A new 10th Circuit decision breathes some life into the possibility of habeas corpus for immigrants seeking relief from removal that Immigration Judges don’t have the power to grant. Musau v. Carlson:
“On appeal, Mr. Musau reiterates that he has no means, other than his petition for a writ of habeas corpus, by which to enforce his rights under the CATOC. He appears to be correct, at least at present, insofar as immigration tribunals are concerned. IJs and the BIA have no authority to grant any relief to an alien unless and until the Attorney General promulgates regulations granting them such authority. See, e.g., In re H-M-V-, 22 I. & N. Dec. 256, 258 (B.I.A. 1998) (“Initially, we note that the jurisdiction of this Board, and of the Immigration Judge, is limited by statute and regulation to that which has been delegated by the Attorney General.”). The government has not identified any statute or regulation authorizing an IJ or the BIA to recognize or enforce rights under the CATOC, and we are not aware of any. For the same reasons, we reject the government’s arguments that Mr. Musau failed to exhaust available remedies before immigration tribunals; there apparently was nothing to exhaust. If the CATOC creates any rights to which Mr. Musau is entitled, wholly discretionary relief from the Attorney General or his delegates would be insufficient; “mercy” does not protect rights.”
The dissent in Musau says any issues that can’t be addressed to an Immigration Judge or the BIA should be addressed with the Court of Appeals in a properly filed “petition for review.” But the statute limits the filing of such petitions to the 30 days following the entry of a final order of removal by an Immigration Judge. If eligibility for relief under the UN-TOC arises after those 30 days, it would be odd if Circuit Court review were the immigrant’s only option, since the option would already have expired.
The obvious question, then, is what Immigration issues can still be taken to the District Court in habeas proceedings. Congress attempted to do away with habeas corpus entirely for immigration cases. But when an Immigration Judge and the BIA are powerless to grant relief, habeas should still be an option. Would habeas be an option for an immigrant who wishes to collaterally attack a conviction that renders him removable? What about issues the IJ and the BIA say they have no jurisdiction over, like the “departure bar” or facial challenges to the INA or the regulations.
There is a split among the circuits on whether one must raise facial challenges to the regulation and the INA before the Board to exhaust them, even though the Board is disempowered to address them. In fact, the Eighth Circuit (where the dissent says Mr. Musau should have taken his case) will not review arguments that would have been futile to exhaust unless they were raised on appeal to the Board of Immigration Appeals. See Ace Property & Cas. Ins. v. Federal Crop Ins., 440 F.3d 992 (8th Cir. 2006) (“In § 242 of the INA, Congress provided that ‘a court may review a final order of removal only if . . . the alien has exhausted all administrativeremedies available to the alien as of right.’ Here, the exhaustion requirement explicitly limits subject matter jurisdiction, and § 1252(d)(1) has consistently been treated as a jurisdictional statute and an integral part of the statute.”).
This case matters because it tests the outer boundaries of where an immigrant can seek protection when immigration courts have no legal authority to help.
The United Nations Convention Against Transnational Organized Crime (CATOC) isn’t implemented into U.S. immigration law via regulation. That means Immigration Judges and the BIA don’t have authority to grant relief under it—even when removal could jeopardize someone’s safety due to cooperation with law enforcement or cartel retaliation.
The Musau decision recognizes that in such cases, a writ of habeas corpus may be the only procedural mechanism available. It breathes some life back into habeas in immigration cases—a legal remedy that Congress tried to restrict sharply with the REAL ID Act in 2005. Still, the court leaves open whether CATOC creates rights that are enforceable in U.S. courts, which remains an open question.
The implications go beyond Musau’s individual claim. This decision invites broader questions:
What rights exist under international treaties that are not implemented by statute or regulation?
When agency silence creates a rights vacuum, can the federal courts step in?
And what happens when that vacuum isn’t just inconvenient—it’s life-threatening?
The dissent’s position—that such issues should be addressed through a petition for review—clashes with the 30-day limitation on filing. If an immigrant’s eligibility for protection arises after that deadline, circuit court review is already foreclosed. That paradox leaves habeas as the only route—but only if courts are willing to acknowledge that some legal wrongs simply can’t be addressed in the ordinary review process.
The broader context here is the erosion of judicial review in immigration cases. While the REAL ID Act aimed to streamline appeals and limit judicial second-guessing of agency decisions, it also created a structural problem: what happens when there’s no agency decision to appeal because the agency says it lacks jurisdiction?
This isn’t just a theoretical problem. Treaties like CATOC and others (e.g., the Convention Against Corruption, certain refugee protocols) may give rise to obligations that our current immigration system has no machinery to enforce. When that’s the case, habeas should serve as a safety valve—not a historical relic.
Musau also adds fuel to ongoing circuit splits. Some courts require exhaustion before the BIA even where the Board lacks jurisdiction. Others treat such exhaustion as futile. The result is a confusing and unpredictable landscape for immigrants raising constitutional or treaty-based claims.
If there’s any takeaway for practitioners, it’s this: habeas is not dead. It may be the only available tool when no other forum exists. And when an immigrant is asserting a legal right that an IJ and the BIA have no power to address, filing a habeas petition in federal district court may still be viable.