Crimes of Moral Turpitude

(A)  Habeas Corpus Review.  The REAL ID Act of 2005 imposed a retroactive jurisdictional bar to review of all exclusion, deportation and removal cases in the district courts through a habeas corpus petition.[1]  Any pending habeas cases falling within this bar were to be considered as petitions for review and transferred to the appropriate court of appeals.[2]

The REAL ID Act also bars habeas corpus review of all discretionary decisions of the Attorney General and the Secretary of Homeland Security (regardless of whether the decision or action is made in removal proceedings), except those pertaining to asylum.[3]  Habeas corpus remains available to noncitizens seeking review of immigration detention issues.  See § 15.21, supra.  At least one court has held that habeas corpus is available where the noncitizen is challenging removal on the basis that no order of removal existed.[4]  At least one court has found that habeas corpus is not available to a noncitizen who has already been deported because s/he is no longer “in custody.”[5]

At least two courts have found that the REAL ID Act does not violate the suspension clause of the United States Constitution.[6]

[1] See INA § 242, 8 U.S.C. § 1252, as amended by the REAL ID Act  § § 101, 106, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005). 

[2] REAL ID Act § 106(c), supra.  See, e.g., Moreno-Bravo v. Gonzales, 463 F.3d 253 (2d Cir. Sept. 12, 2006) (REAL ID Act does not require, as a matter of jurisdiction, transferring the case to the circuit where noncitizen’s immigration proceedings were held; habeas filed in New York District Court properly transferred to Second Circuit).

[3] INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), as amended by the REAL ID Act, supra.

[4] Kumarasamy v. Attorney General, 453 F.3d 169 (3d Cir. Jun. 23, 2006) (appeal from denial of writ of habeas corpus challenging deportation, on the basis that no deportation order existed, cannot be converted to a petition for direct review of a removal order under the REAL ID Act; REAL ID Act only applies only to cases where noncitizen seeks review of a final order of removal).

[5] Id.

[6] Mohamed v. Gonzales, 470 F.3d 771 (8th Cir. Nov. 27, 2006); Alexandre v. U.S. Attorney Gen., 452 F.3d 1204 (11th Cir. Apr. 12, 2006) (section 106 of the REAL ID Act does not violate the Suspension Clause of the U.S. Constitution in expressly foreclosing habeas review, because the statute provides for an alternative means for review through direct appeal).