Friday, March 7, 2014
Imagine this: You're removed from the United States by expedited removal. The CBP decides you're inadmissible and they deport you on the spot. That comes with a five year ban and in some cases, a permanent ban. As you're leaving their facility, one of the officers says not to worry, you can get waivers. He hands you the forms and you go back across the border to Canada or Mexico.
What now? Do you file for the I-212 and I-192 waivers immediately or do you wait a year or two so you can show to the CBP's Admissibility Review Office that you've mended your ways and enough time has passed to think about letting you back in.
Or do you file a petition for review in federal court. You only have thirty days to do so.
If you miss that window, you're out of luck. That rule is jurisdictional and mandatory, decided in Stone v. INS (1995). The justices took on Stone because there was a conflict between the circuits about whether the clock stops while a petitioner pursued review of his deportation to the Board of Immigration Appeal before filing a petition for review with a circuit court. The justices decided that the INA of 1990 had been expressly overhauled to combat dilitary tactics by deportees. Most interesting in this decision, however, is the dissent of Justice Breyer. It merits close reading because Breyer argues that the filing deadline for a petition for review is a claims processing rule - intended to and thus should be open to equitable tolling. Breyer argues that the filing deadline for a petition for review is a claims processing rule and thus should be open to equitable tolling. More on that in a minute.
In 1996, Congress enacted the IIRIRA, a nasty piece of work that included the expedited removal apparatus, expressly designed to quickly rid the United States of convicted felon aliens and habitual immigration violators. The expedited removal statute allows only three acceptable challenges - a) are you an alien; b) was the notice of removal actually issued and c) are you a permanent resident, a refugee or have you been granted asylum? See 1252 (e)(2). Any challenge to an expedited removal had to be filed in district court as a habeas petition.
But even that option was scuttled the Real ID Act of 2005. Congress decided that a challenge to any final order of removal, be it a proceeding under INA 240 (a full deportation hearing) or INA 235 (an expedited removal), could only be heard in an appeals court. Stone's filing deadline of 90 days was whittled down to 30 days.
Interestingly, in De Ping Wang v. DHS (2007), the Second Circuit muses on that jurisdictional bar vis-a-vis habeas petitions.
We are mindful "that Congress, in enacting the REAL ID Act, sought to avoid the constitutional concerns outlined by the Supreme Court in [INS v.] St. Cyr, which stated that as a result of the Suspension Clause, `some judicial intervention indeportation cases is unquestionably required by the Constitution.'" Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 326 (2d Cir.2006) (quoting INS v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)) (internal footnote omitted).
It is possible that in some future case, the particular circumstances that prevented a petitioner from seeking review within the 30-day time limit of § 1252(b)(1) would require us to reexamine whether that limit ought to be treated as jurisdictional now that the petition for review is the exclusive means of obtaining "judicial intervention in deportation cases.
Does RIDA violate the Suspension Clause and thus injure those with legitimate habeas challenges to an expedited removal? It remains to be seen if any of the circuits will eventually try to grant equitable tolling to a petitioner and waive the 30 day filing deadline. Or perhaps the Supreme Court, as evidenced in their recent decision in Henderson v. Shinseki (2011), is getting closer and closer to overturning their own precedent about jurisdictional rules in civil immigration litigation.