Cornell Law Review Volume 91 Issue 2

Immigration Law and Federal Court Jurisdiction Through the Lens of Habeas Corpus

The role of habeas corpus in immigration law underwent two major transformations from 1996 to 2005.  In 1996, Congress changed the process whereby a noncitizen could appeal an order that he be removed from the United States.  These 1996 statutory amendments, as interpreted by the federal courts, including the Supreme Court in its 2001 decision in INS v. St. Cyr, combined to shape habeas corpus into a principal vehicle for federal court jurisdiction to review immigration removal orders.

Then, in May 2005, the REAL ID Act became law as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief.  The new law seemed to eliminate habeas corpus review of final removal orders by providing that petitions for review in the federal courts of appeals be the exclusive path into court.  As a result, the REAL ID Act appeared simply to return petitions for review to the role they had played between 1961 and 1996, when a noncitizen could principally obtain judicial review of a deportation order by filing a petition in the federal courts of appeals.  On closer inspection, however, it is evident that the REAL ID Act could not simply have returned petitions for review to their pre-1996 status, for in the interim much had changed in the administrative decisionmaking procedure that is itself the focus of court review.


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