CITE
8 USC Sec. 1252 01/05/2009
EXPCITE
TITLE 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER II - IMMIGRATION
Part V - Adjustment and Change of Status
HEAD
Sec. 1252. Judicial review of orders of removal
STATUTE
(a) Applicable provisions
(1) General orders of removal
Judicial review of a final order of removal (other than an
order of removal without a hearing pursuant to section 1225(b)(1)
of this title) is governed only by chapter 158 of title 28,
except as provided in subsection (b) of this section and except
that the court may not order the taking of additional evidence
under section 2347(c) of such title.
(2) Matters not subject to judicial review
(A) Review relating to section 1225(b)(1)
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such
title, no court shall have jurisdiction to review -
(i) except as provided in subsection (e) of this section,
any individual determination or to entertain any other cause
or claim arising from or relating to the implementation or
operation of an order of removal pursuant to section
1225(b)(1) of this title,
(ii) except as provided in subsection (e) of this section,
a decision by the Attorney General to invoke the provisions
of such section,
(iii) the application of such section to individual aliens,
including the determination made under section 1225(b)(1)(B)
of this title, or
(iv) except as provided in subsection (e) of this section,
procedures and policies adopted by the Attorney General to
implement the provisions of section 1225(b)(1) of this title.
(B) Denials of discretionary relief
Notwithstanding any other provision of law (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), and
regardless of whether the judgment, decision, or action is made
in removal proceedings, no court shall have jurisdiction to
review -
(i) any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
title, or
(ii) any other decision or action of the Attorney General
or the Secretary of Homeland Security the authority for which
is specified under this subchapter to be in the discretion of
the Attorney General or the Secretary of Homeland Security,
other than the granting of relief under section 1158(a) of
this title.
(C) Orders against criminal aliens
Notwithstanding any other provision of law (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), no court
shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed
a criminal offense covered in section 1182(a)(2) or
1227(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 their date
of commission, otherwise covered by section 1227(a)(2)(A)(i) of
this title.
(D) Judicial review of certain legal claims
Nothing in subparagraph (B) or (C), or in any other provision
of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised upon
a petition for review filed with an appropriate court of
appeals in accordance with this section.
(3) Treatment of certain decisions
No alien shall have a right to appeal from a decision of an
immigration judge which is based solely on a certification
described in section 1229a(c)(1)(B) of this title.
(4) Claims under the United Nations Convention
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such
title, a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and
exclusive means for judicial review of any cause or claim under
the United Nations Convention Against Torture and Other Forms of
Cruel, Inhuman, or Degrading Treatment or Punishment, except as
provided in subsection (e) of this section.
(5) Exclusive means of review
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such
title, a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and
exclusive means for judicial review of an order of removal
entered or issued under any provision of this chapter, except as
provided in subsection (e) of this section. For purposes of this
chapter, in every provision that limits or eliminates judicial
review or jurisdiction to review, the terms "judicial review" and
"jurisdiction to review" include habeas corpus review pursuant to
section 2241 of title 28, or any other habeas corpus provision,
sections 1361 and 1651 of such title, and review pursuant to any
other provision of law (statutory or nonstatutory).
(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection
(a)(1) of this section, the following requirements apply:
(1) Deadline
The petition for review must be filed not later than 30 days
after the date of the final order of removal.
(2) Venue and forms
The petition for review shall be filed with the court of
appeals for the judicial circuit in which the immigration judge
completed the proceedings. The record and briefs do not have to
be printed. The court of appeals shall review the proceeding on a
typewritten record and on typewritten briefs.
(3) Service
(A) In general
The respondent is the Attorney General. The petition shall be
served on the Attorney General and on the officer or employee
of the Service in charge of the Service district in which the
final order of removal under section 1229a of this title was
entered.
(B) Stay of order
Service of the petition on the officer or employee does not
stay the removal of an alien pending the court's decision on
the petition, unless the court orders otherwise.
(C) Alien's brief
The alien shall serve and file a brief in connection with a
petition for judicial review not later than 40 days after the
date on which the administrative record is available, and may
serve and file a reply brief not later than 14 days after
service of the brief of the Attorney General, and the court may
not extend these deadlines except upon motion for good cause
shown. If an alien fails to file a brief within the time
provided in this paragraph, the court shall dismiss the appeal
unless a manifest injustice would result.
(4) Scope and standard for review
Except as provided in paragraph (5)(B) -
(A) the court of appeals shall decide the petition only on
the administrative record on which the order of removal is
based,
(B) the administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
the contrary,
(C) a decision that an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to
law, and
(D) the Attorney General's discretionary judgment whether to
grant relief under section 1158(a) of this title shall be
conclusive unless manifestly contrary to the law and an abuse
of discretion.
No court shall reverse a determination made by a trier of fact
with respect to the availability of corroborating evidence, as
described in section 1158(b)(1)(B), 1229a(c)(4)(B), or
1231(b)(3)(C) of this title, unless the court finds, pursuant to
subsection (b)(4)(B) of this section, that a reasonable trier of
fact is compelled to conclude that such corroborating evidence is
unavailable.
(5) Treatment of nationality claims
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United
States and the court of appeals finds from the pleadings and
affidavits that no genuine issue of material fact about the
petitioner's nationality is presented, the court shall decide
the nationality claim.
(B) Transfer if issue of fact
If the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine issue of
material fact about the petitioner's nationality is presented,
the court shall transfer the proceeding to the district court
of the United States for the judicial district in which the
petitioner resides for a new hearing on the nationality claim
and a decision on that claim as if an action had been brought
in the district court under section 2201 of title 28.
(C) Limitation on determination
The petitioner may have such nationality claim decided only
as provided in this paragraph.
(6) Consolidation with review of motions to reopen or reconsider
When a petitioner seeks review of an order under this section,
any review sought of a motion to reopen or reconsider the order
shall be consolidated with the review of the order.
(7) Challenge to validity of orders in certain criminal
proceedings
(A) In general
If the validity of an order of removal has not been
judicially decided, a defendant in a criminal proceeding
charged with violating section 1253(a) of this title may
challenge the validity of the order in the criminal proceeding
only by filing a separate motion before trial. The district
court, without a jury, shall decide the motion before trial.
(B) Claims of United States nationality
If the defendant claims in the motion to be a national of the
United States and the district court finds that -
(i) no genuine issue of material fact about the defendant's
nationality is presented, the court shall decide the motion
only on the administrative record on which the removal order
is based and the administrative findings of fact are
conclusive if supported by reasonable, substantial, and
probative evidence on the record considered as a whole; or
(ii) a genuine issue of material fact about the defendant's
nationality is presented, the court shall hold a new hearing
on the nationality claim and decide that claim as if an
action had been brought under section 2201 of title 28.
The defendant may have such nationality claim decided only as
provided in this subparagraph.
(C) Consequence of invalidation
If the district court rules that the removal order is
invalid, the court shall dismiss the indictment for violation
of section 1253(a) of this title. The United States Government
may appeal the dismissal to the court of appeals for the
appropriate circuit within 30 days after the date of the
dismissal.
(D) Limitation on filing petitions for review
The defendant in a criminal proceeding under section 1253(a)
of this title may not file a petition for review under
subsection (a) of this section during the criminal proceeding.
(8) Construction
This subsection -
(A) does not prevent the Attorney General, after a final
order of removal has been issued, from detaining the alien
under section 1231(a) of this title;
(B) does not relieve the alien from complying with section
1231(a)(4) of this title and section 1253(g) (!1) of this
title; and
(C) does not require the Attorney General to defer removal of
the alien.
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought
to remove an alien from the United States under this subchapter
shall be available only in judicial review of a final order under
this section. 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.
(c) Requirements for petition
A petition for review or for habeas corpus of an order of removal
-
(1) shall attach a copy of such order, and
(2) shall state whether a court has upheld the validity of the
order, and, if so, shall state the name of the court, the date of
the court's ruling, and the kind of proceeding.
(d) Review of final orders
A court may review a final order of removal only if -
(1) the alien has exhausted all administrative remedies
available to the alien as of right, and
(2) another court has not decided the validity of the order,
unless the reviewing court finds that the petition presents
grounds that could not have been presented in the prior judicial
proceeding or that the remedy provided by the prior proceeding
was inadequate or ineffective to test the validity of the order.
(e) Judicial review of orders under section 1225(b)(1)
(1) Limitations on relief
Without regard to the nature of the action or claim and without
regard to the identity of the party or parties bringing the
action, no court may -
(A) enter declaratory, injunctive, or other equitable relief
in any action pertaining to an order to exclude an alien in
accordance with section 1225(b)(1) of this title except as
specifically authorized in a subsequent paragraph of this
subsection, or
(B) certify a class under Rule 23 of the Federal Rules of
Civil Procedure in any action for which judicial review is
authorized under a subsequent paragraph of this subsection.
(2) Habeas corpus proceedings
Judicial review of any determination made under section
1225(b)(1) of this title is available in habeas corpus
proceedings, but shall be limited to determinations of -
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such
section, and
(C) whether the petitioner can prove by a preponderance of
the evidence that the petitioner is an alien lawfully admitted
for permanent residence, has been admitted as a refugee under
section 1157 of this title, or has been granted asylum under
section 1158 of this title, such status not having been
terminated, and is entitled to such further inquiry as
prescribed by the Attorney General pursuant to section
1225(b)(1)(C) of this title.
(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under section 1225(b) of
this title and its implementation is available in an action
instituted in the United States District Court for the District
of Columbia, but shall be limited to determinations of -
(i) whether such section, or any regulation issued to
implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy
directive, written policy guideline, or written procedure
issued by or under the authority of the Attorney General to
implement such section, is not consistent with applicable
provisions of this subchapter or is otherwise in violation of
law.
(B) Deadlines for bringing actions
Any action instituted under this paragraph must be filed no
later than 60 days after the date the challenged section,
regulation, directive, guideline, or procedure described in
clause (i) or (ii) of subparagraph (A) is first implemented.
(C) Notice of appeal
A notice of appeal of an order issued by the District Court
under this paragraph may be filed not later than 30 days after
the date of issuance of such order.
(D) Expeditious consideration of cases
It shall be the duty of the District Court, the Court of
Appeals, and the Supreme Court of the United States to advance
on the docket and to expedite to the greatest possible extent
the disposition of any case considered under this paragraph.
(4) Decision
In any case where the court determines that the petitioner -
(A) is an alien who was not ordered removed under section
1225(b)(1) of this title, or
(B) has demonstrated by a preponderance of the evidence that
the alien is an alien lawfully admitted for permanent
residence, has been admitted as a refugee under section 1157 of
this title, or has been granted asylum under section 1158 of
this title, the court may order no remedy or relief other than
to require that the petitioner be provided a hearing in
accordance with section 1229a of this title. Any alien who is
provided a hearing under section 1229a of this title pursuant
to this paragraph may thereafter obtain judicial review of any
resulting final order of removal pursuant to subsection (a)(1)
of this section.
(5) Scope of inquiry
In determining whether an alien has been ordered removed under
section 1225(b)(1) of this title, the court's inquiry shall be
limited to whether such an order in fact was issued and whether
it relates to the petitioner. There shall be no review of whether
the alien is actually inadmissible or entitled to any relief from
removal.
(f) Limit on injunctive relief
(1) In general
Regardless of the nature of the action or claim or of the
identity of the party or parties bringing the action, no court
(other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions
of part IV of this subchapter, as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
other than with respect to the application of such provisions to
an individual alien against whom proceedings under such part have
been initiated.
(2) Particular cases
Notwithstanding any other provision of law, no court shall
enjoin the removal of any alien pursuant to a final order under
this section unless the alien shows by clear and convincing
evidence that the entry or execution of such order is prohibited
as a matter of law.
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other
provision of law (statutory or nonstatutory), including section
2241 of title 28, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, no court shall have
jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General
to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.
SOURCE
(June 27, 1952, ch. 477, title II, ch. 5, Sec. 242, 66 Stat. 208;
Sept. 3, 1954, ch. 1263, Sec. 17, 68 Stat. 1232; Pub. L. 97-116,
Sec. 18(h)(1), Dec. 29, 1981, 95 Stat. 1620; Pub. L. 98-473, title
II, Sec. 220(b), Oct. 12, 1984, 98 Stat. 2028; Pub. L. 99-603,
title VII, Sec. 701, Nov. 6, 1986, 100 Stat. 3445; Pub. L. 100-525,
Sec. 9(n), Oct. 24, 1988, 102 Stat. 2620; Pub. L. 100-690, title
VII, Sec. 7343(a), Nov. 18, 1988, 102 Stat. 4470; Pub. L. 101-649,
title V, Secs. 504(a), 545(e), title VI, Sec. 603(b)(2), Nov. 29,
1990, 104 Stat. 5049, 5066, 5085; Pub. L. 102-232, title III, Secs.
306(a)(4), (c)(7), 307(m)(2), 309(b)(9), Dec. 12, 1991, 105 Stat.
1751, 1753, 1757, 1759; Pub. L. 103-322, title II, Sec. 20301(a),
title XIII, Sec. 130001(a), Sept. 13, 1994, 108 Stat. 1823, 2023;
Pub. L. 103-416, title II, Secs. 219(h), 224(b), Oct. 25, 1994, 108
Stat. 4317, 4324; Pub. L. 104-132, title IV, Secs. 436(a), (b)(1),
438(a), 440(c), (h), Apr. 24, 1996, 110 Stat. 1275, 1277, 1279;
Pub. L. 104-208, div. C, title III, Secs. 306(a), (d),
308(g)(10)(H), 371(b)(6), Sept. 30, 1996, 110 Stat. 3009-607, 3009-
612, 3009-625, 3009-645; Pub. L. 109-13, div. B, title I, Secs.
101(e), (f), 106(a), May 11, 2005, 119 Stat. 305, 310.)
REFERENCES IN TEXT
Section 1253 of this title, referred to in subsec. (b)(8)(B), was
amended generally by Pub. L. 104-208, div. C, title III, Sec.
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 Pub. 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). Pub. L. 109-13, Sec. 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). Pub. L. 109-13, Sec. 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.
Pub. L. 109-13, Sec. 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). Pub. L. 109-13, Sec. 101(f)(1), inserted
"or the Secretary of Homeland Security" after "Attorney General" in
two places.
Subsec. (a)(2)(C). Pub. L. 109-13, Sec. 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). Pub. L. 109-13, Sec. 106(a)(1)(A)(iii), added
subpar. (D).
Subsec. (a)(4), (5). Pub. L. 109-13, Sec. 106(a)(1)(B), added
pars. (4) and (5).
Subsec. (b)(4). Pub. L. 109-13, Sec. 101(e), added concluding
provisions.
Subsec. (b)(9). Pub. L. 109-13, Sec. 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). Pub. L. 109-13, Sec. 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 - Pub. L. 104-208, Sec. 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). Pub. L. 104-132, Sec. 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."
Pub. L. 104-132, Sec. 440(c)(1)(C), struck out "but subject to
subparagraph (B)" before ", the Attorney General shall not
release".
Pub. L. 104-132, Sec. 440(c)(1)(B), as amended by Pub. L. 104-
208, Secs. 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)".
Pub. L. 104-132, Sec. 440(c)(1)(A), substituted "(2) The
Attorney" for "(2)(A) The Attorney".
Subsec. (b). Pub. L. 104-208, Sec. 371(b)(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.
Pub. L. 104-132, Sec. 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). Pub. L. 104-132, Sec. 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). Pub. L. 104-132, Sec. 440(h)(2), as amended by
Pub. L. 104-208, Secs. 306(d), 308(g)(10)(H), added par. (2).
Subsec. (h). Pub. L. 104-132, Sec. 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). Pub. L. 104-132, Sec. 436(b)(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). Pub. L. 104-208, Sec. 306(a)(1), redesignated
subsec. (j) as subsec. (i) of section 1231 of this title.
1994 - Subsec. (b). Pub. L. 103-416, Sec. 224(b), substituted
"Except as provided in section 1252a(d) of this title, the" for
"The" in ninth sentence.
Subsec. (e). Pub. L. 103-322, Sec. 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). Pub. L. 103-416, Sec. 219(h), substituted "Parole,"
for "Parole,,".
Subsec. (j). Pub. L. 103-322, Sec. 20301(a), added subsec. (j).
1991 - Subsec. (a)(2)(B). Pub. L. 102-232, Sec. 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. (b). Pub. L. 102-232, Sec. 306(c)(7), amended eighth
sentence generally, substituting "Such regulations shall include
requirements that are consistent with section 1252b of this title
and that provide that - " and pars. (1) to (4) for "Such
regulations shall include requirements consistent with section
1252b of this title."
Subsec. (e). Pub. L. 102-232, Sec. 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). Pub. L. 102-232, Sec. 309(b)(9), inserted a comma
after "Parole".
1990 - Subsec. (a)(2). Pub. L. 101-649, Sec. 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. (b). Pub. L. 101-649, Sec. 603(b)(2)(A), substituted
"(2), (3), or (4)" for "(4), (5), (6), (7), (11), (12), (14), (15),
(16), (17), (18), or (19)".
Pub. L. 101-649, Sec. 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). Pub. L. 101-649, Sec. 603(b)(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). Pub. 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). Pub. 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). Pub. L. 99-603 added subsec. (i).
1984 - Subsec. (h). Pub. 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. (b). Pub. L. 97-116, Sec. 18(h)(1)(A), substituted
"(18), or (19)" for "or (18)" in provision following par. (4).
Subsec. (e). Pub. L. 97-116, Sec. 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."
EFFECTIVE DATE OF 2005 AMENDMENT
Pub. L. 109-13, div. B, title I, Sec. 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."
Pub. L. 109-13, div. B, title I, Sec. 106(b), 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
Section 306(c) of div. C of Pub. L. 104-208, as amended by Pub.
L. 104-302, Sec. 2(1), Oct. 11, 1996, 110 Stat. 3657, provided
that:
"(1) In general. - Subject to paragraph (2), the amendments made
by subsections (a) and (b) [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."
[Section 2 of Pub. L. 104-302 provided that the amendment made by
that section to section 306(c)(1) of Pub. L. 104-208, set out
above, is effective Sept. 30, 1996.]
Section 306(d) of div. C of Pub. L. 104-208 provided that the
amendment made by that section is effective as if included in the
enactment of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132.
Amendment by section 308(g)(10)(H) of Pub. 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 Pub. L. 104-208, set out as a note under section
1101 of this title.
Amendment by section 371(b)(6) of Pub. L. 104-208 effective Sept.
30, 1996, see section 371(d)(1) of Pub. 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 Pub.
L. 104-132, see section 303(b)(2) of Pub. L. 104-208, set out as a
note under section 1226 of this title.
Section 436(b)(3) of Pub. L. 104-132 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 Pub. L. 103-416 effective as if
included in the enactment of the Immigration Act of 1990, Pub. L.
101-649, see section 219(dd) of Pub. L. 103-416, set out as a note
under section 1101 of this title.
Section 224(c) of Pub. L. 103-416 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]."
Section 20301(b) of Pub. L. 103-322 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 Pub. L. 102-232
effective as if included in the enactment of the Immigration Act of
1990, Pub. L. 101-649, see section 310(1) of Pub. L. 102-232, set
out as a note under section 1101 of this title.
Section 307(m)(2) of Pub. L. 102-232 provided that the amendment
made by that section is effective as if included in section 603(b)
of the Immigration Act of 1990, Pub. L. 101-649.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 504(c) of Pub. L. 101-649 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]."
Section 545(g) of Pub. L. 101-649, as amended by Pub. L. 104-208,
div. C, title III, Sec. 308(b)(6)(B), Sept. 30, 1996, 110 Stat.
3009-623, provided that:
"(1) Notice-related provisions. -
"(A) Subsections (a), (b), (c), and (e)(1) of section 242B of
the Immigration and Nationality Act [former 8 U.S.C. 1252b(a),
(b), (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 (b) [amending section 1105a of this title] shall
apply to final orders of deportation entered on or after January 1,
1991."
Amendment by section 603(b)(2) of Pub. 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 Pub. L. 101-
649, set out as a note under section 1227 of this title.
EFFECTIVE DATE OF 1988 AMENDMENT
Section 7343(c) of Pub. L. 100-690 provided that: "The amendments
made by subsections (a) and (b) [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 Pub. 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 Pub. 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 Pub. L. 97-116 effective Dec. 29, 1981, see section
21(a) of Pub. L. 97-116, set out as a note under section 1101 of
this title.
REGULATIONS
Section 545(d) of Pub. L. 101-649 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
Pub. L. 109-13, div. B, title I, Sec. 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(b)(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 [Pub. 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 (b)(1) of such section shall not apply."
TRANSITIONAL RULE CASES
Pub. L. 109-13, div. B, title I, Sec. 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(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
[Pub. 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 Pub. L. 104-208, set out in an Effective Date
of 1996 Amendments note under section 1101 of this title.
AUTHORITY TO ACCEPT CERTAIN ASSISTANCE
Section 130008 of Pub. L. 103-322 provided that:
"(a) In General. - Subject to subsection (b) 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.
"(b) 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."
FOOTNOTE
(!1) See References in Text note below.