Habeas appeals under REAL ID; must argue due process problems to BIA

Filed 07/15/05, No. 04-2037
Bonhometre v. Atty Gen USA
USDC for the Eastern District of Pennsylvania

The REAL ID Act attempts to get rid of district court review of virtually all orders of removal (but it has not gotten rid of habeas to challenge the legality of detention). What happens, then, if the district court issued an order a few years ago that is now being appealed to the Third Circuit? In theory, if the case started today, it would go directly to the Third Circuit and never be heard by the district court. The Third Circuit said that in such a situation, it would review the issue from scratch (de novo), which would have been the standard anyway if it had been reviewing an appeal.

It also said that, strangely enough, the petition for review should go to the circuit where the IJ ruled, not the circuit where the detainee is now held. Even stranger, the Third Circuit said that even though the IJ's ruling was elsewhere, it would nevertheless hang onto the case because that rule was discretionary, not jurisdictional.

As far as the accuration of a procedural due process error, the Third Circuit ruled that the issue must be raised to the BIA and it was no excuse that it would be obvious that the BIA would have ruled against such an appeal. So, the lesson is to raise every argument to the BIA, even if you know the BIA will reject them. (Is the BIA ready for extremely lengthy appeals?)

Turning to the merits, the Third Circuit stated that in its view, a procedural due process challenge must show substantial prejudice -- that the error affected the result.