Luna v. Holder
637 F.3d 85
| 2d Cir. | 2011Background
- Luna and Thompson filed petitions for review of final removal orders after the 30-day deadline, asserting Suspension Clause violations due to government interference and ineffective assistance of counsel.
- REAL ID Act eliminated habeas review and established a 30-day petition-for-review deadline in the courts of appeals for final removal orders.
- Petitioners argued the 30-day deadline, as applied, foreclosed timely access to meaningful review of due-process claims.
- The Government contends the statutory motion to reopen before the BIA, with de novo review of legal issues and tolling, provides an adequate substitute for habeas.
- This Court previously recalled the mandate to evaluate whether the statutory motion to reopen can adequately substitute for habeas review; supplemental briefing followed.
- The Second Circuit ultimately held that the statutory motion to reopen, with equitable tolling for government-created or attorney-created delays, is an adequate substitute; thus the 30-day deadline did not violate the Suspension Clause as applied to these petitioners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 30-day filing deadline violate the Suspension Clause as applied to these petitioners? | Luna/Thompson contend the deadline forecloses timely constitutional claims. | The motion-to-reopen process provides an adequate substitute for habeas review. | No, the deadline is constitutional as applied. |
| Is the statutory motion to reopen an adequate substitute for habeas review? | The substitute may be too limited or discretionary to protect rights. | The motion to reopen provides de novo review of legal issues and meaningful relief. | Yes, when properly structured with tolling and reissuance relief. |
| Can the BIA's departure bar regulation limit the statute’s adequacy as a habeas substitute? | Departure-bar rules could contract jurisdiction and limit review. | Regulations may be read to preserve review; Congress controls jurisdiction. | The BIA departure bar cannot unlawfully contract jurisdiction; review remains available. |
| Is equitable tolling available for delays caused by ineffective assistance or government interference? | Equitable tolling should apply to toll the 30-day period in such circumstances. | Tolling is permissible only if due diligence shown and causal link established. | Yes; petitioners are eligible for equitable tolling in these circumstances. |
| What relief is appropriate if the motion to reopen is deemed an adequate substitute? | Remand or reissuance of the removal order may be warranted to permit review. | De novo review of legal issues suffices and final disposition should be affirmed if no meritorious claim. | Reissuance of the removal order and a new 30-day period to petition for review is appropriate when warranted. |
Key Cases Cited
- St. Cyr v. INS, 533 S. Ct. 289 (2001) (Suspension Clause protections in immigration context)
- Boumediene v. Bush, 553 U.S. 723 (2008) (substitution for habeas must not be wholly discretionary)
- RUIZ-MARTINEZ v. Mukasey, 516 F.3d 102 (2d Cir. 2008) (REAL ID Act as substitute for habeas review; 30-day deadline)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (statutory motions to reopen reviewable; adequate safeguards)
- Xiao Ji Chen v. U.S. DOJ, 471 F.3d 315 (2d Cir. 2006) (REAL ID Act restoration of habeas-review-like authority)
- Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir. 2006) (equitable tolling of motion-to-reopen deadline)
- Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (review standards for motions to reopen; tolling considerations)
- Xue Yong Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (distinguishing statutory vs regulatory motions to reopen)
- Nken v. Holder, 129 S. Ct. 1749 (2019) (removal timing and relief for petitioners pursuing review)
- Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) (departure bar regulation and jurisdictional considerations)