# An Overview of Judicial Review of Immigration Matters

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 11, 2013
- **Citation:** R43226

## Text

An Overview of Judicial Review
of Immigration Matters
-name redactedLegislative Attorney
September 11, 2013

Congressional Research Service
7-....
www.crs.gov
R43226

An Overview of Judicial Review of Immigration Matters

Summary
Congress has plenary or sovereign power over the conditions for admitting aliens into the United
States and permitting them to remain. This power is so completely entrusted to the political
branch to legislate and implement as to be largely free from judicial review. However, this power
is still subject to constitutional limitations, including substantive and procedural due process
protections. In immigration cases, due process may be a flexible concept and the particular
procedures that may be constitutionally required depend on the relative interests involved.
Historically, immigration policy has sought to encourage and enable the admission and
integration of desirable immigrants (workers, family, refugees/asylees), while discouraging and
preventing the entry of undesirable aliens (national security risks/terrorists, criminals, public
charges). Accordingly, in deciding what degree of judicial review is appropriate in immigration
matters, Congress has sought a balance between a system that is fair to desired immigrants, yet
facilitates the removal of undesired aliens. Initially, a habeas corpus proceeding provided the
primary avenue of judicial review of various immigration determinations. In the wake of Supreme
Court decisions construing the Administrative Procedure Act as applying to and providing an
avenue for judicial review of immigration adjudications, Congress amended the Immigration and
Nationality Act (INA) of 1952 by adding a judicial review provision in 1961 that provided for
review by federal courts of appeal for deportation orders, but only for habeas corpus review of
exclusion orders by federal district courts.
Beginning with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), legislation and
administrative actions have focused on reducing immigration litigation by limiting and
streamlining both administrative appeal and judicial review procedures regarding removal of
aliens and by rendering aliens in certain categories ineligible for certain types of relief from
removal. Even when an alien may be considered for discretionary relief, judicial review of denials
of relief from removal is restricted, as is review of removal orders issued to criminal aliens or
national security risks. Also, the REAL ID Act restricted habeas review and certain other nondirect judicial review in response to U.S. Supreme Court holdings that such review was still
available after the 1996 acts. In the 113th Congress, S. 744 and H.R. 2278, among other bills,
would generally continue the trend of limiting judicial review; however, S. 744 provides for
judicial review of its legalization programs.
This report will summarize judicial review for immigration matters, including visa denials and
revocations; removal orders and detention; naturalization delays, denials, and revocations;
expatriation; and legalization denials. Administrative adjudications such as removal proceedings
or determination of immigration benefits such as naturalization are beyond the scope of this
report.

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An Overview of Judicial Review of Immigration Matters

Contents
Introduction...................................................................................................................................... 1
Visa Denial and Revocation ............................................................................................................. 2
Removal and Detention ................................................................................................................... 3
Judicial Review of Removal Orders Under INA §242 .............................................................. 3
Expedited Removal of Inadmissible Arriving Aliens ................................................................ 5
Expedited Removal of Aliens Convicted of Committing Aggravated Felonies ........................ 6
Detention ................................................................................................................................... 6
Habeas Corpus ........................................................................................................................... 7
Citizenship-Related Determinations ................................................................................................ 8
Naturalization Denial or Delay .................................................................................................. 8
Naturalization Revocation ......................................................................................................... 8
Expatriation ............................................................................................................................... 8
Legalization Under IRCA ................................................................................................................ 9
Legislation in the 113th Congress ................................................................................................... 10

Contacts
Author Contact Information........................................................................................................... 11

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An Overview of Judicial Review of Immigration Matters

Introduction
The power of Congress and the executive branch to legislate and implement the conditions for
admitting aliens into the United States and permitting them to remain is so broad as to be virtually
immune from judicial control.1 However, this power is still subject to constitutional limitations,
including substantive and procedural due process protections. In immigration cases, the degree of
judicial review of administrative decisions and actions that may be constitutionally required
depends on the relative interests involved.2
In deciding what degree of judicial review is appropriate in immigration matters, Congress has
sought to balance judicial review between fairness to desired immigrants (workers, family,
refugees/asylees) and facilitation of the removal of detrimental aliens (national security
risks/terrorists, criminals, public charges). Initially, a habeas corpus proceeding provided the
primary avenue of judicial review of various immigration determinations. However, in the wake
of U.S. Supreme Court decisions construing the Administrative Procedure Act (APA) as applying
to and providing an avenue for judicial review of immigration adjudications,3 Congress amended
the Immigration and Nationality Act (INA) of 19524 by adding a judicial review provision in
19615 that provided for review of deportation orders by federal courts of appeals, but only for
habeas corpus review of exclusion orders by federal district courts.6
Concerns about the growing population of undocumented aliens, fraudulent asylum claims,
terrorism threats, and crimes of drug, human, and arms trafficking, led to legislation in 19967 and
20058 that limited judicial review, including the availability of habeas corpus proceedings. In the
1
See Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952); the Japanese Immigrant Case (Yamataya v. Fisher),
189 U.S. 86 (1903); Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); the Chinese Exclusion Case (Chae
Chan Ping v. United States), 130 U.S. 581, 603, 604 (1889).
2
Landon v. Plasencia, 459 U.S. 21, 34 (1982); see also Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976).
3
See Robbie Clarke, Student Note: Reaffirming the Role of the Federal Courts: How the Sixties Provide Guidance for
Immigration Reform, 17 Wash. & Lee J. Civil Rts. & Soc. Just. 463, 472-476 (2011), discussing Shaughnessy v.
Pedreiro, 349 U.S. 48, 52-53 (1955), as holding that the APA provides another avenue of judicial review for
immigration adjudications conducted under the INA, in addition to the existing habeas review, and Wong Yang Sung v.
McGrath, 339 U.S. 33, 51 (1950), as holding that immigration adjudications were required by the INA and Due Process
requirements, and therefore the APA’s formal adjudication procedures applied.
4
P.L. 82-414, 66 Stat. 163 (1952), codified as amended at 8 U.S.C. §§1101 et seq.
5
Former INA §106, added by P.L. 87-301, §5(a), 75 Stat. 651 (1961). This was subsequently repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. 104-208, Div. C, §306(b), 110 Stat.
3009-612, which replaced it with current INA §242, codified as amended at 8 U.S.C. §1252.
6
Before the IIRIRA, P.L. 104-208, Div. C, §§301-309, 110 Stat. 3009-546, 3009-579 to 3009-627, aliens were subject
to two processes, exclusion when seeking to enter the United States and deportation when they were deemed to have
entered the United States and were being expelled. The IIRIRA reformed the process so that those seeking entry but
deemed inadmissible and those in the United States but deemed deportable are both subject to removal. Certain
inadmissible aliens may be subject to expedited removal, under which there is limited administrative and judicial
review. Due process analyses remain subject to the same considerations.
7
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546. These acts focused on reducing immigration
litigation by limiting and streamlining both administrative appeal and judicial review procedures regarding removal of
aliens and by rendering aliens in certain categories ineligible for certain types of relief from removal. Even when an
alien may be considered for discretionary relief, judicial review of denials of relief from removal is restricted, as is
review of removal orders issued to criminal aliens.
8
Section 106 of the REAL ID Act, P.L. 109-13, Division B, 119 Stat. 302 (2005), restricted habeas review and certain
other non-direct judicial review in response to U.S. Supreme Court holdings that such review was still available after
(continued...)

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113th Congress, H.R. 2278 would generally continue the trend of limiting judicial review; S. 744
would more narrowly limit judicial review in certain instances of employer noncompliance with
foreign worker visa programs. On the other hand, S. 744 also provides for judicial review for
legalization programs.

Visa Denial and Revocation
An “unadmitted and nonresident alien” has no constitutional right to be admitted into the United
States.9 Accordingly, consular officers within the U.S. Department of State (DOS) generally have
nonreviewable authority to deny visas. Therefore, the DOS regulations only provide for
administrative, supervisory review of visa denials.10 This doctrine of consular non-reviewability
has long been recognized by the courts and has rarely been challenged.11 However, there is some
case law supporting limited judicial review of a visa denial with regard to the First Amendment
rights of U.S. citizens to hear and debate the religious and political views of aliens. In Kleindienst
v. Mandel,12 the U.S. Supreme Court held that, when an executive branch officer/agency
exercised discretion to not waive the exclusion of an alien as an anarchist and communist
advocate for a facially legitimate and bona fide reason, the courts will not look behind the
exercise of discretion nor test it by balancing the reason against the First Amendment interests of
U.S. citizens who desire to hear the political views of and debate the alien. Some later federal
appellate decisions have followed Mandel and extended its holding to visa denials by consular
officers13 or to the assertion of other constitutional rights by U.S. citizens.14 Although they cannot
order a consular officer to grant or deny a visa, courts have differed about whether they have
jurisdiction to review consular failure to perform the nondiscretionary duty of deciding to grant or
deny a visa and to require a consular officer to make a decision.15
For a visa revocation, there is no judicial review16 (including review pursuant to 28 U.S.C. §2241,
or any other habeas corpus provision, and 28 U.S.C. §§1361 and 1651), except in the context of a
(...continued)
the 1996 acts. In INS v. St. Cyr, 533 U.S. 289 (2001), and Calcano-Martinez v. INS, 533 U.S. 348 (2001), which
concerned the IIRIRA restrictions on judicial review, the Supreme Court held that there is a strong presumption in
favor of judicial review of administrative actions; therefore, in the absence of a clear statement of congressional intent
to repeal habeas corpus jurisdiction over removal-related matters, such review was still available after the 1996
changes. Furthermore, the Court also found that eliminating any judicial review, including habeas review, without any
substitute for review of questions of law including constitutional issues, would raise serious constitutional questions.
533 U.S. at 305. Therefore, it chose a statutory construction (habeas review was not eliminated) which would not raise
serious constitutional questions.
9
Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).
10
22 C.F.R. §§41.121 and 42.81.
11
James Lockhart, Construction and Application of Doctrine of Consular Nonreviewability, 42 A.L.R. Fed. 2d 1 (citing
Kleindienst v. Mandel and other cases).
12
408 U.S. 753.
13
See Margaret Laufman, Comment: American Academy of Religion v. Napolitano, 55 N.Y.L. Sch. L. Rev. 1173
(2010 / 2011), discussing cases including American Academy of Religion v. Napolitano, 573 F.3d 115, 119, 124-25 (2d
Cir. 2009); Bustamante v. Mukasey,531 F.3d 1059 (9th Cir. 2008); Adams v. Baker, 909 F.2d 643 (1st Cir. 1990);
Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988); Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986).
14
E.g., Bustamante v. Mukasey,531 F.3d 1059 (9th Cir. 2008) (U.S. citizen had a protected liberty interest in her
marriage to an alien and a procedural due process claim regarding his visa denial.
15
Lockhart, supra note 12, at §II.4 to II.6.
16
This includes review pursuant to the habeas corpus provisions at 28 U.S.C. §2241, or any other habeas corpus
(continued...)

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removal proceeding if such revocation provides the sole ground for removal.17 It appears that
courts have generally held that the doctrine of consular nonreviewability applies to revocation of
visas issued to aliens who are outside the United States,18 but that revocation of a visa issued to an
alien who is already in the United States is subject to judicial review.19 Furthermore, federal
courts have differed about whether the doctrine of nonreviewability extends to nonconsular
officials, including officers of the former Immigration and Naturalization Service and the U.S.
Department of Homeland Security (DHS).20

Removal and Detention
Judicial Review of Removal Orders Under INA §24221
Judicial review does not provide a broad panacea to aliens subject to removal orders. First,
appealing a removal order does not serve to stay the removal order absent a court order.22 Second,
there is no judicial review of removal determinations based on particular grounds of
inadmissibility or deportability, including a public health ground certified by a medical officer
and certain criminal grounds such as aggravated felonies, drug offenses, and firearm offenses.23
Finally, a court cannot review the denial of most types of relief from removal that are granted at
the discretion of the immigration officer or immigration judge, including a waiver of
inadmissibility, cancellation of removal, voluntary departure, and adjustment of status to lawful
permanent resident.24 These bars to judicial review of removal determinations do not preclude a
federal appellate court from reviewing constitutional claims or questions of law raised in matters
that are otherwise nonreviewable.25
In the exception to the bar on judicial review of denials of discretionary administrative relief from
removal, federal appellate courts can review an asylum determination, when an alien faces
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion,26 which serves a humanitarian
objective, except for determinations for aliens arriving without proper travel documents who may
potentially be subject to expedited removal under INA §235.27 However, there are restrictions on
(...continued)
provision in the federal statutes, or pursuant to the provisions at 28 U.S.C. §§1361(actions in federal district court to
compel a federal officer or employee to perform a duty owed to the plaintiff) and 1651 (federal court authority to issue
writs, typically for injunctive relief).
17
INA §221(i), codified as amended at 8 U.S.C. §1201(i).
18
See, e.g., Castellanos v. Pfizer, Inc., 555 F. Supp. 2d 1343 (S.D. Fla. 2008).
19
See, e.g., Knoetze v. United States, Dep't of State, 634 F.2d 207 (5th Cir. 1981) (reviewing revocation of a visa issued
to an alien within the United States under the APA, 5 U.S.C. §706).
20
Lockhart, supra note 12, at §III.27 to III.28.
21
Codified as amended at 8 U.S.C. §1252.
22
INA §242(b)(3)(B); codified as amended at 8 U.S.C. §1252(b)(3)(B).
23
INA §242(a)(2)(C), codified as amended at 8 U.S.C. §1252(a)(2)(C).
24
INA §242(a)(2); codified as amended at 8 U.S.C. §1252(a)(2).
25
INA §242(a)(2)(D), codified as amended at 8 U.S.C. §1252(a)(2)(D).
26
INA §§101(a)(42) and 208, codified as amended at 8 U.S.C. §§1101(a)(42) and 1158.
27
Codified as amended at 8 U.S.C. §1225.

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the scope and standards of judicial review of asylum determinations: (1)the administrative denial
of relief is conclusive unless manifestly contrary to law; and (2) a court cannot reverse an
administrative determination about the availability of evidence corroborating eligibility for
removal relief. On the other hand, relief from removal is mandatory if the alien meets the
eligibility requirements for either (1) withholding of removal under INA§241(b)(3),28 when the
alien’s life or freedom would be threatened in the alien’s country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion, or (2)
protection under the U.N. Convention Against Torture when there are substantial grounds for
believing the alien would be in danger of being subjected to torture.29 Therefore, a federal
appellate court may review denials of these types of relief. Generally, judicial review of removal
orders is available in the federal appellate court for the judicial circuit in which the removal
proceedings were completed.30 Judicial review of all questions of law and fact, including
interpretation of constitutional and statutory provisions, that arise from a removal action or
proceeding must be consolidated in a direct appeal of a final removal order to a federal circuit
court of appeals; no habeas corpus review is permitted by any federal court.31 The U.S. Supreme
Court called this jurisdictional consolidation provision the “zipper” clause for judicial review of
removals.32 Except as explicitly provided in the INA judicial review provisions, courts may not
review claims arising from Attorney General (or the Secretary of Homeland Security) decisions
or actions to initiate removal proceedings, adjudicate cases, or execute removal orders against any
alien.33
Federal district courts have a limited role in the judicial review of removal orders. With regard to
U.S. nationality claims, if there is a genuine issue of material fact concerning whether the person
appealing the removal order is a U.S. national, the federal appellate court will transfer the
proceeding to the federal district court in whose jurisdiction the appellant resides for a new
hearing and a declaratory judgment on that issue as if brought under 28 U.S.C. §2201,
establishing federal court jurisdiction to declare the rights of the plaintiff.34 In addition, the
District Court for the District of Columbia has jurisdiction to review challenges to the
constitutionality of the statute and/or implementing regulations for expedited removal35 of certain
inadmissible aliens or to the legality under other laws of the regulations and other administrative
guidelines.36 An appeal from the decisions described above would be made to the federal
appellate court for the circuit in which the district court issuing the decision is located.37
28

Codified as amended at 8 U.S.C. §1241(b)(3).
This protection was implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, P.L.
105-277, 112 Stat. 2681, 2681-821.
30
INA §§242(a)(1) and (b)(2); codified as amended at 8 U.S.C. §§1252(a)(1) and (b)(2). Also, if a district court finds
that a removal order is invalid in a separate hearing before a criminal trial for refusal/failure to depart pursuant to a
removal order, it shall dismiss the criminal indictment and the Federal Government may appeal the dismissal to the
court of appeals for the appropriate circuit within 30 days (INA §242(b)(7)(C); 8 U.S.C. §1252(b)(7)(C)).
31
INA §242(b)(9), codified as amended at 8 U.S.C. §1252(b)(9).
32
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471 (1999), described this provision as
an “unmistakable ‘zipper’ clause” that says “no judicial review in [removal] cases unless [section 1252] provides
judicial review.” Id. at 482-3.
33
INA §242(g), codified as amended at 8 U.S.C. §1252(g).
34
INA §242(b)(5)(B), codified as amended at 8 U.S.C. §1252(b)(5)(B).
35
INA §235(b)(1), codified as amended at 8 U.S.C. §1225(b)(1).
36
INA §242(e)(3), codified as amended at 8 U.S.C. §1252(e)(3).
37
28 U.S.C. §§1294, 1295, 2106, 2107.
29

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Expedited Removal of Inadmissible Arriving Aliens
In contrast to aliens in the United States, aliens outside the United States (or at its borders or ports
of entry) are generally not due any procedural rights with respect to their ability to enter the
United States. With a limited exception for certain permanent resident aliens who are returning to
the United States, aliens whom the government is seeking to exclude from entry are not
guaranteed an expulsion process that comports with constitutional standards. The governing
principle generally remains that due process for aliens seeking admission to the United States at a
port of entry and for aliens who entered illegally without inspection consists of “[w]hatever the
procedure authorized by Congress is.”38
Generally, if an immigration officer determines that an arriving alien is inadmissible, that alien is
removable without further hearing or review.39 The exception occurs when an arriving alien
asserts an asylum claim, in which case, the alien will be referred to an asylum officer who
determines whether the alien has a credible fear of persecution for race, religion, nationality,
membership in a particular social group, or political opinion.40 If the asylum officer decides that
an alien has a credible fear of persecution, the alien is placed into regular removal proceedings41
where asylum claims will be given full consideration. If the asylum officer decides that an alien
does not have a credible fear of persecution, the officer may order removal without further review
unless the alien requests review by an immigration judge of the credible fear determination. A
credible fear review by an immigration judge must take place no later than 7 days after the initial
negative credible fear determination.42 The immigration judge may place the alien into regular
removal proceedings if the immigration judge reverses the negative determination of the asylum
officer.
Similarly if an alien makes a claim under oath, subject to the penalty of perjury, to already being a
lawful permanent resident, refugee, or asylee, and if an immigration officer verifies such a claim,
the alien will be not be placed in expedited removal but may be placed in regular removal
proceedings. If the immigration officer cannot verify the claim, the case will be referred to an
immigration judge who may determine the claim not to be valid and affirm expedited removal. If
the immigration judge determines that it is valid, DHS may place the alien in regular removal
proceedings.
For those who are not placed in regular removal proceedings, there is judicial review in habeas
corpus proceedings under INA §242, but this is limited to determinations of whether the
petitioner is an alien, was ordered removed under the expedited removal provisions of INA
38

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537, 544 (1950).
39
INA §235, codified as amended at 8 U.S.C. §1225.
40
INA §235(b)(1), codified as amended at 8 U.S.C. §1225(b)(1). This subsection provides for the expedited removal
(except for Cubans) of (1) an alien arriving in the United States without proper documents or with fraudulent
documents and of (2) an alien who arrives in or has entered the United States without having been formally admitted or
paroled into the United States after inspection and who has not established to the satisfaction of the immigration officer
that he/she has been physically present in the United States continuously for the two-year period immediately before
the officer determines that the alien is inadmissible. The immigration officer may order the removal of such an alien
without any further hearing unless the alien makes a claim (1) to asylum, (2) to be a lawful permanent resident, or (3) to
have previously been admitted as a refugee or been granted asylum (such status not having terminated). Id.
41
INA §240, codified as amended at 8 U.S.C. §1229a.
42
INA §235(b)(1)(B)(iii)(IV), codified as amended at 8 U.S.C. §1225(b)(1)(B)(iii)(IV).

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§235(b)(1), and can prove by a preponderance of evidence that the alien is a lawful permanent
resident or currently in refugee/asylee status in the United States.43
Additionally, an immigration officer or judge may order the removal of an arriving alien
suspected of being inadmissible for certain national security grounds. Under such circumstances,
the Attorney General can affirm the removal without any further review or hearing after the
Attorney General reviews the case and consults with federal security agencies.44

Expedited Removal of Aliens Convicted of Committing
Aggravated Felonies
In addition to expedited removal of certain arriving aliens, the immigration laws provide for
expedited removal of aliens convicted of committing aggravated felonies,45 criminal offenses that
are grounds for deportation and also result in various other immigration consequences, including
the expedited removal process.46 A removal proceeding can be held while an alien convicted of an
aggravated felony is incarcerated to enable expeditious removal upon the completion of the
alien’s sentence of imprisonment.47 A removal order against an alien who is not a lawful
permanent resident and is convicted of an aggravated felony cannot be executed until 14 calendar
days after the date of the removal order in order to allow the alien an opportunity to apply for
judicial review under INA §242.48 At the time of imposing a criminal sentence against an alien
who is deportable, a federal district court has jurisdiction to enter a judicial removal order
simultaneously; the issuance or denial of a judicial removal order may be appealed by the
defendant deportable alien or the Attorney General to the federal court of appeals.49

Detention
The INA has two different detention provisions, one for the arrest and detention of removable
aliens generally, with special provisions for criminal aliens, and another for the mandatory
detention of suspected terrorists. Judicial review in both instances is very limited. Under the
general arrest and detention provision, discretionary determinations regarding release on bond or
parole is not reviewable.50 Under the provision for mandatory detention of suspected terrorists,
judicial review of actions and determinations, regarding certification as a terrorist and continued
detention with periodic review, is exclusively available through habeas corpus proceedings
pursuant to the specific guidelines of that provision, notwithstanding the guidelines of 28 U.S.C.
§2241, the main habeas corpus provision.51 The final order shall be subject to review, on appeal,
43

INA §242(e)(2), codified as amended at 8 U.S.C. §1252(e)(2).
INA §242(a)(2); codified as amended at 8 U.S.C. §1252(a)(2).
45
Aggravated felonies are defined at INA §101(a)(43), codified as amended at 8 U.S.C. §1101(a)(43). See CRS Report
WSLG454, Will Immigration Reform Legislation Revisit the Definition of “Aggravated Felony”?, by (name redacte
d).
46
See CRS Report RL32480, Immigration Consequences of Criminal Activity, by (name redacted).
47
INA §238(a); codified as amended at 8 U.S.C. §1228(a).
48
INA §238(b)(3); codified as amended at 8 U.S.C. §1228(b)(3).
49
INA §238(c); codified as amended at 8 U.S.C. §1228(c).
50
INA §236(e); codified as amended at 8 U.S.C. §1226(e).
51
INA §236A(b); codified as amended at 8 U.S.C. §1226a(b).
44

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by the United States Court of Appeals for the District of Columbia Circuit, and no other court of
appeals.52

Habeas Corpus
In INS v. St. Cyr53 and Calcano-Martinez v. INS,54 concerning the removal requirements and
restrictions on judicial review enacted in IIRIRA, the Supreme Court held that there is a strong
presumption in favor of judicial review of administrative actions; therefore, in the absence of a
clear statement of congressional intent to repeal habeas corpus jurisdiction over removal-related
matters, such review was still available after the 1996 changes. Furthermore, the Court also found
that eliminating any judicial review, including habeas review, without any substitute for review of
questions of law including constitutional issues, would raise serious constitutional questions.55
Therefore, it chose a statutory construction (habeas review was not eliminated) which would not
raise serious constitutional questions.
Subsequent to these decisions, §106 of the REAL ID Act56 expressly limited the use of habeas
corpus petitions in removal matters, while providing for federal appellate court consideration of
constitutional claims or other legal issues that formerly may have been raised in a habeas corpus
petition in cases where direct review was unavailable. Section 106 further provided that, for INA
purposes, any elimination of judicial review by other INA provisions included the elimination of
habeas corpus petitions.57
Section 242(e) of the INA expressly allows habeas review for very limited purposes for
expedited removal determinations made pursuant to INA §235(b), which was discussed above in
“Expedited Removal of Inadmissible Arriving Aliens.” Any review beyond the immigration
judge’s decisions under INA §235(b)(1), including administrative review by the Board of
Immigration Appeals, is limited to habeas corpus review in the federal courts under INA
§242(e).58 This permits habeas review only with regard to (1) whether the petitioner is an alien;
(2) whether the petitioner was ordered removed under INA §235(b); and (3) whether the
petitioner can prove by a preponderance of the evidence that he or she is a lawful permanent
resident or currently has refugee/asylee status in the United States and is thus entitled to further
52

Id.
533 U.S. 289 (2001).
54
533 U.S. 348 (2001).
55
INS v. St. Cyr, 533 U.S. 289 (2001). According to the Court, the Suspension Clause, Article I, §9, cl. 2, of the
Constitution, requires some judicial intervention in removal/deportation cases and at least protects the writ of habeas
corpus as it existed in 1789. 533 U.S. at 300-301. In light of ambiguities in the scope of the writ of habeas corpus at
common law and Supreme Court decisions suggesting that judicial intervention can only be restricted to the extent
consistent with the Constitution, the Court found that a serious Suspension Clause issue would arise if it were to accept
the INS position that the 1996 acts eliminated habeas review without any substitute. 533 U.S. at 305. To preclude
review of a pure question of law by any court would give rise to substantial constitutional questions. The Court
observed that traditionally the courts distinguished between ruling on eligibility for relief (a question of law) and ruling
on the favorable exercise of discretion (a question of fact). 533 U.S. at 307-308. Although a court could not rule on the
validity of the actual granting of discretionary relief, which is not a matter of right, it could rule on the legality of an
erroneous failure to exercise discretion at all. Id.
56
P.L. 109-13, Division B, 119 Stat. 302 (2005).
57
Id.
58
As noted above, INA §242(e) also provides for challenges to the validity of the statutory scheme and its
implementation through an action initiated in the U.S. District Court for the District of Columbia.
53

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review. Under 28 U.S.C. §2241, habeas petitions may be filed initially in a district court, a circuit
court of appeals, or in the U.S. Supreme Court, but they are generally filed in a district court
because court rules and policy restrict initiation in the appellate courts. District court decisions
may then be appealed to the circuit courts of appeals and the U.S. Supreme Court.

Citizenship-Related Determinations
Naturalization Denial or Delay
In 1990, amendments to the INA established an administrative process for naturalization that
previously had been adjudicated by federal courts. While these amendments retained judicial
review for naturalization denials and delays in the administrative process,59 they require a denied
applicant to request an administrative hearing.60 Once the administrative process has been
exhausted, the applicant may appeal the denial to the federal district court in whose jurisdiction
he or she resides for a de novo review.61 Applicants may also request federal district court
hearings regarding delays in naturalization determinations if more than 120 days have elapsed
after the U.S. Citizenship and Immigration Services (USCIS) has conducted a naturalization
examination; depending on its findings, the court may remand the case to the agency, with
instructions, for a determination or the court may adjudicate the naturalization case itself.62

Naturalization Revocation
Upon an affidavit showing good cause to revoke a naturalization because it was procured
illegally, by concealment of a material fact, or by willful misrepresentation, a U.S. attorney is
required to initiate denaturalization proceedings in any federal district court in whose jurisdiction
the naturalized citizen resides.63 However, the provision for judicial denaturalization proceedings
does not restrict in any way the power of DHS to reopen or vacate a naturalization order
administratively.64

Expatriation
Expatriation is the loss of nationality by a U.S. citizen regardless of whether the citizenship was
acquired by birth or naturalization. Unlike denaturalization/revocation, expatriation does not
involve fraudulent or illegal procurement of citizenship. Rather, expatriation results when a U.S.
citizen voluntarily commits certain acts, enumerated in the expatriation statute, with the specific
intent of relinquishing U.S. citizenship.65 Expatriation does not necessarily entail administrative
59
Nancy Morawetz, Immigration Law and Policy: Article: Citizenship and the Courts, 2007 U Chi Legal F 447, 454456 (2007), discussing the Immigration Act of 1990, P.L. 101-649, 104 Stat. 3978, and changes made to the
naturalization system.
60
INA §336(a), codified as amended at 8 U.S.C. §1447(a).
61
INA §310(c), codified as amended at 8 U.S.C. §1421(c); 8 C.F.R. §336.9.
62
INA §336(b), codified as amended at 8 U.S.C. §1447(b).
63
INA §340(a), codified as amended at 8 U.S.C. §1451(a).
64
INA §340(h), codified as amended at 8 U.S.C. §1451(h).
65
INA §349, codified as amended at 8 U.S.C. §1481.

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adjudication or determination.66 However, unless there is an explicit, written renunciation of
citizenship, expatriation is typically determined and disputed when a U.S. citizen is denied rights
and privileges of a U.S. citizen such as a U.S. passport. Such a denial may be reviewed in an
action for declaratory judgment brought by the nationality claimant under INA §36067 and 28
U.S.C. §2201. As noted above, genuine issues of U.S. nationality that arise in removal
proceedings are transferred to a federal district court for resolution.

Legalization Under IRCA
The judicial review provisions and related litigation for the legalization program under the
Immigration Reform and Control Act of 1986 (IRCA)68 remain relevant in light of the
legalization provisions of S. 744, the Senate-passed bill known as the Border Security, Economic
Opportunity, and Immigration Modernization Act. Under INA §245A(f)(3)69 and pertinent
regulations, there is a single level of administrative appellate review via the Administrative
Appeals Unit of the USCIS. Pursuant to INA §245A(f)(4),70 judicial review of IRCA legalization
denials is only available as review of a deportation order under former INA §106,71 since denial
of legalization would generally lead to the initiation of deportation proceedings against the
unauthorized alien. The statutory standard of review requires that judicial review can only be
based on the administrative record established by the administrative appellate review and that the
determinations and fact findings of this administrative record are conclusive unless the
legalization applicant can show that there was abuse of discretion or that the administrative
findings were directly contrary to clear and convincing facts in the record as a whole.
In 1996, the IIRIRA amended the IRCA judicial review provision to limit judicial review to cases
where a person had actually filed a legalization application within the period defined by IRCA or
had attempted to file a complete application and fee with a legalization officer but the officer
refused to accept them.72 Aside from such cases, there is no judicial or administrative review of a
denial of legalization based on the late filing of an application.73
It is worth noting that the IRCA legalization program had led to a spate of litigation challenging
different aspects of the program’s implementation.74 The U.S. Supreme Court interpreted the
66

However, the cancellation of a passport or issuance of a certificate of loss of nationality may be appealed
administratively and judicially. See INA §§358, 361, codified as amended at 8 U.S.C. §§1501, 1504.
67
Codified as amended at 8 U.S.C. §1503.
68
P.L. 99-603, 100 Stat. 3359.
69
Codified as amended at 8 U.S.C. §1255a(f)(3); see also regulations at 8 C.F.R. §245a.2(p), for the lawful temporary
resident status, and §245a.3(j), for the lawful permanent resident status. The IRCA legalization process was two stages,
the first resulting in a temporary resident status and the second resulting in a lawful permanent resident status, with
appeals from denials available at each stage.
70
Codified as amended at 8 U.S.C. §1255a(f)(4).
71
Formerly codified as amended at 8 U.S.C. §1105a and repealed by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), P.L. 104-208, div. C, §306(b) and (c), 309, 110 Stat. 3009–612, 3009–625.
72
Codified as amended at 8 U.S.C. §1255a(f)(4)(C).
73
INA §245A(f)(2), codified as amended at 8 U.S.C. §1255a(f)(2).
74
Lucas Guttentag, Symposium: Immigrant’s Rights & Critical Perspectives On Immigration Reform, February 10,
2007: Introduction: Immigration Reform: A Civil Rights Issue, 3 Stan. J.C.R. & C.L. 157, 162 (2007) (citing various
cases, noting the role of judicial review in ensuring the fairness and integrity of the IRCA legalization program, and
advocating effective judicial review for any future legalization program).

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statute and implementing regulations for the IRCA legalization program as not precluding judicial
review of the legalization process, given the strong presumption that Congress intends judicial
review.75

Legislation in the 113th Congress
H.R. 2278, as reported by the Senate Judiciary Committee, would further limit judicial review of
visa denial or revocation by the DHS, as opposed to the DOS; voluntary departure, a form of
removal relief; reinstatement of previously issued removal orders for aliens who illegally reenter
the United States after being removed or having departed pursuant to a removal order; and
naturalization delays or denials.76 Section 405 of the bill would bar judicial review of a visa
denial or revocation by DHS for security purposes and apply to denials and revocations before,
on, and after the effective date of the bill’s enactment. Although the INA already bars judicial
review of post-removal denials of voluntary departure and court-ordered stays of removal
pending consideration of a voluntary removal claim, §601 of the bill would further restrict courts
from tolling the period permitted for voluntary departure. Section 603 of the bill would increase
limits on judicial review of removal order reinstatements, already barred in general, by explicitly
barring review of reinstated orders because of constitutional claims or questions of law raised in
an appeal. Section 203 of the bill would revise judicial review of naturalization delays by
restricting courts to reviewing the reason for the delay and eliminating current jurisdiction to take
and decide a naturalization case on its merits. This provision would also eliminate the current de
novo standard for judicial review of naturalization denials and limit judicial review of the DHS
determination regarding certain naturalization requirements, including good moral character,
understanding of and attachment to the Constitution, and disposition to the good order and
happiness of the United States. Section 204 of the bill would authorize administrative
denaturalization by the Attorney General of persons engaged in certain terrorism-related
activities. Although the bill does not bar judicial review of such denaturalization, currently and
historically, denaturalization has solely been a function of the federal courts.
In contrast, S. 744, as passed by the Senate, provides for judicial review of the various
legalization avenues that the bill would establish; it does not include new restrictions on judicial
review regarding removal/detention or visa denial or revocation, although it does include limits
on judicial review in other contexts, such as penalties for employer noncompliance with various
requirements for employing foreign workers. During the Senate Judiciary mark-up of the bill,
some amendments to limit judicial review of legalization denials were rejected, as well as one to
limit judicial review of DHS visa denial or revocation for security purposes.77 In the Senate report
accompanying the bill, the Committee noted that a number of advocacy groups warned that
restricting judicial review of legalization programs would eliminate “the important backstop of
the Federal court system to determine whether the executive branch properly implemented the
bill.”78 During the mark-up, some Senators “voiced concern that the amendment would
75

See Immigration and Naturalization Service v. Zambrano, 509 U.S. 918 (1993); Reno v. Catholic Social Services,
Inc., 509 U.S. 43 (1993); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).
76
For a discussion of judicial review provisions in H.R. 2278, see CRS Report R43192, Immigration Enforcement:
Major Provisions in H.R. 2278, the Strengthen and Fortify Enforcement Act (SAFE Act), by (name redacted) and
(name redacted), at pp. 20, 23, 29.
77
S.Rept. 113-40, at 48.
78
Id. at 41.

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undermine the Constitutional system of checks and balances by eliminating independent
oversight of a significant administrative program that will affect millions of people. They also
emphasized the risk of error in the program, and the resulting need for judicial review.”79
Minority views in the bill’s report expressed concern about the “unnecessarily broad judicial
review of the denial of any application, which would necessarily create a litany of litigation and
undermine the enforcement of our immigration laws,”80 and the “unlimited judicial review the bill
creates for the new legalization and other visa programs.”81
S. 744 contains some provisions restricting judicial review in the contexts other than the
removal/detention and immigration benefits such as visa issuance and naturalization. For
example, §4306 of the bill would bar judicial review of the finding of a violation of the L-visa
nonimmigrant program for intracompany transferee executives or managers by L-visa employers.
Although it does not bar judicial review, §3101 of the bill would revise the judicial review
provision of INA §274A, concerning the unlawful employment of aliens, by specifying certain
deadlines and standards for judicial review of determinations of violations and penalties against
non-compliant employers. Finally, §4506 of the bill would bar judicial review of determinations
related to the visa waiver program, including visa refusals, a decision to designate or not
designate a country as a visa waiver program country, and DOS computation of visa refusal rates
or DHS computation of visa overstay rates on which a designation is based.

Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

79

Id.
Id. at 176.
81
Id. at 186.
80

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43226. Public record. Not legal advice.