Kolkevich v. Attorney General of U.S.

• Decision Date: 06 September 2007
• Docket Number: No. 06-2624.,06-2624.
• Parties: Vladislav KOLKEVICH, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

501 F.3d 323

Vladislav KOLKEVICH, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-2624.

United States Court of Appeals, Third Circuit.

Argued July 11, 2007.

Filed September 6, 2007.

Steven A. Morley [

Argued

], Morley, Surin & Griffin, Philadelphia, PA, for Petitioner Vladislav Kolkevich.

Richard M. Bernstein [

Argued

], Office of Untied States Attorney, Philadelphia, PA, for Respondent Attorney General of the United States.

Before: RENDELL, AMBRO, and NYGAARD^*, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

At issue in this case are the rights of a criminal alien to challenge the final order of removal entered against him by the Attorney General, notwithstanding the fact that the passage of the REAL ID Act of 2005 cut off Petitioner's right to file a petition for habeas corpus relief. The Government argues that we are without jurisdiction to hear Petitioner's tardy challenge to the agency's removal order. Petitioner argues, however, that, were we to accept the Government's position, he would be without any opportunity for judicial review whatsoever and, therefore, that such an interpretation of REAL ID would constitute a Suspension Clause violation. Although we agree with Petitioner that the Government's interpretation of REAL ID would have constitutional ramifications, we nevertheless cannot accept his argument that he had an unlimited time in which to complain of the removal order. Therefore, we hold that Petitioner did not file for review in a timely fashion and, consequently, that we are without jurisdiction. We will accordingly dismiss the Petition.

I. Factual and Procedural History

Petitioner Vladislav Kolkevich is a twenty-five-year-old male native and citizen of Russia who arrived in the United States with his mother and father on March 11, 1994 at the age of thirteen. Kolkevich became a lawful permanent resident on May 3, 1995. Although both of his parents have since become United States citizens, Kolkevich has not achieved that status. On June 18, 2001, Kolkevich was convicted in the Philadelphia Court of Common Pleas of two counts of robbery, two counts of criminal conspiracy, one count of aggravated assault, and one count of receiving stolen property. He was then sentenced to a term of 4 ½ to 10 years in prison and remains incarcerated.

On May 23, 2002, the then-Immigration and Naturalization Service ("INS") issued Kolkevich a Notice to Appear, charging him, under Immigration and Nationality Act ("INA") §§ 237(a)(2)(A)(ii) and (iii), as removable for having been convicted of multiple crimes of moral turpitude and having been convicted of an aggravated felony. Kolkevich conceded removability on each ground, but requested deferral of removal under the Convention Against Torture ("CAT"), pursuant to 8 C.F.R. §§ 1208.16-18.

An Immigration Judge ("IJ") took testimony on this claim on December 18, 2003, and granted Kolkevich relief on February 26, 2004. The IJ's ruling was based almost entirely on her favorable view of the testimony given by Kolkevich's expert witness, Nickolai Butkevich, a scholar and country-watcher with knowledge of anti-Semitism in the contemporary former Soviet Union. Butkevich testified that police use torture "quite often" against those whom they choose to detain. Appx. at 142. He also stated that Kolkevich would be a likely candidate for arbitrary detention because of his status as a criminal deportee, a Jew, and a Chechen as well as his lack of a financial support system in the country. Butkevich opined that, because Kolkevich combined each of these four independently problematic traits, he was a target for corrupt police and, therefore, more likely than not to be tortured. Additionally, the IJ also relied on the State Department's Country Report on Russia, noting "numerous statements in the Report" reflecting the prevalence of arbitrary arrest, police corruption, torture, and discrimination against Chechens and Jews. Appx. at 53-55.

The Government appealed the IJ's decision, and on March 21, 2005, the Board of Immigration Appeals ("BIA") reversed and ordered Kolkevich removed to Russia. The BIA found, in part, that the IJ erred by relying so heavily on Butkevich's testimony since, in the BIA's view, Butkevich's expertise was in "the treatment of Jews in the former Soviet Union," rather than in matters such as police function and rule of law that were integral aspects of Kolkevich's claim. Appx. at 37. Additionally, the BIA found that evidence of the existence of anti-Semitic and anti-Chechen sentiment in Russia, in general, was insufficient to establish that Kolkevich, "in particular, will face torture at the direction of, or with the acquiescence of, the Russian government." Id. (emphasis added).

Because the BIA's decision both reversed the IJ and ordered Kolkevich removed to Russia, it was the Agency's final order and, therefore, the order from which Kolkevich could have brought an appeal. At this point, as will be explained in greater detail below, Kolkevich had only one vehicle by which to challenge the BIA's decision: a § 2241 habeas corpus petition filed in a United States district court, which could have been filed at any time, without limit, following issuance of the order of removal. However, this changed dramatically just 51 days after the BIA issued Kolkevich's final order of removal. On May 11, 2005, President Bush signed into law the REAL ID Act of 2005 (RIDA), Pub.L. No. 109-13, Div. B, 119 Stat. 231 (codified as amended at 8 U.S.C. § 1252). Section 106(a) of RIDA eliminated the availability of habeas corpus relief in the district courts for aliens seeking to challenge orders of removal. Instead, Congress substituted petitions for review, filed with the courts of appeals within the first 30 days after issuance of an order of removal, as the sole vehicle whereby aliens could challenge their removal.

Under these new rules, Kolkevich's 30-day window opened on March 21, 2005, but had already closed by the time RIDA was enacted on May 11, 2005, leaving him without a way to timely challenge the BIA's order of removal. Instead, on April 25, 2006 — more than a year after his order of removal (but not quite a year following the RIDA's effective date) — Kolkevich filed a § 2241 habeas petition in the United States District Court for the Eastern District of Pennsylvania. RIDA's jurisdictional provisions prevented the District Court from hearing this petition and, therefore, on May 4, 2006, the District Court transferred Kolkevich's petition to this Court.

The questions before us now are whether Kolkevich may bring his petition at all and, if so, how much time he should be afforded.¹ We conclude that while Kolkevich could have filed an appeal from the BIA's decision, he did not do so in a reasonable time and, therefore, we need not reach the merits of his appeal.

II. History of Aliens' Challenges to Final Orders of Removal

The issues raised in this case, as well as the parties' arguments, are inseparable from the history of the laws governing how aliens have been able to challenge the final orders of removal² entered against them.

"Before and after the enactment in 1875 of the first statute regulating immigration [the habeas corpus provision located in 28 U.S.C. § 2241] was regularly invoked on behalf of noncitizens, particularly in the immigration context." INS v. St. Cyr, 533 U.S. 289, 305, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Indeed, "[u]ntil the enactment of the 1952 Immigration and Nationality Act, the sole means by which an alien could test the legality of his or her deportation order was by bringing a habeas corpus action in district court." Id. at 306, 121 S.Ct. 2271; see also Zadvydas v. Davis, 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ("Before 1952, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings."). However, habeas was only available to those aliens who had already been detained in anticipation of deportation. But see infra note 6. Needless to say, the need for detention as a precondition to an alien's challenge to his or her deportation made it all the more difficult for an alien to bring such a challenge.

This obstacle fell after the enactment of the INA in 1952, when the courts of appeals divided over whether, under that Act, aliens could bring pre-detention actions for declaratory and injunctive relief under § 10 of the Administrative Procedure Act ("APA"). In Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955), the Supreme Court settled the circuit split by deciding that APA § 10 actions were available to aliens seeking to challenge their removal. Nevertheless, nothing in the INA or the APA mentioned habeas or otherwise displaced it. The Supreme Court's ruling in Pedreiro, therefore left the habeas pathway intact and only expanded the options available to aliens.

"Congress feared, however, that the availability of judicial review created by Pedreiro ... would be abused to extend review beyond reasonable grounds." Hiroshi Motomura, Immigration Law and Federal Court Jurisdiction Through the Lens of Habeas Corpus, 91 CORNELL L.REV. 459, 462 (2007). For that reason, Congress amended the INA in 1961 to establish the petition for review process set forth in the Hobbs Act, which governs judicial review for determinations from agencies like the Federal Communications Commission, as the "sole and exclusive procedure" by which aliens could review their deportation orders. See id. at 462-63 (quoting Act of September 26, 1961, Pub L. No. 87-301, § 5, 75 Stat. 650, 651 (formerly codified at 8 U.S.C. § 1105a(a)) (repealed 1996)); see also Foti v. INS, 375 U.S. 217, 217-20, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); St. Cyr, 533 U.S. at 309, 121 S.Ct. 2271.

In doing so, however, Congress explicitly created an exception for habeas review in § 106(a)(9) —...