-1-

05-2984 Elkimya v

. Dep’t of Homel

and Securit

y

B.I.A. No. A 21 033 045 Montante, I.J

.

UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SECOND CIR CUIT

________________ August Term, 2006 (Submitted: March 28, 2007 Decided: April 12, 2007 Amended: April 16, 2007) Docket No. 05-2984-ag

_____________________________________________

ABDELAZ IZ EL

KIMYA, Petitioner ,

– v. – DEPARTMENT OF HOMELAND SECURI TY, Respondent

.

____________________________________________ Before: FEI

NBERG, SOTOMAYOR and KATZMANN, Circuit Ju dges.

____________________________________________ Petitioner Abdelaziz Elkimya, pro se , moves this Court for bail pending consideration of his petition for review of a decision of the Board of Immigration Appeals (“BIA”) a ffirming the Immigration Judge’s orde r of removal. We extend our holding in Mapp v. Reno , 241 F.3d 221 (2d Cir. 2001), and hold that we have inherent authority to admit to bail movants like Elkimya, who are seeking bail pending our consideration of their petition for review of a BI A order, but we deny Elkimy

a’s motion because he has failed to demonstrate the re quisite “extraordinary-2-

circumstances,” Mapp , 241 F.3d at 230, for bail pending consideration of his petition for re view. Abdelaziz Elkimya, Perry County Correctional Center, Uniontown, Alabama, pro se . Gail Y. Mitchell, Assistant United States Attorney (Terrance P. Fly

nn, United States Attorney for the Western District of New York), Buffalo, New York, for respon dent. SOTOMAYOR, Circuit Judge : Petitioner Abdelaziz E lkimy

a moves th

is Court for bail pe

nding c onsidera

tion of his petition for review of a decision of the Boar d of Immigration Appea

ls (“BIA”)

affirming Immigration Judge (“I

J”) Philip J. Montante, Jr.’s order of removal. We raise and address, sua sponte , the question of whether we have inherent authority to admit to bail movants like Elkimya, who a re se eking ba

il pen ding our c onsid

erat ion of their petit ion for rev

iew o f a B IA

orde r. We extend the principles articulated in Mapp v. Reno , 241 F.3d 221 (2d Cir. 2001), and hold that we do have such authority , but we deny Elkimy a’s motion because he has failed to demonstrate the requisite “extraordinary

circumstances,” id. at 230, for bail pending consideration of his petition for review. BACKGROUND Elkimya, a citizen of Morocc o, arrived in the United States in 1975. He thereafter married a United States citizen and on November 22, 1976, obtained lawful per manent resident status. Elkimya and his wife divorce d in 1983. In February 1993, he departed from the United States for Morocc o, retur

ning to th e United S tates in July 1997 from

what he c laimed wa s a temporary visit abroa

d. Upon return, he applied for admission as a returning lawful permanent resident. His application was denied following an airport inter view, and the Immigra

tion and1 Responsib ility for enf orcing United Sta

tes immig ration la ws was tr ansfer red in 2002 to the Bureau of I

mmigration and Customs Enforcement within the new Department of Homeland Security. See Thapa v. Gonzales , 460 F.3d 323, 325 n.1 (2d Cir. 2006). For purposes of clarity a

nd consistency, we

refer to the Government’s immigration enfor cement authority a s the INS throughout this opinion. -3- Naturalization Service (“IN S”) 1 thereafter served him with a Notice to Appea r, which stated that he was removable because he ha d remained outside the United States continuously f or four ye ars without permission and thus did not appear to be a bona fide permanent resident r eturning after a temporary visit abroa

d, and because he did not have a valid entry document, valid unexpired passport, or other suitable travel document as required by the Immigration and Na

tionality Act. Elkimy a was sub sequentl

y pl aced in r

emoval pr

oceedin gs. On Febr uary 15, 2000, f

ollowing a heari ng, the IJ orde red Elkim ya removed based on his abandonment of his lawful permanent resident status. See In re Abdelaziz Elkimya , No. A 21 033 045 (Immig. Ct. Buffa

lo Feb. 15, 2000). On October 10, 2002, the BI A affirmed the IJ’s decision without opinion. See In re Abdelaziz Elkimya , No. A 21 033 045 (BIA Oc t. 10, 2002). In September 2003, Elkimy a filed a petition for a writ of habeas corpus unde r 28 U.S.C. § 2241 in the United States District Court for the Western District of New York, challenging the order of removal. In June 2005, the district court transfer red the petition to this Court pursuant to the Real ID Act of 2005, Pub. L . No. 103-13, § 106(a), 119 Stat. 231, 310-11 (codified at 8 U.S.C. § 1252(a)), where it was converted to a petition for review. Elkimya ’s petition for review was dismissed in February

2006 for failure to comply with a scheduling order of this Court, but was reinstated in June 2006 upon a motion by Elkimy a. Elkimya is curre

ntly being de

tained by United Sta

tes immig ration of ficials, and moves

this Court f

or bail pe nding c onsidera

tion of his reinstated petition for review.-4- DISCUSSION We raise sua sponte the question of whether we have the power to c onsider Elkimya’s motion for

bail pend ing con siderati on of his pe tition for review. It ha s long be en law in t his Circuit that a federal court “has inherent powe r to enter an order affecting the custody of a habeas petitioner who is properly be fore it contesting the legality of his custody.” Ostrer v. United States , 584 F.2d 594, 596 n.1 (2d Cir. 1978). Moreover, federal c ourts of appeals are empowered to release individuals being detained “[w]hile a decision not to release [the detaine e] is under review.” Fed. R. App. P. 23(b). I n Mapp , we held that our inherent power to “affe ct[] the custody ” of a de tainee e xtends to ad

mitting pe

titioners to bail in th e immigr

ation hab eas cont

ext, rejecting the government’s vie w that “Congress’s plenary power over immigration matters cannot coexist with the federal courts’ exercise of such inherent authority to release habeas petitioners.” Mapp , 241 F.3d at 227 (in ternal q uotation ma

rks omitte d). We fur

ther note d the ret

renchme nt in judicial r eview of immigra tion deci sions beg

un by the Antite

rrorism a nd Effec tive Dea th Penalty Act of 1996 (“AEDPA”), Pub. L. N o. 104-132, 110 Stat. 1214, and expanded by the I llegal Immigration Reform and I mmigrant Responsibility Act of 1996 (“ II RIRA”), Pub. L . No. 104-208, 110 Stat. 3009, but observed that there was no “clear dire ction from Congress” limiting our inherent powers. Mapp , 241 F.3d at 227. Absent such direction, we held that we wer e “unprep ared to hold that powers tha t are inh erent in

the fede ral cour ts, like tha

t of gra nting ba il to habeas petitioners, can be limited by general attitudes cobbled togethe r from laws of vary

ing vintage and scope, rather than by specific statutory pr

ovisions.” Id. at 229. The Real ID Act of 2005 f urther altered the landscape of immigr ation law, but did not qualify our inhere

nt authority to admit to bail petitioners in immigration cases. The Real ID Act-5-

repeal ed the use

of habea s petitions

to challe nge or ders of r emoval; p etitions f

or revie w filed in the courts of appeals are now the exclusive procedur al vehicle for seeking review of such orders. See 8 U.S.C. § 1252(a)(5). We consider here whether Mapp ’s holding with respect to habeas pet it io ns s hou ld be e xt end ed t o t hes e pe ti ti ons for rev iew . Th e co re d esi der atu m o f th e Re al ID Act was t o “restor[e] unifor

mity and orde r to the la w,” H.R. R

ep. No. 10 9-72, at 1 74 (2005) ; see also Bonhometre v. Gonzales , 414 F.3d 442, 446 (3d Cir. 2005) (describing the Real I D Act’s jurisdictional modifications as “an effort to streamline what the Congre ss saw as uncertain and piecemeal review of orders of r emoval, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review)”) . Permitting detained individuals to file motions for bail pending this Court’s consideration of their petitions for review is the most streamlined and efficie nt manner

of exerc ising our

“inhere nt author ity t o admit to ba

il individua

ls proper ly w ithin [our] jurisdiction.” Mapp , 241 F.3d at 226. This power is therefore rig htly extended to situations where detained individuals are seeking bail pending our consideration of their petition for review of a BIA or

der. Our conclusion is further buttressed by the fact that the Real ID Act made no mention of federal courts’ inherent authority to admit to bail those individuals detained by the I NS. Congress is presumed to be aware of a judicial interpretation of a statute such as AEDPA or II RIRA, see Lorillard v. Pons , 434 U.S. 575, 580 (1978), and the Real ID Ac t’s silence regarding our holding in Mapp constitutes an implicit adoption of our interpretation of AEDPA and II RIRA, id. If Congress

sees fit t o deprive federa l courts o f their a

uthority to admit to b ail those detained aliens awaiting consideration of their pe titions for review, as we noted in Mapp , “the burden lies on the political branches explicitly to instantiate such a system of detention, and to do-6-

so through the law.” Mapp , 241 F.3d at 227. Until that t ime, we exercise the inhere nt author ity we possess to grant bail where it is “necessa ry to make the . . . [petition for revie w] remedy effective.” Id. at 226 (quot ing Ostrer , 584 F.2d at 596 n.1). We dec line i n thi s case, howev er, to grant E lkim ya’s moti on for bail. In consi derin g a petitione r’s fitne ss for ba

il, we must

determine whethe

r the pet ition rais es “subst

antial cl aims” and whether “extraordinary circumstances exist[] that make the grant of bail necessary to make the [petition for review] remedy e ffective.” Id. at 230 (internal quotation marks omitted). We do not opine on whether Elkimya’ s petition raises substantial claims, because we hold that he has failed to demonstrate extraordinary circumstances making the gra nt of bail necessary . We see no reason, and Elkimya

has proffered none other than conve nience, why

his continued detention by the I NS would affect th

is Court’s ultimate c onsidera

tion of the

legal i ssues pre sented in

his petition for review. CONCLUSION For the foregoing r

easons, Elkimya’s motion for bail pending consideration of his petition for review is DENIED.