Washington Law Review


Andrea Lovell


The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), two 1996 amendments to the Immigration and Nationality Act, eliminated direct judicial review in the federal courts of appeals of final removal orders for aliens convicted of certain enumerated crimes. The legislation also appears to limit the habeas corpus jurisdiction of the federal district courts. While most circuit courts agree that some degree of habeas corpus review of removal orders is constitutionally mandated, several have interpreted AEDPA and IIRIRA as limiting the scope of that review. This Comment argues that the scope of habeas corpus review in civil removal proceedings remains unchanged. Because AEDPA and IIRIRA did not explicitly and unambiguously eliminate habeas corpus review, courts should not interpret them as doing so. Furthermore, the Constitution requires that aliens have the opportunity to challenge removal proceedings in Article 1I courts. Finally, as a matter of policy, there are several critical removal-related decisions that should not be left exclusively to executive officials.

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