Habeas Corpus Relief Available for Aliens Ordered Deported

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) as well as the effect of the Antiterrorism and Effective Death Penalty Act of 1996. (“AEDPA”) have provisions which restrict the ability of certain immigrants to appeal decisions of the Immigration and Naturalization service.

The AEDPA in particular acts to deny discretionary relief for persons convicted of a number of drug offenses specified under the Immigration and Naturalization Act. Likewise the IIRIRA denies an appeal to persons convicted of a criminal offense listed in several sections of the Immigration and Naturalization Act.

However, recent court rulings in the Third Circuit of the Federal District Court have limited the effect of IIRIRA and AEDPA, preserving an immigrant’s right to appeal a final deportation order to the Federal District Court.

The Federal Appeals court of the third circuit has held in two recent cases, Sandoval v. Reno, 166 F.3d 225, and Desousa v. Reno, 1999 WL 643171 (3rd Cir. Pa.) that where deportation proceedings were begun prior to April 1, 1997, the effective date of IIRIRA, the court still has jurisdiction to hear cases concerning final deportation order. These courts found that the laws as enacted were not specifically worded to eliminate the availability of a writ of habeas corpus action. The court in Sandoval v. Reno, and Desousa v. Reno uphold the ability of an immigrant to seek jurisdiction under 28 USC §2241 in order to review challenges to deportation orders that are based on constitutional and statutory claims. A Writ of Habeas Corpus filed with the Federal District Court is the last avenue of appeal from a Deportation orders rising from deportation proceedings of the Immigration Court.

It should be noted that this is positive and very recent case law concerning fairly recent and broad changes in the law. These cases and the issues raised are still subject to further developments in an unsettled area of the law. Please continue to read future columns for further developments