1994 US Code
Title 8 - ALIENS AND NATIONALITY
CHAPTER 11 - NATIONALITY
SUBCHAPTER I_2 - SUBCHAPTER I-GENERAL PROVISIONS
Sec. 1105a - Judicial review of orders of deportation and exclusion

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§1105a. Judicial review of orders of deportation and exclusion (a) Exclusiveness of procedure

The procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation, heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or pursuant to section 1252a of this title or comparable provisions of any prior Act, except that—

(1) Time for filing petition

a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order, or, in the case of an alien convicted of an aggravated felony (including an alien described in section 1252a of this title), not later than 30 days after the issuance of such order;

(2) Venue

the venue of any petition for review under this section shall be in the judicial circuit in which the administrative proceedings before a special inquiry officer were conducted in whole or in part, or in the judicial circuit wherein is the residence, as defined in this chapter, of the petitioner, but not in more than one circuit;

(3) Respondent; service of petition; stay of deportation

the action shall be brought against the Immigration and Naturalization Service, as respondent. Service of the petition to review shall be made upon the Attorney General of the United States and upon the official of the Immigration and Naturalization Service in charge of the Service district in which the office of the clerk of the court is located. The service of the petition for review upon such official of the Service shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs or unless the alien is convicted of an aggravated felony (including an alien described in section 1252a of this title), in which case the Service shall not stay the deportation of the alien pending determination of the petition of the court unless the court otherwise directs;

(4) Determination upon administrative record

except as provided in clause (B) of paragraph (5) of this subsection, the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive;

(5) Claim of nationality; determination or transfer to district court for hearing de novo

whenever any petitioner, who seeks review of an order under this section, claims to be a national of the United States and makes a showing that his claim is not frivolous, the court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner's nationality is presented, transfer the proceedings to a United States district court for the district where the petitioner has his residence for hearing de novo of the nationality claim and determination as if such proceedings were originally initiated in the district court under the provisions of section 2201 of title 28. Any such petitioner shall not be entitled to have such issue determined under section 1503(a) of this title or otherwise;

(6) Consolidation

whenever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order;

(7) Challenge of validity of deportation order in criminal proceeding; motion for judicial review before trial; hearing de novo on nationality claim; determination of motion; dismissal of indictment upon invalidity of order; appeal

if the validity of a deportation order has not been judicially determined, its validity may be challenged in a criminal proceeding against the alien for violation of subsection (d) or (e) of section 1252 of this title only by separate motion for judicial review before trial. Such motion shall be determined by the court without a jury and before the trial of the general issue. Whenever a claim to United States nationality is made in such motion, and in the opinion of the court, a genuine issue of material fact as to the alien's nationality is presented, the court shall accord him a hearing de novo on the nationality claim and determine that issue as if proceedings had been initiated under the provisions of section 2201 of title 28. Any such alien shall not be entitled to have such issue determined under section 1503(a) of this title or otherwise. If no such hearing de novo as to nationality is conducted, the determination shall be made solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial and probative evidence on the record considered as a whole, shall be conclusive. If the deportation order is held invalid, the court shall dismiss the indictment and the United States shall have the right to appeal to the court of appeals within thirty days. The procedure on such appeals shall be as provided in the Federal rules of criminal procedure. No petition for review under this section may be filed by any alien during the pendency of a criminal proceeding against such alien for violation of subsection (d) or (e) of section 1252 of this title;

(8) Deferment of deportation; compliance of alien with other provisions of law; detention or taking into custody of alien

nothing in this section shall be construed to require the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review of the order granted by this section, or to relieve any alien from compliance with subsections (d) and (e) of section 1252 of this title. Nothing contained in this section shall be construed to preclude the Attorney General from detaining or continuing to detain an alien or from taking him into custody pursuant to subsection (c) of section 1252 of this title at any time after the issuance of a deportation order;

(9) Typewritten record and briefs

it shall not be necessary to print the record or any part thereof, or the briefs, and the court shall review the proceedings on a typewritten record and on typewritten briefs; and

(10) Habeas corpus

any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.

(b) Limitation of certain aliens to habeas corpus proceedings

Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under the provisions of section 1226 of this title or comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise.

(c) Exhaustion of administrative remedies or departure from United States; disclosure of prior judicial proceedings

An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. Every petition for review or for habeas corpus shall state whether the validity of the order has been upheld in any prior judicial proceeding, and, if so, the nature and date thereof, and the court in which such proceeding took place. No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceeding, unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order.

(d) Petition contents

(1) A petition for review or for habeas corpus on behalf of an alien against whom a final order of deportation has been issued pursuant to section 1252a(b) of this title may challenge only—

(A) whether the alien is in fact the alien described in the order;

(B) whether the alien is in fact an alien described in section 1252a(b)(2) of this title;

(C) whether the alien has been convicted of an aggravated felony and such conviction has become final; and

(D) whether the alien was afforded the procedures required by section 1252a(b)(4) of this title.

(2) No court shall have jurisdiction to review any issue other than an issue described in paragraph (1).

(June 27, 1952, ch. 477, title I, §106, as added Sept. 26, 1961, Pub. L. 87–301, §5(a), 75 Stat. 651; amended Dec. 29, 1981, Pub. L. 97–116, §18(b), 95 Stat. 1620; Oct. 24, 1988, Pub. L. 100–525, §9(e), 102 Stat. 2620; Nov. 18, 1988, Pub. L. 100–690, title VII, §7347(b), 102 Stat. 4472; Nov. 29, 1990, Pub. L. 101–649, title V, §§502(a), 513(a), 545(b), 104 Stat. 5048, 5052, 5065; Dec. 12, 1991, Pub. L. 102–232, title III, §306(a)(2), 105 Stat. 1751; Sept. 13, 1994, Pub. L. 103–322, title XIII, §130004(b), 108 Stat. 2027; Oct. 25, 1994, Pub. L. 103–416, title II, §223(b), 108 Stat. 4322.)

References in Text

The Federal rules of criminal procedure, referred to in subsec. (a)(7), are set out in the Appendix to Title 18, Crimes and Criminal Procedure.

Amendments

1994—Subsec. (a). Pub. L. 103–322, §130004(b)(1), inserted “or pursuant to section 1252a of this title” after “under section 1252(b) of this title” in introductory provisions.

Subsec. (a)(1), (3). Pub. L. 103–322, §130004(b)(2), inserted “(including an alien described in section 1252a of this title)” after “aggravated felony”.

Subsec. (d). Pub. L. 103–416 substituted “1252a(b)(4)” for “1252a(b)(5)” in par. (1)(D).

Pub. L. 103–322, §130004(b)(3), added subsec. (d).

1991—Subsec. (a)(1). Pub. L. 102–232 made technical correction to directory language of Pub. L. 101–649, §502(a). See 1990 Amendment note below.

1990—Subsec. (a)(1). Pub. L. 101–649, §545(b)(1), substituted “90 days” for “6 months”.

Pub. L. 101–649, §502(a), as amended by Pub. L. 102–232, substituted “30 days” for “60 days”.

Subsec. (a)(3). Pub. L. 101–649, §513(a), inserted before semicolon at end “or unless the alien is convicted of an aggravated felony, in which case the Service shall not stay the deportation of the alien pending determination of the petition of the court unless the court otherwise directs”.

Subsec. (a)(6) to (10). Pub. L. 101–649, §545(b)(2), (3), added par. (6) and redesignated former pars. (6) to (9) as (7) to (10), respectively.

1988—Subsec. (a). Pub. L. 100–525, §9(e)(1), substituted “chapter 158 of title 28” for “the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.)” in introductory provisions.

Subsec. (a)(1). Pub. L. 100–690 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “a petition for review may be filed not later than six months from the date of the final deportation order.”

Pub. L. 100–525, §9(e)(2), struck out “or from the effective date of this section, whichever is the later”.

1981—Subsec. (a)(1). Pub. L. 97–116 substituted a semicolon for a period at end.

Effective Date of 1994 Amendment

Section 130004(d) of Pub. L. 103–322 provided that: “The amendments made by this section [amending this section and section 1252a of this title] shall apply to all aliens against whom deportation proceedings are initiated after the date of enactment of this Act [Sept. 13, 1994].”

Effective Date of 1991 Amendment

Amendment by 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.

Effective Date of 1990 Amendment

Section 502(b) of Pub. L. 101–649 provided that: “The amendment made by subsection (a) [amending this section] shall apply to final deportation orders issued on or after January 1, 1991.”

Section 513(b) of Pub. L. 101–649, as amended by Pub. L. 102–232, title III, §306(a)(11), Dec. 12, 1991, 105 Stat. 1751, provided that: “The amendment made by subsection (a) [amending this section] shall apply to petitions for review filed more than 60 days after the date of the enactment of this Act [Nov. 29, 1990] and shall apply to convictions entered before, on, or after such date.”

Amendment by section 545(b) of Pub. L. 101–649 applicable to final orders of deportation entered on or after Jan. 1, 1991, see section 545(g)(4) of Pub. L. 101–649, set out as a note under section 1252b of this title.

Effective Date of 1988 Amendment

Amendment by section 7347(b) of Pub. L. 100–690 applicable in the case of any alien convicted of an aggravated felony on or after Nov. 18, 1988, see section 7347(c) of Pub. L. 100–690, set out as an Effective Date note under section 1252a of this title.

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.

Effective Date; Pending Proceedings; Separability

Section 5(b) of Pub. L. 87–301 provided that: “This section shall take effect on the thirtieth day after its approval [Sept. 26, 1961] and, notwithstanding the provisions of any other law, including section 405 of the Immigration and Nationality Act [set out as a note under section 1101 of this title], shall then be applicable to all administrative proceedings involving deportation or exclusion of aliens notwithstanding (1) that the person involved entered the United States prior to the effective date of this section or of the Immigration and Nationality Act [this chapter] or (2) that the administrative proceeding was commenced or conducted prior to the effective date of this section or of the Immigration and Nationality Act [this chapter]. Any judicial proceeding to review an order of deportation which is pending unheard in any district court of the United States on the effective date of this section (other than a habeas corpus or criminal proceeding in which the validity of the deportation order has been challenged) shall be transferred for determination in accordance with this section to the court of appeals having jurisdiction to entertain a petition for review under this section. Any judicial proceeding to review an order of exclusion which is pending unheard on the effective date of this section shall be expedited in the same manner as is required in habeas corpus. All laws or parts of laws inconsistent with this section are, to the extent of such inconsistency, repealed. If any particular provision of this section, or the application thereof to any person or circumstance, is held invalid, the remainder of this section and the application of such provision to other persons or circumstances shall not be affected thereby.”

Section Referred to in Other Sections

This section is referred to in sections 1160, 1252a, 1252b, 1255a of this title.