Supreme Court to Hear Judicial Review and 212(c) Cases

The Supreme Court has agreed to hear two cases concerning the right to judicial review of removal orders and whether AEDPA and IIRIRA eliminated eligibility for 212(c) relief retroactively. The Court's ultimate decision could have wide impact on the ability of noncitizens to seek review of removal orders in federal courts.

The two cases are St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) and Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000). In Calcano-Martinez, the Second Circuit held that, while the permanent judicial review provisions of IIRIRA had stripped the courts of appeals of jurisdiction to hear petitions for review of final removal orders, the law had not removed the federal courts' habeas corpus jurisdiction. Therefore, noncitizens ordered removed could obtain review of those orders in federal district court.

In St. Cyr, the same panel of the Second Circuit held that AEDPA and IIRIRA had not eliminated eligibility for a 212(c) waiver of deportation for a person who pled guilty before the effective dates of the statutes. The American Civil Liberties Union is counsel in both cases. The cases will be briefed in February, March and April. Oral argument is expected to be held in April. AILA expects to file an amicus brief urging the Court to affirm the Second Circuit's decisions, along with other organizations. It is expected that the Supreme Court will decide the cases by July.