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].
Decisions regarding judicial review of removal orders are now subject to INA § 242 [8 U.S.C.A. § 1252].
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 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) 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.