Ogbudimkpa v. Ashcroft, 02-1181.

Citation342 F.3d 207
Decision Date22 August 2003
Docket NumberNo. 02-1181.,02-1181.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
PartiesChristopher OGBUDIMKPA, Appellant v. John ASHCROFT, Attorney General of the United States; Kenneth John Elwood, District Director, INS Philadelphia District.

Timothy C. Hester, Kevin C. Newsom (Argued), Covington & Burling, Washington, D.C., for Petitioner.

Kate L. Mershimer, Office of the United States Attorney, Harrisburg, PA, Ethan B. Kanter, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, Michael P. Lindemann, Assistant Director, Christopher C. Fuller (Argued), Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: SLOVITER, AMBRO, Circuit Judges, and TUCKER,* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

We decide whether a district court has jurisdiction to consider a habeas corpus petition that alleges violations of Article 3 of the United Nations Convention Against Torture ("CAT").1 Congress has implemented CAT2 by enacting the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA").3 Because generally we do not infer Congressional intent to repeal habeas jurisdiction, and because FARRA's jurisdictional provisions do not specifically foreclose habeas corpus jurisdiction under 28 U.S.C. § 2241, the general habeas statute, we hold that CAT claims are cognizable under § 2241. We therefore reverse the District Court's dismissal for lack of jurisdiction of Christopher Ogbudimkpa's habeas corpus petition and remand so that it may consider the merits of his petition.

I. Facts and Procedural History

Ogbudimkpa is a citizen of Nigeria who entered the United States in 1982 on a non-immigrant student visa. In 1985 an Immigration Judge ("IJ") ordered Ogbudimkpa to be deported for remaining longer than his visa permitted and for working without Government authorization, under Immigration and Nationality Act ("INA") § 241(a)(9), 8 U.S.C. § 1251(a)(9) (current version at 8 U.S.C. § 1227(a)(1)). The Immigration and Naturalization Service ("INS") did not immediately remove him. In 1994 Ogbudimkpa was convicted and sentenced on state drug charges and, upon his release from prison in 1996, paroled to INS custody.

In 1999 the Board of Immigration Appeals ("BIA") granted Ogbudimkpa's motion to reopen his removal proceedings so that he might seek protection under Article 3 of CAT, which provides that "[n]o State Party shall expel, return (`refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Ogbudimkpa testified that, if he were returned to Nigeria, he would be imprisoned, tortured, or possibly executed by "his extended family members, one of whom is a senator, past president of the Nigerian government, and another who holds the rank of major either in the police or the military." The IJ concluded that Ogbudimkpa had testified credibly, but had not demonstrated that it was more likely than not he would be tortured if returned to Nigeria. The BIA affirmed the IJ's decision.

Ogbudimkpa filed a pro se Motion for Emergency Stay of Removal in the United States District Court for the Middle District of Pennsylvania, arguing that the United States Attorney General had erred in not granting him relief from removal under Article 3 of CAT. The District Court treated this motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. In the first set of what became a game of forum ping pong, the Government moved to dismiss for lack of jurisdiction, arguing that the Circuit Court was the proper forum for Ogbudimkpa's CAT claims.4 Ogbudimkpa (continuing to act pro se) petitioned the District Court to transfer his case to our Court, and the Government consented. But upon transfer of the case to our Court, the Government again moved to dismiss for lack of jurisdiction, claiming the jurisdictional bar of § 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") applied to Ogbudimkpa because of his status as a criminal alien, even though the criminal conviction did not form the basis of the charges of deportation. This was exactly the opposite tack to the one taken by the Government in the District Court.5 Unaware of the "whipsawing" procedural posture of this case, we granted the Government's motion to dismiss in an unpublished (and of course non-precedential) judgment order.6 In doing so we noted the possibility that Ogbudimkpa might petition for a writ of habeas corpus.7

Back yet again in District Court, Ogbudimkpa (still acting pro se) filed a petition for habeas relief that essentially replicated the petition he had filed in November 2000. The Government moved to dismiss for lack of subject matter jurisdiction and the District Court granted that motion, concluding that it lacked jurisdiction to consider his petition.8 This appeal followed,9 an appeal in which Ogbudimkpa has been superbly represented by appointed counsel.10

II. Discussion
A. Background
1. The Convention Against Torture

The United Nations drafted CAT in order to "make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world." United Nations: Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. E/CN.4/1984/72, Preamble (1984). On December 10, 1984, the United Nations General Assembly adopted CAT by unanimous agreement. Committee on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. No. 101-30, at 2 (1990).

President Reagan signed CAT on April 18, 1988, id., with the following reservation: "The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary." United Nations Treaty Collection: Declarations and Reservations, http://www.unhchr.ch/html/menu3/b/treaty12_asp.htm. One month later, the President transmitted CAT to the Senate for approval, with nineteen proposed "reservations understandings, and declarations," including the "declaration that [CAT] is not self-executing," and the assurance that "[t]he recommended legislation necessary to implement [CAT] will be submitted to the Congress separately." S. Treaty Doc. No. 100-20, iii, vi (1988).11

The Senate adopted a resolution of advice and consent to ratification of CAT, subject to the declaration that it be deemed non-self-executing, on October 27, 1990. 136 Cong. Rec. 36,198 (1990). The instrument of ratification included the declaration that "the provisions of articles 1 through 16 of [CAT] are not self-executing." United Nations Treaty Collection: Declarations and Reservations, http://www.unhchr.ch/html/menu3/b/treaty12_asp.htm. On October 21, 1994, President Clinton deposited the instrument of ratification with the United Nations. Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478-01 (Feb. 19, 1999).

2. FARRA

To implement Article 3 of CAT, Congress passed FARRA in 1998. FARRA § 2242(a) provides that "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture." Section 2242(b) of FARRA requires "the heads of the appropriate agencies" to "prescribe regulations to implement the obligations of the United States under [CAT's] Article 3." Accordingly, the Department of Justice (of which the INS at that time was a division) promulgated regulations delineating the procedures for deciding CAT claims. Pursuant to 8 C.F.R. § 208.16(c)(2), if an alien can demonstrate that it is "more likely than not" that he or she would be tortured if removed to a particular country, the INS must grant him or her protection. Depending on the status of the alien, that protection may take the form either of permanent withholding of removal or of temporary deferral of removal. 8 C.F.R. § 208.16(c)(4). The latter protection exists only until changed conditions in the proposed country of removal make it no longer more likely than not that the alien will be tortured if returned. 8 C.F.R. § 208.17(b).

At issue in this case are the jurisdictional provisions of FARRA and whether they preclude district courts from exercising habeas jurisdiction over claims alleging violations of CAT. Section 2242(d) of FARRA contains a jurisdiction-limiting provision and a jurisdiction-consolidating provision. The jurisdiction-limiting provision denies federal courts the power to review the regulations promulgated under FARRA. Id. The jurisdiction-consolidating provision12 prescribes that CAT claims may be considered only as part of final orders of deportation reviewed pursuant to § 242 of the INA, 8 U.S.C. § 1252. Id. ("[N]othing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act.").

While on its face FARRA's zipper clause acts only to consolidate jurisdiction in one action in the court of appeals, its effect is also to limit the extent to which courts of appeal may exercise that jurisdiction. Section 2242(d) of FARRA provides that only CAT claims that arise in the context of final orders of removal may be reviewed by the courts of appeal. But FARRA is not the first federal enactment to affect courts' jurisdiction in...

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37 cases
  • Cadet v. Bulger, No. 03-14565.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 20, 2004
    ...that CAT claims may be raised in a § 2241 petition. See Singh v. Ashcroft, 351 F.3d 435, 441-42 (9th Cir.2003); Ogbudimkpa v. Ashcroft, 342 F.3d 207, 215-22 (3d Cir.2003); Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir.2003); Wang v. Ashcroft, 320 F.3d 130, 140-43 (2d Cir.2003). We n......
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    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 10, 2004
    ...to include issues of application of law to fact, where the facts are undisputed and not the subject of challenge. Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222 (3d Cir.2003).6 But if that marks the minimum review available under general habeas corpus, does it also mark the maximum review? Or, a......
  • Auguste v. Ridge
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 20, 2005
    ...upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary." See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 211 (3d Cir.2003); see also and Reservations (visited Nov. 24, 2004) (http:// untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapt......
  • Kamara v. Attorney General of U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 29, 2005
    ...see also Bakhtriger v. Elwood, 360 F.3d 414, 420 (3d Cir.2004); Patel v. Ashcroft, 294 F.3d 465, 468 (3d Cir.2002). We held in Ogbudimkpa, however, that a district court retains jurisdiction to consider claims alleging violations of the CAT raised in a habeas corpus petition. 342 F.3d at 22......
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1 books & journal articles
  • Normalizing Guantanamo.
    • United States
    • American Criminal Law Review Vol. 48 No. 4, September 2011
    • September 22, 2011
    ...Saint Fort v. Ashcroft, 329 F.3d 191, 193 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130, 141 (2d Cir. 2003); Ogbudimkpa v. Ashcroft, 342 F.3d 207, 209 (3d Cir. 2003); Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1007 (9th Cir. 2000). See generally Stephen I. Vladeck, Case Comment, Non-Self-......

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