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.”).