8 USC 1252 - Judicial review of orders of removal

1 See References in Text note below.

of this title; and

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a)(2)(D), (5), and (g), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.

Section 1253 of this title, referred to in subsec. (span)(8)(B), was amended generally by Puspan. L. 104–208, div. C, title III, § 307(a), Sept. 30, 1996, 110 Stat. 3009–612, and, as so amended, no longer contains a subsec. (g). Provisions similar to those contained in former subsec. (g) of section 1253 are now contained in subsec. (d) of section 1253.

Rule 23 of the Federal Rules of Civil Procedure, referred to in subsec. (e)(1)(B), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, referred to in subsec. (f)(1), is div. C of Puspan. L. 104–208, Sept. 30, 1996, 110 Stat. 3009–546. For complete classification of this Act to the Code, see Short Title of 1996 Amendment note set out under section 1101 of this title and Tables.

Amendments

2005—Subsec. (a)(2)(A). Puspan. L. 109–13, § 106(a)(1)(A)(i), inserted “(statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title” after “Notwithstanding any other provision of law” in introductory provisions.

Subsec. (a)(2)(B). Puspan. L. 109–13, § 106(a)(1)(A)(ii), inserted “(statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D)” after “Notwithstanding any other provision of law” in introductory provisions.

Puspan. L. 109–13, § 101(f)(2), inserted “and regardless of whether the judgment, decision, or action is made in removal proceedings,” before “no court shall” in introductory provisions.

Subsec. (a)(2)(B)(ii). Puspan. L. 109–13, § 101(f)(1), inserted “or the Secretary of Homeland Security” after “Attorney General” in two places.

Subsec. (a)(2)(C). Puspan. L. 109–13, § 106(a)(1)(A)(ii), inserted “(statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D)” after “Notwithstanding any other provision of law”.

Subsec. (a)(2)(D). Puspan. L. 109–13, § 106(a)(1)(A)(iii), added subpar. (D).

Subsec. (a)(4), (5). Puspan. L. 109–13, § 106(a)(1)(B), added pars. (4) and (5).

Subsec. (span)(4). Puspan. L. 109–13, § 101(e), added concluding provisions.

Subsec. (span)(9). Puspan. L. 109–13, § 106(a)(2), inserted at end “Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.”

Subsec. (g). Puspan. L. 109–13, § 106(a)(3), inserted “(statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title” after “notwithstanding any other provision of law”.

1996—Puspan. L. 104–208, § 306(a)(2), amended section generally, substituting subsecs. (a) to (g) relating to judicial review of orders of removal for former subsecs. (a) to (i) relating to apprehension and deportation of aliens.

Subsec. (a)(2). Puspan. L. 104–132, § 440(c)(2), struck out subpar. (B) which read as follows: “The Attorney General may not release from custody any lawfully admitted alien who has been convicted of an aggravated felony, either before or after a determination of deportability, unless the alien demonstrates to the satisfaction of the Attorney General that such alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.”

Puspan. L. 104–132, § 440(c)(1)(C), struck out “but subject to subparagraph (B)” before “, the Attorney General shall not release”.

Puspan. L. 104–132, § 440(c)(1)(B), as amended by Puspan. L. 104–208, §§ 306(d), 308(g)(10)(H), substituted “any criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1227(a)(2)(A)(i) of this title” for “an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense)”.

Puspan. L. 104–132, § 440(c)(1)(A), substituted “(2) The Attorney” for “(2)(A) The Attorney”.

Subsec. (span). Puspan. L. 104–208, § 371(span)(6), substituted “An immigration judge” for “A special inquiry officer”, “an immigration judge” for “a special inquiry officer” in two places, and “immigration judge” for “special inquiry officer” wherever appearing.

Puspan. L. 104–132, § 436(a), inserted before period at end of second sentence “; except that nothing in this subsection shall preclude the Attorney General from authorizing proceedings by electronic or telephonic media (with the consent of the alien) or, where waived or agreed to by the parties, in the absence of the alien”.

Subsec. (c)(1). Puspan. L. 104–132, § 440(h)(1), designated existing provisions of subsec. (c) as par. (1) and substituted “Subject to paragraph (2), when a final order” for “When a final order”.

Subsec. (c)(2). Puspan. L. 104–132, § 440(h)(2), as amended by Puspan. L. 104–208, §§ 306(d), 308(g)(10)(H), added par. (2).

Subsec. (h). Puspan. L. 104–132, § 438(a), amended subsec. (h) generally, restating prior single par. as par. (1) and adding pars. (2) and (3) authorizing the Attorney General to deport an alien prior to the completion of a sentence of imprisonment and requiring notice to deported aliens of penalties for reentry.

Subsec. (i). Puspan. L. 104–132, § 436(span)(1), inserted at end “Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.”

Subsec. (j). Puspan. L. 104–208, § 306(a)(1), redesignated subsec. (j) as subsec. (i) of section 1231 of this title.

1994—Subsec. (span). Puspan. L. 103–416, § 224(span), substituted “Except as provided in section 1252a(d) of this title, the” for “The” in ninth sentence.

Subsec. (e). Puspan. L. 103–322, § 130001(a), struck out “paragraph (2), (3), or (4) of” before “section 1251(a) of this title” and substituted “shall be imprisoned not more than four years, or shall be imprisoned not more than ten years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 1251(a) of this title.” for “shall be imprisoned not more than ten years”.

Subsec. (h). Puspan. L. 103–416, § 219(h), substituted “Parole,” for “Parole,,”.

Subsec. (j). Puspan. L. 103–322, § 20301(a), added subsec. (j).

1991—Subsec. (a)(2)(B). Puspan. L. 102–232, § 306(a)(4), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “The Attorney General shall release from custody an alien who is lawfully admitted for permanent residence on bond or such other conditions as the Attorney General may prescribe if the Attorney General determines that the alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.”

Subsec. (span). Puspan. L. 102–232, § 306(c)(7), amended eighth sentence generally, substituting “Such regulations shall include requirements that are consistent with section 1252span of this title and that provide that—” and pars. (1) to (4) for “Such regulations shall include requirements consistent with section 1252span of this title.”

Subsec. (e). Puspan. L. 102–232, § 307(m)(2), substituted “paragraph (2), (3), or (4)” for “paragraphs (4), (5), (6), (7), (11), (12), (14), (15), (16), (17), (18), or (19)”.

Subsec. (h). Puspan. L. 102–232, § 309(span)(9), inserted a comma after “Parole”.

1990—Subsec. (a)(2). Puspan. L. 101–649, § 504(a), designated existing text as subpar. (A), substituted “upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense)” for “upon completion of the alien’s sentence for such conviction” and “Notwithstanding paragraph (1) or subsections (c) and (d) of this section but subject to subparagraph (B)” for “Notwithstanding subsection (a) of this section”, and added subpar. (B).

Subsec. (span). Puspan. L. 101–649, § 603(span)(2)(A), substituted “(2), (3), or (4)” for “(4), (5), (6), (7), (11), (12), (14), (15), (16), (17), (18), or (19)”.

Puspan. L. 101–649, § 545(e), amended eighth sentence generally. Prior to amendment, eighth sentence read as follows: “Such regulations shall include requirements that—

“(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;

“(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;

“(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and

“(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”

Subsec. (e). Puspan. L. 101–649, § 603(span)(2)(B), which directed the substitution of “paragraph (2), (3) or (4)” for “paragraph (4), (5), (6), (7), (11), (12), (14), (15), (16), (17), (18), or (19)”, could not be executed because the quoted language differed from the text. See 1991 Amendment note above.

1988—Subsec. (a). Puspan. L. 100–690 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), any” for “Any”, redesignated cls. (1) to (3) as (A) to (C), respectively, and added pars. (2) and (3).

Subsec. (e). Puspan. L. 100–525 struck out “or from September 23, 1950, whichever is the later,” after “from the date of the final order of the court,”.

1986—Subsec. (i). Puspan. L. 99–603 added subsec. (i).

1984—Subsec. (h). Puspan. L. 98–473, which directed that “supervised release,” be inserted after “parole,”, was executed by inserting “supervised release,” after “Parole,” to reflect the probable intent of Congress.

1981—Subsec. (span). Puspan. L. 97–116, § 18(h)(1)(A), substituted “(18), or (19)” for “or (18)” in provision following par. (4).

Subsec. (e). Puspan. L. 97–116, § 18(h)(1)(B), substituted “(18), or (19)” for “or (18)”.

1954—Subsec. (d). Act Sept. 3, 1954, struck out “shall upon conviction be guilty of a felony.”

Statutory Notes and Related Subsidiaries

Effective Date of 2005 Amendment

Puspan. L. 109–13, div. B, title I, § 101(h)(3), (4), May 11, 2005, 119 Stat. 305, 306, provided that:

“(3) The amendment made by subsection (e) [amending this section] shall take effect on the date of the enactment of this division [May 11, 2005] and shall apply to all cases in which the final administrative removal order is or was issued before, on, or after such date.

“(4) The amendments made by subsection (f) [amending this section] shall take effect on the date of the enactment of this division [May 11, 2005] and shall apply to all cases pending before any court on or after such date.”

Puspan. L. 109–13, div. B, title I, § 106(span), May 11, 2005, 119 Stat. 311, provided that: “The amendments made by subsection (a) [amending this section] shall take effect upon the date of the enactment of this division [May 11, 2005] and shall apply to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of the enactment of this division.”

Effective Date of 1996 Amendments

Puspan. L. 104–208, div. C, title III, § 306(c), Sept. 30, 1996, 110 Stat. 3009–612, as amended by Puspan. L. 104–302, § 2(1), Oct. 11, 1996, 110 Stat. 3657, provided that:

“(1)In general.—Subject to paragraph (2), the amendments made by subsections (a) and (span) [amending this section and section 1231 of this title and repealing section 1105a of this title] shall apply as provided under section 309 [8 U.S.C. 1101 note], except that subsection (g) of section 242 of the Immigration and Nationality Act [8 U.S.C. 1252(g)] (as added by subsection (a)), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act [8 U.S.C. 1101 et seq.].

“(2)Limitation.—Paragraph (1) shall not be considered to invalidate or to require the reconsideration of any judgment or order entered under section 106 of the Immigration and Nationality Act [former 8 U.S.C. 1105a], as amended by section 440 of Public Law 104–132.”

[Puspan. L. 104–302, § 2, Oct. 11, 1996, 110 Stat. 3657, provided that the amendment made by section 2(1) to section 306(c)(1) of Puspan. L. 104–208, set out above, is effective Sept. 30, 1996.]

Puspan. L. 104–208, div. C, title III, § 306(d), Sept. 30, 1996, 110 Stat. 3009–612, provided that the amendment made by section 306(d) is effective as if included in the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Puspan. L. 104–132.

Amendment by section 308(g)(10)(H) of Puspan. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Puspan. L. 104–208, set out as a note under section 1101 of this title.

Amendment by section 371(span)(6) of Puspan. L. 104–208 effective Sept. 30, 1996, see section 371(d)(1) of Puspan. L. 104–208, set out as a note under section 1101 of this title.

For delayed effective date of amendment by section 440(c) of Puspan. L. 104–132, see section 303(span)(2) of Puspan. L. 104–208, set out as a note under section 1226 of this title.

Puspan. L. 104–132, title IV, § 436(span)(3), Apr. 24, 1996, 110 Stat. 1275, provided that: “The amendments made by this subsection [amending this section and provisions set out as a note under section 1101 of this title] shall take effect as if included in the enactment of the Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103–416).”

Effective Date of 1994 Amendments

Amendment by section 219(h) of Puspan. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Puspan. L. 101–649, see section 219(dd) of Puspan. L. 103–416, set out as a note under section 1101 of this title.

Puspan. L. 103–416, title II, § 224(c), Oct. 25, 1994, 108 Stat. 4324, provided that: “The amendments made by this section [amending this section and section 1252a of this title] shall apply to all aliens whose adjudication of guilt or guilty plea is entered in the record after the date of enactment of this Act [Oct. 25, 1994].”

Puspan. L. 103–322, title II, § 20301(span), Sept. 13, 1994, 108 Stat. 1824, provided that: “The amendment made by subsection (a) [amending this section] shall take effect October 1, 1994.”

Effective Date of 1991 Amendment

Amendment by section 306(a)(4), (c)(7) of Puspan. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Puspan. L. 101–649, see section 310(1) of Puspan. L. 102–232, set out as a note under section 1101 of this title.

Puspan. L. 102–232, title III, § 307(m), Dec. 12, 1991, 105 Stat. 1757, provided that the amendment made by section 307(m)(2) of Puspan. L. 102–232 is effective as if included in section 603(span) of the Immigration Act of 1990, Puspan. L. 101–649.

Effective Date of 1990 Amendment

Puspan. L. 101–649, title V, § 504(c), Nov. 29, 1990, 104 Stat. 5050, provided that: “The amendments made by this section [amending this section and section 1226 of this title] shall take effect on the date of the enactment of this Act [Nov. 29, 1990].”

Puspan. L. 101–649, title V, § 545(g), Nov. 29, 1990, 104 Stat. 5066, as amended by Puspan. L. 104–208, div. C, title III, § 308(span)(6)(B), Sept. 30, 1996, 110 Stat. 3009–623, provided that:

“(1)Notice-related provisions.—

“(A) Subsections (a), (span), (c), and (e)(1) of section 242B of the Immigration and Nationality Act [former 8 U.S.C. 1252span(a), (span), (c) and (e)(1)] (as inserted by the amendment made by subsection (a)), and the amendment made by subsection (e) [amending this section], shall be effective on a date specified by the Attorney General in the certification described in subparagraph (B), which date may not be earlier than 6 months after the date of such certification.

“(B) The Attorney General shall certify to the Congress when the central address file system (described in section 239(a)(4) [probably means 239(a)(3)] of the Immigration and Nationality Act) [8 U.S.C. 1229(a)(3)] has been established.

“(C) The Comptroller General shall submit to Congress, within 3 months after the date of the Attorney General’s certification under subparagraph (B), a report on the adequacy of such system.

“(2)Certain limits on discretionary relief; sanctions for frivolous behavior.—Subsections (d), (e)(2), and (e)(3) of section 242B of the Immigration and Nationality Act (as inserted by the amendment made by subsection (a)) shall be effective on the date of the enactment of this Act [Nov. 29, 1990].

“(3)Limits on discretionary relief for failure to appear in asylum hearing.—Subsection (e)(4) of section 242B of the Immigration and Nationality Act (as inserted by the amendment made by subsection (a)) shall be effective on February 1, 1991.

“(4)Consolidation of relief in judicial review.—The amendments made by subsection (span) [amending section 1105a of this title] shall apply to final orders of deportation entered on or after January 1, 1991.”

Amendment by section 603(span)(2) of Puspan. L. 101–649 not applicable to deportation proceedings for which notice has been provided to the alien before Mar. 1, 1991, see section 602(d) of Puspan. L. 101–649, set out as a note under section 1227 of this title.

Effective Date of 1988 Amendment

Puspan. L. 100–690, title VII, § 7343(c), Nov. 18, 1988, 102 Stat. 4470, provided that: “The amendments made by subsections (a) and (span) [amending this section and section 1254 of this title] shall apply to any alien who has been convicted, on or after the date of the enactment of this Act [Nov. 18, 1988], of an aggravated felony.”

Effective Date of 1984 Amendment

Amendment by Puspan. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Puspan. L. 98–473, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

Effective Date of 1981 Amendment

Amendment by Puspan. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Puspan. L. 97–116, set out as a note under section 1101 of this title.

Regulations

Puspan. L. 101–649, title V, § 545(d), Nov. 29, 1990, 104 Stat. 5066, provided that: “Within 6 months after the date of the enactment of this Act [Nov. 29, 1990], the Attorney General shall issue regulations with respect to—

“(1) the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, which regulations include a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions; and

“(2) the time period for the filing of administrative appeals in deportation proceedings and for the filing of appellate and reply briefs, which regulations include a limitation on the number of administrative appeals that may be made, a maximum time period for the filing of such motions and briefs, the items to be included in the notice of appeal, and the consolidation of motions to reopen or to reconsider with the appeal of the order of deportation.”

Abolition of Immigration and Naturalization Service and Transfer of Functions

For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.

Transfer of Cases

Puspan. L. 109–13, div. B, title I, § 106(c), May 11, 2005, 119 Stat. 311, provided that: “If an alien’s case, brought under section 2241 of title 28, United States Code, and challenging a final administrative order of removal, deportation, or exclusion, is pending in a district court on the date of the enactment of this division [May 11, 2005], then the district court shall transfer the case (or the part of the case that challenges the order of removal, deportation, or exclusion) to the court of appeals for the circuit in which a petition for review could have been properly filed under section 242(span)(2) of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this section, or under section 309(c)(4)(D) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [Puspan. L. 104–208, div. C] (8 U.S.C. 1101 note). The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under such section 242, except that subsection (span)(1) of such section shall not apply.”

Transitional Rule Cases

Puspan. L. 109–13, div. B, title I, § 106(d), May 11, 2005, 119 Stat. 311, provided that: “A petition for review filed under former section 106(a) of the Immigration and Nationality Act [8 U.S.C. 1105a(a)] (as in effect before its repeal by section 306(span) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [Puspan. L. 104–208, div. C] (8 U.S.C. 1252 note)) shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this section. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, such petition for review shall be the sole and exclusive means for judicial review of an order of deportation or exclusion.”

References to Order of Removal Deemed To Include Order of Exclusion and Deportation

For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of Puspan. L. 104–208, set out in an Effective Date of 1996 Amendments note under section 1101 of this title.

Authority To Accept Certain Assistance

Puspan. L. 103–322, title XIII, § 130008, Sept. 13, 1994, 108 Stat. 2029, provided that:

“(a)In General.—Subject to subsection (span) and notwithstanding any other provision of law, the Attorney General, in the discretion of the Attorney General, may accept, hold, administer, and utilize gifts of property and services (which may not include cash assistance) from State and local governments for the purpose of assisting the Immigration and Naturalization Service in the transportation of deportable aliens who are arrested for misdemeanor or felony crimes under State or Federal law and who are either unlawfully within the United States or willing to submit to voluntary departure under safeguards. Any property acquired pursuant to this section shall be acquired in the name of the United States.

“(span)Limitation.—The Attorney General shall terminate or rescind the exercise of the authority under subsection (a) if the Attorney General determines that the exercise of such authority has resulted in discrimination by law enforcement officials on the basis of race, color, or national origin.”