Summary of Research for World Organization for Human Rights (related to Guantanamo Bay habeas challenge)
To: Morton Sklar
From: Ying Chi, Rebecca Bers, Kristin Connor, Jennie Kim, Charles Wait
Date: November 16, 2005
Re: Summary of research to date
Contents
I. Jurisdiction theories
II. Substantive theories
III. Legal claims
IV. Relief requested
V. Evidence of rendition and torture
Appendices A, B, C, D, E
I. Theories pertaining to jurisdiction
We have not been successful at finding immigration and asylum cases in which courts have retained jurisdiction after the transfer of an individual abroad. However, we attempt to make three arguments pertaining to jurisdiction. The first argument is that transfers abroad would most likely destroy jurisdiction. This is an argument that is essential to getting the injunction. The second and third sections argue that even if the detainees were transferred abroad, the court should retain jurisdiction for two reasons: (1) the U.S. maintains constructive custody; (2) the U.S. is trying to avoid judicial review.
Courts should enjoin transfers abroad because of the certain irreparable harm that the transfers would destroy jurisdiction.
There is plenty of support for the argument that the court would not retain jurisdiction (see Appendix Z). Jurisdiction over a Habeas claim requires jurisdiction over the custodian.[1] “The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.”[2] The only way to find habeas jurisdiction in the event of a transfer abroad is if the detainee sustains the burden of proving that the U.S. government in fact is the custodian. Given the lack of transparency surrounding the transfers, and the fact that the government will adamantly disclaim any continuing involvement in the custody of the detainees, there will not be enough evidence to find the U.S. as the custodian to fulfill the jurisdictional requirement.
For cases supporting this argument, see summary in Appendix A.
Courts should retain jurisdiction, because jurisdiction does not have to follow physical custody, only constructive custody.
Due to courts’ broad definition of the “in custody” requirement—namely that custody can be physical, constructive, or merely extant at the time the petition was filed—and narrow interpretation of “mootness,” it is far from certain that the court would lose habeas jurisdiction if the detainee was transferred abroad under a program of rendition.
So long as courts recognize the existence of a respondent’s constructive custody over a petitioner, or actual physical custody, habeas jurisdiction will be retained. . In Abu Ali the court recognized that the Supreme Court in general has given the custody requirement for purposes of habeas corpus a liberal construction in that petitioner need not be in actual physical control of the respondent; the mere fact that respondent was “responsible for significant restraints on the petitioner’s liberty” was sufficient to meet the “in custody” requirement.[3] This argument, however, may be significantly hampered by Rumsfeld v. Padilla, in which the Supreme Court seemed to rule that the “immediate custodian rule” applied in all cases in which the petitioner challenges his “present physical confinement.”[4] The Court overruled the 2nd Circuit’s holding that “the proper respondent is the person exercising the "legal reality of control" over the petitioner.”[5] The Court distinguished the cases from which the 2nd Circuit extracted the principle that the custody depends on whether the entity that is physically detaining the petitioner can be considered the agent of the respondent.[6] Rumsfeld v. Padilla therefore seems to limit, if not overrule, the constructive custody principle.
However, even if petitioner cannot meet the custody requirement, it is still possible to retain jurisdiction. When respondent has neither constructive nor physical custody because the petitioner has been deported, the Supreme Court has held that for a court to exercise habeas jurisdiction, the petitioner must demonstrate that (1) he was in custody at the time the petition was filed and (2) the petitioner’s subsequent release from custody has not rendered the petition moot.[7] In other words, with regard to the latter requirement, a petitioner must show that he continues to present a case or controversy under Article III, section II of the Constitution. A petitioner presents an Article III controversy when he demonstrates “a collateral consequence,” namely a “concrete and continuing injury.”[8] In other words, a petitioner “must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.”[9]
For a full memo that argues in favor of constructive custody, and draws upon deportation cases to illustrate how jurisdiction can be retained absent custody, see Appendix B.
Courts should retain habeas jurisdiction if the U.S. government is trying to avoid judicial scrutiny by removing the detainee from the territorial jurisdiction of U.S. courts.
In Kurnaz v. Bush, the D.C. Circuit court stated that “federal courts have jurisdiction to determine the legality of the ongoing detention of petitions held at Guantanamo Bay,… the Court must also have the authority to preserve this jurisdiction if it can be shown that respondents are acting to circumvent it” through a stay of deportation pursuant to the All Writs Act.[10] This principle also finds support in FRAP 23. According to Federal Appellate Rule 23, pending review of a decision in a commenced habeas corpus proceeding for the release of a federal prisoner, “the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule.” Fed. R. App. P. 23(a). If a custodian “shows the need for a transfer,” it can be authorized by the court, justice, or judge making the habeas petition decision. Id. “The purpose of Rule 23(a) is to prevent officials from frustrating an inmate's efforts to obtain habeas relief by physically removing him from the territorial jurisdiction of the court in which the petition is pending.”[11] Typically, in cases in which a prisoner raised Rule 23, the original court has retained jurisdiction whether or not the transfer was ultimately approved.[12]
However, Rule 23 is not very strong support for our argument because even under ordinary circumstances the standard of review is deferential to the Attorney General’s determination of the need for the transfer.[13] The D.C. Circuit held in O.K. v. Bush that Rule 23 was not intended by Congress “to block the movement of detainees captured in the course of ongoing military hostilities.”[14] Thus, the government would argue that the court should not retain jurisdiction under because it would effectively “block the movement of detainees captured in the course of ongoing military hostilities.”
For a full summary of our research on the All Writs Act and FRAP 23, see Appendices C and D.
II. Theories pertaining to substantive rights
Substantively, U.S. constitutional standards of due process apply abroad if the U.S. government is acting in a joint venture with another government, or if that government’s actions shock the conscience and the U.S. was complicit in them.
The joint venture and shock the conscience theories have been applied to Fourth Amendment and exclusionary rule in relation to searches
These theories should extend to Fifth Amendment guarantee of due process
Indefinite detention without trial is impermissible punishment in violation of the Fifth Amendment. In Rodriguez-Fernandez v Wilkinson, the 10th Circuit court held that the U.S. could not resort to the “euphemistic fiction” that the petitioner was being indefinitely “excluded” (presumably because his home country, Cuba, would not accept his return) to justify his indefinite physical confinement.[15] Similarly, we would argue that if the U.S. transfers detainees into detention in their home countries, “repatriation” would be just a “euphemistic fiction” for indefinite detention without due process.
III. Legal Claims
Habeas and Rule 65 Injunction: See NYU Memo dated Oct. 19, 2005
The All Writs Act Permits Extraordinary Relief to Preserve Jurisdiction over Habeas Corpus Petitions. The All Writs Act states that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”[16] The All Writs Act empowers federal courts of appeal to stay orders of deportation in order to safeguard their appellate jurisdiction in extraordinary cases.[17] Since the extraordinary relief four factor test is similar to the four factor test considered in recent Guantanamo detainees’ injunction cases, it is likely that a § 1651(a) claim will encounter the same obstacles.[18] While the harm facing detainees as opposed to aliens in deportation cases may be greater, so is the potential harm to the government. Decisions may turn on whether courts believe that the petitioner is likely to succeed on the merits of his habeas claim.[19]
Federal Rule of Appellate Procedure 23: Currently, the D.C. Circuit does not recognize Rule 23 as a basis for enjoining the transfer of detainees. The D.C. Circuit held that Rule 23 was not intended by Congress “to block the movement of detainees captured in the course of ongoing military hostilities.”[20] The court was reluctant to “construe a statute to interfere with the province of the Executive over military affairs in the absence of a clear manifestation of Congressional intent to do so.”[21] Should another court decide differently or Congress make clear its intentions for Rule 23(a) to apply to military detainees, the discussion below of the application of Rule 23(a) to federal prisoners may be useful.
Convention against Torture: Forthcoming
IV. Relief Requested in Petition
Asylum seekers or deportees (and possibly extraditees) are entitled to hearings per the Convention Against Torture to prevent their removal to a country that practices torture
Refugees, asylees, and deportees may obtain a hearing on their Convention Against Torture claims under the procedures adopted by the DOJ in sections 208.16 to 208.18 of the Code of Federal Regulations. These procedures allow a refugee, asylee, or deportee to apply for withholding or deferral of their removal to a country that practices torture. In the case of extraditions, the Secretary is required to consider information put forward by the extraditable person regarding the State to which the person will be sent. Although the Secretary has discretion to decide on extradition, and the Secretary’s decision is not subject to judicial review, it may be possible to challenge the Secretary’s decision in a habeas petition.
For the full memo on CAT hearings, see Appendix E.
V. for rendition and torture
Forthcoming. (So far we have not found much information beyond that which has been reported in major publications. That is, we have few details on the agreements the U.S. has conclude/is supposedly preparing to sign with destination countries.)
APPENDIX A
Will the court with original jurisdiction over the habeas petition was filed retain jurisdiction if the detainee is transferred?
By Rebecca Bers
Due to the custody requirement, if a detainee is transferred abroad, the court with original jurisdiction over the petition will probably not be able to retain jurisdiction. Jurisdiction over a habeas claim requires jurisdiction over the custodian. Braden v. Kentucky, 410 U.S. 484 (1972). The court will probably not consider a prisoner in custody of the United States after they have been transferred to another country, especially since the government is unlikely to admit any connection to the prisoners once they have left Guantanamo. Any evidence to the contrary would be controversial and hard to sustain in court.
Background:
In Padilla v. Rumsfeld, F.3d 695, 708-709 (2d Cir. 2003), the court outlines the reasoning for habeas jurisdiction in Ex Parte Endo, 323 U.S. 283 (1944) and its progeny Ahrens v. Clark, 335 U.S. 188 (1948), Strait v. Laird, 406 U.S. 341 (1972), and Ex Parte Braden, 410 U.S. 484 (1972). From this reasoning, the court will have jurisdiction over the Habeas petitions as long as the detainees remain under the control of the Secretary of State.
However, the court cites the broad construction of custodian in Strait, saying that “the appropriate focus was whether the respondent, through his agent, was responsible for Strait's detention.” Padilla v. Rumsfeld, 352 F.3d 695, 706 (2d Cir. 2003). An argument could be made that the government is responsible for the detention, even after they have been transferred to another country.
I have not found any other cases regarding retention of jurisdiction in asylum or immigration cases. However, in the Padilla opinion, the court seems to endorse the case law that lays out custodianship as dispositive.
Endo and Progeny:
Ex Parte Mitsuye Endo, 323 U.S. 283 (1944)
Facts: Mitsuye Endo was an American of Japanese ancestry detained in Northern California during World War II. The detention was purportedly under executive order. She filed a Habeas Corpus claim in Northern California. She was transferred to Utah during the appeals process.
Legal question: (1) Whether she was unlawfully detained and (2) Whether there was still jurisdiction over the Habeas petition Endo had filed in the Northern District of California in regards to her detention in internment camps after she had been transferred to an internment camp in Utah.
Holding: (1) Her detention was unwarranted; she was unconditionally released. (2) Because the writ is against the custodian, not the person in custody, the court had jurisdiction over the custodian in California.
Reasoning:
ü The court “must assume that the chief executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a wartime measure we must assume that heir purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of the war.” 323 U.S. at 300
ü The legislation giving power to wartime authorities was silent on the issue of detention. 323 U.S. at 301. “Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character” 323 U.S. at 302.
ü There are some cases which limit the jurisdiction of the court to the territory in which the prisoner is detained. However, citing Judge Cooley In the Matter of Samuel W. Jackson, 15 Mich. 417, 439-440 says: “The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined but his jailer.
Ahrens v. Clark, 335 U.S. 188 (1948)
Facts: 120 Germans were held at Ellis Island for deportation to Germany during World War II. The orders for detention were made under the presidential proclamation. The Habeas writs were issued after hostilities with Germany ceased.
Legal Question: Whether the person filing habeas corpus must be physically within the territorial jurisdiction of the court.
Holding: A Habeas Petition requires physical presence of the petitioner within the jurisdiction.
Reasoning:
ü “It is not sufficient in our view that the jailer or custodian alone be found in the jurisdiction.” 335 U.S. at 190.
ü Policy reasoning: “The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose.” 335 U.S. at 190
ü History of statute: language of “within their respective jurisdictions” was added to allay a fear that eg. Fla. Could exercise jurisdiction over prisoners convicted and sentenced in another state. 335 U.S. 191-92
ü Holds that Ex parte Endo is not in opposition to physical presence because she was present within the jurisdiction when she filed the habeas petition. 335 U.S. 193.
ü Dissent points to the removal of personal liberty implicated by this decision, bringing up the hypothetical, “if the place of detention lies wholly outside the territorial limits of any federal jurisdiction, although person or persons exercising restraint are clearly within reach of such authority, is there to be no remedy, even though it is American citizens who are wrongfully deprived of their liberty.” 335 U.S. 195.
Braden v. Kentucky, 410 U.S. 484 (1972)
Facts: Ahrens was imprisoned in Alabama and filed a Habeas petition against the district court of Kentucky which had filed a detainer with Alabama, claiming denial of a speedy trial.
Legal Question: (1) Could the “prematurity doctrine” still bar an action by the petitioner, (2) Did the exhaustion doctrine bar petition, (3) was there jurisdiction?
Holding: (1) The prematurity doctrine had been overturned; (2) the exhaustion doctrine does not bar action in this case, (3) Jurisdiction over a Habeas writ only requires jurisdiction over the custodian, not the prisoner; This overturns the Ahrens holding.
Reasoning:
ü Petitioner is in “custody” within the meaning of the statute. 410 U.S. at 488.
ü Petitioner exhausted all available state remedies prior to the action. 410 U.S. at 489. And the “fundamental interest underlying the exhausting doctrine have been fully satisfied in petitioner’s situation” Id. at 491.
ü “The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.” 410 U.S. at 494-95, citing Wales v. Whitney, 114 U.S. 564 (1885).
ü Also cites Endo and Rutledge dissent in Ahrens. Essentially rejects Ahrens reasoning and holding.
ü “Congress explicitly recognized the advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy” 410 U.S. at 497.
APPENDIX B
Retention of Habeas Jurisdiction Despite Transfers Abroad
By Jennie Kim
I. Introduction
Irreparable harm comprises the most significant element of the four-part test used by courts for issuing injunctions, as irreparable injury and the inadequacy of legal remedies have always been the basis for injunctive relief in the federal courts. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61 (1975); Sampson v. Murray, 415 U.S. 61, 88 (1974); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-507 (1959); Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. Loss of habeas jurisdiction therefore would allow a petitioner to argue successfully that his deportation should be enjoined on the grounds that lack of habeas jurisdiction would deprive him of adequate legal remedies and inflict on him irreparable harm. Jurisdiction over habeas claims is governed by 28 U.S.C.S. § 2241, which lays out the conditions under which a writ of habeas corpus may be granted. According to Section 2241(a), habeas claims may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. 28 U.S.C.S. § 2241(a) (2005). Furthermore, Section 2241(c) states that a writ of habeas corpus shall not extend to a prisoner unless (1) he is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or (2) he is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) he is in custody in violation of the Constitution or laws or treaties of the United States; or (4) he, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or (5) it is necessary to bring him into court to testify or for trial. 28 U.S.C.S. § 2241(c) (2005).
In order to maintain a habeas corpus action, a petitioner must be “in custody.” Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 47 (2004) (quoting Steinberg v. Police Court of Albany, N.Y., 610 F.2d 449, 453 (6th Cir. 1979)). The “custody must be the result of the respondent’s action from which [a petitioner] seeks habeas corpus relief. Id. In Abu Ali the court recognized that the Supreme Court in general has given the custody requirement for purposes of habeas corpus a liberal construction in that petitioner need not be in actual physical control of the respondent; the mere fact that respondent was “responsible for significant restraints on the petitioner’s liberty” was sufficient to meet the “in custody” requirement. Id. at 48 (citing Hensley v. Mun. Court, 411 U.S. 345, 351, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973)). Thus, as long as courts recognize the existence of a respondent’s constructive custody over a petitioner, or actual physical custody, habeas jurisdiction will be retained.
II. Effect on Habeas Jurisdiction of Failure to Prove Custody after Deportation
A. “In Custody” and “Mootness”
If petitioner cannot meet the custody requirement, as in the case of deported petitioners over which the United States no longer will exercise control, the courts have different requirements for establishing habeas jurisdiction. When respondent has neither constructive nor physical custody over a petitioner due to the deportation, the Supreme Court has held that for a court to exercise habeas jurisdiction, the petitioner must demonstrate that (1) he was in custody at the time the petition was filed and (2) the petitioner’s subsequent release from custody has not rendered the petition moot. Spencer v. Kemna, 523 U.S. 1, 7, 140 L. Ed. 2d 43, 118 S. T. 978 (1998). In other words, with regard to the latter requirement, a petitioner must show that he continues to present a case or controversy under Article III, section II of the Constitution. A petitioner presents an Article III controversy when he demonstrates “a collateral consequence,” namely a “concrete and continuing injury.” Id. In other words, a petitioner “must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 R.S. 472, 477, 108 L. Ed. 2d 500, 110 S. Ct. 1249 (1990).
In Zalawadia v. Ashcroft, 371 F.3d 292 (2004), appellant, a native and citizen of India, was deported to India while his habeas petition to the District Court for the Western District of Louisiana was pending. As a threshold matter, the United States Court of Appeals for the Fifth Circuit held that the district court had habeas jurisdiction over the case despite appellant’s subsequent deportation because the petition was filed when he was in custody and was not moot, as appellant continued to face a collateral legal consequence of the deportation order. Zalwadia v. Ashcroft, 371, F.3d 292 (2004). The court recognized that the Supreme Court “has made it clear that the ‘in custody’ determination is made at the time the habeas petitions is filed.” Id. at 297 (citing Spencer at 7; Carafas v. La Vallee, 391 U.S. 234, 237-38, 20 L. Ed. 2d 554, 88 S. Ct. 1556 (1968)). The court stated that it has previously held that this rule applies to petitioners who have been deported in the same way that it applies to any other habeas petitioner no longer in custody. Zalawadia. at 7.
In addition, petitioner proved that his petition was not rendered moot by the deportation. The court held that the penalty resulting from petitioner’s deportation constituted a collateral consequence, id. at 14, as the deportation barred him from seeking reentry into the United States for a period of five years. Id. Other circuits have reached similar conclusions, holding that the bar on readmission of a removed alien is a legally cognizable collateral consequence that preserves a live controversy after deportation of the petitioner. Id. (citing Leitao v. Reno, 311 F.3d 453, 455 (1st Cir. 2002); Chong v. District Director, INS, 264 F.3d 378, 385; Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002); Zegarra-Gomez v. INS, 314, 428 F.3d 1124, 1127 (9th Cir. 2003)). Similarly, in Max-George v. Reno, 205 F.3d 194 (2000), the petitioner was deported during the pendency of his habeas petition, and although the government admitted that the petitioner was in custody when the petition was filed, it argued that his subsequent deportation rendered the petition moot. The court rejected that argument though, holding that the statutory ten-year waiting period before the petitioner was eligible for reentry comprised a concrete collateral consequence of his deportation, and the petition therefore was not moot. Max-George v. Reno, 205, F.3d 194, 196 (2000).
Outside of the deportation context, Spencer v. Kemna, 523 U.S. 1 (1998), presents a circumstance in which a court has found petitioner’s case to be rendered moot. In Spencer, the Court held that the expiration of petitioner’s sentence caused the petition to be moot because it no longer presented an Article III case or controversy. Spencer v. Kemna, 523 U.S. 1 (1998). Although preceding courts had presumed a concrete collateral consequence arising from convictions, Sibron v. New York, 392 U.S. 40, 55-56, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), the court in Spencer refused to adhere to this presumption in the area of parole revocation and required a showing of concrete, imminent collateral consequences instead of mere hypothetical ones. Spencer at 12; see also Lane v. Williams, 455 U.S. 624, 71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982). It was not enough that petitioner’s parole revocation would enable the parole board to deny respondent’s parole in the future or that the revocation could be used to his detriment in future parole or any court proceedings, for this consequence was merely hypothetical and possible, not concrete.
B. Statutory Interpretation
Attempts have also been made to allege loss of habeas jurisdiction on statutory grounds. For example, in INS v. St. Cyr, 533 U.S. 289 (2005) the INS argued that statutory amendments to the federal immigration statutes, namely the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), removed the Attorney General’s broad discretion to waive deportation of resident aliens under section 212(c) of the Immigration and Nationality Act of 1952. Section 401 of AEDPA identified a broad set of offenses for which convictions would preclude waiver of deportation. Furthermore, IIRIRA excluded from the class of resident aliens for whom the Attorney General may waive deportation anyone “convicted of an aggravated felony.” 8 U.S.C. § 1229b(a)(3) (1994 ed. Supp. V).
Respondent St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. His removal proceedings were commenced after AEDPA’s and IIRIRA’s effective dates. The INS claimed that sections of the 1996 statutes stripped the courts of jurisdiction to decide the question of law presented by respondent’s habeas corpus application. The Court held that for the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction. INS v. St. Cyr., 533 U.S. 289, 298 (2001). The Court stated that implications from statutory text or legislative history are insufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal. Id. at 361. When a statutory interpretation invokes the outer limits of Congress’s power, there must be a clear indication that Congress intended that result. Id. at 299; see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1998). In addition, if an otherwise acceptable construction would raise serious constitutional problems, and where an alternative interpretation of the statute is “fairly possible,” courts are obligated to construe the statute to avoid such problems. St. Cyr at 300.
The Court held that construing the amendments to preclude court review of a pure question of law would give rise to substantial constitutional questions and that none of the amendments expressed a clear and unambiguous statement of Congress’s intent to bar habeas petitions. Id. at 300, 314. The Constitution’s Suspension Clause protects the privilege of the habeas corpus writ and therefore unquestionable requires some judicial intervention in deportation cases. Heikkila v. Barber, 345 U.S. 229, 235, 97 L. Ed. 972, 73 S. Ct. 603 (1953). Furthermore, none of the amendments even mentions 28 U.S.C.S. § 2241, which provides the standards for habeas jurisdiction. Although the IIRIRA provisions focus on “judicial review” and “jurisdiction to review,” “judicial review” and “habeas corpus” have distinct meanings in the immigration setting, for habeas courts have a narrower role than that or courts exercising judicial review. Heikkila. The provisions mentioning “judicial review” refer to full, non-habeas review; none of the IIRIRA explicitly mentions habeas or 28 U.S.C. § 2241. The Court therefore held that the amendments did not clearly bar jurisdiction pursuant to the general habeas statute. St. Cyr at 312. Likewise, the INS’s argument that the “zipper clause” in 8 U.S.C. section 1252(b)(9) bars habeas jurisdiction fails, for this provision consolidated “judicial review” of immigration proceedings into one action but applied only to review of an order of removal under subsection (a)(1). 8 U.S.C. §1252(b) (1994 ed., Supp. V). The provision did not bar habeas jurisdiction over removal orders not subject to judicial review under section 1252 (a)(1), which include those against aliens removable for having committed one or more criminal offenses.
III. Conclusion
Due to courts’ broad definition of the “in custody” requirement—namely that custody can be physical, constructive, or merely extant at the time the petition was filed—and narrow interpretation of “mootness,” the claim that the deportation of a petitioner would deprive courts of habeas jurisdiction and should therefore be enjoined remains a tentative one. Furthermore, the strong presumption in favor of judicial review of administrative action, the plain statement rule for statutory interpretation in the area of habeas jurisdiction, and the constitutional provision for writs of habeas corpus add weight to the burden of proving loss of habeas jurisdiction due to transfers abroad. Aside from the statutory argument, in order to prevail on a claim that deportation would deprive a petitioner of his habeas rights, he must show that the respondent will not have either physical or constructive custody in the recipient country, that the respondent did not have custody over petitioner at the time the petition was filed, and that the deportation would render the petition moot. These multiple elements create a burden for the petitioner to claim that deportation would result in loss of habeas jurisdiction.
APPENDIX C
All Writs Act Permits Extraordinary Relief to Preserve Jurisdiction over Habeas Corpus Petitions
By Kristin Connor
The All Writs Act states that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); see FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966). The All Writs Act empowers federal courts of appeal to stay orders of deportation in order to safeguard their appellate jurisdiction in extraordinary cases. See Michael v. INS, 48 F.3d 657, 664 (2nd Cir. 1995); Reid v. INS, 766 F.2d 113, 116 n.9 (3d Cir. 1985); Dabone v. Karn, 763 F.2d 593, 597 n.2 (3d Cir. 1985). To determine whether a petitioner’s case qualifies for the extraordinary relief of a stay under the All Writs Act, courts consider: (1) whether the petitioner has demonstrated that he is likely to prevail on the merits of his appeal, (2) whether the petitioner will suffer irreparable injury absent a stay; (3) whether the other interested parties will suffer substantial injury from the issuance of a stay; and (4) the public interest. Virginia Petroleum Jobbers Assoc. v. Federal Power Com., 259 F.2d 921, 925 (D.C. Cir. 1958); see e.g. Michael, 48 F.3d at 664 (2nd Cir. 1995) (alien granted stay under § 1651).
In Michael, the alien petitioner argues that he may be eligible for section 212(c) of the Immigration and Nationality Act relief, a possibility not addressed by the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ) in denying Michael’s applications for a discretionary stay. 48 F.3d at 664. The court noted that Michael’s claim was of constitutional dimension and not frivolous, as the Second Circuit and the Supreme Court had not yet ruled on whether section 212(c) relief is available for aliens convicted of firearms violations. Id. (Michael pled guilty to criminal possession of a firearm to the third degree; upon his release from prison, the Immigration and Naturalization Service (INS) required him to show cause of why he should not be deported). The court also found that Michael would suffer irreparable harm through deportation because it would moot his case and that INS would not suffer significant injury. Id. Finally, the court held it was in the public interest to resolve Michael’s issue “in an orderly manner that is even-handed to all potentially affected aliens who reside in this Circuit.” Id. at 665.
However, stays are only granted pursuant to § 1651(a) after the petitioner has pursued “all plausible avenues of temporary relief established by the immigration statute and regulations.” Kyei v. INS, 65 F.3d 279, 286 (2nd Cir. 1995); see Michael 48 F.3d at 665; Reid 766 F.2d at 116. In Kyei, the court does not address the merits of the alien’s claim under the All Writs Act because Kyei had not exhausted all administrative remedies by clearly presenting his claim to the IJ, the BIA, and the local INS District Director that he was eligible for a stay because of divergence between Second and Fifth Circuit law. 65 F.3d at 284 (Kyei had not consistently argued his claim). Should the administrative remedies fail, the alien must turn to a federal district court for habeas relief as provided by statute before seeking a stay of deportation under the All Writs Act. Id.
Guantanamo Bay detainee Kurnaz was granted the right to a 30-day notice before any transfer. Kurnaz v. Bush, No. 04-1135, 2005 U.S. Dist. LEXIS 6560 (D.C. Cir. April 12, 2005) (government admitted that some petitioners may be transferred to the custody of a foreign government and the court reasoned jurisdiction concerns justified careful scrutiny of transfer “in order to preserve the petitioner’s right to obtain review of the legality of his detention”). The court stated that if “federal courts have jurisdiction to determine the legality of the ongoing detention of petitions held at Guantanamo Bay,… the Court must also have the authority to preserve this jurisdiction if it can be shown that respondents are acting to circumvent it” pursuant to the All Writs Act. Id. at *4-*5. Since the extraordinary relief four factor test is similar to the four factor test considered in Guantanamo Bay detainees’ injunction cases, it is likely that a § 1651(a) claim will encounter the same obstacles. See Memo, Re: Cases granting or denying preliminary injunctions or TRO’s, Oct. 12, 2005. While the harm facing detainees as opposed to aliens in deportation cases may be greater, so is the potential harm to the government. Decisions may turn on whether courts believe that the petitioner is likely to succeed on the merits of his habeas claim. See id. at 5.
APPENDIX D
Federal Rule of Appellate Procedure 23 Limits Transfer of Prisoners with Pending Habeas Corpus Petition
By Kristin Connor
According to Federal Appellate Rule 23, pending review of a decision in a commenced habeas corpus proceeding for the release of a federal prisoner, “the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule.” Fed. R. App. P. 23(a). If a custodian “shows the need for a transfer,” it can be authorized by the court, justice, or judge making the habeas petition decision. Id. The D.C. Circuit held that Rule 23 was not intended by Congress “to block the movement of detainees captured in the course of ongoing military hostilities.” O.K. v. Bush, 377 F.Supp.2d 102, 116 (D.C. Cir. 2005) (detainee’s request for preliminary injunction denied on merits). The court was reluctant to “construe a statute to interfere with the province of the Executive over military affairs in the absence of a clear manifestation of Congressional intent to do so.” Id. at 117 (citing Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988)). Should another court decide differently or Congress make clear its intentions for Rule 23(a) to apply to military detainees, the discussion below of the application of Rule 23(a) to federal prisoners may be useful.
“The purpose of Rule 23(a) is to prevent officials from frustrating an inmate's efforts to obtain habeas relief by physically removing him from the territorial jurisdiction of the court in which the petition is pending.” Strachan v. Army Clemency & Parole Bd., 151 F.3d 1308, 1313 (10th Cir. 1998). Relief under Rule 23(a) can only be obtained after showing the transfer resulted in prejudice to the prosecution of the pending habeas action. Id. The Seventh Circuit held that, since 18 U.S.C. § 4082(b) clearly puts the Attorney General in charge of selecting a federal prisoner’s place of confinement and there is no history of Rule 23(a) curtailing that authority, Rule 23(a) is a deferential review of the Attorney General’s determination of the need for the transfer.[22] Ward v. United States Parole Com., 804 F.2d 64, 66 (7th Cir. 1986). A transfer can be granted if the application for leave to transfer stated a legitimate administrative reason not related to the litigation and if the prisoner could not establish that “the transfer would deprive the court of jurisdiction or substantially complicate the conduct of the litigation.” Id.; see Strachan 151 F.3d at 1313. Thus, the review is limited to “protecting the court’s ability to adjudicate the pending case effectively.” Ward 804 F.2d at 66.
In Ward, while the prisoner’s habeas corpus petition appeal was pending, the U.S. Parole Commission filed a motion for the transfer of custody from a federal prison in Indiana to a federal prison in Michigan. Id. at 65. The district court granted the order, and Ward appealed, claiming that there was not a “need” shown for the transfer. Id. The court accepted the prison warden’s affidavit which stated the Bureau of Prisons wanted to move Ward in order to “put him in a place more suitable to his security classification and free up space” as enough proof that the decision was not “arbitrary, capricious, or an abuse of discretion.” Ward 804 F.2d at 65. This suggests that the burden of proof to show that a transfer is not requested solely to complicate the litigation is relatively low, as such requests are reviewed on administrative record (or the warden’s affidavit in Ward) and not proofs made to a judge. Id. at 67.
If Rule 23(a) is violated because an order of transfer was not requested before being effectuated, the circuits accept that the original circuit retains jurisdiction over the habeas corpus petition. See Ward 804 F.2d at 66 (citing decisions from 5th, 9th, 10th, 11th Circuits denied cert. by Supreme Court); see e.g. Shabazz v. Carroll, 814 F.2d 1321, 3124 (9th Cir. 1987) (inmate transferred from Arizona to Texas without court order, so 9th Circuit retained jurisdiction over pending petition but held transfer would not be prejudicial and inmate could remain in Texas). If the prisoner’s being physically out of the court’s jurisdiction is not determined to be prejudicial to the petition, courts have not ordered prisoners to be transferred back. Shabazz 814 F.2d at 3124.
Federal Rules of Appellate Procedure
Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding (a) Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice, or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party. (b) Detention or Release Pending Review of Decision Not to Release. While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. (c) Release Pending Review of Decision Ordering Release. While a decision ordering the release of a prisoner is under review, the prisoner must -- unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise -- be released on personal recognizance, with or without surety. (d) Modification of the Initial Order on Custody. An initial order governing the prisoner's custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued.
APPENDIX E
Convention Against Torture hearings for asylees, extraditees, and deportees
By Charles V. Wait, Jr
The Convention Against Torture
The Convention Against Torture (“Convention”) has been signed and ratified by the United States.[23] Although some courts have held that the Convention is not self-executing,[24] the United States has enacted implementing legislation.[25] This legislation directs various agencies to promulgate regulations implementing the Convention.[26] The Department Of Justice (“DOJ”) and the Department of State (“DOS”) have published such regulations,[27] and these are enforceable in Federal Court.[28]
Refugees and Asylum Seekers
1. Availability of A Hearing
Refugees and asylum are entitled to be heard on their Convention claims, provided that they are in “exclusion, deportation, or removal proceedings.”[29] The principal form of relief granted under the Convention by these regulations is withholding of removal.[30] These regulations set out the facts that an asylee or refugee must prove in order to obtain protection.[31] Even if the refugee or asylee establishes these facts, he or she may still be subject to mandatory denial of withholding of removal under the same section.[32] If that is the case, they may still apply for deferral of removal.[33]
A claimant can receive a Convention hearing even if there is no basis for granting asylum.[34] In requests for withholding of removal, the immigration judge, rather than the asylum officer, adjudicates the claim.[35]
2. Substance of the Hearing
A person requesting relief under these regulations has the burden of proving “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”[36] This is different from the standard for establishing a “reasonable fear of persecution” in asylum cases because the test under these regulations is a purely objective one.[37] The refugee’s testimony alone is sufficient if it is deemed to be credible.[38]
The regulations state that all relevant evidence “shall be considered,”[39] specifically requiring the immigration judge to consider: evidence of past torture of the applicant, evidence of inability to relocate, evidence of “gross, flagrant or mass violations of human rights within the country of removal,” and other relevant information on the country of removal.[40]
State assurances play a role in this determination.[41] Secretary of State provides them, and if they are “sufficiently reliable,”[42] the refugee’s claim under the Convention can no longer be considered.[43]
Withholding of removal is different from asylum proceedings in three ways: first, mandatory ineligibility does not apply in withholding of removal proceedings, second, while the torture in withholding of removal proceedings “must be conducted by or with the acquiescence of a government official, it need not be on account of one of the five grounds of asylum,” and finally, and finally, nothing prevents the immigration judge from removing the asylee or deportee to a different country.[44]
If the immigration judge determines that the refugee is more likely than not to be tortured, then the immigration judge asks whether the refugee is also subject to mandatory denial of withholding of removal.[45] If mandatory denial of withholding of removal does not apply, then the immigration judge must withhold removal.[46] If the refugee or asylee is eligible for withholding of removal but is also subject to mandatory denial of that relief, then deferral of removal is automatically granted.[47] The refugee or asylee is then entitled to notice before the refugee or asylee is removed from the country.[48] Deferral is terminated by either the request of the refugee or asylee,[49] or by the government.[50] If the termination is by the government, the government must put forth new evidence relevant to whether or not the asylee or refugee would be tortured.[51] The asylee or refugee is then entitled to a hearing at which he may present new evidence,[52] and where the immigration judge makes a de novo determination of whether the refugee or asylee should be removed.[53] The standard for this determination is still based on whether the refugee or asylee is more likely than not to be tortured.[54] The refugee or asylee may appeal this decision to the Board of Immigration Appeals (“BIA”).[55]
Persons to be Extradited
The Department of State (“DOS”) has issued regulations implementing the Covenant in relation to extradition proceedings.[56] These regulations reiterate the principle, stated in the Convention, that “No 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.”[57]
These regulations do not grant the extraditable person a hearing per se, but they do require the DOS to comply with the Convention.[58] The procedure for such compliance is set forth in section 95.3 of the regulations. The Secretary only considers issues arising under the Convention once a judicial officer has determined that the person is extraditable.[59] If that is the case, and the person to be extradited has made the DOS aware of Convention issues, “appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant.”[60] The Secretary is then required decide whether or not to extradite the person on the basis of this information.[61] The standard for the Secretary’s decision is whether the extraditable person is “more likely than not” to be tortured in the state in question.[62]
The regulations state that although a judicial officer determines whether someone is extraditable, the Secretary is the officer who makes the ultimate decision as to whether to sign the extradition order.[63] Accordingly, most of the litigation in this area focuses on the question of judicial review of the Secretary’s decision to extradite an individual in light of the person’s claims under the Convention.[64] The regulations provide that the decision falls under Executive discretion, and is thus not subject to judicial review.[65] Courts have acknowledged this,[66] and yet, at least one court has also acknowledged that where the Secretary’s decision conflicts with the Covenant, habeas review is at least a possibility.[67]
Deportees
Deportees may take advantage of the procedures available to refugees and asylees, since they are in “deportation” proceedings as defined in section 208.16.[68]
Summary
Refugees, asylees, and deportees may obtain a hearing on their Convention claims under the procedures adopted by the DOJ in sections 208.16 to 208.18 of the Code of Federal Regulations. These procedures allow a refugee, asylee, or deportee to apply for withholding or deferral of their removal to a country that practices torture. In the case of extraditions, the Secretary is required to consider information put forward by the extraditable person regarding the State to which the person will be sent. Although the Secretary has discretion to decide on extradition, and the Secretary’s decision is not subject to judicial review, it may be possible to challenge the Secretary’s decision in a habeas petition.
[1] Braden v. Kentucky, 410 U.S. 484 (1972).
[2] Id. at 494-95 (1972), citing Wales v. Whitney, 114 U.S. 564 (1885).
[3] Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 48 (D.D.C. 2004), citing Hensley v. Mun. Court, 411 U.S. 345, 351, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973).
[4] 542 U.S. 426, 437-38 (2004).
[5] Id. at 427.
[6] See Padilla v. Rumsfeld, 352 F.3d 695, 706 (2d Cir. 2003) (stating that “the appropriate focus was whether the respondent, through his agent, was responsible for Strait's detention”). The 2nd Circuit based this statement on Strait v. Laird, in which the Supreme Court stated: “The concepts of 'custody' and 'custodian' are sufficiently broad to allow us to say that the commanding officer in Indiana, operating through officers in California in processing petitioner's claim, is in California for the limited purposes of habeas corpus jurisdiction. 406 U.S. 341, 346-347 (1972).
[7] Spencer v. Kemna, 523 U.S. 1, 7 (1998).
[8] Id.
[9] Lewis v. Continental Bank Corp., 494 R.S. 472, 477, 110 S. Ct. 1249 (1990).
[10] Kurnaz v. Bush, No. 04-1135, 2005 U.S. Dist. LEXIS 6560, *4-*5 (D.C. Cir. April 12, 2005) (government admitted that some petitioners may be transferred to the custody of a foreign government and the court reasoned jurisdiction concerns justified careful scrutiny of transfer “in order to preserve the petitioner’s right to obtain review of the legality of his detention”).
[11] Strachan v. Army Clemency & Parole Bd., 151 F.3d 1308, 1313 (10th Cir. 1998).
[12] See Ward 804 F.2d at 66 (citing decisions from 5th, 9th, 10th, 11th Circuits denied cert. by Supreme Court for the rule that the original circuit retains jurisdiction over the habeas corpus petition if Rule 23 is violated); see e.g. Shabazz v. Carroll, 814 F.2d 1321, 3124 (9th Cir. 1987) (inmate transferred from Arizona to Texas without court order, so 9th Circuit retained jurisdiction over pending petition but held transfer would not be prejudicial and inmate could remain in Texas).
[13] Ward v. United States Parole Com., 804 F.2d 64, 66 (7th Cir. 1986).
[14] O.K. v. Bush, 377 F.Supp.2d 102, 116 (D.C. Cir. 2005).
[15] See 654 F.2d 1382, 1386 (10th Cir. 1981).
[16] 28 U.S.C. § 1651(a); see FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966).
[17] See Michael v. INS, 48 F.3d 657, 664 (2nd Cir. 1995); Reid v. INS, 766 F.2d 113, 116 n.9 (3d Cir. 1985); Dabone v. Karn, 763 F.2d 593, 597 n.2 (3d Cir. 1985).
[18] See NYU Memo dated Oct. 19, 2005.
[19] See id. at 5.
[20] O.K. v. Bush, 377 F.Supp.2d 102, 116 (D.C. Cir. 2005) (detainee’s request for preliminary injunction denied on merits).
[21] Id. at 117, citing Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).
[22] Point of confusion: the Ward court and other post-1984 decisions also make reference to 18 U.S.C. § 4082(b) as reading “The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another." 804 f.2d at 66. However, Public Law 98-473, § 218(a)(3) struck out this subsection.
[23] Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003).
[24] See, e.g., Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003).
[25] Fiscal Year 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, Division G, Subdivision B, Title XXI Foreign Affairs Reform and Restructuring Act of 1998, § 2242, 112 Stat. 2681-822 (1998).
[26] Id. at (b).
[27] See 8 C.F.R. §§ 208.16, 208.17, 208.18; 22 CFR § 95 (2005).
[28] Habtemicael v. Ashcroft, 360 F.3d 820, 825–28 (8th Cir. 2005).
[29] See 8 C.F.R. § 208.18(b)(1) (2004) (“An alien who is in exclusion, deportation, or removal proceedings on or after March 22, 1999 may apply for withholding of removal under § 208.16(c), and, if applicable, may be considered for deferral of removal under § 208.17(a).”).
[30] See generally 8.C.F.R. § 208.16 (2005).
[31] Id. at (c).
[32] Id. at (d)(2), (3).
[33] See 8 C.F.R. § 208.17 (2005).
[34] Mansour v. INS, 230 F.3d 902, 905–06 (7th Cir. 2000).
[35] 8 C.F.R. § 208.16(a) (2005).
[36] Id. at (c)(2).
[37] Zubeda, 333 F.3d at 471.
[38] 8 C.F.R. § 208.16(c)(2) (2005).
[39] Id. at (c)(3).
[40] Id. Some cases have fleshed out rules in applying this test. See Matter of G-A-, 23 I&N Dec. 366 (BIA 2002) This case held that country conditions are relevant, but not sufficient to obtain withholding of removal. Id. at 368-72. See also Julmiste v. Ashcroft, 212 F. Supp. 2d 341, 346-49 (D.N.J. 2002). This case stands for the proposition that torture must be with the acquiescence of or conducted by a public official. Accord 8 C.F.R. § 208.18(a)(1). See Matter of J-E-. supra. 223 I&N Dec. 291 (BIA 2002) (applying the test).
[41] 8 CFR § 208.18(c) (2005).
[42] Id. at (c)(2).
[43] Id. at (c)(3).
[44] See Ira J. Kurzban, Immigration Law Sourcebook 389–90 (American Immigration Law Foundation 2004-2005) (1990). Chapter four is an especially useful collection of information on this topic.
[45] 8 C.F.R. § 208.17(a) (2005).
[46] 8 C.F.R § 208.16(c)(4) (2005).
[47] 8 C.F.R. § 208.17(a) (2005).
[48] Id. at (b).
[49] Id. at (c).
[50] Id. at (d).
[51] Id. at (d)(1).
[52] Id. at (d)(2).
[53] Id. at (d)(3).
[54] Id. at (d)(4).
[55] Id.
[56] 22 C.F.R. § 95 (2005).
[57] 22 C.F.R. § 95.2(a)(1) (2005). The regulation also defines torture. 22 CFR § 95.1 (2005).
[58] See generally id.
[59] 22 C.F.R. § 95.3(a) (2005).
[60] Id.
[61] Id. at (b).
[62] 22 CFR § 95.2(b) (2005).
[63] Id.
[64] See, e.g., Mironescu v. Costner, 345 F. Supp. 2d 538 (M.D.N.C. 2004).
[65] 22 C.F.R. § 95.4 (2005).
[66] Hoxha v. Levi, 371 F. Supp. 2d 651, 660 (E.D. Pa. 2005). This case is also useful in that it provides a brief summary of the process for extradition at 655–56.
[67] Micronescu, 345 F. Supp. 2d at 550 (“The scope of habeas review is uncertain. Nevertheless, the probability that habeas review will be granted appears to be high as three separate examinations of the issue all result in the granting of such review.”). The court discusses these cases further at 544–50.
[68] While I could not find a case that explicitly stated this, it appears to be quite plain from the statutory text. Furthermore, I found several cases decided by the federal courts and the BIA that seemed to assume that this was the case. See, e.g., Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 13–17 (1st Cir. 2004).
From: Ying Chi, Rebecca Bers, Kristin Connor, Jennie Kim, Charles Wait
Date: November 16, 2005
Re: Summary of research to date
Contents
I. Jurisdiction theories
II. Substantive theories
III. Legal claims
IV. Relief requested
V. Evidence of rendition and torture
Appendices A, B, C, D, E
I. Theories pertaining to jurisdiction
We have not been successful at finding immigration and asylum cases in which courts have retained jurisdiction after the transfer of an individual abroad. However, we attempt to make three arguments pertaining to jurisdiction. The first argument is that transfers abroad would most likely destroy jurisdiction. This is an argument that is essential to getting the injunction. The second and third sections argue that even if the detainees were transferred abroad, the court should retain jurisdiction for two reasons: (1) the U.S. maintains constructive custody; (2) the U.S. is trying to avoid judicial review.
Courts should enjoin transfers abroad because of the certain irreparable harm that the transfers would destroy jurisdiction.
There is plenty of support for the argument that the court would not retain jurisdiction (see Appendix Z). Jurisdiction over a Habeas claim requires jurisdiction over the custodian.[1] “The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.”[2] The only way to find habeas jurisdiction in the event of a transfer abroad is if the detainee sustains the burden of proving that the U.S. government in fact is the custodian. Given the lack of transparency surrounding the transfers, and the fact that the government will adamantly disclaim any continuing involvement in the custody of the detainees, there will not be enough evidence to find the U.S. as the custodian to fulfill the jurisdictional requirement.
For cases supporting this argument, see summary in Appendix A.
Courts should retain jurisdiction, because jurisdiction does not have to follow physical custody, only constructive custody.
Due to courts’ broad definition of the “in custody” requirement—namely that custody can be physical, constructive, or merely extant at the time the petition was filed—and narrow interpretation of “mootness,” it is far from certain that the court would lose habeas jurisdiction if the detainee was transferred abroad under a program of rendition.
So long as courts recognize the existence of a respondent’s constructive custody over a petitioner, or actual physical custody, habeas jurisdiction will be retained. . In Abu Ali the court recognized that the Supreme Court in general has given the custody requirement for purposes of habeas corpus a liberal construction in that petitioner need not be in actual physical control of the respondent; the mere fact that respondent was “responsible for significant restraints on the petitioner’s liberty” was sufficient to meet the “in custody” requirement.[3] This argument, however, may be significantly hampered by Rumsfeld v. Padilla, in which the Supreme Court seemed to rule that the “immediate custodian rule” applied in all cases in which the petitioner challenges his “present physical confinement.”[4] The Court overruled the 2nd Circuit’s holding that “the proper respondent is the person exercising the "legal reality of control" over the petitioner.”[5] The Court distinguished the cases from which the 2nd Circuit extracted the principle that the custody depends on whether the entity that is physically detaining the petitioner can be considered the agent of the respondent.[6] Rumsfeld v. Padilla therefore seems to limit, if not overrule, the constructive custody principle.
However, even if petitioner cannot meet the custody requirement, it is still possible to retain jurisdiction. When respondent has neither constructive nor physical custody because the petitioner has been deported, the Supreme Court has held that for a court to exercise habeas jurisdiction, the petitioner must demonstrate that (1) he was in custody at the time the petition was filed and (2) the petitioner’s subsequent release from custody has not rendered the petition moot.[7] In other words, with regard to the latter requirement, a petitioner must show that he continues to present a case or controversy under Article III, section II of the Constitution. A petitioner presents an Article III controversy when he demonstrates “a collateral consequence,” namely a “concrete and continuing injury.”[8] In other words, a petitioner “must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.”[9]
For a full memo that argues in favor of constructive custody, and draws upon deportation cases to illustrate how jurisdiction can be retained absent custody, see Appendix B.
Courts should retain habeas jurisdiction if the U.S. government is trying to avoid judicial scrutiny by removing the detainee from the territorial jurisdiction of U.S. courts.
In Kurnaz v. Bush, the D.C. Circuit court stated that “federal courts have jurisdiction to determine the legality of the ongoing detention of petitions held at Guantanamo Bay,… the Court must also have the authority to preserve this jurisdiction if it can be shown that respondents are acting to circumvent it” through a stay of deportation pursuant to the All Writs Act.[10] This principle also finds support in FRAP 23. According to Federal Appellate Rule 23, pending review of a decision in a commenced habeas corpus proceeding for the release of a federal prisoner, “the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule.” Fed. R. App. P. 23(a). If a custodian “shows the need for a transfer,” it can be authorized by the court, justice, or judge making the habeas petition decision. Id. “The purpose of Rule 23(a) is to prevent officials from frustrating an inmate's efforts to obtain habeas relief by physically removing him from the territorial jurisdiction of the court in which the petition is pending.”[11] Typically, in cases in which a prisoner raised Rule 23, the original court has retained jurisdiction whether or not the transfer was ultimately approved.[12]
However, Rule 23 is not very strong support for our argument because even under ordinary circumstances the standard of review is deferential to the Attorney General’s determination of the need for the transfer.[13] The D.C. Circuit held in O.K. v. Bush that Rule 23 was not intended by Congress “to block the movement of detainees captured in the course of ongoing military hostilities.”[14] Thus, the government would argue that the court should not retain jurisdiction under because it would effectively “block the movement of detainees captured in the course of ongoing military hostilities.”
For a full summary of our research on the All Writs Act and FRAP 23, see Appendices C and D.
II. Theories pertaining to substantive rights
Substantively, U.S. constitutional standards of due process apply abroad if the U.S. government is acting in a joint venture with another government, or if that government’s actions shock the conscience and the U.S. was complicit in them.
The joint venture and shock the conscience theories have been applied to Fourth Amendment and exclusionary rule in relation to searches
These theories should extend to Fifth Amendment guarantee of due process
Indefinite detention without trial is impermissible punishment in violation of the Fifth Amendment. In Rodriguez-Fernandez v Wilkinson, the 10th Circuit court held that the U.S. could not resort to the “euphemistic fiction” that the petitioner was being indefinitely “excluded” (presumably because his home country, Cuba, would not accept his return) to justify his indefinite physical confinement.[15] Similarly, we would argue that if the U.S. transfers detainees into detention in their home countries, “repatriation” would be just a “euphemistic fiction” for indefinite detention without due process.
III. Legal Claims
Habeas and Rule 65 Injunction: See NYU Memo dated Oct. 19, 2005
The All Writs Act Permits Extraordinary Relief to Preserve Jurisdiction over Habeas Corpus Petitions. The All Writs Act states that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”[16] The All Writs Act empowers federal courts of appeal to stay orders of deportation in order to safeguard their appellate jurisdiction in extraordinary cases.[17] Since the extraordinary relief four factor test is similar to the four factor test considered in recent Guantanamo detainees’ injunction cases, it is likely that a § 1651(a) claim will encounter the same obstacles.[18] While the harm facing detainees as opposed to aliens in deportation cases may be greater, so is the potential harm to the government. Decisions may turn on whether courts believe that the petitioner is likely to succeed on the merits of his habeas claim.[19]
Federal Rule of Appellate Procedure 23: Currently, the D.C. Circuit does not recognize Rule 23 as a basis for enjoining the transfer of detainees. The D.C. Circuit held that Rule 23 was not intended by Congress “to block the movement of detainees captured in the course of ongoing military hostilities.”[20] The court was reluctant to “construe a statute to interfere with the province of the Executive over military affairs in the absence of a clear manifestation of Congressional intent to do so.”[21] Should another court decide differently or Congress make clear its intentions for Rule 23(a) to apply to military detainees, the discussion below of the application of Rule 23(a) to federal prisoners may be useful.
Convention against Torture: Forthcoming
IV. Relief Requested in Petition
Asylum seekers or deportees (and possibly extraditees) are entitled to hearings per the Convention Against Torture to prevent their removal to a country that practices torture
Refugees, asylees, and deportees may obtain a hearing on their Convention Against Torture claims under the procedures adopted by the DOJ in sections 208.16 to 208.18 of the Code of Federal Regulations. These procedures allow a refugee, asylee, or deportee to apply for withholding or deferral of their removal to a country that practices torture. In the case of extraditions, the Secretary is required to consider information put forward by the extraditable person regarding the State to which the person will be sent. Although the Secretary has discretion to decide on extradition, and the Secretary’s decision is not subject to judicial review, it may be possible to challenge the Secretary’s decision in a habeas petition.
For the full memo on CAT hearings, see Appendix E.
V. for rendition and torture
Forthcoming. (So far we have not found much information beyond that which has been reported in major publications. That is, we have few details on the agreements the U.S. has conclude/is supposedly preparing to sign with destination countries.)
APPENDIX A
Will the court with original jurisdiction over the habeas petition was filed retain jurisdiction if the detainee is transferred?
By Rebecca Bers
Due to the custody requirement, if a detainee is transferred abroad, the court with original jurisdiction over the petition will probably not be able to retain jurisdiction. Jurisdiction over a habeas claim requires jurisdiction over the custodian. Braden v. Kentucky, 410 U.S. 484 (1972). The court will probably not consider a prisoner in custody of the United States after they have been transferred to another country, especially since the government is unlikely to admit any connection to the prisoners once they have left Guantanamo. Any evidence to the contrary would be controversial and hard to sustain in court.
Background:
In Padilla v. Rumsfeld, F.3d 695, 708-709 (2d Cir. 2003), the court outlines the reasoning for habeas jurisdiction in Ex Parte Endo, 323 U.S. 283 (1944) and its progeny Ahrens v. Clark, 335 U.S. 188 (1948), Strait v. Laird, 406 U.S. 341 (1972), and Ex Parte Braden, 410 U.S. 484 (1972). From this reasoning, the court will have jurisdiction over the Habeas petitions as long as the detainees remain under the control of the Secretary of State.
However, the court cites the broad construction of custodian in Strait, saying that “the appropriate focus was whether the respondent, through his agent, was responsible for Strait's detention.” Padilla v. Rumsfeld, 352 F.3d 695, 706 (2d Cir. 2003). An argument could be made that the government is responsible for the detention, even after they have been transferred to another country.
I have not found any other cases regarding retention of jurisdiction in asylum or immigration cases. However, in the Padilla opinion, the court seems to endorse the case law that lays out custodianship as dispositive.
Endo and Progeny:
Ex Parte Mitsuye Endo, 323 U.S. 283 (1944)
Facts: Mitsuye Endo was an American of Japanese ancestry detained in Northern California during World War II. The detention was purportedly under executive order. She filed a Habeas Corpus claim in Northern California. She was transferred to Utah during the appeals process.
Legal question: (1) Whether she was unlawfully detained and (2) Whether there was still jurisdiction over the Habeas petition Endo had filed in the Northern District of California in regards to her detention in internment camps after she had been transferred to an internment camp in Utah.
Holding: (1) Her detention was unwarranted; she was unconditionally released. (2) Because the writ is against the custodian, not the person in custody, the court had jurisdiction over the custodian in California.
Reasoning:
ü The court “must assume that the chief executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a wartime measure we must assume that heir purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of the war.” 323 U.S. at 300
ü The legislation giving power to wartime authorities was silent on the issue of detention. 323 U.S. at 301. “Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character” 323 U.S. at 302.
ü There are some cases which limit the jurisdiction of the court to the territory in which the prisoner is detained. However, citing Judge Cooley In the Matter of Samuel W. Jackson, 15 Mich. 417, 439-440 says: “The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined but his jailer.
Ahrens v. Clark, 335 U.S. 188 (1948)
Facts: 120 Germans were held at Ellis Island for deportation to Germany during World War II. The orders for detention were made under the presidential proclamation. The Habeas writs were issued after hostilities with Germany ceased.
Legal Question: Whether the person filing habeas corpus must be physically within the territorial jurisdiction of the court.
Holding: A Habeas Petition requires physical presence of the petitioner within the jurisdiction.
Reasoning:
ü “It is not sufficient in our view that the jailer or custodian alone be found in the jurisdiction.” 335 U.S. at 190.
ü Policy reasoning: “The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose.” 335 U.S. at 190
ü History of statute: language of “within their respective jurisdictions” was added to allay a fear that eg. Fla. Could exercise jurisdiction over prisoners convicted and sentenced in another state. 335 U.S. 191-92
ü Holds that Ex parte Endo is not in opposition to physical presence because she was present within the jurisdiction when she filed the habeas petition. 335 U.S. 193.
ü Dissent points to the removal of personal liberty implicated by this decision, bringing up the hypothetical, “if the place of detention lies wholly outside the territorial limits of any federal jurisdiction, although person or persons exercising restraint are clearly within reach of such authority, is there to be no remedy, even though it is American citizens who are wrongfully deprived of their liberty.” 335 U.S. 195.
Braden v. Kentucky, 410 U.S. 484 (1972)
Facts: Ahrens was imprisoned in Alabama and filed a Habeas petition against the district court of Kentucky which had filed a detainer with Alabama, claiming denial of a speedy trial.
Legal Question: (1) Could the “prematurity doctrine” still bar an action by the petitioner, (2) Did the exhaustion doctrine bar petition, (3) was there jurisdiction?
Holding: (1) The prematurity doctrine had been overturned; (2) the exhaustion doctrine does not bar action in this case, (3) Jurisdiction over a Habeas writ only requires jurisdiction over the custodian, not the prisoner; This overturns the Ahrens holding.
Reasoning:
ü Petitioner is in “custody” within the meaning of the statute. 410 U.S. at 488.
ü Petitioner exhausted all available state remedies prior to the action. 410 U.S. at 489. And the “fundamental interest underlying the exhausting doctrine have been fully satisfied in petitioner’s situation” Id. at 491.
ü “The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.” 410 U.S. at 494-95, citing Wales v. Whitney, 114 U.S. 564 (1885).
ü Also cites Endo and Rutledge dissent in Ahrens. Essentially rejects Ahrens reasoning and holding.
ü “Congress explicitly recognized the advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy” 410 U.S. at 497.
APPENDIX B
Retention of Habeas Jurisdiction Despite Transfers Abroad
By Jennie Kim
I. Introduction
Irreparable harm comprises the most significant element of the four-part test used by courts for issuing injunctions, as irreparable injury and the inadequacy of legal remedies have always been the basis for injunctive relief in the federal courts. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61 (1975); Sampson v. Murray, 415 U.S. 61, 88 (1974); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-507 (1959); Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. Loss of habeas jurisdiction therefore would allow a petitioner to argue successfully that his deportation should be enjoined on the grounds that lack of habeas jurisdiction would deprive him of adequate legal remedies and inflict on him irreparable harm. Jurisdiction over habeas claims is governed by 28 U.S.C.S. § 2241, which lays out the conditions under which a writ of habeas corpus may be granted. According to Section 2241(a), habeas claims may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. 28 U.S.C.S. § 2241(a) (2005). Furthermore, Section 2241(c) states that a writ of habeas corpus shall not extend to a prisoner unless (1) he is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or (2) he is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) he is in custody in violation of the Constitution or laws or treaties of the United States; or (4) he, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or (5) it is necessary to bring him into court to testify or for trial. 28 U.S.C.S. § 2241(c) (2005).
In order to maintain a habeas corpus action, a petitioner must be “in custody.” Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 47 (2004) (quoting Steinberg v. Police Court of Albany, N.Y., 610 F.2d 449, 453 (6th Cir. 1979)). The “custody must be the result of the respondent’s action from which [a petitioner] seeks habeas corpus relief. Id. In Abu Ali the court recognized that the Supreme Court in general has given the custody requirement for purposes of habeas corpus a liberal construction in that petitioner need not be in actual physical control of the respondent; the mere fact that respondent was “responsible for significant restraints on the petitioner’s liberty” was sufficient to meet the “in custody” requirement. Id. at 48 (citing Hensley v. Mun. Court, 411 U.S. 345, 351, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973)). Thus, as long as courts recognize the existence of a respondent’s constructive custody over a petitioner, or actual physical custody, habeas jurisdiction will be retained.
II. Effect on Habeas Jurisdiction of Failure to Prove Custody after Deportation
A. “In Custody” and “Mootness”
If petitioner cannot meet the custody requirement, as in the case of deported petitioners over which the United States no longer will exercise control, the courts have different requirements for establishing habeas jurisdiction. When respondent has neither constructive nor physical custody over a petitioner due to the deportation, the Supreme Court has held that for a court to exercise habeas jurisdiction, the petitioner must demonstrate that (1) he was in custody at the time the petition was filed and (2) the petitioner’s subsequent release from custody has not rendered the petition moot. Spencer v. Kemna, 523 U.S. 1, 7, 140 L. Ed. 2d 43, 118 S. T. 978 (1998). In other words, with regard to the latter requirement, a petitioner must show that he continues to present a case or controversy under Article III, section II of the Constitution. A petitioner presents an Article III controversy when he demonstrates “a collateral consequence,” namely a “concrete and continuing injury.” Id. In other words, a petitioner “must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 R.S. 472, 477, 108 L. Ed. 2d 500, 110 S. Ct. 1249 (1990).
In Zalawadia v. Ashcroft, 371 F.3d 292 (2004), appellant, a native and citizen of India, was deported to India while his habeas petition to the District Court for the Western District of Louisiana was pending. As a threshold matter, the United States Court of Appeals for the Fifth Circuit held that the district court had habeas jurisdiction over the case despite appellant’s subsequent deportation because the petition was filed when he was in custody and was not moot, as appellant continued to face a collateral legal consequence of the deportation order. Zalwadia v. Ashcroft, 371, F.3d 292 (2004). The court recognized that the Supreme Court “has made it clear that the ‘in custody’ determination is made at the time the habeas petitions is filed.” Id. at 297 (citing Spencer at 7; Carafas v. La Vallee, 391 U.S. 234, 237-38, 20 L. Ed. 2d 554, 88 S. Ct. 1556 (1968)). The court stated that it has previously held that this rule applies to petitioners who have been deported in the same way that it applies to any other habeas petitioner no longer in custody. Zalawadia. at 7.
In addition, petitioner proved that his petition was not rendered moot by the deportation. The court held that the penalty resulting from petitioner’s deportation constituted a collateral consequence, id. at 14, as the deportation barred him from seeking reentry into the United States for a period of five years. Id. Other circuits have reached similar conclusions, holding that the bar on readmission of a removed alien is a legally cognizable collateral consequence that preserves a live controversy after deportation of the petitioner. Id. (citing Leitao v. Reno, 311 F.3d 453, 455 (1st Cir. 2002); Chong v. District Director, INS, 264 F.3d 378, 385; Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002); Zegarra-Gomez v. INS, 314, 428 F.3d 1124, 1127 (9th Cir. 2003)). Similarly, in Max-George v. Reno, 205 F.3d 194 (2000), the petitioner was deported during the pendency of his habeas petition, and although the government admitted that the petitioner was in custody when the petition was filed, it argued that his subsequent deportation rendered the petition moot. The court rejected that argument though, holding that the statutory ten-year waiting period before the petitioner was eligible for reentry comprised a concrete collateral consequence of his deportation, and the petition therefore was not moot. Max-George v. Reno, 205, F.3d 194, 196 (2000).
Outside of the deportation context, Spencer v. Kemna, 523 U.S. 1 (1998), presents a circumstance in which a court has found petitioner’s case to be rendered moot. In Spencer, the Court held that the expiration of petitioner’s sentence caused the petition to be moot because it no longer presented an Article III case or controversy. Spencer v. Kemna, 523 U.S. 1 (1998). Although preceding courts had presumed a concrete collateral consequence arising from convictions, Sibron v. New York, 392 U.S. 40, 55-56, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), the court in Spencer refused to adhere to this presumption in the area of parole revocation and required a showing of concrete, imminent collateral consequences instead of mere hypothetical ones. Spencer at 12; see also Lane v. Williams, 455 U.S. 624, 71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982). It was not enough that petitioner’s parole revocation would enable the parole board to deny respondent’s parole in the future or that the revocation could be used to his detriment in future parole or any court proceedings, for this consequence was merely hypothetical and possible, not concrete.
B. Statutory Interpretation
Attempts have also been made to allege loss of habeas jurisdiction on statutory grounds. For example, in INS v. St. Cyr, 533 U.S. 289 (2005) the INS argued that statutory amendments to the federal immigration statutes, namely the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), removed the Attorney General’s broad discretion to waive deportation of resident aliens under section 212(c) of the Immigration and Nationality Act of 1952. Section 401 of AEDPA identified a broad set of offenses for which convictions would preclude waiver of deportation. Furthermore, IIRIRA excluded from the class of resident aliens for whom the Attorney General may waive deportation anyone “convicted of an aggravated felony.” 8 U.S.C. § 1229b(a)(3) (1994 ed. Supp. V).
Respondent St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. His removal proceedings were commenced after AEDPA’s and IIRIRA’s effective dates. The INS claimed that sections of the 1996 statutes stripped the courts of jurisdiction to decide the question of law presented by respondent’s habeas corpus application. The Court held that for the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction. INS v. St. Cyr., 533 U.S. 289, 298 (2001). The Court stated that implications from statutory text or legislative history are insufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal. Id. at 361. When a statutory interpretation invokes the outer limits of Congress’s power, there must be a clear indication that Congress intended that result. Id. at 299; see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1998). In addition, if an otherwise acceptable construction would raise serious constitutional problems, and where an alternative interpretation of the statute is “fairly possible,” courts are obligated to construe the statute to avoid such problems. St. Cyr at 300.
The Court held that construing the amendments to preclude court review of a pure question of law would give rise to substantial constitutional questions and that none of the amendments expressed a clear and unambiguous statement of Congress’s intent to bar habeas petitions. Id. at 300, 314. The Constitution’s Suspension Clause protects the privilege of the habeas corpus writ and therefore unquestionable requires some judicial intervention in deportation cases. Heikkila v. Barber, 345 U.S. 229, 235, 97 L. Ed. 972, 73 S. Ct. 603 (1953). Furthermore, none of the amendments even mentions 28 U.S.C.S. § 2241, which provides the standards for habeas jurisdiction. Although the IIRIRA provisions focus on “judicial review” and “jurisdiction to review,” “judicial review” and “habeas corpus” have distinct meanings in the immigration setting, for habeas courts have a narrower role than that or courts exercising judicial review. Heikkila. The provisions mentioning “judicial review” refer to full, non-habeas review; none of the IIRIRA explicitly mentions habeas or 28 U.S.C. § 2241. The Court therefore held that the amendments did not clearly bar jurisdiction pursuant to the general habeas statute. St. Cyr at 312. Likewise, the INS’s argument that the “zipper clause” in 8 U.S.C. section 1252(b)(9) bars habeas jurisdiction fails, for this provision consolidated “judicial review” of immigration proceedings into one action but applied only to review of an order of removal under subsection (a)(1). 8 U.S.C. §1252(b) (1994 ed., Supp. V). The provision did not bar habeas jurisdiction over removal orders not subject to judicial review under section 1252 (a)(1), which include those against aliens removable for having committed one or more criminal offenses.
III. Conclusion
Due to courts’ broad definition of the “in custody” requirement—namely that custody can be physical, constructive, or merely extant at the time the petition was filed—and narrow interpretation of “mootness,” the claim that the deportation of a petitioner would deprive courts of habeas jurisdiction and should therefore be enjoined remains a tentative one. Furthermore, the strong presumption in favor of judicial review of administrative action, the plain statement rule for statutory interpretation in the area of habeas jurisdiction, and the constitutional provision for writs of habeas corpus add weight to the burden of proving loss of habeas jurisdiction due to transfers abroad. Aside from the statutory argument, in order to prevail on a claim that deportation would deprive a petitioner of his habeas rights, he must show that the respondent will not have either physical or constructive custody in the recipient country, that the respondent did not have custody over petitioner at the time the petition was filed, and that the deportation would render the petition moot. These multiple elements create a burden for the petitioner to claim that deportation would result in loss of habeas jurisdiction.
APPENDIX C
All Writs Act Permits Extraordinary Relief to Preserve Jurisdiction over Habeas Corpus Petitions
By Kristin Connor
The All Writs Act states that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); see FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966). The All Writs Act empowers federal courts of appeal to stay orders of deportation in order to safeguard their appellate jurisdiction in extraordinary cases. See Michael v. INS, 48 F.3d 657, 664 (2nd Cir. 1995); Reid v. INS, 766 F.2d 113, 116 n.9 (3d Cir. 1985); Dabone v. Karn, 763 F.2d 593, 597 n.2 (3d Cir. 1985). To determine whether a petitioner’s case qualifies for the extraordinary relief of a stay under the All Writs Act, courts consider: (1) whether the petitioner has demonstrated that he is likely to prevail on the merits of his appeal, (2) whether the petitioner will suffer irreparable injury absent a stay; (3) whether the other interested parties will suffer substantial injury from the issuance of a stay; and (4) the public interest. Virginia Petroleum Jobbers Assoc. v. Federal Power Com., 259 F.2d 921, 925 (D.C. Cir. 1958); see e.g. Michael, 48 F.3d at 664 (2nd Cir. 1995) (alien granted stay under § 1651).
In Michael, the alien petitioner argues that he may be eligible for section 212(c) of the Immigration and Nationality Act relief, a possibility not addressed by the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ) in denying Michael’s applications for a discretionary stay. 48 F.3d at 664. The court noted that Michael’s claim was of constitutional dimension and not frivolous, as the Second Circuit and the Supreme Court had not yet ruled on whether section 212(c) relief is available for aliens convicted of firearms violations. Id. (Michael pled guilty to criminal possession of a firearm to the third degree; upon his release from prison, the Immigration and Naturalization Service (INS) required him to show cause of why he should not be deported). The court also found that Michael would suffer irreparable harm through deportation because it would moot his case and that INS would not suffer significant injury. Id. Finally, the court held it was in the public interest to resolve Michael’s issue “in an orderly manner that is even-handed to all potentially affected aliens who reside in this Circuit.” Id. at 665.
However, stays are only granted pursuant to § 1651(a) after the petitioner has pursued “all plausible avenues of temporary relief established by the immigration statute and regulations.” Kyei v. INS, 65 F.3d 279, 286 (2nd Cir. 1995); see Michael 48 F.3d at 665; Reid 766 F.2d at 116. In Kyei, the court does not address the merits of the alien’s claim under the All Writs Act because Kyei had not exhausted all administrative remedies by clearly presenting his claim to the IJ, the BIA, and the local INS District Director that he was eligible for a stay because of divergence between Second and Fifth Circuit law. 65 F.3d at 284 (Kyei had not consistently argued his claim). Should the administrative remedies fail, the alien must turn to a federal district court for habeas relief as provided by statute before seeking a stay of deportation under the All Writs Act. Id.
Guantanamo Bay detainee Kurnaz was granted the right to a 30-day notice before any transfer. Kurnaz v. Bush, No. 04-1135, 2005 U.S. Dist. LEXIS 6560 (D.C. Cir. April 12, 2005) (government admitted that some petitioners may be transferred to the custody of a foreign government and the court reasoned jurisdiction concerns justified careful scrutiny of transfer “in order to preserve the petitioner’s right to obtain review of the legality of his detention”). The court stated that if “federal courts have jurisdiction to determine the legality of the ongoing detention of petitions held at Guantanamo Bay,… the Court must also have the authority to preserve this jurisdiction if it can be shown that respondents are acting to circumvent it” pursuant to the All Writs Act. Id. at *4-*5. Since the extraordinary relief four factor test is similar to the four factor test considered in Guantanamo Bay detainees’ injunction cases, it is likely that a § 1651(a) claim will encounter the same obstacles. See Memo, Re: Cases granting or denying preliminary injunctions or TRO’s, Oct. 12, 2005. While the harm facing detainees as opposed to aliens in deportation cases may be greater, so is the potential harm to the government. Decisions may turn on whether courts believe that the petitioner is likely to succeed on the merits of his habeas claim. See id. at 5.
APPENDIX D
Federal Rule of Appellate Procedure 23 Limits Transfer of Prisoners with Pending Habeas Corpus Petition
By Kristin Connor
According to Federal Appellate Rule 23, pending review of a decision in a commenced habeas corpus proceeding for the release of a federal prisoner, “the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule.” Fed. R. App. P. 23(a). If a custodian “shows the need for a transfer,” it can be authorized by the court, justice, or judge making the habeas petition decision. Id. The D.C. Circuit held that Rule 23 was not intended by Congress “to block the movement of detainees captured in the course of ongoing military hostilities.” O.K. v. Bush, 377 F.Supp.2d 102, 116 (D.C. Cir. 2005) (detainee’s request for preliminary injunction denied on merits). The court was reluctant to “construe a statute to interfere with the province of the Executive over military affairs in the absence of a clear manifestation of Congressional intent to do so.” Id. at 117 (citing Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988)). Should another court decide differently or Congress make clear its intentions for Rule 23(a) to apply to military detainees, the discussion below of the application of Rule 23(a) to federal prisoners may be useful.
“The purpose of Rule 23(a) is to prevent officials from frustrating an inmate's efforts to obtain habeas relief by physically removing him from the territorial jurisdiction of the court in which the petition is pending.” Strachan v. Army Clemency & Parole Bd., 151 F.3d 1308, 1313 (10th Cir. 1998). Relief under Rule 23(a) can only be obtained after showing the transfer resulted in prejudice to the prosecution of the pending habeas action. Id. The Seventh Circuit held that, since 18 U.S.C. § 4082(b) clearly puts the Attorney General in charge of selecting a federal prisoner’s place of confinement and there is no history of Rule 23(a) curtailing that authority, Rule 23(a) is a deferential review of the Attorney General’s determination of the need for the transfer.[22] Ward v. United States Parole Com., 804 F.2d 64, 66 (7th Cir. 1986). A transfer can be granted if the application for leave to transfer stated a legitimate administrative reason not related to the litigation and if the prisoner could not establish that “the transfer would deprive the court of jurisdiction or substantially complicate the conduct of the litigation.” Id.; see Strachan 151 F.3d at 1313. Thus, the review is limited to “protecting the court’s ability to adjudicate the pending case effectively.” Ward 804 F.2d at 66.
In Ward, while the prisoner’s habeas corpus petition appeal was pending, the U.S. Parole Commission filed a motion for the transfer of custody from a federal prison in Indiana to a federal prison in Michigan. Id. at 65. The district court granted the order, and Ward appealed, claiming that there was not a “need” shown for the transfer. Id. The court accepted the prison warden’s affidavit which stated the Bureau of Prisons wanted to move Ward in order to “put him in a place more suitable to his security classification and free up space” as enough proof that the decision was not “arbitrary, capricious, or an abuse of discretion.” Ward 804 F.2d at 65. This suggests that the burden of proof to show that a transfer is not requested solely to complicate the litigation is relatively low, as such requests are reviewed on administrative record (or the warden’s affidavit in Ward) and not proofs made to a judge. Id. at 67.
If Rule 23(a) is violated because an order of transfer was not requested before being effectuated, the circuits accept that the original circuit retains jurisdiction over the habeas corpus petition. See Ward 804 F.2d at 66 (citing decisions from 5th, 9th, 10th, 11th Circuits denied cert. by Supreme Court); see e.g. Shabazz v. Carroll, 814 F.2d 1321, 3124 (9th Cir. 1987) (inmate transferred from Arizona to Texas without court order, so 9th Circuit retained jurisdiction over pending petition but held transfer would not be prejudicial and inmate could remain in Texas). If the prisoner’s being physically out of the court’s jurisdiction is not determined to be prejudicial to the petition, courts have not ordered prisoners to be transferred back. Shabazz 814 F.2d at 3124.
Federal Rules of Appellate Procedure
Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding (a) Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice, or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party. (b) Detention or Release Pending Review of Decision Not to Release. While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. (c) Release Pending Review of Decision Ordering Release. While a decision ordering the release of a prisoner is under review, the prisoner must -- unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise -- be released on personal recognizance, with or without surety. (d) Modification of the Initial Order on Custody. An initial order governing the prisoner's custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued.
APPENDIX E
Convention Against Torture hearings for asylees, extraditees, and deportees
By Charles V. Wait, Jr
The Convention Against Torture
The Convention Against Torture (“Convention”) has been signed and ratified by the United States.[23] Although some courts have held that the Convention is not self-executing,[24] the United States has enacted implementing legislation.[25] This legislation directs various agencies to promulgate regulations implementing the Convention.[26] The Department Of Justice (“DOJ”) and the Department of State (“DOS”) have published such regulations,[27] and these are enforceable in Federal Court.[28]
Refugees and Asylum Seekers
1. Availability of A Hearing
Refugees and asylum are entitled to be heard on their Convention claims, provided that they are in “exclusion, deportation, or removal proceedings.”[29] The principal form of relief granted under the Convention by these regulations is withholding of removal.[30] These regulations set out the facts that an asylee or refugee must prove in order to obtain protection.[31] Even if the refugee or asylee establishes these facts, he or she may still be subject to mandatory denial of withholding of removal under the same section.[32] If that is the case, they may still apply for deferral of removal.[33]
A claimant can receive a Convention hearing even if there is no basis for granting asylum.[34] In requests for withholding of removal, the immigration judge, rather than the asylum officer, adjudicates the claim.[35]
2. Substance of the Hearing
A person requesting relief under these regulations has the burden of proving “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”[36] This is different from the standard for establishing a “reasonable fear of persecution” in asylum cases because the test under these regulations is a purely objective one.[37] The refugee’s testimony alone is sufficient if it is deemed to be credible.[38]
The regulations state that all relevant evidence “shall be considered,”[39] specifically requiring the immigration judge to consider: evidence of past torture of the applicant, evidence of inability to relocate, evidence of “gross, flagrant or mass violations of human rights within the country of removal,” and other relevant information on the country of removal.[40]
State assurances play a role in this determination.[41] Secretary of State provides them, and if they are “sufficiently reliable,”[42] the refugee’s claim under the Convention can no longer be considered.[43]
Withholding of removal is different from asylum proceedings in three ways: first, mandatory ineligibility does not apply in withholding of removal proceedings, second, while the torture in withholding of removal proceedings “must be conducted by or with the acquiescence of a government official, it need not be on account of one of the five grounds of asylum,” and finally, and finally, nothing prevents the immigration judge from removing the asylee or deportee to a different country.[44]
If the immigration judge determines that the refugee is more likely than not to be tortured, then the immigration judge asks whether the refugee is also subject to mandatory denial of withholding of removal.[45] If mandatory denial of withholding of removal does not apply, then the immigration judge must withhold removal.[46] If the refugee or asylee is eligible for withholding of removal but is also subject to mandatory denial of that relief, then deferral of removal is automatically granted.[47] The refugee or asylee is then entitled to notice before the refugee or asylee is removed from the country.[48] Deferral is terminated by either the request of the refugee or asylee,[49] or by the government.[50] If the termination is by the government, the government must put forth new evidence relevant to whether or not the asylee or refugee would be tortured.[51] The asylee or refugee is then entitled to a hearing at which he may present new evidence,[52] and where the immigration judge makes a de novo determination of whether the refugee or asylee should be removed.[53] The standard for this determination is still based on whether the refugee or asylee is more likely than not to be tortured.[54] The refugee or asylee may appeal this decision to the Board of Immigration Appeals (“BIA”).[55]
Persons to be Extradited
The Department of State (“DOS”) has issued regulations implementing the Covenant in relation to extradition proceedings.[56] These regulations reiterate the principle, stated in the Convention, that “No 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.”[57]
These regulations do not grant the extraditable person a hearing per se, but they do require the DOS to comply with the Convention.[58] The procedure for such compliance is set forth in section 95.3 of the regulations. The Secretary only considers issues arising under the Convention once a judicial officer has determined that the person is extraditable.[59] If that is the case, and the person to be extradited has made the DOS aware of Convention issues, “appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant.”[60] The Secretary is then required decide whether or not to extradite the person on the basis of this information.[61] The standard for the Secretary’s decision is whether the extraditable person is “more likely than not” to be tortured in the state in question.[62]
The regulations state that although a judicial officer determines whether someone is extraditable, the Secretary is the officer who makes the ultimate decision as to whether to sign the extradition order.[63] Accordingly, most of the litigation in this area focuses on the question of judicial review of the Secretary’s decision to extradite an individual in light of the person’s claims under the Convention.[64] The regulations provide that the decision falls under Executive discretion, and is thus not subject to judicial review.[65] Courts have acknowledged this,[66] and yet, at least one court has also acknowledged that where the Secretary’s decision conflicts with the Covenant, habeas review is at least a possibility.[67]
Deportees
Deportees may take advantage of the procedures available to refugees and asylees, since they are in “deportation” proceedings as defined in section 208.16.[68]
Summary
Refugees, asylees, and deportees may obtain a hearing on their Convention claims under the procedures adopted by the DOJ in sections 208.16 to 208.18 of the Code of Federal Regulations. These procedures allow a refugee, asylee, or deportee to apply for withholding or deferral of their removal to a country that practices torture. In the case of extraditions, the Secretary is required to consider information put forward by the extraditable person regarding the State to which the person will be sent. Although the Secretary has discretion to decide on extradition, and the Secretary’s decision is not subject to judicial review, it may be possible to challenge the Secretary’s decision in a habeas petition.
[1] Braden v. Kentucky, 410 U.S. 484 (1972).
[2] Id. at 494-95 (1972), citing Wales v. Whitney, 114 U.S. 564 (1885).
[3] Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 48 (D.D.C. 2004), citing Hensley v. Mun. Court, 411 U.S. 345, 351, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973).
[4] 542 U.S. 426, 437-38 (2004).
[5] Id. at 427.
[6] See Padilla v. Rumsfeld, 352 F.3d 695, 706 (2d Cir. 2003) (stating that “the appropriate focus was whether the respondent, through his agent, was responsible for Strait's detention”). The 2nd Circuit based this statement on Strait v. Laird, in which the Supreme Court stated: “The concepts of 'custody' and 'custodian' are sufficiently broad to allow us to say that the commanding officer in Indiana, operating through officers in California in processing petitioner's claim, is in California for the limited purposes of habeas corpus jurisdiction. 406 U.S. 341, 346-347 (1972).
[7] Spencer v. Kemna, 523 U.S. 1, 7 (1998).
[8] Id.
[9] Lewis v. Continental Bank Corp., 494 R.S. 472, 477, 110 S. Ct. 1249 (1990).
[10] Kurnaz v. Bush, No. 04-1135, 2005 U.S. Dist. LEXIS 6560, *4-*5 (D.C. Cir. April 12, 2005) (government admitted that some petitioners may be transferred to the custody of a foreign government and the court reasoned jurisdiction concerns justified careful scrutiny of transfer “in order to preserve the petitioner’s right to obtain review of the legality of his detention”).
[11] Strachan v. Army Clemency & Parole Bd., 151 F.3d 1308, 1313 (10th Cir. 1998).
[12] See Ward 804 F.2d at 66 (citing decisions from 5th, 9th, 10th, 11th Circuits denied cert. by Supreme Court for the rule that the original circuit retains jurisdiction over the habeas corpus petition if Rule 23 is violated); see e.g. Shabazz v. Carroll, 814 F.2d 1321, 3124 (9th Cir. 1987) (inmate transferred from Arizona to Texas without court order, so 9th Circuit retained jurisdiction over pending petition but held transfer would not be prejudicial and inmate could remain in Texas).
[13] Ward v. United States Parole Com., 804 F.2d 64, 66 (7th Cir. 1986).
[14] O.K. v. Bush, 377 F.Supp.2d 102, 116 (D.C. Cir. 2005).
[15] See 654 F.2d 1382, 1386 (10th Cir. 1981).
[16] 28 U.S.C. § 1651(a); see FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966).
[17] See Michael v. INS, 48 F.3d 657, 664 (2nd Cir. 1995); Reid v. INS, 766 F.2d 113, 116 n.9 (3d Cir. 1985); Dabone v. Karn, 763 F.2d 593, 597 n.2 (3d Cir. 1985).
[18] See NYU Memo dated Oct. 19, 2005.
[19] See id. at 5.
[20] O.K. v. Bush, 377 F.Supp.2d 102, 116 (D.C. Cir. 2005) (detainee’s request for preliminary injunction denied on merits).
[21] Id. at 117, citing Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).
[22] Point of confusion: the Ward court and other post-1984 decisions also make reference to 18 U.S.C. § 4082(b) as reading “The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another." 804 f.2d at 66. However, Public Law 98-473, § 218(a)(3) struck out this subsection.
[23] Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003).
[24] See, e.g., Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003).
[25] Fiscal Year 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, Division G, Subdivision B, Title XXI Foreign Affairs Reform and Restructuring Act of 1998, § 2242, 112 Stat. 2681-822 (1998).
[26] Id. at (b).
[27] See 8 C.F.R. §§ 208.16, 208.17, 208.18; 22 CFR § 95 (2005).
[28] Habtemicael v. Ashcroft, 360 F.3d 820, 825–28 (8th Cir. 2005).
[29] See 8 C.F.R. § 208.18(b)(1) (2004) (“An alien who is in exclusion, deportation, or removal proceedings on or after March 22, 1999 may apply for withholding of removal under § 208.16(c), and, if applicable, may be considered for deferral of removal under § 208.17(a).”).
[30] See generally 8.C.F.R. § 208.16 (2005).
[31] Id. at (c).
[32] Id. at (d)(2), (3).
[33] See 8 C.F.R. § 208.17 (2005).
[34] Mansour v. INS, 230 F.3d 902, 905–06 (7th Cir. 2000).
[35] 8 C.F.R. § 208.16(a) (2005).
[36] Id. at (c)(2).
[37] Zubeda, 333 F.3d at 471.
[38] 8 C.F.R. § 208.16(c)(2) (2005).
[39] Id. at (c)(3).
[40] Id. Some cases have fleshed out rules in applying this test. See Matter of G-A-, 23 I&N Dec. 366 (BIA 2002) This case held that country conditions are relevant, but not sufficient to obtain withholding of removal. Id. at 368-72. See also Julmiste v. Ashcroft, 212 F. Supp. 2d 341, 346-49 (D.N.J. 2002). This case stands for the proposition that torture must be with the acquiescence of or conducted by a public official. Accord 8 C.F.R. § 208.18(a)(1). See Matter of J-E-. supra. 223 I&N Dec. 291 (BIA 2002) (applying the test).
[41] 8 CFR § 208.18(c) (2005).
[42] Id. at (c)(2).
[43] Id. at (c)(3).
[44] See Ira J. Kurzban, Immigration Law Sourcebook 389–90 (American Immigration Law Foundation 2004-2005) (1990). Chapter four is an especially useful collection of information on this topic.
[45] 8 C.F.R. § 208.17(a) (2005).
[46] 8 C.F.R § 208.16(c)(4) (2005).
[47] 8 C.F.R. § 208.17(a) (2005).
[48] Id. at (b).
[49] Id. at (c).
[50] Id. at (d).
[51] Id. at (d)(1).
[52] Id. at (d)(2).
[53] Id. at (d)(3).
[54] Id. at (d)(4).
[55] Id.
[56] 22 C.F.R. § 95 (2005).
[57] 22 C.F.R. § 95.2(a)(1) (2005). The regulation also defines torture. 22 CFR § 95.1 (2005).
[58] See generally id.
[59] 22 C.F.R. § 95.3(a) (2005).
[60] Id.
[61] Id. at (b).
[62] 22 CFR § 95.2(b) (2005).
[63] Id.
[64] See, e.g., Mironescu v. Costner, 345 F. Supp. 2d 538 (M.D.N.C. 2004).
[65] 22 C.F.R. § 95.4 (2005).
[66] Hoxha v. Levi, 371 F. Supp. 2d 651, 660 (E.D. Pa. 2005). This case is also useful in that it provides a brief summary of the process for extradition at 655–56.
[67] Micronescu, 345 F. Supp. 2d at 550 (“The scope of habeas review is uncertain. Nevertheless, the probability that habeas review will be granted appears to be high as three separate examinations of the issue all result in the granting of such review.”). The court discusses these cases further at 544–50.
[68] While I could not find a case that explicitly stated this, it appears to be quite plain from the statutory text. Furthermore, I found several cases decided by the federal courts and the BIA that seemed to assume that this was the case. See, e.g., Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 13–17 (1st Cir. 2004).
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