Constitutional law – Judicial review in the United States
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996included restrictions on federal judicial review of deportation, exclusion and removal cases.
Former INA § 106, passed in 1961 by the United States Congress, had provided the basis for judicial review of immigration matters until its elimination by IIRIRA which replaced it with INA § 242, [8 U.S.C.A. § 1252].
After the passage of IIRIRA, different procedures were created for judicial review of removal orders, including exclusion or deportation orders, and for immigration decisions generally.
Decisions regarding judicial review of removal orders are now subject to INA § 242 [8 U.S.C.A. § 1252].
Review of immigration decisions outside of removal proceedings are governed by 28 U.S.C.A. § 1331 and the provisions of the Administrative Procedures Act and occur in the District Courts.
Judicial review of immigration decisions can be divided into three categories depending on the date of commencement of proceedings or issuance of a final order.
If a person had a final order of deportation or exclusion entered before October 30, 1996, judicial review was governed by former INA § 106.
Deportation or exclusion cases which were commenced on or before October 30, 1996—but where no final deportation or exclusion order had yet been issued—are subject to the transition rules under IIRIRA. Judicial review of post-IIRIRA removal proceedings initiated on or after April 1, 1997 are governed by INA § 242 [8 U.S.C.A. § 1252] which provide limited judicial review of many immigration matters.
Except as provided in INA § 242(b) [8 U.S.C.A. § 1252(b)] (requirements for review of removal orders), judicial review of a final order of removal is governed by Chapter 158 of Title 28 of the United States Code, except that courts may not order taking of additional evidence under 28 U.S.C.A. § 2347(c).
However, there are matters not subject to judicial review as outlined in INA § 242(a)(2) [8 U.S.C.A. § 1252(a)(2)].
Generally, judicial review of an order of removal lies with the circuit courts of appeals
Under several provisions contained in IIRIRA, the United States Congress sought to simplify and expedite the removal of aliens, including either eliminating or severely limiting judicial review of immigration decisions as follows:
(1) elimination or limitation of judicial review under INA § 242 [8 U.S.C.A. § 1252]: this provision contains a variety of court stripping or limiting provisions;
(2) elimination of review regarding discretionary decisions relating to detention, or release, including the grant, revocation or denial of bond or parole;
(3) elimination of review of decisions of the Attorney General or his or her successor regarding voluntary departure;
(4) elimination of challenges against the United States or its agencies or officers under INA § 279 [8 U.S.C.A. § 1329];
(5) restriction on judicial review of certain legalization claims other than in the context of review of a final order of deportation or removal unless the person filed within the original deadline or was refused (“front-desked”) by the legacy INS at the time and
(6) restriction on review of the denial of the right to seek asylum because the applicant;
(a) could seek protection in a safe third country;
(b) was previously denied asylum;
(c) did not file the application within one year of entry; or
(d) is deemed to be a terrorist. Despite the restrictions created by IIRIRA precluding judicial review of a broad range of immigration related matters, federal courts still retain jurisdiction to review jurisdictional facts and determine the proper scope, if any, of its own jurisdiction.
Generally, petitioners must exhaust all administrative remedies prior to requesting review of a final order.
Additionally, petitioners must comply with general Article III requirements relating to subject matter jurisdiction, standing, ripeness, mootness and the political question doctrine.
These and the other bars to judicial review noted above must be addressed prior to reaching the merits of a case