Sunday, August 21, 2005

Repapering not needed for transitional REAL ID petitions for review

Filed 08/02/05, No. 04-3726
Jahic v. Atty Gen USA
Jahic v. Gonzales
Not precedential

If you filed a petition for review that was pending when REAL ID was enacted, then you do not need repapering in order for your client to pursue cancellation of removal.

Before 1996, removal proceedings were broken out into two types of proceedings: deportation (for removing those in the US) and exclusion (for removing those who were stopped at the border and the government sought to exclude from officially entering).

By a quirk in the law, anyone in exclusion proceedings could not apply for the forerunner of a form of relief called cancellation of removal. (There are many harsh, onerous requirements for cancellation of removal that I won't get into here.) But, after 1996, anyone who is in a removal proceeding could seek cancellation of removal.

Therefore, some people who were put into exclusion proceedings before 1996 asked the government to "repaper" their case by launching a new removal proceeding. This way, they could seek cancellation of removal (available in all removal proceedings launched after 1996, but not in pre-1996 exclusion proceedings). Strange but true.

Well, under the REAL ID Act, any petition for review that was pending on May 11, 2005 will automatically be treated as if it had been filed in a post-1996 removal proceeding. Therefore, the Third Circuit ruled, any case that had a petition for review pending on May 11, 2005 is automatically eligible for the forms of relief available in post-1996 removal proceedings and repapering is not necessary.

This was a big deal in this appeal because the issue was whether the government acted improperly by refusing to "repaper" the case. As it turns out, repapering is not necessary so the issue of whether the government had the right to refuse to repaper is irrelevant.

Ah, the quirky and unexpected consequences of rushed legislation like the extremely harsh REAL ID Act.


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