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Ogbudimkpa v. Ashcroft

U.S. Court of Appeals, Third Circuit


August 22, 2003

CHRISTOPHER OGBUDIMKPA, APPELLANT
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; KENNETH JOHN ELWOOD, DISTRICT DIRECTOR, INS PHILADELPHIA DISTRICT

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 01-cv-01511) District Judge: Honorable James M. Munley

Before: Sloviter, Ambro, Circuit Judges, and TUCKER,*fn1 District Judge

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued June 26, 2003

OPINION OF THE COURT

We decide whether a district court has jurisdiction to consider a habeas corpus petition that alleges violations of Article 3 of the United Nations Convention Against Torture ("CAT").*fn2 Congress has implemented CAT *fn3 by enacting the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA").*fn4 Because generally we do not infer Congressional intent to repeal habeas jurisdiction, and because FARRA's jurisdictional provisions do not specifically foreclose habeas corpus jurisdiction under 28 U.S.C. § 2241, the general habeas statute, we hold that CAT claims are cognizable under § 2241. We therefore reverse the District Court's dismissal for lack of jurisdiction of Christopher Ogbudimkpa's habeas corpus petition and remand so that it may consider the merits of his petition.

I. Facts and Procedural History

Ogbudimkpa is a citizen of Nigeria who entered the United States in 1982 on a non-immigrant student visa. In 1985 an Immigration Judge ("IJ") ordered Ogbudimkpa to be deported for remaining longer than his visa permitted and for working without Government authorization, under Immigration and Nationality Act ("INA") § 241(a)(9), 8 U.S.C. § 1251(a)(9) (current version at 8 U.S.C. § 1227(a)(1)). The Immigration and Naturalization Service ("INS") did not immediately remove him. In 1994 Ogbudimkpa was convicted and sentenced on state drug charges and, upon his release from prison in 1996, paroled to INS custody.

In 1999 the Board of Immigration Appeals ("BIA") granted Ogbudimkpa's motion to reopen his removal proceedings so that he might seek protection under Article 3 of CAT, which provides that "[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." 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." The IJ concluded that Ogbudimkpa had testified credibly, but had not demonstrated that it was more likely than not he would be tortured if returned to Nigeria. The BIA affirmed the IJ's decision.

Ogbudimkpa filed a pro se Motion for Emergency Stay of Removal in the United States 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. The District Court treated this motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. In the first set of what became a game of forum ping pong, the Government moved to dismiss for lack of jurisdiction, arguing that the Circuit Court was the proper forum for Ogbudimkpa's CAT claims.*fn5 Ogbudimkpa (continuing to act pro se ) petitioned the District Court to transfer his case to our Court, and the Government consented. But upon transfer of the case to our Court, the Government again moved to dismiss for lack of jurisdiction, claiming the jurisdictional bar of § 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA") applied to Ogbudimkpa because of his status as a criminal alien, even though the criminal conviction did not form the basis of the charges of deportation. This was exactly the opposite tack to the one taken by the Government in the District Court.*fn6 Unaware of the "whipsawing" procedural posture of this case, we granted the Government's motion to dismiss in an unpublished (and of course non-precedential) judgment order.*fn7 In doing so we noted the possibility that Ogbudimkpa might petition for a writ of habeas corpus.*fn8

Back yet again in District Court, Ogbudimkpa (still acting pro se ) filed a petition for habeas relief that essentially replicated the petition he had filed in November 2000. The Government moved to dismiss for lack of subject matter jurisdiction and the District Court granted that motion, concluding that it lacked jurisdiction to consider his petition.*fn9 This appeal followed,*fn10 an appeal in which Ogbudimkpa has been superbly represented by appointed counsel.*fn11

II. Discussion

A. Background

1. The Convention Against Torture

The United Nations drafted CAT in order to "make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world." United Nations: Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. E/CN.4/1984/72, Preamble (1984). On December 10, 1984, the United Nations General Assembly adopted CAT by unanimous agreement. Committee on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. No. 101-30, at 2 (1990).

President Reagan signed CAT on April 18, 1988, id., with the following reservation: "The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary." United Nations Treaty Collection: Declarations and Reservations, http:// www.unhchr.ch/html/menu3/b/treaty12_asp.htm. One month later, the President transmitted CAT to the Senate for approval, with nineteen proposed "reservations, understandings, and declarations," including the "declaration that [CAT] is not self-executing," and the assurance that "[t]he recommended legislation necessary to implement [CAT] will be submitted to the Congress separately." S. Treaty Doc. No. 100-20, iii, vi (1988).*fn12

The Senate adopted a resolution of advice and consent to ratification of CAT, subject to the declaration that it be deemed non-self-executing, on October 27, 1990. 136 Cong. Rec. 36,198 (1990). The instrument of ratification included the declaration that "the provisions of articles 1 through 16 of [CAT] are not self-executing." United Nations Treaty Collection: Declarations and Reservations, http:// www.unhchr.ch/html/menu3/b/treaty12_asp.htm. On October 21, 1994, President Clinton deposited the instrument of ratification with the United Nations. Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478-01 (Feb. 19, 1999).

2. FARRA

To implement Article 3 of CAT, Congress passed FARRA in 1998. FARRA § 2242(a) provides that "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture." Section 2242(b) of FARRA requires "the heads of the appropriate agencies" to "prescribe regulations to implement the obligations of the United States under [CAT's] Article 3." Accordingly, the Department of Justice (of which the INS at that time was a division) promulgated regulations delineating the procedures for deciding CAT claims. Pursuant to 8 C.F.R. § 208.16(c)(2), if an alien can demonstrate that it is "more likely than not" that he or she would be tortured if removed to a particular country, the INS must grant him or her protection. Depending on the status of the alien, that protection may take the form either of permanent withholding of removal or of temporary deferral of removal. 8 C.F.R. § 208.16(c)(4). The latter protection exists only until changed conditions in the

In response to criticisms of the Senate Foreign Relations Committee, President Bush submitted a "revised and reduced list" of twelve proposed conditions in January 1990. S. Exec. Rep. No. 101-30, at 2. The Committee concluded that the revised list "in large measure eliminate[d] th[e] problem" and recommended ratification. Id. at 2, 4. proposed country of removal make it no longer more likely than not that the alien will be tortured if returned. 8 C.F.R. § 208.17(b).

At issue in this case are the jurisdictional provisions of FARRA and whether they preclude district courts from exercising habeas jurisdiction over claims alleging violations of CAT. Section 2242(d) of FARRA contains a jurisdiction-limiting provision and a jurisdictionconsolidating provision. The jurisdiction-limiting provision denies federal courts the power to review the regulations promulgated under FARRA. Id. The jurisdiction consolidating provision *fn13 prescribes that CAT claims may be considered only as part of final orders of deportation reviewed pursuant to § 242 of the INA, 8 U.S.C. § 1252. Id. ("[N]othing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under [CAT] or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act.").

While on its face FARRA's zipper clause acts only to consolidate jurisdiction in one action in the court of appeals, its effect is also to limit the extent to which courts of appeal may exercise that jurisdiction. Section 2242(d) of FARRA provides that only CAT claims that arise in the context of final orders of removal may be reviewed by the courts of appeal. But FARRA is not the first federal enactment to affect courts' jurisdiction in immigration proceedings. IIRIRA "expressly precludes the courts of appeals from exercising 'jurisdiction to review any final order of removal against any alien who is removable by reason of ' a conviction for certain criminal offenses, including any aggravated felony." See Calcano-Martinez v. INS, 533 U.S. 348, 350 (2001) (citing 8 U.S.C. § 1252(a)(2)(C)).*fn14 By confining judicial review to final orders of removal, which are unreviewable if the petitioner has committed certain crimes, FARRA prevents the courts of appeals from reviewing CAT claims raised in deportation proceedings by aliens with certain criminal convictions.

3. St. Cyr

We follow the breadcrumb trail to the Supreme Court's opinion in INS v. St. Cyr, 533 U.S. 289 (2001), which may provide an answer to the question whether habeas relief remains available. St. Cyr decided this issue with respect to, inter alia, IIRIRA,*fn15 which contains a jurisdictional provision similar to FARRA. The Supreme Court held that the jurisdiction-limiting provisions of IIRIRA (which deprive appellate courts of the right to review the final orders of removal of certain classes of criminal aliens) did not contain a sufficiently explicit statement of Congress' intent to deprive district courts of their pre-existing habeas jurisdiction to effect that foreclosure.*fn16 533 U.S. at 314. As a result, the Court concluded that habeas relief remained available under 28 U.S.C. § 2241 to raise challenges to petitioners' final orders of deportation. Id.

Two canons of statutory construction guided the Supreme Court's analysis in St. Cyr. One canon provided a reason to conclude that the statute did not foreclose habeas review; the other made that construction possible.

The Court invoked the canon of constitutional avoidance: "if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, we are obligated to construe the statute to avoid such problems." Id. at 299-300 (internal citations omitted). Here, the "serious constitutional problem" that concerned the Court was the potential violation of the Constitution's Suspension Clause implicated by foreclosure of habeas review.*fn17 Construing the statute to allow for habeas review would avoid a potential Suspension Clause issue, thus not requiring the Court "to answer the difficult question of what the Suspension Clause protects." Id. at 301 n.13.*fn18

The second canon of construction invoked by the Court was the plain statement rule. This rule is designed "to ensure that, absent unambiguous evidence of Congress's intent, extraordinary constitutional powers are not invoked, or important constitutional protections eliminated, or seemingly inequitable doctrines applied." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 546 (1992) (Scalia, J., concurring). Here, both the extraordinary power of Congress to eliminate all Article III review of the deportation orders of certain aliens and the elimination of the important constitutional protections embodied by the Suspension Clause were at issue. "[W]hen a particular interpretation of a statute invokes the outer limits of Congress' power" — here, the power to deprive the courts of all jurisdiction to review certain types of cases — "we expect a clear indication that Congress intended that result." St. Cyr, 533 U.S. at 299 (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).*fn19 And there exists a "longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." St. Cyr, 533 U.S. at 298 (citing Ex parte Yerger, 8 Wall. 85, 102 (1869)). "Implications from statutory text or legislative history are not sufficient...; instead Congress must articulate specific and unambiguous statutory directives to effect a repeal" of habeas jurisdiction. Id. at 299; see also Felker v. Turpin, 518 U.S. 651, 660-61 (1996) (declining to conclude that Title I of AEDPA repealed habeas jurisdiction because it did not explicitly mention habeas corpus );*fn20 Demore v. Kim, ___ U.S. ___, ___, 123 S. Ct. 1708, 1714 (2003) (concluding that district court had jurisdiction to consider habeas corpus claim challenging statute permitting aliens to be held indefinitely without bail despite language stating that "[n]o court may set aside any action or decision by the Attorney General" because "where a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent").

In the context of these principles, the Court concluded that the language of IIRIRA was not sufficiently precise to repeal the habeas jurisdiction theretofore available via 28 U.S.C. § 2241. None of the jurisdiction-limiting provisions that the Government alleged divested the district court of habeas jurisdiction contained a "clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas." St. Cyr, 533 U.S. at 314. In particular, they did not "explicitly mention[ ] habeas, or 28 U.S.C. § 2241." Id. at 312. As a result, the Court concluded, no provision of IIRIRA "speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute." Id. at 312-13.

B. Cognizability of Habeas Corpus Claims Under FARRA

Notwithstanding the above, the District Court in this case concluded that it lacked habeas jurisdiction under 28 U.S.C. § 2241 to consider claims arising under CAT and its implementing legislation and regulations. After consideration of the parties' arguments, we conclude that FARRA's jurisdictional provisions do not preclude habeas jurisdiction.

As noted above, two provisions of FARRA affect the jurisdiction of the federal courts. Only one is relevant to this case. FARRA's jurisdiction-limiting provision provides that "[n]o court shall have jurisdiction to review the regulations adopted to implement this section." FARRA § 2242(d). Here, however, Ogbudimkpa does not challenge the regulations themselves, but the IJ's application of the regulations to his case, and thus this provision is not implicated. At issue here is whether the jurisdictionconsolidating clause in § 2242(d), which limits courts' jurisdiction to consider CAT claims to the review of final orders of removal, precludes habeas review.

1. Applying St. Cyr 's Principles

Guided by St. Cyr 's analysis of a similar provision in IIRIRA, we join the First, Second and Ninth Circuits in concluding that, because § 2242(d) of FARRA fails to state explicitly that a district court may not exercise jurisdiction over habeas corpus claims or mention 28 U.S.C. § 2241, the District Court retains that jurisdiction.*fn21 St. Cyr, 533 U.S. at 312 (holding that a statute must "explicitly mention[ ] habeas, or 28 U.S.C. § 2241," to "speak[ ] with sufficient clarity to bar jurisdiction pursuant to the general habeas statute"); see also Demore, 123 S.Ct. at 1714 (describing St. Cyr as "establish[ing] 'a superclear statement, "magic words" requirement for the congressional expression of ' an intent to preclude habeas review") (quoting St. Cyr, 533 U.S. at 327 (Scalia, J., dissenting)); Wang, 320 F.3d at 141 ("[A] statute must, at a minimum, explicitly mention either 'habeas corpus' or '28 U.S.C. § 2241' in order to limit or restrict § 2241 jurisdiction.").

We note first that the same constitutional concern that guided the Supreme Court to its conclusion in St. Cyr is present in this case. As in St. Cyr, the Government asks us to interpret a statute in a way that would foreclose an individual's ability to invoke the writ of habeas corpus. To determine whether this foreclosure violates the Suspension Clause of the Constitution would require us to construe that Clause's scope, a task the Supreme Court concluded should be a last resort in light of the considerable differences of opinion on the breadth of the Clause. 533 U.S. at 301 n.13. The danger of a Suspension Clause violation here is as acute as in St. Cyr because this case involves the "historical core" of the writ of habeas corpus: providing a means for "reviewing the legality of Executive detention," including the detention of aliens. Id. at 301. We decline to consider the Government's argument that " '[a]cknowledging no habeas corpus remedy for a narrow subject-matter category of claims does not effect an outright 'suspension' of the writ of habeas corpus." Resp't Br. at 24-25. Accepting or denying the truth of this statement is, spot on, what the St. Cyr Court sought to avoid. 553 U.S. at 301 n.13 ("The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely."). We follow the Supreme Court's lead and thus forgo construing the Suspension Clause. St. Cyr, 533 U.S. at 300-01; see also Wang, 320 F.3d at 141 (noting desire to "avoid serious constitutional concerns").

We note also that the reasons to require a clear statement of Congressional intent are also present here. As discussed above, while Ogbudimkpa initially sought review of the final order of removal issued in his case, that petition was dismissed by our Court for lack of jurisdiction. If we were to conclude here that there is no habeas jurisdiction, no Article III court will review Ogbudimkpa's CAT claims.

We are reluctant to construe the statute to bar any type of judicial review without a clear statement from Congress indicating its intent to do so. Accord St. Cyr, 533 U.S. at 299. In addition, the construction that the Government proposes would eliminate habeas jurisdiction, something that also requires a clear statement of intent on the part of Congress. Id. at 298.

With these considerations in mind, we turn to the language of FARRA. A side-by-side comparison (with emphasis added) of the provision of IIRIRA at issue in St. Cyr that most closely mirrors the language of FARRA at issue here convinces us that FARRA does not foreclose habeas review.

IIRIRA § 306(a) FARRA § 2242(d)4

"Notwithstanding any "Notwithstanding any other provision of law, no other provision of law,... court shall have jurisdic- nothing in this section tion to review any final shall be construed as proorder of removal against viding any court jurisdican alien who is removable tion to consider or by reason of having com- review claims under [CAT] mitted" certain enumer- or this section... except ated criminal offenses. as part of the review of a final order of removal pursuant to section 242 of the [INA]."

With strong indication from the Supreme Court that nothing will suffice but the most explicit statement that habeas jurisdiction under 28 U.S.C. § 2241 is repealed, and because § 2242(d) of FARRA does not mention habeas corpus or 28 U.S.C. § 2241, we conclude, by analogy to St. Cyr, that FARRA does not foreclose a district court from exercising habeas jurisdiction over claims alleging violations of CAT.

2. Arguments to Distinguish St. Cyr

a. Differences between FARRA and IIRIRA

The Government reasons that a different result from St. Cyr should occur in this case, carefully parsing the differences between the statutory language of FARRA and IIRIRA in search of support. It notes that FARRA does not just forbid "review" but also "expressly prohibits any interpretation of its terms that would confer jurisdiction either to 'consider' or to 'review' " a CAT claim.

St. Cyr rejects this line of argument. That the wording of FARRA is minimally different from IIRIRA is immaterial in the absence of a clear statement by Congress of its intent explicitly to foreclose habeas jurisdiction. Even assuming that FARRA's language is broader than IIRIRA's language at best does nothing more than create a slight ambiguity as to Congress' intent. But statutory "ambiguity does not help the INS" and "[o]nly the clearest statement of congressional intent will support the INS' position." St. Cyr, 533 U.S. at 312 n.35. Indeed, in St. Cyr the Court concluded that habeas relief under 28 U.S.C. § 2241 remained available notwithstanding the fact that one provision under review, entitled "Elimination of Custody Review by Habeas Corpus," repealed the INA provision authorizing habeas relief, INA § 106(a)(10).*fn22 The Court reasoned that this provision could not "eliminate what it did not originally grant — namely, habeas jurisdiction pursuant to 28 U.S.C. § 2241." St. Cyr, 533 U.S. at 311. In other words, excising a specific INA provision theretofore authorizing habeas review did not affect the general habeas authority granted by § 2241. If excising a provision authorizing habeas review is not sufficiently explicit an expression of Congressional intent to foreclose habeas jurisdiction, then the use of the word "consider" in addition to the word "review" cannot be deemed sufficiently explicit.

b. Non-Self-Executing Treaties

The Government argues that because St. Cyr did not involve a non-self-executing treaty, the Supreme Court's reasoning does not apply to FARRA. Further, because FARRA involves such a treaty, there is no habeas jurisdiction unless Congress grants it. With a self-executing treaty, "no domestic legislation is required to give [it] the force of law in the United States." Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984). Conversely, a non-self-executing treaty is one that "must be implemented by legislation before it gives rise to a private cause of action." Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979) (citing Head Money Cases, 112 U.S. 580, 589-90 (1884)). As noted above, in ratifying CAT the Senate gave its "advice and consent subject to [the declaration by the United States] that the provisions of Articles 1 through 16 of [CAT] are not selfexecuting." 136 Cong. Rec. 36,198.*fn23

Premised on its conclusion that CAT is not self-executing, the Government states that an alien has only those CAT claims that Congress has expressly provided. In essence, the Government contends, the question that the Supreme Court asked in St. Cyr — is there evidence that Congress intended to foreclose the availability of habeas review — is turned around in the context of a non-self-executing treaty and becomes, instead, whether there is evidence that Congress intended to provide for the availability of habeas review. Were this analysis correct, habeas review would not be available for claims based on violations of CAT because, the Government points out, there is no explicit evidence that Congress intended to provide for that review.

We agree with the First and Second Circuits that the proper starting point is the question whether FARRA deprives the District Court of habeas jurisdiction, 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. 28 U.S.C. § 2241(c)(3). CAT has been implemented by FARRA and its accompanying regulations. 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." FARRA, § 2242(a). It follows that those individuals whose detention violates FARRA may challenge their detention under 28 U.S.C. § 2241, just as with any other detentions that violate federal law. See Wang, 320 F.3d at 141 n.16 ("Once Congress created rights under CAT by enacting FARRA, § 2241 necessarily became a proper avenue of relief for individuals in custody in violation of FARRA and its implementing regulations."); Saint Fort, 329 F.3d at 202 ("Saint Fort's claims do not rest solely on a treaty that is not self-executing, they rest on the CAT through the FARRA and the regulations, and on a claim of violation of constitutional rights.").*fn24 Thus, whether CAT is or is not self-executing is irrelevant.

c. Historical Practice

In support of its argument that Congress must affirmatively grant habeas jurisdiction, the Government notes that there is no history of district courts reviewing CAT claims in the form of habeas corpus petitions. We are unpersuaded that this is relevant. In the words of the Second Circuit (which also dismissed this argument), "it makes no difference whether the type of claim allegedly being excluded from § 2241 is long-standing or newly created." Wang, 320 F.3d at 141 n.16. Once Congress created rights under CAT by enacting FARRA, § 2241 "became a proper avenue of relief for individuals in custody in violation of FARRA and its implementing regulations." Id.

In a similar vein, the Government contends that the lack of history of habeas review of CAT claims distinguishes this case from St. Cyr because there was a longstanding history of habeas review of deportation and exclusion orders prior to IIRIRA, whereas there is no such history of CAT claims prior to FARRA. But the St. Cyr Court's analysis of the historical availability of the writ of habeas corpus did not focus narrowly, as the Government would have us do, on whether there was a history of habeas review of the exact claims at issue in that case.

Using the broad lens of the St. Cyr Court, we conclude that the question is whether the general nature of the claims at issue were historically reviewable on a writ of habeas corpus. Habeas corpus writs were traditionally issued "to command the discharge of seamen who had a statutory exemption from impressment into the British Navy, to emancipate slaves, and to obtain the freedom of apprentices and asylum inmates." St. Cyr, 533 U.S. at 302. Here, as in St. Cyr, the general nature of the claim is that of a challenge to the validity of executive detentions, and we are persuaded by St. Cyr 's analysis demonstrating that these challenges invoke the writ's protections in their purest form. Id. at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention"); id. at 303-04 (noting "the historical use of habeas corpus to remedy unlawful Executive action" and "to redress the improper exercise of official discretion"); id. at 305 (arguing that "to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law. The writ of habeas corpus has always been available to review the legality of Executive detention.").

Even if we were to narrow the lens, disallowing habeas relief would still be a departure from historical practice. Not only did the writ traditionally issue as a means to review the legality of Executive detention of citizens, it also issued as a means of reviewing the legality of Executive detention of aliens. St. Cyr, 533 U.S. at 305-06. And it traditionally issued as a means of reviewing the legality of the detention of aliens in the face of alleged treaty violations. Brief Amici Curiae of Legal Historians Listed Herein in Support of Respondents: INS v. St. Cyr, 533 U.S. 289 (2001), 16 Geo. Immigr. L.J. 465, 482 (2001) (describing cases in which deserting alien sailors brought habeas corpus petitions based on violations of treaties or federal laws); see also Mali, 120 U.S. at 1 (considering habeas corpus petition brought on behalf of alien sailor alleging violations of consular agreement between the United States and Belgium). Hence the conclusion that habeas review was not available for CAT claims would, as in St. Cyr, represent "a departure from historical practice," a departure we decline to follow. St. Cyr, 533 U.S. at 305.

We therefore hold that district courts may exercise habeas jurisdiction over petitions alleging violations of CAT or FARRA and that FARRA does not speak with sufficient clarity to deprive the district courts of that jurisdiction.*fn25

C. Scope of Review

The Government further asserts that, even if we were to conclude (as we have done) that district courts have jurisdiction under 28 U.S.C. § 2241 to review CAT or FARRA claims, the District Court has no jurisdiction over Ogbudimkpa's habeas corpus claims because he has not sought review on a legal or constitutional claim, but rather of a factual issue. We disagree. Ogbudimkpa does not dispute the factual findings of the IJ. Rather, he argues that the IJ wrongly applied the standard for relief set forth in FARRA and its implementing regulations to the facts of his case. Habeas relief is traditionally available to correct "errors of law, including the erroneous application or interpretation of statutes." St. Cyr, 533 U.S. at 302 (emphasis added). A district court's habeas jurisdiction encompasses review of the BIA's application of legal principles to undisputed facts. Wang, 320 F.3d at 143 ("Wang's argument on appeal challenging the BIA's application of the particular facts in this case to the relevant law falls within the permissible scope of review."); see also Saint Fort, 329 F.3d at 203 (noting the Second Circuit's conclusion in Wang while declining to reach issue because the petitioner's claim was constitutional in nature). Because Ogbudimkpa alleges misapplication of a legal principle to undisputed facts of record, this case falls within the scope of habeas jurisdiction granted to the District Court by 28 U.S.C. § 2241.

III. Conclusion

District courts have jurisdiction to consider claims alleging violations of CAT raised in habeas corpus petitions. Congress implemented CAT by passing FARRA. FARRA's jurisdictional provisions do not refer to habeas corpus or 28 U.S.C. § 2241, and thus do not speak with sufficient precision to divest district courts of that habeas jurisdiction. Because the scope of habeas jurisdiction extends to claims concerning the correct interpretation or application of a statute, the District Court has jurisdiction to consider Ogbudimkpa's claim that the BIA misinterpreted FARRA (and the regulations implementing FARRA) in concluding that the facts in this case do not satisfy the standard for relief under CAT. Accordingly, we reverse the District Court's dismissal for lack of subject matter jurisdiction and remand for it to consider the merits of Ogbudimkpa's habeas corpus petition.


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