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Rejecting the U.S. Justice Department’s position on a fundamental issue in immigration law, the 3rd U.S. Circuit Court of Appeals has ruled that the federal district courts have jurisdiction to consider claims alleging violations of the United Nations Convention Against Torture. Third Circuit Judge Thomas L. Ambro’s opinion in Ogbudimkpa v. Ashcroft is sharply critical of the Justice Department for taking “flip-flopping positions” and employing “Catch-22 tactics” in its handling of immigration cases. The ruling clears the way for Nigerian citizen Christopher Ogbudimkpa to pursue a habeas corpus petition to seek cancellation of a deportation order on the grounds that, if he were returned to Nigeria, he would be imprisoned, tortured, or possibly executed. Government lawyers argued that since the Convention Against Torture, or CAT, is not a “self-executing” treaty, an alien has only those CAT claims that Congress has expressly provided. In the context of a non-self-executing treaty, the government argued, the question for the courts is whether there is evidence that Congress intended to provide for the availability of habeas review. The 3rd Circuit disagreed, finding instead that since Congress implemented CAT by enacting the Foreign Affairs Reform and Restructuring Act of 1998, the proper question was whether FARRA “deprives” the federal district courts of habeas jurisdiction, and “not whether it grants it.” “Habeas relief is available for an individual who claims his or her continued detention violates a statute or a treaty. CAT has been implemented by FARRA and its accompanying regulations,” Ambro wrote in an opinion joined by 3rd Circuit Judge Dolores K. Sloviter and visiting U.S. District Judge Petrese B. Tucker of the Eastern District of Pennsylvania. “FARRA makes it federal law that no one shall be removed ‘to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.’ It follows that those individuals whose detention violates FARRA may challenge their detention [in a habeas petition] just as with any other detentions that violate federal law,” Ambro wrote. The ruling means that the 3rd Circuit has now joined the 1st, 2nd and 9th circuits in concluding that since FARRA did not explicitly state that a federal district court may not exercise jurisdiction over habeas corpus claims, the district courts retain that jurisdiction. For Ogbudimkpa, the ruling is a significant victory that comes after several years of acting as his own lawyer in proceedings that bounced back and forth between the district and appellate court. In the latest appeal, the 3rd Circuit appointed attorneys Kevin C. Newsom and Timothy C. Hester of Covington & Burling in Washington, D.C., to handle Ogbudimkpa’s case. A citizen of Nigeria, Ogbudimkpa entered the United States in 1982 on a non-immigrant student visa. In 1985 an immigration judge ordered Ogbudimkpa to be deported for remaining longer than his visa permitted and for working without government authorization. The Immigration and Naturalization Service did not immediately remove him, however, and in 1994 Ogbudimkpa was convicted and sentenced on state drug charges. Upon his release from prison in 1996, he was paroled to INS custody. In 1999 the Board of Immigration Appeals granted Ogbudimkpa’s motion to reopen his removal proceedings so that he could seek protection under Article 3 of CAT. Ogbudimkpa testified that, if he were returned to Nigeria, he would be imprisoned, tortured, or possibly executed by “his extended family members, one of whom is a senator, past president of the Nigerian government, and another who holds the rank of major either in the police or the military.” An immigration judge concluded that Ogbudimkpa had testified credibly, but found that he had not demonstrated that it was “more likely than not” that he would be tortured if returned to Nigeria. Acting as his own lawyer, Ogbudimkpa filed for an emergency stay of removal in the U.S. District Court for the Middle District of Pennsylvania, arguing that the United States Attorney General had erred in not granting him relief from removal under Article 3 of CAT. At that point, Judge Ambro found, the case “became a game of forum ping pong” when the government moved to dismiss for lack of jurisdiction, arguing that the 3rd Circuit was the proper forum for Ogbudimkpa’s CAT claims. Ogbudimkpa, still acting pro se, petitioned for a transfer to the 3rd Circuit, and the government consented. But in that first appeal, the government again moved to dismiss for lack of jurisdiction, arguing that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 applied to Ogbudimkpa because of his status as a criminal alien. Ambro found that “this was exactly the opposite tack to the one taken by the government in the district court.” In a footnote, Ambro wrote: “We caution that the Catch-22 tactics of the government are inappropriately confusing and misleading, especially when used against a pro se litigant.” In that first appeal, Ambro said, the 3rd Circuit sided with the government because it was “unaware of the ‘whipsawing’ procedural posture of this case.” Sent back to the district court, Ogbudimkpa, still representing himself, filed a petition for habeas relief that, Ambro noted, “essentially replicated the petition he had filed in November 2000.” But the government once again moved to dismiss for lack of subject matter jurisdiction, and U.S. District Judge James M. Munley granted the motion. Finally, in the latest appeal, Ogbudimkpa’s case was taken over by a team of court-appointed lawyers from Covington & Burling. In a footnote, Ambro had strong words of praise for the Covington lawyers, saying the court was grateful for their “outstanding efforts” and that “their briefs and advocacy exhibit both an exceptional amount of research and a high level of craftsmanship.” On the central question of whether the federal district courts have jurisdiction to hear habeas petitions that raise CAT claims, Ambro rejected the government’s argument that they do not since there is no history allowing such cases. Quoting the 2nd Circuit’s decision earlier this year in Wang v. Ashcroft, Ambro wrote: “it makes no difference whether the type of claim allegedly being excluded from [habeas review] is long-standing or newly created.” Instead, Ambro found, “once Congress created rights under CAT by enacting FARRA, [a habeas petition] became a proper avenue of relief for individuals in custody in violation of FARRA and its implementing regulations.”

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