3rd Circuit Finds CAT Denial Reviewable By Habeas Petition

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

3RD CIRCUIT FINDS CAT DENIAL REVIEWABLE BY HABEAS PETITION
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

The U.S. Court of Appeals for the Third Circuit has ruled that federal district courts have jurisdiction to review denials of relief under the Convention Against Torture (CAT) by means of petition for habeas corpus. The decision comes on appeal from a district court's dismissal of a habeas petition for lack of jurisdiction.

The petitioner in this case, Christopher Ogbudimkpa, is a Nigerian national who entered the U.S. on a student visa in 1982. In 1985 he was ordered deported for overstaying his visa and working without authorization. The Immigration and Naturalization Service did not carry out his deportation, and in 1994 he was convicted and sentenced for state criminal drug charges. On release from prison in 1996, he was transferred to INS custody.

In 1999, the Board of Immigration Appeals granted Ogbudimkpa's motion to reopen to apply for relief under Article 3 of the CAT. At his reopened hearing, Ogbudimkpa testified that he would be imprisoned, tortured, and possibly executed were he to be returned to Nigeria, because members of his extended family include a past president of Nigeria and a major in the police or army. The immigration judge found Ogbudimkpa's testimony credible but concluded that he had not demonstrated that it was "more likely than not" that he would be tortured in Nigeria. The BIA affirmed the IJ's decision, and Ogbudimkpa then filed pro se a "motion for emergency stay of removal" in district court.

The district court treated the motion as a petition for writ of habeas corpus under 28 USC sec. 2241. The government moved to dismiss, contending that the district court lacked jurisdiction and that Ogbudimkpa should have filed a petition for review in the court of appeals. Ogbudimpka then moved for transfer of the case to the court of appeals, which the district court granted.

In the court of appeals, the government moved to dismiss the case, arguing that jurisdiction was barred by section 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a transitional rule that bars court of appeals jurisdiction over petitions for review in cases of non-U.S. citizens who are deportable because of certain criminal convictions. In district court the government had argued that this provision would not apply to Ogbudimkpa because he had not been charged with deportability based on his convictions. In the court of appeals, the government argued that the bar applies to any noncitizen with an applicable criminal conviction. Unaware of the prior district court proceedings and shifting government arguments, the court granted the motion to dismiss in an unpublished decision, suggesting that Ogbudimkpa might file a petition for habeas corpus. Ogbudimkpa then filed a habeas petition in district court.

In district court, the government again contended that habeas jurisdiction was barred, relying on a provision of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which implemented the CAT. Section 2242(d) of the FARRA limits review of claims raised under the CAT "except as part of the review of a final order of removal pursuant to section 242" of the INA. The district court concluded that this provision precluded it from exercising jurisdiction, and Ogbudimkpa appealed.

On appeal, the court concluded that the district court does have jurisdiction over the case and that the FARRA did not repeal habeas jurisdiction. The court noted that the provision of the FARRA limiting review and consolidating it with review of a final order of removal is strikingly similar to the permanent judicial review rules of the IIRIRA, which the Supreme Court has found, in INS v. St. Cyr, 533 U.S. 289 (2001), do not bar habeas corpus jurisdiction. The court found that the reasoning of St. Cyr supports the availability of habeas jurisdiction in this case. The court also noted that, even before the issuance of the decision in St. Cyr, the Ninth Circuit had concluded that habeas review was available for CAT claims. Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000). After St Cyr, the First and Second Circuits have also reached this conclusion. Saint Fort v. Ashcroft, 329 U.S. 191 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003).

The government also argued that Art. 3 of the CAT is not "self-executing," such that it takes effect only to the extent it is implemented by Congress, and that individuals may not bring habeas claims based on violations of non-self-executing treaties. However, the court found that the FARRA contains language "virtually identical" to Art. 3 of the CAT, such that even if Art. 3 is not self-executing, individuals can bring claims based on this language of the FARRA. Concluding that the district court erred in dismissing the petition for lack of jurisdiction, the court reversed and remanded to the district court to consider the merits of Ogbudimkpa's habeas petition.

Ogbudimkpa v. Ashcroft, No. 02-1181
(3rd Cir. Aug. 22, 2003).