Friday, September 07, 2007

Kolkevich: REAL ID Had Hidden Deadline Requiring People Barred From Appealing Only 30 Days To Appeal

What happens when Congress writes a piece of law that by mistake does not say how someone with an aggravated felony can appeal his case? In Kolkevich v. Gonzales, No. 06-2624 (3d Cir. Sept. 6, 2007), the Third Circuit said the immigrant should have read Congress's mind and filed within a 30-day deadline that is counted according to rules that do not appear anywhere in the law. Confused? Read on...

Before the REAL ID Act of 2005, someone with an aggravated felony could not file a petition for review with the Third Circuit and had an unlimited amount of time to file a habeas petition, a type of legal case filed with a federal district court. In May 2005, though, the REAL ID Act confused matters by saying nobody could file a habeas petition anymore and everybody must file a petition for review within 30 days of what they're appealing from. The problem is -- what about the people who had a removal order for an aggravated felony in March 2005?

For those people, pre-May 2005 they had an unlimited time to file a habeas petition. But starting May 2005, they had to file a petition for review by April 2005 (within 30 days of the March 2005 decision). How could Congress wipe out all avenues to appeal for someone (which probably violates the Suspension Clause of the Constitution)? In this case, the immigrant filed a habeas petition in April 2006.

The Third Circuit ruled that one sensible view of the REAL ID Act is to pretend that Congress wrote that for anyone who wants to appeal an order from before May 2005, they would have 30 days from the enactment of REAL ID -- until June 2005 -- to appeal, even though that might be more than 30 days after the order being appealed.

It's one thing to announce a rule ahead of time and force people to follow it. But it's quite another for the Third Circuit to announce a rule in September 2007 and force people to have followed it in June 2005, around two years before the Third Circuit announced it. Another problem is that hiring a lawyer to file a petition for review is an expensive process. The Third Circuit is basically urging people to spend thousands of dollars to rush to file these petitions even when the law says they may not be filed, in case there is an unwritten rule authorizing it.

We'll see whether other circuits of appeal adopt a similar rule or take another approach. Other cases dealing with related issues are Williamson v. Gonzales and Ruiz-Martinez v. Gonzales in the Second Circuit and Monroy v. Gonzales in the Ninth Circuit.

In the meantime, the moral of the story might be: consider paying thousands of dollars to hire someone to file a petition for review, even if the rules say you may not. Because if it's not clear you can appeal anywhere, there might be an unwritten rule forcing you to file right now or forever lose your chance. And welcome to the crazy world of immigration law.

Actually, even though the Third Circuit says nobody in that category can file a petition for review today, does it make sense for people to rush within 30 days of today to file an unauthorized petition for review -- just in case the Third Circuit reconsiders its decision and rules that people should have filed a petition for review within 30 days of the announcement of this decision? Sure, there's no basis today for filing it -- but the lesson of the case is sometimes the Third Circuit urges people to file when there is no visible authority for appealing, just in case years later the Third Circuit announces an unwritten rule that required doing so.

The decision is on the Third Circuit's web site at


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