Saturday, April 28, 2007

Nnadika: The Utterly Confusing REAL ID Act From Congress Costs A Man Two Years

In Nnadika v. Gonzales, No. 05-3915 (3d Cir. April 27, 2007), the Third Circuit grappled with the bewilderingly confusing REAL ID Act that Congress created and passed over many people's concerns.

In the REAL ID Act, Congress for some reason demanded that a habeas petition that challenges a final order of removal must be transferred to a circuit court and be treated as if it were a petition for review. So, Congress drew a huge distinction between a challenge to a final order of removal (must transfer to the Third Circuit) and other type of challenges (keep it with the district court). One example of the confusion is how the Third Circuit in Kumarasamy v. Gonzales, 453 F.3d 169 (3d Cir. 2006) ruled that someone challenging being deported without any order of removal can continue in district court because challenging the lack of any order of removal is not a challenge to a final order of removal. No final order existed. Sensible but the district court had gotten it wrong.

So, follow this carefully, just because a challenge to what immigration did would make it impossible to deport someone does not mean it literally challenges the removal order. If you challenge the notice of the removal hearing that led to the removal order, it is a challenge to the order and should be transferred as in Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006). If you challenge the notice of reporting to be shipped out of the US but not the underlying removal order, it should not be transferred to the circuit court. Kellici v. Gonzales, 472 F.3d 416 (6th Cir. 2006). These inane distinctions make a big difference in the lives of people challenging deportations.

Still with me? Turning to this appeal, the challenge is that USCIS should have granted a person derivative asylum status as the husband of someone who received asylum. USCIS insisted that the I-730 must be filed within two years of when she got asylum and the immigrant demanded that USCIS consider whether to allow a late application on humanitarian grounds. I guess it is obvious at this stage that the challenge was not directly to the removal order of the husband, but to how USCIS was treating an I-730 application (which would if granted block deportation). So, I hope it now seems quite obvious that the district court never should have transferred this case to the circuit court.

The Third Circuit essentially rejected the transfer and moved the case back to the district court. So, about two years of the man's life has been wasted with the incorrect transfer to the Third Circuit. He has been waiting since March 2005 in the dreary Elizabeth Detention Center in Elizabeth, NJ. Two years of dreary waiting just to get back to where he was in June 2005 -- asking the district court to make a ruling.

It's too bad Congress won't do anything like give the man a short apology for writing such a confusing and illogical law like REAL ID that led to his entire case getting sidetracked for two years. I think Congress owes him an apology.


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