2d Circuit: Jurisdiction to Review Removal Orders Based on Criminal Convictions Lies with Habeas, Not Petition for Review (Calcano-Martinez v. INS)

IMMIGRATION LAW & POLICY

Judicial Review of Immigration Decisions

2D CIRCUIT: JURISDICTION TO REVIEW REMOVAL ORDERS BASED ON CRIMINAL CONVICTIONS LIES WITH HABEAS, NOT PETITION FOR REVIEW (CALCANO-MARTINEZ V. INS)
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

The U.S. Court of Appeals for the Second Circuit has issued a decision that addresses federal courts' scope of jurisdiction over challenges to removal orders under the permanent judicial review rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The decision holds that the court of appeals has no jurisdiction to consider petitions for review of removal orders based on criminal convictions encompassed within section 242(a)(2)(C) of the Immigration and Nationality Act (a provision that prohibits courts from reviewing removal orders based on specified criminal convictions). However, under the ruling, federal district courts still may consider challenges to such removal orders by means of habeas corpus petitions.

The Second Circuit's decision follows recent rulings of the Third and Ninth Circuits. Liang v. INS, 206 F.3d 308 (3d Cir. 2000) (see "3d Circuit Finds District Courts Have Habeas Jurisdiction to Review Removal Orders in Permanent Rule Cases; 5th Circuit Reaches Opposite Conclusion," Immigrants' Rights Update, Apr. 11, 2000, p. 7); Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000) (see "9th Circuit: Jurisdiction to Review Removal Orders Based on Criminal Convictions Lies with Habeas, Not Petition for Review," Immigrants' Rights Update, June 6, 2000, p. 7).

In this case, three individual petitions for review were consolidated by the court. Each of the petitioners is a lawful permanent resident who was convicted of a crime that is encompassed within INA section 242(a)(2)(C). The three petitioners were placed in removal proceedings and ultimately ordered removed by the Board of Immigration Appeals. All three petitioners filed both petitions for review with the court of appeals and petitions for habeas corpus in federal district court. In two of the cases, the district court petitions were dismissed without prejudice to refiling, should that be necessary after the appellate court resolves the petitions for review.

On appeal, the court concluded that INA section 242(a)(2)(C), which provides that "no court shall have jurisdiction to review any final order of removal" against individuals who are deportable because of specified criminal convictions, precludes appellate court jurisdiction over these petitions for review. None of the petitioners contested the fact of their convictions, or claimed that their convictions are not encompassed within section 242(a)(2)(C). However, as noted above, the court also found that the petitioners could obtain review of their removal orders by means of habeas corpus.

Because the court lacked jurisdiction over the petitions for review, it ordered them dismissed, but without prejudice to the petitioners' ability to bring the same claims by means of habeas corpus petitions in district court.

Calcano-Martinez v. INS, __ F.3d __, Nos. 98-4033, 4214 and 4246 (2d Cir. Sept. 1, 2000).