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

36 Pages Posted: 6 Dec 2005

See all articles by Hiroshi Motomura

Hiroshi Motomura

University of California, Los Angeles - School of Law


The focus of this article is habeas corpus in immigration cases from 1996 to 2005, when it was a principal vehicle for federal court jurisdiction to review removal orders. Although the REAL ID Act of 2005 seemed to eliminate habeas review of removal orders in favor of petitions for review in the federal courts of appeals, the decade of experience with immigration habeas is not just a matter of historical interest. It holds important lessons for federal courts as they define their jurisdiction in immigration cases after the REAL ID Act.

This decade of immigration habeas is best analyzed in terms of four models of habeas corpus. Two are direct review models that view habeas as a layer of appeal from an immigration judge's removal order, as a surrogate for either the courts of appeals or the Board of Immigration Appeals. Two other models treat habeas as collateral review, analogizing either to habeas in criminal cases or to a pre-1996 immigration statute that allowed limited habeas review of deportation orders. This article develops and applies these four models to three key procedural issues in immigration habeas: preclusion; stays of removal; and remedies. The article also touches on the location and respondent for challenges to removal orders; the effect of a noncitizen's departure from the United States; the timing of review; and exhaustion of remedies.

The four models help define review of removal orders in the federal courts of appeals after the REAL ID Act, as well as any surviving habeas jurisdiction in the district courts. On both issues, the danger is that the collateral review models will be influential. In contrast to criminal cases, habeas review in immigration cases does not have the benefit of prior adjudication in trial and appellate courts. Also, BIA review of removal orders has drastically weakened in the past several years, depriving immigration judge decisions of meaningful agency review. With habeas as the only vehicle for court or agency review of many removal orders, by 2005 the BIA direct review model was emerging as the best compass for preserving habeas as a guarantee against unlawful detention. Courts applying the REAL ID should maintain this course. Moreover, Congress intended the REAL ID Act to maintain immigration habeas review as defined by the Supreme Court in INS v. St. Cyr (2001), which distinguished criminal habeas and endorsed a direct review model of immigration habeas.

Keywords: federal courts, immigration, habeas corpus

Suggested Citation

Motomura, Hiroshi, Immigration Law and Federal Court Jurisdiction Through the Lens of Habeas Corpus. Cornell Law Review, Vol. 91, January 2006, UNC Legal Studies Research Paper No. 05-26, Available at SSRN:

Hiroshi Motomura (Contact Author)

University of California, Los Angeles - School of Law ( email )

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