).
17 INA § 242(b)(3)(C) (codified at 8 U.S.C. § 1252(b)(3)(C)).
20 INA § 242(b)(3)(B) (codified at 8 U.S.C. § 1252(b)(3)(B)).
22 De Leon v. INS, 115 F.3d 643, 644 (9th Cir. 1997).
23 Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc).
circuits seem to follow the Ninth Circuit.24 The Eleventh Circuit, on the other hand,
deviates from this practice by requiring the alien to present clear and convincing
evidence that the Board of Immigration Appeals (BIA) decision to remove was
prohibited as a matter of law.25
Standard of Review. If the petition for review overcomes all of these
procedural barriers, the federal court of appeals reviewing the case will base its
decision of the merits solely on the administrative record.26 Furthermore, the
administrative findings of fact are conclusive unless a “reasonable adjudicator would
be compelled to conclude to the contrary.”27 The federal courts of appeals appear to
have interpreted this language by using the “substantial evidence” test when
reviewing administrative findings of fact.28 The “substantial evidence” test is the
standard of review the courts of appeal use when reviewing findings of fact made in
other forms of formal administrative adjudications.29 This deferential standard of
review is meant only to assess the reasonableness of the agency factfinding rather
than its veracity; the inquiry is whether there is “such evidence as a reasonable mind30
might accept as adequate to support a conclusion.” Although this standard is
deferential and assumes the facts on the record are correct, it still obligates the courts
of appeals to consider the whole record, including the evidence which would detract
from the agency’s decision.31 Evidence that a court of appeals must consider when
reviewing an agency’s decision includes the determination made by the
Administrative Law Judge (ALJ),32 even if the agency rejects the ALJ’s findings.33
24 See Bejjani v. INS, 271 F.3d 670, 687-689 (6th Cir. 2001); Mohammed v. Reno, 309 F.3d
Ashcroft, 374 F.3d 230, 234 (3d Cir. 2004); Hor v. Gonzales, 400 F.3d 482, 485 (7 Cir.th
25 Weng v. U.S. Attorney General, 287 F.3d 1335 (11th Cir. 2002).
26 INA § 242(b)(4)(A) (codified at 8 U.S.C. § 1252(b)(4)(A)).
27 INA § 242(b)(4)(B) (codified at 8 U.S.C. § 1252(b)(4)(B)).
28 See, e.g., Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007) (reviewing for substantial
evidence a decision that an applicant is not eligible for asylum, withholding of removal, orth
protection under the Convention Against Torture); Singh v. Ashcroft, 398 F.3d 396, 400 (6
Cir. 2005) (“We review administrative findings of fact, such as whether an alien qualifiesst
as a refugee, under the substantial evidence standard...”); Mendes v. INS, 197 F.3d 6, 13 (1
Cir. 1999) (“We review findings of fact and credibility by the BIA under a ‘deferential
substantial evidence standard.’”); Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.
1998). See also H.Rept. 109-72, at 175-176 (2005) (Conf. Rep.) (equating the standard
found in INA § 242(b)(4)(B) with the “substantial evidence” standard).
29 5 U.S.C. § 706(2)(E).
30 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
31 Universal Camera Corp. v. NLRB, 340 U.S. 474, 464-465 (1951).
32 In the context of immigration law, ALJs are called Immigration Judges (IJs).
33 Universal Camera Corp., 340 U.S. at 493-494.
Jurisdictional Bars on Judicial Review
Judicial Review Generally Available. Judicial review of removal orders34
is generally available under the parameters of the Hobbs Act by a petition of review.
This general rule, however, is subject to numerous jurisdictional bars which can be
triggered depending on the circumstances surrounding an alien’s case. INA Section
242(a)(2) enumerates the substantive grounds that bar the judicial review of removal
orders: expedited removal orders, denials of discretionary relief, orders against
criminal aliens, and matters involving prosecutorial discretion. INA Section 236 also
has a provision barring review of an alien’s mandatory detention during a pending
Expedited Removal Orders. INA Section 235(b)35 provides for a set of
expedited removal procedures that can be used on aliens arriving at the borders of the
United States, whom immigration inspectors believe to be inadmissible because of36
fraud or for not possessing valid documents. If an alien claims asylum after being
determined to be inadmissible, he is sent to an asylum officer who, if he makes an
adverse credibility determination, shall order the alien removed without further
The federal courts of appeals do not have jurisdiction to review the merits of38
INA Section 235(b) expedited removal orders. This bar to review extends to all
claims arising from or relating to the implementation of an INA Section 235(b)39
expedited removal order. The decision by the Attorney General to invoke INA
Section 235(b) expedited removal, and presumably the reasons why the decision was40
made, is similarly barred from review. Moreover, the application of INA Section
removal even when found in the interior of the country, cannot be reviewed.
Finally, the procedures and policies adopted by the Attorney General to implement
34 INA § 242(a).
35 The Attorney General, at his discretion, may also use expedited removal on an alien who
has not been admitted or paroled into the United States and cannot show two years of
continuous physical presence within the country. In practice, this discretion is rarely used.
INA § 235(b)(1)(A)(iii) (codified at 8 U.S.C. § 1225(b)(1)(A)(iii)).
36 INA § 235(b)(1) (codified at 8 U.S.C. § 1225(b)(1)). See also INA § 212(a)(6)(C)
(codified at 8 U.S.C. § 1182(a)(6)(C)) (aliens inadmissible for misrepresentation or falsely
claiming citizenship); INA § 212(a)(7) (codified at 8 U.S.C. § 1182(a)(7)) (alien
inadmissible for not possessing valid visas, passports, or other immigration documents).
37 INA § 235(b)(1)(B)(iii)(I).
38 INA § 242(a)(2)(A) (codified at 8 U.S.C. § 1252(a)(2)(A)).
39 INA § 242(a)(2)(A)(i) (codified at 8 U.S.C. § 1252(a)(2)(A)(i)).
40 INA § 242(a)(2)(A)(ii) (codified at 8 U.S.C. § 1252(a)(2)(A)(ii)).
41 INA § 242(a)(2)(A)(iii) (codified at 8 U.S.C. § 1252(a)(2)(A)(iii)).
INA Section 235(b) expedited removal are not subject to review.42 No courts,
including the courts of appeals, can issue declaratory, injunctive, or other forms of
equitable relief pertaining to an INA Section 235(b) expedited removal order;43 nor
can they certify a class in an action challenging an INA Section 235(b) expedited
Notwithstanding this bar, several aspects of an INA Section 235(b) expedited
removal order can still be reviewed through habeas corpus. Habeas review, while
available, is limited to determinations as to whether the habeas petitioner is an alien,
is the actual person named in the order, is lawfully admitted for permanent residence,
has refugee status, or has been granted asylum.45 Furthermore, challenges to the
constitutionality of the law authorizing INA Section 235(b) expedited removal or of
regulations promulgated to implement INA Section 235(b) expedited removals and
challenges as to whether the regulations are inconsistent or in violation with the law
are also available, but can be heard only by the United States District Court for the
District of Columbia.46 The deadline to challenge the law or regulation is 60 days
after the challenged law or regulation is first implemented.47
Denials of Discretionary Relief. Under the INA, the Attorney General may
use his discretion in granting various forms of relief from removal. The denial of48
such discretionary relief, however, is largely not subject to judicial review. Some
forms of discretionary relief are expressly excluded from review:
!waiver of inadmissibility because of (1) a crime of moral turpitude
conviction, (2) multiple criminal convictions, (3) prostitution
grounds, (4) a marijuana possession conviction, or (5) immunity49
from prosecution after committing a serious criminal offense;
!waiver of inadmissibility because of fraud or misrepresentation of a
material fact when seeking either admission, or documentation for
admission, into the United States;5051
!cancellation of removal for permanent resident aliens;
42 INA § 242(a)(2)(A)(iv) (codified at 8 U.S.C. § 1252(a)(2)(A)(iv)).
43 INA § 242(e)(1)(A) (codified at 8 U.S.C. § 1252(e)(1)(A)).
44 INA § 242(e)(1)(B) (codified at 8 U.S.C. § 1252(e)(1)(B)).
45 INA § 242(e)(2) (codified at 8 U.S.C. § 1252(e)(2)).
46 INA § 242(e)(3) (codified at 8 U.S.C. § 1252(e)(3)).
47 INA § 242(e)(3)(B) (codified at 8 U.S.C. § 1252(e)(3)(B)).
48 INA § 242(a)(2)(B) (codified at 8 U.S.C. § 1252(a)(2)(B)).
49 See INA § 212(h) (codified at 8 U.S.C. § 1182(h)).
50 See INA § 212(i) (codified at 8 U.S.C. § 1182(i)).
51 See INA § 240A (codified at 8 U.S.C. § 1229b).
!cancellation of removal and adjustment of status for certain
nonpermanent resident aliens;52
!voluntary departure;53 and
!adjustment of status of nonimmigrants to legal permanent resident
Although this jurisdiction-stripping provision forecloses judicial review of
discretionary decisions, it appears that the federal courts of appeals have concluded
that non-discretionary issues of law or fact that may arise out of these decisions do
not fall within the ambit of the jurisdiction-stripping.55
Similarly excluded from judicial review is a “decision or action of the Attorney
General or Secretary of Homeland Security the authority for which is specified under
[Title II of the INA] to be in the discretion of the Attorney General or the Secretary
of Homeland Security,” other than the granting of asylum.56 Although this provision
purportedly strips jurisdiction over all matters left to the discretion of the Attorney
General and the Secretary of Homeland Security, since it is restricted to Title II of the
INA, discretionary matters codified outside of Title II, i.e., matters related to
citizenship, may still be reviewed by courts.57 Thus, this provision seems to exclude
from judicial review:
!revocation of visa petition;58
!adjustment of status of refugees;60
!detention pending removal of arriving noncitizens;61
53 See INA § 240B (codified at 8 U.S.C. § 1229c).
54 See INA § 245 (codified at 8 U.S.C. § 1255).
55 Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003) (holding there was
jurisdiction to review non-discretionary question whether an adult daughter qualified as a
“child” for purposes of the exceptional and extremely unusual hardship requirement);th
Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7 Cir. 2004) (holding that the meaning
of the term “continuous physical presence” is a non-discretionary question and falls outsideth
of the jurisdiction-stripping provision); Mireles-Valez v. Ashcroft, 349 F.3d 213, 216 (5
Cir. 2003) (holding that there was jurisdiction to review non-discretionary issue regarding
the meaning of “continuous physical presence”); Reyes-Vasquez v. Ashcroft, 395 F.3d 903,th
906 (8 Cir. 2005) (holding that there was jurisdiction to review non-discretionary issues
concerning the meaning of “continuous physical presence”).
56 INA § 242(a)(2)(B)(ii) (codified at 8 U.S.C. § 1252(a)(2)(B)(ii)).
57 Id. See also INA tit. III.
58 See INA § 205 (codified at 8 U.S.C. § 1155).
59 INA § 207(c) (codified at 8 U.S.C. § 1157(c)).
60 INA § 209(b) (codified at 8 U.S.C. § 1159(b)).
61 INA § 236(a), (c)(2) (codified at 8 U.S.C. § 1226(a), (c)(2)). See also INA § 236(e)
!changes of nonimmigrant status;62 and
!record of lawful admission.63
Although the provision excludes discretionary decisions from judicial review,
a court has held that only decisions that are entirely discretionary are barred from
review.64 Decisions that require the application of legal standards under this standard
are still open to review.65 This approach is in accord with a provision specifically
allowing the review of constitutional claims and questions of law that arise from
cases generally barred from review.66
The federal courts of appeals appear split over whether discretionary decisions
authorized by regulation rather than statute remain subject to judicial review. Some
courts have ruled that decisions made pursuant to discretionary authority conferred
by regulations are all subject to judicial review.67 Other courts, on the other hand, bar
review of discretionary decisions made under powers conferred by regulations
implementing INA Title II statutes.68
Orders Against Criminal Aliens. Aliens who commit certain criminal acts69
while within the United States are removable. Many of the criminal offenses that
warrant removal also trigger a jurisdictional bar from judicial review.70 These crime-
related grounds are
!two or more crime of moral turpitude convictions punishable by
sentences of one year or longer;71
(codified at 8 U.S.C. § 1226(e)) (excluding discretionary decisions made by the Attorney
General under Section 236 from judicial review).
62 INA § 248 (codified at 8 U.S.C. § 1258).
63 INA § 249 (codified at 8 U.S.C. § 1259).
64 Nakomoto v. Ashcroft, 363 F.3d 874, 880 (9th Cir. 2004).
65 Id. at 881 (“We do, however, retain jurisdiction to review the Attorney General’s
decisions, where his or her exercise of discretion is guided by the application of legal
standards to the facts in question.”).
66 INA § 242(a)(2)(D) (codified at 8 U.S.C. § 1252(a)(2)(D)).
67 See, e.g., Medina-Morales v. Ashcroft, 362 F.3d 1263, 1270 (9th Cir. 2004); Yu Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); Singh v. Gonzales, 404 F.3d 1024, 1026-1027th
(7 Cir. 2005).
68 See, e.g., Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004); Yerkovich v. Ashcroft,
69 INA § 237(a)(2)(A)(ii), (A)(iii), (B), (C), (D) (codified at 8 U.S.C. § 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), (D)).
70 INA § 242(a)(2)(C) (codified at 8 U.S.C. § 1252(a)(2)(C)).
71 INA § 237(a)(2)(A)(ii) (codified at 8 U.S.C. § 1227(a)(2)(A)(ii)).
!controlled substances offenses other than marijuana possession for
one’s own use;73
!firearm offenses;74 or
!miscellaneous crimes related to espionage, sabotage, treason and
sedition, threats against the President, military expedition against a
friendly nation, a violation of the Military Selective Service Act or
Trading With The Enemy Act, immigration document fraud, or
importation of an alien for an immoral purpose.75
Although there is a provision barring judicial review of removal orders based
on crime-related grounds, in actuality, questions of law related to the order remain
open to review. For example, if the crime-related ground for removal is an
aggravated felony conviction, an appellate court may review the immigration court’s
determination of whether the crime in question constituted an aggravated felony.76
Similarly, a court has also ruled that it has jurisdiction to review the determination
whether an offense constitutes a crime of moral turpitude.77 Courts have also
indicated that they retain jurisdiction to review constitutional issues arising out of
crime-related removal orders.78 Congress also appears to have codified these holdings
in an express provision that preserves judicial review of “constitutional claims or
questions of law raised upon a petition for review.”79
Prosecutorial Discretion. INA Section 242(g) is an express provision that
states that no court has “jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision...to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this Act.”80 The Supreme Court has
construed this provision as a means to insulate from judicial review prosecutorial
discretion to pursue a removal of an alien.81 This would therefore prevent undue
delay caused by what some considered frivolous challenges to decisions denying
discretionary relief that was not meant to be available as a matter of right; primarily
72 INA § 237(a)(2)(A)(iii) (codified at 8 U.S.C. § 1227(a)(2)(A)(iii)).
73 INA § 237(a)(2)(B) (codified at 8 U.S.C. § 1227(a)(2)(B)).
74 INA § 237(a)(2)(C) (codified at 8 U.S.C. § 1227(a)(2)(C)).
75 INA § 237(a)(2)(D) (codified at 8 U.S.C. § 1227(a)(2)(D)).
76 See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir. 2001); Drakes v. Zimski, 240
F.3d 246 (3d Cir. 2001); Lewis v. INS, 194 F.3d 539 (4th Cir. 1999); Nehme v. INS, 252th
F.3d 415 (5 Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001); Penuliar v.th
Ashcroft, 395 F.3d 1037, 1040 (9 Cir. 2005). See also Leocal v. Ashcroft, 543 U.S. 1
(2004) (exercising jurisdiction to determine whether a state DUI offense without a mens rea
element constituted an aggravated felony for deportation purposes).
77 Carty v. Ashcroft, 395 F.3d 1081, 1082-1083 (9th Cir. 2005).
78 See, e.g., Calcano-Martinez v. INS, 533 U.S. 348, 350 n.2 (2001).
79 INA § 242(a)(2)(D) (codified at 8 U.S.C. § 1252(a)(2)(D)).
80 INA § 242(g) (codified at 8 U.S.C. § 1252(g)).
81 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).
challenges to a prosecutorial decision to proceed with a deportation notwithstanding
certain humanitarian reasons that could have provided grounds to defer deportation
proceedings.82 In other words, this provision is “specifically directed at the
deconstruction, fragmentation, and hence prolongation of removal proceedings.”83
This purpose is also served by the provision precluding review of non-discretionary
determinations related to prosecutorial discretion, which would not be covered by the
general jurisdictional bar of discretionary relief found in INA Section 242(a)(2)(B).
Detention Decisions. Notwithstanding some exceptions, administrative
officials have the discretion to detain an alien while his removal from the United84
States is pending. Moreover, “[n]o court may set aside any action or
decision...under this section regarding the detention or release of any alien or the85
grant, revocation, or denial of bond or parole.” Although this provision purports to
bar the court from setting aside “any action or decision” regarding detention, the
Supreme Court has held that a federal habeas corpus action, challenging the
constitutional validity of a provision mandating the detention of a criminal alien86
while his removal is pending, was not barred. This was because “where a provision
precluding review is claimed to bar habeas review, the Court has required a
particularly clear statement that such is Congress’ intent,” which this particular
jurisdiction-stripping provision lacked.87 Thus, it appears that at a minimum, habeas
review may still be available when the claim challenges the constitutionality of the
detention. Although the REAL ID Act substantively diminished the availability of
habeas review for removal orders, it does not appear to have affected the availability
of habeas review with respect to challenging the legality of the detention itself.88
Exceptions to the Jurisdictional Bars
Constitutional Claims and Questions of Law. Although the jurisdiction-
stripping provisions of the INA are comprehensive, judicial review of constitutional89
claims and questions of law remains preserved. INA Section 242(a)(2)(D) states
that nothing in the INA eliminating review of discretionary decisions, crime-related
removals, or any other provision of the INA which limits or eliminates judicial
review “shall be construed as precluding review of constitutional claims or questions
82 Id. at 485.
83 Id. at 486.
84 INA § 236(a) (codified at 8 U.S.C. § 1226(a)).
85 INA § 236(e) (codified at 8 U.S.C. § 1226(e)).
86 Demore v. Kim, 538 U.S. 510, 517 (2003).
88 See H.Rept. 109-72, at 175 (2005) (Conf. Rep.) (“Moreover, section 106 would not
preclude habeas review over challenges to detention that are independent of challenges to
removal orders. Instead, the bill would eliminate habeas review only over challenges to
removal orders.”). See also P.L. 109-13, Div. B, § 106, 119 Stat. 310 (2005).
89 INA § 242(a)(2)(D) (codified at 8 U.S.C. § 1252(a)(2)(D)).
of law raised upon a petition for review.”90 Thus, “constitutional claims” and
“questions of law” are reviewable even if the underlying matter from which the
constitutional claim or question of law arises is not. This, however, provides an
additional burden in the analysis — namely ascertaining what distinguishes a
reviewable constitutional claim or question of law from a non-reviewable question
of fact. While what constitutes a “constitutional claim” may appear self-evident,91
determining what constitutes a “question of law” can be more difficult.
Because INA Section 242(a)(2)(D) preserves judicial review of questions of
law, it also operates upon the other jurisdiction-stripping provisions of the INA by
only excluding questions of fact from review. Thus, an important threshold issue a
court of appeals must resolve is whether the matter before it is a question of law or
fact. Questions of fact are questions about the actual events surrounding the case.92
Questions of law, on the other hand, involve the application or interpretation of the
law.93 Initially, the courts construed “questions of law” as only preserving jurisdiction
to review statutory construction issues.94 Thus, the courts only had jurisdiction to
review how the administrative courts interpreted the meaning or scope of a term in
a statutory provision. The courts later recognized that “questions of law” was also
meant to encompass “the same types of issues that courts traditionally exercised in
habeas review over Executive detentions.”95 The courts came to this conclusion by
analyzing the legislative history of the REAL ID Act, which altered INA Section
242(a)(2)(D) to allow review of constitutional claims and questions of law.96 The
House Conference Report for the REAL ID Act indicates that Congress sought to
provide an “adequate and effective” substitute for habeas corpus.97 Purportedly, this
was because the Supreme Court had previously expressed some concern as to
whether Congress could constitutionally strip from courts habeas review of removal
orders without implementing an adequate replacement.98 Thus, in order to provide
an adequate replacement for habeas review, not only did INA Section 242(a)(2)(D)
preserve review of statutory construction, but it also encompassed review of “errors
90 Id. (“Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than
this section) which limits or eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals...”).
91 See, e.g., Xiao Ji Chen v. United States Department of Justice, 471 F.3d 315, 324 (2d Cir.
2006) (“The term ‘constitutional claim’ clearly relates to claims brought pursuant to
provisions of the Constitution of the United States.”).
92 Id. at 610 (“An actual or alleged event or circumstance, as distinguished from its legal
effect, consequence, or interpretation.”).
93 Black’s Law Dictionary 1260 (7th ed. 1999) (“An issue to be decided by the judge,
concerning the application or interpretation of the law.”).
94 Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007); Xiao Ji Chen, 471 F.3d at 326.
95 Xiao Ji Chen, 471 F.3d at 326-327. See also Jean-Pierre v. U.S. Attorney General, 500
F.3d 1315, 1321 (11th Cir. 2007).
96 Xiao Ji Chen, 471 F.3d. at 326; Ramadan, 479 F.3d at 653.
97 H.Rept. 109-72, at 174 (2005) (Conf. Rep.).
98 Xiao Ji Chen, 471 F.3d at 326 (citing INS v. St. Cyr, 533 U.S. 289 (2001)).
of law, including the “erroneous application or interpretation of statutes,” “challenges
to ‘Executive interpretations of the immigration laws,’” and “determinations
regarding an alien’s statutory eligibility for discretionary relief.”99 The Ninth Circuit
characterized “questions of law” to include “questions involving the application of
statutes or regulations to undisputed facts, sometimes referred to as mixed questions
of fact and law.”100 In other words, questions of law encompass
!the use of an incorrect legal standard;
!the articulation of the correct legal standard, but the erroneous
application of a heightened legal standard; and
!an unambiguous mischaracterization of the record.101
It is important to note that these courts, while recognizing INA Section
242(a)(2)(D) preserves review of constitutional claims and questions of law, have
also expressly refused to review claims that, while characterized as questions of law,
“consist of nothing more than quarrels over the correctness of fact-finding and
discretionary decisions.”102 A “mere assertion that the IJ [Immigration Judge] and
BIA [Board of Immigration Appeals] ‘failed to apply the law’ does not convert a
mere disagreement with the IJ’s factual findings and exercise of discretion into a
constitutional claim or a question of law.”103 Thus, in the Second Circuit, before
determining whether a claim is a reviewable question of law, the court must first
“look to the nature of the argument being advanced in the petition and determine
whether the petition raises ‘constitutional claims or questions of law’ or merely
objects to the IJ’s fact-finding or exercise of discretion.”104 The Ninth Circuit goes
so far as to refuse to entertain a mixed question of fact and law unless all of the
underlying facts are undisputed.105
An additional issue is whether INA Section 242(a)(2)(D) preserves judicial
review of constitutional claims or questions of law that arise from expedited removal
orders. The provision that strips courts of jurisdiction to review expedited removal
orders, INA Section 242(a)(2)(A), states that, “notwithstanding any other provision
of law,” no court shall have jurisdiction to review a claim arising from an expedited
99 Xiao Ji Chen, 471 F.3d at 328 (quoting St. Cyr, 533 U.S. at 314 n. 38).
100 Ramadan, 479 F.3d at 650.
101 See Gui Yin Liu v. INS, 508 F.3d 716, 721-722 (2d Cir. 2007).
102 Xiao Ji Chen, 471 F.3d at 331.
105 Ramadan, 479 F.3d 646, 653. See also Jean-Pierre, 500 F.3d at 1322 (“[W]e have
jurisdiction to review Jean Pierre’s claim in so far as he challenges the application of anth
undisputed fact pattern to a legal standard.”); Ali v. Achim, 468 F.3d 462, 465 (7 Cir.
2006) (“[W]e retain jurisidiction to examine whether the correct legal standard was applied
to the alien’s claim for relief.”).
removal order “except as provided by subsection (e) of this section.”106 On the other
hand, the reach of INA Section 242(a)(2)(D) appears to extend to “any other
provision of this Act.”107 The Tenth Circuit has addressed this issue and it has held
that INA Section 242(a)(2)(A) excludes review of all claims arising out of expedited
removal orders, including constitutional claims and questions of law.108 It would
seem that this court believes that the phrase “notwithstanding any other provision of
law” found in INA Section 242(a)(2)(A) operates to exclude that provision from the
purview of INA Section 242(a)(2)(D), thus excluding constitutional claims and
questions of law arising from expedited removal orders from judicial review. Thus,
the only issues arising from an expedited removal order that may be reviewed under
this analysis are those enumerated within INA Section 242(e). INA Section 242(e)
only permits: (1) limited habeas review of specific issues related to the expedited
removal,109 (2) constitutional claims related to expedited removal,110 and (3)
challenges to regulations or policy directives governing expedited removals as
inconsistent with the INA or otherwise in violation of the law.111
Habeas Corpus. The writ of habeas corpus protects individuals from
wrongful and arbitrary imprisonment by providing a mechanism to test the legality112
of the detention. Today, the forum that hears a federal habeas corpus petition is a
federal district court.113 Prior to American independence, habeas corpus was
primarily a pre-trial protection found in common-law that was available “(1) to
compel adherence to prescribed procedures in advance of trial, (2) to inquire into the
cause for commitment [reason for pre-trial detention] not pursuant to judicial
process, and (3) to inquire whether the committing court had proper jurisdiction.”114
Recognizing the importance of the writ, the framers sought to protect habeas corpus
by incorporating into the U.S. Constitution the Suspension Clause, which states that
“The privilege of the writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require it.”115 Later, the federal
government enacted the federal habeas corpus statute in the Judiciary Act of 1789
which conferred upon federal courts the power to grant the writ for federal
106 INA § 242(a)(2)(A) (codified at 8 U.S.C. § 1252(a)(2)(A)).
107 INA § 242(a)(2)(D) (codified at 8 U.S.C. § 1252(a)(2)(D)).
108 Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th Cir. 2007).
109 INA § 242(e)(2) (codified at 8 U.S.C. § 1252(e)(2)).
110 INA § 242(e)(3)(A)(i) (codified at 8 U.S.C. § 1252(e)(3)(A)(i)).
111 INA § 242(e)(3)(A)(ii) (codified at 8 U.S.C. § 1252(e)(3)(A)(ii)).
112 See Erwin Chemerinksy, Thinking About Habeas Corpus, 37 Case W. Res. L. Rev. 748,
749 (1987); CRS Report RL33391, Federal Habeas Corpus: A Brief Legal Overview, by
113 28 U.S.C. § 2241.
114 Swain v. Pressley, 430 U.S. 372, 385 (1977) (C.J. Burger, concurring).
115 St. Cyr, 533 U.S. at 304. See also U.S. Const. Art. I, § 9, cl. 2.
prisoners.116 Federal habeas corpus was amended in 1867 to also include state
prisoners.117 With the advent of the incorporation doctrine, which found most of the
provisions of the Bill of Rights to be applicable to the states through the Due Process
Clause of the Fourteenth Amendment, federal habeas corpus evolved as a vehicle to
remedy convictions made in violation of constitutional rights.118
Many provisions in INA Section 242 expressly forbid the use of habeas corpus
as a vehicle to review removal orders. For example, INA Section 242(b)(9) states that
“all questions of law and fact, including interpretation and application of
constitutional and statutory provisions” arising from an action taken to remove an
alien shall be made available only upon judicial review of a final order.119 At first
glance, this provision would only seem to impose an administrative exhaustion
requirement before review of a constitutional or statutory violation affecting the
removal process can commence. However, the statute also expressly prohibits the use
of habeas corpus to obtain review from a federal district court.120 A similar provision,
INA Section 242(g), prohibits the use of habeas corpus and generally denies to all
courts, except as otherwise prescribed by INA Section 242, jurisdiction to entertain
claims arising from a decision by the Attorney General “to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this Act.”121 In
addition, all of the express jurisdictional bars also include express prohibitions of
As discussed above, INA Section 242(a)(2)(D) preserves the federal courts of
appeals’ jurisdiction to review constitutional claims and questions of law.123 These
courts, when exercising this jurisdiction, have viewed INA Section 242(a)(2)(D) as
a means to consolidate issues traditionally dealt with by habeas corpus with those
addressed by a petition for review, thereby channeling these habeas issues directly
to the courts of appeals.124 Presumably, this would serve to streamline the deportation
process while still effectively maintaining the substantive protections of habeas
corpus.125 The reason why Congress sought to preserve habeas protections in the
petition for review was because of concerns the Supreme Court voiced in a prior case
116 Act of September 24, 1789, ch. 20, § 14, 1 Stat. 82.
117 Act of February 5, 1867, ch. 28, 14 Stat. 385.
118 See Erwin Chemerinksy, Thinking About Habeas Corpus, 37 Case W. Res. L. Rev. 748,
119 INA § 242(b)(9) (codified at 8 U.S.C. § 1252(b)(9)).
120 Id. (“Except as otherwise provided in this section, no court shall have jurisdiction, by
habeas corpus under section 2241 of 1651 of such title, or by any other provision of law
(statutory or nonstatutory), to review such an order or such questions of law or fact.”).
121 INA § 242(g) (codified at 8 U.S.C. § 1252(g)).
122 See generally INA § 242(a)(2).
123 INA § 242(a)(2)(D) (codified at 8 U.S.C. § 1252(a)(2)(D)).
124 Xiao Ji Chen, 471 F.3d at 326-327; Ramadan, 479 F.3d at 653; Ramirez-Molina v. Ziglar,
125 See Ramadan, 479 F.3d at 651. See also H.Rept. 109-72, at 175 (2005) (Conf. Rep.).
addressing Congress’s previous attempt to abolish all habeas review of removal
In INS v. St. Cyr, the Supreme Court held that federal courts had jurisdiction to
hear an alien’s petition for habeas corpus notwithstanding a statutory provision that
indicated that aliens would not have access to habeas corpus in removal126
proceedings. Congress had passed a series of jurisdiction-stripping provisions that
could have been interpreted to preclude either a federal district court or a federal127
court of appeals from reviewing “pure questions of law.” The Court expressed
concern that, in light of the Suspension Clause of the U.S. Constitution, a statute that
“would entirely preclude review of a pure question of law by any court would give
rise to substantial constitutional questions.”128 The reason a constitutional question
would arise is because the Suspension Clause, at a minimum, protects habeas corpus
“as it existed in 1789.”129 Habeas corpus, at its historical core, “served as a means of
reviewing the legality of executive detention,” and could have encompassed
challenging “detentions based on errors of law, including the erroneous application130
or interpretation of statutes.” The jurisdiction-stripping provisions, if read to deny
habeas review of pure questions of law without presenting an adequate substitute to
review such questions, could raise significant constitutional issues that would require
a closer look at whether habeas corpus, as it existed in 1789, could be used to review131
pure questions of law. Rather than begin this inquiry, the Supreme Court chose to
exercise the constitutional avoidance doctrine and construed the jurisdiction-stripping
provisions to allow habeas review of pure questions of law as it felt that Congress did
not clearly express an intent to deprive aliens of habeas corpus.132 As Justice Scalia
noted, this presented a putative incongruity: criminal-aliens could get habeas review
of their removals, at least with regards to questions of law, which includes district
court review and appellate review, while non-criminal aliens would only get review
directly from the court of appeals. The Court, in reference to this argument, stated
that Congress could remedy this incongruity by providing an adequate substitute for
habeas corpus in the courts of appeals.133
Following this decision, Congress subsequently sought to respond to the St. Cyr
decision by enacting the REAL ID Act, which expressly eliminated habeas review
126 St. Cyr, 533 U.S. at 314 (“If it were clear that the question of law could be answered in
another judicial forum, it might be permissible to accept the INS’ reading of § 1252. But the
absence of such a forum, coupled with the lack of a clear, unambiguous and express
statement of congressional intent to preclude judicial consideration on habeas of such an
important question of law, strongly counsels against adopting a construction that would raise
serious constitutional questions.”).
127 Id. at 300.
129 Id. at 301 (quoting Felker, 518 U.S. at 663-664).
130 Id. at 301-302.
131 Id. at 305.
132 Id. at 314.
133 Id. at 314, n. 38.
for many types of removals while preserving review of constitutional claims and
questions of law in the federal courts of appeals.134 In the legislative history of the
REAL ID Act, Congress explicitly referenced the holding in St. Cyr while explaining
the habeas-stripping provisions, expressing a belief that retaining habeas corpus for
criminal-aliens unnecessarily delayed removal and created confusion in the federal
courts.135 Congress, by expressly ending habeas review of these removals, believed
that this would lead to less delay and greater fairness in the review process.136 As a
response to the Supreme Court’s concern that there must be some “adequate
substitute” for habeas review if recourse to federal habeas corpus is denied, Congress
crafted its “constitutional claims and questions of law” exception to the otherwise
broad jurisdiction-stripping provisions it had enacted.137 Furthermore, Congress noted
habeas corpus was still available for “challenges to detentions that are independent
of challenges to removal orders.”138
As it stands today, the petition for review appears to have replaced habeas
corpus as the primary means to challenge a removal order. Preserving review of
constitutional claims and questions of law for all removal orders seems to have
satisfied any Suspension Clause concerns from the courts of appeals, who now
routinely transfer petitions for habeas corpus into a petition for review. Habeas
corpus, however, still plays a relatively small role in expedited removals since a
statutory provision expressly allows habeas corpus to be used as a vehicle to
!whether the petitioner is an alien;139
!whether the petitioner was ordered removed under INA §
!whether the petitioner can prove by a preponderance of the evidence
that the petitioner is an alien lawfully admitted for permanent
residence, has been admitted as a refugee under INA § 207, or has
been granted asylum under INA § 208, such status not having been
terminated, and is entitled to such further inquiry as prescribed by
the Attorney General pursuant to INA § 235(b)(1)(C).141
134 P.L. 109-13, Div. B, § 106, 119 Stat. 310 (2005) (The REAL ID Act). See also INA §
242(a)(2), (a)(5), (b)(9) (expressly denying access to federal habeas corpus to review
numerous types of removals); INA § 242(a)(2)(D) (expressly preserving review of
constitutional claims and questions of law notwithstanding other jurisdiction-stripping
135 H.Rept. 109-72, at 174 (2005) (Conf. Rep.).
137 Id. at 175.
139 INA § 242(e)(2)(A) (codified at 8 U.S.C. § 1252(e)(2)(A)).
140 INA § 242(e)(2)(B) (codified at 8 U.S.C. § 1252(e)(2)(B)).
141 INA § 242(e)(2)(C) (codified at 8 U.S.C. § 1252(e)(2)(C)).