Debeato: Appeals of Reinstated Orders Possible; Collateral Attack Very Difficult Though

In Debeato v. Attorney General, No. 05-3235 (3d Cir. Oct. 9, 2007), the Third Circuit tackled two issues: can people appeal a reinstated removal order and can someone attack the reinstatement of a removal order by pointing out that the immigration judge made a clear error of law in deciding to order the person deported.

First, yes, people can appeal a reinstated removal order. In this case, ICE sought to reinstate a removal order because the person was deported as ordered by an immigration judge but re-entered without permission and ICE caught her in the United States. With the controversial REAL ID Act, Congress seemed to allow all deportation cases to be appealed if there were Constitutional issues and legal issues involved. That's what the Third Circuit already noted in Papageorgiou v. Gonzales, 413 F.3d 356 (3d Cir. 2005). This case simply gave the Third Circuit to say the same thing in a reinstatement case -- the Third Circuit saw no reason to change the rule just because it is a reinstatement case. It agreed with the Fifth Circuit in Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006). It did not follow the Sixth Circuit but pointed out the Sixth Circuit's decision did not seem to address the big changes in the REAL ID Act. Tilley v. Chertoff, 144 F. App'x 536 (6th Cir. 2005).

Second, no -- a collateral attack on a deportation order cannot succeed merely by showing that the immigration judge's legal analysis in the original case was based on errors in the legal analysis. The Third Circuit held that there must be a "gross miscarriage of justice" and entering an order that had major flaws in its legal reasoning is not a gross miscarriage of justice(!) The Third Circuit instead imposed a very difficult standard to meet -- you must prove not only that the original judge's reasoning was flawed but that at the time it was made, it was clear that it was flawed. This means that if the immigration judge used reasoning that you believed was wrong, but the law was not yet clear, you cannot raise a collateral attack if after more litigation it becomes obvious that the immigration judge should have thrown out the deportation case rather than order you deported.

Moving away from the pure legal issues in the case -- as a practical matter, is it really fair to require every immigrant to pursue appeals all the way to the bitter end rather than pack up his bags with the hope that if courts unanimously condemn the immigration judge's reasoning in other cases, be able to attack the flawed decision later? The costs of appealing an immigration judge's order can be daunting -- appeal first to the BIA (which is part of the Justice Department), then to a circuit court, then upwards to the United States Supreme Court.

It would make sense for the Third Circuit to open up a streamlined appeal method -- for those who are raising issues similar to a pending appeal and just want to ride the coattails of that case's legal arguments. This way, people who are now forced to keep litigating a case can find a streamlined way to preserve their appeals and the Third Circuit also can save time in deciding the appeals by knowing they will reach the same decision as in the lead case. Combining the high standard for collateral attack with the high costs of pursuing appeals suggests a flaw in the Third Circuit's approach to what constitutes a gross miscarriage of justice, at least for those who are not millionaires.