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Summary:
Aliens may be removed from the United States for a variety of reasons, such as entering into the country unlawfully, overstaying a visa, or committing a crime. Prior to removal, however, aliens usually have access to a removal hearing or some other form of adjudication that determines whether an alien is subject to removal. Although judicial review by a federal court of appeals of a removal order is generally available, Congress has denied the federal courts jurisdiction to review many types of removals, such as expedited removal orders, crime-related removals, discretionary determinations, and matters involving prosecutorial discretion. Jurisdictional issues related to removal are further complicated because of the constitutional requirement that some adequate substitute for habeas corpus be available for all removal orders. In order to satisfy this requirement, Congress specifically preserved the jurisdiction of the courts of appeals to review constitutional claims and questions of law for all removals, even those arising from an area where judicial review is generally barred. This report shall attempt to wend a way through the jurisdictional thicket created by the Immigration and Nationality Act (INA) by focusing on the procedural mechanisms used to initiate judicial review and the reach of an Article III court's jurisdiction to review a removal order. Discussion concerning the procedures underlying removal hearings and administrative review is limited to their relation to judicial review and will not be expatiated.
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