TITLE III--INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND
REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A--Revision of Procedures for Removal of Aliens
Section 306

 

SEC. 306. APPEALS FROM ORDERS OF REMOVAL (NEW SECTION 242).

(a) In General.--Section 242 (8 U.S.C. 1252) is amended--
(1) by redesignating subsection (j) as subsection (i) and
by moving such subsection and adding it at the end of section
241, as inserted by section 305(a)(3) of this division; and
(2) by amending the remainder of section 242 to read as
follows:


``judicial review of orders of removal

``Sec. 242. (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 235(b)(1)) is governed
only by chapter 158 of title 28 of the United States Code,
except as provided in subsection (b) 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 235(b)(1).--
Notwithstanding any other provision of law, no court shall
have jurisdiction to review--
``(i) except as provided in subsection (e), 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 235(b)(1),
``(ii) except as provided in subsection (e), 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
235(b)(1)(B), or
``(iv) except as provided in subsection (e), procedures and
policies adopted by the Attorney General to implement the
provisions of section 235(b)(1).
``(B) Denials of discretionary relief.--Notwithstanding any
other provision of law, no court shall have jurisdiction to
review--
``(i) any judgment regarding the granting of relief under
section 212(h), 212(i), 240A, 240B, or 245, or
``(ii) any other decision or action of the Attorney General
the authority for which is specified under this title to be
in the discretion of the Attorney General, other than the
granting of relief under section 208(a).
``(C) Orders against criminal aliens.--Notwithstanding any
other provision of law, 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 212(a)(2) or 237(a)(2)(A)(iii), (B), (C),
or (D), or any offense covered by section 237(a)(2)(A)(ii)
for which both predicate offenses are, without regard to
their date of commission, otherwise covered by section
237(a)(2)(A)(i).
``(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
240(c)(1)(B).
``(b) Requirements for Review of Orders of Removal.--With
respect to review of an order of removal under subsection
(a)(1), 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 240 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 208(a) shall be conclusive
unless manifestly contrary to the law and an abuse of
discretion.
``(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, United
States Code.
``(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

[[Page H11804]]

violating section 243(a) 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,
United States Code.

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 243(a). 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 243(a) may
not file a petition for review under subsection (a) 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 241(a);
``(B) does not relieve the alien from complying with
section 241(a)(4) and section 243(g); 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 title shall be available only in judicial review
of a final order under this section.
``(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 235(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 235(b)(1) 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 235(b)(1) 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 207, or has been granted asylum under
section 208, such status not having been terminated, and is
entitled to such further inquiry as prescribed by the
Attorney General pursuant to section 235(b)(1)(C).
``(3) Challenges on validity of the system.--
``(A) In general.--Judicial review of determinations under
section 235(b) 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 title 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
235(b)(1), 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 207,
or has been granted asylum under section 208,
the court may order no remedy or relief other than to require
that the petitioner be provided a hearing in accordance with
section 240. Any alien who is provided a hearing under
section 240 pursuant to this paragraph may thereafter obtain
judicial review of any resulting final order of removal
pursuant to subsection (a)(1).
``(5) Scope of inquiry.--In determining whether an alien
has been ordered removed under section 235(b)(1), 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 chapter 4 of title II, 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 chapter 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, 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
Act.''.
(b) Repeal of Section 106.--Section 106 (8 U.S.C. 1105a) is
repealed.
(c) Effective Date.--
(1) In general.--Subject to paragraph (2), the amendments
made by subsections (a) and (b) shall apply to all final
orders of deportation or removal and motions to reopen filed
on or after the date of the enactment of this Act and
subsection (g) of section 242 of the Immigration and
Nationality Act (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.
(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, as amended by section 440 of Public Law 104-
132.
(d) Technical Amendment.--Effective as if included in the
enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (Public Law 104-132), subsections (a), (c), (d),
(g), and (h) of section 440 of such Act are amended by
striking ``any offense covered by section 241(a)(2)(A)(ii)
for which both predicate offenses are covered by section
241(a)(2)(A)(i)'' and inserting ``any offense covered by
section 241(a)(2)(A)(ii) for which both predicate offenses
are, without regard to the date of their commission,
otherwise covered by section 241(a)(2)(A)(i)''.