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Last week the 3rd U.S. Circuit Court of Appeals set out a rule for the timely submission of appeals for immigration litigants who fell into a gap when Congress eliminated habeas corpus relief for criminal aliens in May 2005. In Kolkevich v. Gonzales, the court held that the petitioner lost his chance to seek judicial review of the denial of his claim for deferral of deportation when he failed to file a petition for review with the 3rd Circuit within 30 days of the enactment of the REAL ID Act on May 11, 2005. This is notwithstanding the fact that when Congress procedurally replaced habeas corpus eligibility for criminal aliens with the right to file a petition for review of an adverse administrative decision directly with the courts of appeals, it did not provide a deadline for litigants such as Kolkevich, whose 30-day period for filing a petition for review had already expired on the date that the REAL ID Act went into effect. According to the opinion, Kolkevich is a 25-year-old U.S. permanent resident currently incarcerated due to convictions for various crimes including robbery, conspiracy and assault. In administrative proceedings to deport him, Kolkevich conceded that he was deportable but sought deferral of his deportation under the convention against torture based on the likelihood that he would be tortured in his native country of Russia due to his status as a criminal deportee, a Jew, a Chechen, and his lack of a financial support system in that country. The immigration judge who heard his case granted Kolkevich’s request to remain in the United States in February 2004. The government attorneys in the proceedings, however, appealed the judge’s decision to the Board of Immigration Appeals, which reversed on March 21, 2005, and ordered Kolkevich removed to Russia. At that time, the only means by which Kolkevich could seek judicial review of the agency’s final decision to deport him was by filing a Section 2241 habeas corpus petition in a U.S. district court. The right to file a habeas petition was not time-barred and, thus, continued for as long as the deportation order was outstanding. For noncriminal aliens who sought judicial review of an adverse administrative decision in an immigration case, the procedure was to file a petition for review with a circuit court of appeals within 30 days of the final agency decision. With the enactment of the REAL ID Act on May 11, 2005, criminal aliens were no longer permitted to file habeas petitions seeking review of a final administrative order, but rather were now required to seek judicial review solely through the petition for review procedure that had existed for non-criminal aliens. All criminal alien habeas petitions that were pending in district courts on May 11, 2005, were transferred to the circuit courts of appeal and converted into petitions for review, and all district court decisions on habeas petitions that had been appealed and were pending in the courts of appeals were vacated and also converted into petitions for review before the courts of appeals. Unfortunately, the REAL ID Act did not address the litigants in Kolkevich’s situation who, prior to May 11, 2005, could seek judicial review solely through a Section 2241 habeas petition in district court but who failed to do so by May 11, 2005, and whose 30-day period for filing a petition for review with the court of appeals had already expired by that date. In its decision, the 3rd Circuit agreed that Kolkevich was under no obligation to file his habeas petition within any particular time following the final administrative decision on March 21, 2005. The court also noted that by the time that the REAL ID Act was enacted on May 11, 2005, 51 days after the adverse agency decision in Kolkevich’s case, the 30-day period for filing a petition for review of that decision had passed and he could no longer comply with the new procedural requirement for judicial review. As it happened, Kolkevich filed a habeas petition in district court on April 25, 2006, which was transferred to the 3rd Circuit due to the district court’s lack of jurisdiction under the REAL ID Act. The U.S. attorney, thus, argued that the court of appeals was entirely without jurisdiction in this case because Kolkevich’s appeal was untimely. Kolkevich’s argument to the court was that such an interpretation would leave him with no avenue for judicial review whatsoever, and that this would have constitutional implications. In its decision, the court found the government’s position would result in an improper deprivation of the right to habeas corpus without an adequate substitute, and that to avoid such concerns without declaring the REAL ID Act unconstitutional the court must allow an alien some opportunity for judicial review. However, the court held that Kolkevich did not have an unlimited period within which he had to file a petition for review, and that such a petition had to be filed within a reasonable time. Looking at precedents in analogous situations, the court held that a 30-day period after the enactment of the REAL ID Act was a reasonable time for a petition for review to be filed. Therefore, the court would have jurisdiction over petitions for review filed by criminal aliens in Kolkevich’s situation only if they had filed those petitions by June 11, 2005, 30 days after the REAL ID Act went into effect. As Kolkevich had not filed a petition for review by that date, the court dismissed his appeal for lack of jurisdiction. The lesson from this decision to litigants in the 3rd Circuit is that when jurisdictional time limits change and one is left without a legislatively stated avenue for judicial review, the litigant must follow a process to seek that review in a manner that will later be evaluated for its reasonableness. Presumably, seeking review under new jurisdictional procedures within 30 days of their enactment would be sufficiently reasonable, and litigants will be expected to act accordingly. This is so even where the new procedures on their face do not themselves permit one to seek review. RALF D. WIEDEMANN is a senior associate with Klasko Rulon Stock & Seltzer’s Philadelphia office. His practice is focused on employmentbased and family-based immigration, deportation defense and asylum matters.

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