TITLE

PRESERVING THE CONSTITUTION'S MOST IMPORTANT HUMAN RIGHT: JUDICIAL REVIEW OF MIXED QUESTIONS UNDER THE REAL ID ACT

AUTHOR(S)
Leiderman, Aaron G.
PUB. DATE
October 2006
SOURCE
Columbia Law Review;Oct2006, Vol. 106 Issue 6, p1367
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
In the REAL ID Act of 2005, Congress repealed the writ of habeas corpus for noncitizens challenging agency removal orders, replacing it with what Congress believed to be a constitutionally adequate alternative: direct circuit court review of �constitutional claims or questions of law.� However, the statute does not specify whether the circuit courts' scope of review now includes mixed questions of law and fact�that is, challenges to the agency's application of clear law to undisputed facts. Since many questions in immigration law are neither purely factual nor purely legal, but mixed, this omission poses a significant challenge for circuit courts determining the scope of their jurisdiction under REAL ID. This Note argues that courts should interpret REAL ID's restoration of jurisdiction over �questions of law� to include many mixed questions of law and fact for statutory, constitutional, and practical reasons. It then proposes a mixed standard of review, requiring circuit courts to defer to agency findings of historical facts, but to engage in de novo review of determinations of ultimate fact. Only through such an approach will the REAL ID Act provide a constitutionally adequate substitute for the writ of habeas corpus.
ACCESSION #
22882861

 

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