516 F.3d 102 (2nd Cir. 2008), 05-2903, Ruiz-Martinez v. Mukasey

Docket Nº:05-2903-ag, 05-3662-ag, 06-3605-ag.
Citation:516 F.3d 102
Party Name:Jose Luis RUIZ-MARTINEZ, Petitioner, v. Michael B. MUKASEY, [1] as Attorney General of the United States, William Cleary, Field Director, Detention and Removal, Buffalo District, Immigration and Customs Enforcement, United States Department of Homeland Security, Respondents. Flynn Sean Williamson, Petitioner, v. Michael B. Mukasey,1 Attorney Genera
Case Date:February 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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516 F.3d 102 (2nd Cir. 2008)

Jose Luis RUIZ-MARTINEZ, Petitioner,

v.

Michael B. MUKASEY, 1 as Attorney General of the United States, William Cleary, Field Director, Detention and Removal, Buffalo District, Immigration and Customs Enforcement, United States Department of Homeland Security, Respondents.

Flynn Sean Williamson, Petitioner,

v.

Michael B. Mukasey,1 Attorney General of the United States, Alphanso Aguirre, Commissioner, U.S. Citizenship and Immigration Service, Mary Ann Gantner, New York District Director, Bureau of Citizenship and Immigration Service, Edward McElroy, New York Field Office Director, Bureau of Immigration and Customs Service, United States Department of Justice, Respondents,

Megan L. Brackney, Amicus-Curiae.

Elias Seoud, Petitioner,

v.

Board of Immigration Appeals, Respondent.

Nos. 05-2903-ag, 05-3662-ag, 06-3605-ag.

United States Court of Appeals, Second Circuit.

Feb. 14, 2008

Argued in Tandem: September 20, 2007

Motions to dismiss for lack of jurisdiction because of untimeliness in three separate cases heard in tandem for review of final orders of removal issued by the Board of Immigration Appeals, the Board (i) having denied, in 05-2903, Petitioner's motion to reopen alleging ineffective assistance of counsel and application for suspension of deportation; (ii) having reversed, in 05-3662, an Immigration Judge's grant of Petitioner's application for withholding of removal pursuant to the Convention Against Torture; and (iii) having dismissed, in 06-3605, Petitioner's appeal from an Immigration Judge's order of removal on the basis of ineligibility for deferral of removal under the Convention Against Torture and cancellation of removal due to his aggravated felony conviction, the first two cases having been docketed originally as habeas corpus petitions.

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Jose Luis Ruiz-Martinez, pro se (brief submitted by former counsel Mark T. Kenmore, Buffalo, NY).

Megan L. Brackney, Kostelanetz & Fink, LLP, New York, NY, Amicus-Curiae for Petitioner Jose Luis Ruiz-Martinez, Flynn Sean Williamson and Elias Seoud.

Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice (David J. Kline, Principal Deputy Director, of counsel), Washington, D.C., for Respondents in 05-2903-ag and 05-3662-ag.

Ransford B. McKenzie, Brooklyn, NY, for Petitioner Flynn Sean Williamson.

Bryan S. Beier, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice (David J. Kline, Principal Deputy Director, of counsel), Washington, D.C., for Respondent in 06-3605-ag.

Lee Gelernt, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, for Petitioners.

Before: MINER, CABRANES, Circuit Judges, and CROTTY, District Judge.2

MINER, Circuit Judge.

The question presented in the captioned cases, which were ordered to be heard in tandem by a different panel of this Court, requires us to decide whether a petition for review of an order of removal issued by the Board of Immigration Appeals ("BIA") provides an adequate and effective substitute for the writ of habeas corpus in immigration cases following the enactment of the REAL ID Act of 2005, Pub. L. No.

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109-13, § 106(a), 199 Stat. 231 (May 11, 2005) (the "Act" or "REAL ID Act"). The REAL ID Act, signed into law by President George W. Bush on May 11, 2005, changed the means for judicial review of an order of removal issued by the BIA by eliminating the availability of habeas corpus relief in the United States District Courts for aliens seeking to challenge orders of removal entered against them. The REAL ID Act provides that an alien seeking to obtain judicial review of an order of removal is required to file with the appropriate Court of Appeals a petition for review within the first 30 days after issuance of the order of removal. The petition for review is now "the sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5). Orders of removal were entered against each of the Petitioners in the captioned cases prior to the passage of the REAL ID Act. In all three of the captioned cases, the Petitioners failed to file a petition for review with this Court within 30 days after the BIA issued an order of removal.

Responding to the Government's motion to dismiss for lack of jurisdiction because of untimeliness, the Petitioners in each of these three cases claim that the REAL ID Act violates the Suspension Clause of the United States Constitution, see U.S. Const. art. I, §9, cl. 2; see also INS v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("A construction of [the Immigration and Nationality Act] that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions."), because the 30-day statute of limitations period to file a petition for review with the appropriate Court of Appeals undermines the requirement that there be an adequate and effective substitute for the writ of habeas corpus. The Petitioners argue that, at the moment the REAL ID Act was signed into law, the Petitioners' right to file a petition for habeas corpus to seek judicial review was suspended because 30 days had already elapsed since the orders of removal in each case. Alternatively, the Petitioners ask this Court to provide a reasonable time after the effective date of the REAL ID Act i.e., a grace period - whereby their petitions for review would be deemed timely despite having been filed beyond 30 days after the issuance of the order of removal in their cases. The motions to dismiss in all three cases are grounded on the Government's contention that this Court is without jurisdiction to hear the Petitioners' untimely challenges to the Board of Immigration Appeals's ("BIA") removal orders, given that the Petitioners each failed to file a petition for review within 30 days after the issuance of the order of removal. In April 2007, amicus counsel filed a brief on behalf of the Petitioners arguing that: (1) this Court should establish a grace period for petitions for review of final orders of removal that became final prior to the enactment of the REAL ID Act; (2) the REAL ID Act violates the Suspension Clause of the Constitution because it is not an adequate substitute for habeas corpus; and (3) this Court should apply equitable tolling to the 30-day period prescribed in § 1252(b)(1) to take jurisdiction over the petitions for review.

For the reasons that follow, we conclude that the Suspension Clause is not violated by the REAL ID Act but that a grace period of 30 days from the effective date of the Act should be afforded to those whose petitions were rendered untimely by the provisions of the Act. Following the enactment of the REAL ID Act and pursuant to 8 U.S.C. § 1252(b)(1), a petitioner must file a petition for review challenging a final order of removal within thirty days of the BIA's issuance of that order. We have

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previously held that this deadline is jurisdictional and not subject to equitable tolling. Malvoisin v. INS, 268 F.3d 74, 75-76 (2d Cir. 2001). We adhere to that holding, and we now hold that in a case where a final order of removal was issued by the BIA prior to the enactment of the REAL ID Act, a petition for review will be considered timely filed if filed within thirty days of May 11, 2005 - the date of the enactment of the REAL ID Act - or June 10, 2005.

BACKGROUND

I. Ruiz-Martinez, No. 05-2903-ag

By Order to Show Cause dated April 1, 1994, the former Immigration and Naturalization Service ("INS") charged Jose Luis Ruiz-Martinez ("Ruiz-Martinez"), a native and citizen of Mexico, with being subject to deportation from the United States and ordered him to show cause as to why he should not be deported because he had entered the United States without inspection, in violation of section 24(a)(1)(B) of the Immigration and Nationality Act ("Entry Without Inspection") (hereinafter "INA"). Ruiz-Martinez admitted, by written pleadings dated October 19, 1994, the allegations contained in the Order to Show Cause, and he submitted an application for suspension of deportation and an application for voluntary departure, pursuant to sections 244(a) and 244(e) of the INA, respectively. Represented by counsel Eric Copland ("Copland"), Ruiz-Martinez testified in support of his applications at his individual removal hearing in February 1995.

At the conclusion of the removal proceedings, the Immigration Judge ("IJ") denied Ruiz-Martinez's applications for relief and ordered him removed as charged. The IJ found that Ruiz-Martinez was statutorily ineligible for suspension of deportation because he failed to show that he was a person of good moral character, as he had "knowingly assisted his wife and child in entering the United States in violation of law," and because he did not show that deportation would cause him extreme hardship. Finally, the IJ denied Ruiz-Martinez's application for voluntary departure because he had assisted another alien in entering the United States illegally.

With the assistance of attorney Copland, Ruiz-Martinez timely filed a notice of appeal to the BIA and indicated his intention to file a brief in support of his appeal. In March 1998, the BIA issued a briefing schedule to attorney Copland, allowing him until April 8, 1998, to submit a brief. However, Ruiz-Martinez had retained new counsel, Alfonso F. Ramos ("Ramos"), who, by letter dated April 7, 1998, informed the BIA that he had been substituted as counsel for Ruiz-Martinez and requested an extension of time to file his brief. The record demonstrates that Ramos...

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