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Federal appeals court allows habeas challenge to deportation despite REAL ID Act

By Erin Bock

[JURIST] The US Court of Appeals for the Second Circuit [official website] issued a decision [text, PDF] Friday allowing two people to file habeas corpus petitions against removal orders from the Board of Immigration Appeals (BIA) [official website] despite provisions of the REAL ID Act (RIDA) [text, PDF; JURIST news archive] removing jurisdiction from federal courts to hear such claims when they are late. The government had moved to dismiss the appeals for untimeliness under RIDA, but the petitioners, Worklis Luna and Tasmann Anthony Thompson, alleged they were prevented from filing on time by circumstances beyond their control, including ineffective assistance of counsel and governmental roadblocks. RIDA requires that a petition for review be filed within 30 days of the final order. The court, interpreting the act in a manner intended to avoid reviewing its constitutionality, held that because the petitioners' claims of ineffective assistance and government delays were collateral attacks on the removal orders, and not a challenge to the removal orders themselves, they could seek habeas relief in the district court. Holding otherwise, the court stated, would raise "serious constitutional questions" under the Suspension Clause of the US Constitution [text]:

Petitioners could not have raised their claims regarding the timeliness of their petitions before the BIA because their claims arose after the entry of the final orders of removal. Nor could they have raised such claims in a timely petition in this Court because they only arose upon the expiration of the 30-day period within which they could have filed a timely petition for review. Thus, if the REAL ID Act is interpreted as precluding habeas review over petitioners' claims, there is no forum in which petitioners could seek relief. Moreover, petitioners raise precisely the type of constitutional claims for which habeas review, or an adequate and effective substitute, is most essential.

Jennifer Chang Newell, a staff attorney for the American Civil Liberties Union (ACLU) [advocacy website] which filed several briefs on behalf of the petitioners, applauded the court's decision in an email to JURIST, stating that the decision "recognizes that fairness applies to everyone, including immigrants. Everyone's most basic constitutional rights are severely threatened when people's ability to go to court is restricted or denied."

In 2008, the US Court of Appeals for the Ninth Circuit held that RIDA gives a "reasonable opportunity" for judicial review [JURIST report] to those aliens whose removal orders became final before it entered into effect. Prior to RIDA's enactment, aliens convicted of crimes in the US could request judicial review through habeas petitions [28 USC § 2241 text], which were not subject to time restraints. In 2005, Judge William Young, chief judge of the US District Court for the District of Massachusetts criticized RIDA as a "virtually unprecedented" attack [JURIST report] on judicial independence, placing a "chokehold" on federal courts by removing their authority to hear deportation cases. Young claimed RIDA makes it harder for immigrants to gain amnesty by requiring deportation cases to be heard in a federal courts of appeals. Initially drafted after the 9/11 terror attacks [JURIST news archive] and designed to discourage illegal immigration, RIDA was passed in 2005 [JURIST report].

Full post as published by JURIST - The Paper Chase on September 06, 2010 (boomark / email).