05-2984 Elkimya v. Dep’t of Homeland Security
B.I.A. No. A 21 033 045 Montante, I.J.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT ________________
August Term, 2006
(Submitted: March 28, 2007 Decided: April 13, 2007)
Docket No. 05-2984-ag _____________________________________________
ABDELAZIZ ELKIMYA, Petitioner,
– v. –
DEPARTMENT OF HOMELAND SECURITY, Respondent. ____________________________________________
Before: FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges. ____________________________________________
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”) affirming the
Immigration Judge’s order 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 BIA order, but we
deny Elkimya’s motion because he has failed to demonstrate the requisite “extraordinary
-1- circumstances,” Mapp, 241 F.3d at 230, for bail pending consideration of his petition for review.
Abdelaziz Elkimya, Perry County Correctional Center, Uniontown, Alabama, pro se.
Gail Y. Mitchell, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York), Buffalo, New York, for respondent.
SOTOMAYOR, Circuit Judge:
Petitioner Abdelaziz Elkimya moves this Court for bail pending consideration of his
petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming
Immigration Judge (“IJ”) 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 are seeking bail pending our consideration of their petition for review of a BIA order. 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 Elkimya’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 Morocco, arrived in the United States in 1975. He thereafter
married a United States citizen and on November 22, 1976, obtained lawful permanent resident
status. Elkimya and his wife divorced in 1983. In February 1993, he departed from the United
States for Morocco, returning to the United States in July 1997 from what he claimed was a
temporary visit abroad. Upon return, he applied for admission as a returning lawful permanent
resident. His application was denied following an airport interview, and the Immigration and
-2- Naturalization Service (“INS”)1 thereafter served him with a Notice to Appear, which stated that
he was removable because he had remained outside the United States continuously for four years
without permission and thus did not appear to be a bona fide permanent resident returning after a
temporary visit abroad, and because he did not have a valid entry document, valid unexpired
passport, or other suitable travel document as required by the Immigration and Nationality Act.
Elkimya was subsequently placed in removal proceedings.
On February 15, 2000, following a hearing, the IJ ordered Elkimya removed based on his
abandonment of his lawful permanent resident status. See In re Abdelaziz Elkimya, No. A 21 033
045 (Immig. Ct. Buffalo Feb. 15, 2000). On October 10, 2002, the BIA affirmed the IJ’s
decision without opinion. See In re Abdelaziz Elkimya, No. A 21 033 045 (BIA Oct. 10, 2002).
In September 2003, Elkimya filed a petition for a writ of habeas corpus under 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 transferred 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 Elkimya. Elkimya is currently being detained by
United States immigration officials, and moves this Court for bail pending consideration of his
reinstated petition for review.
1 Responsibility for enforcing United States immigration laws was transferred in 2002 to the Bureau of Immigration 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 and consistency, we refer to the Government’s immigration enforcement authority as the INS throughout this opinion.
-3- DISCUSSION
We raise sua sponte the question of whether we have the power to consider Elkimya’s
motion for bail pending consideration of his petition for review. It has long been law in this
Circuit that a federal court “has inherent power to enter an order affecting the custody of a habeas
petitioner who is properly before it contesting the legality of his custody.” Ostrer v. United
States, 584 F.2d 594, 596 n.1 (2d Cir. 1978). Moreover, federal courts of appeals are empowered
to release individuals being detained “[w]hile a decision not to release [the detainee] is under
review.” Fed. R. App. P. 23(b). In Mapp, we held that our inherent power to “affect[] the
custody” of a detainee extends to admitting petitioners to bail in the immigration habeas context,
rejecting the government’s view 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 (internal quotation marks omitted). We further noted the retrenchment in
judicial review of immigration decisions begun by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and expanded by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009, but observed that there was no “clear direction from Congress” limiting
our inherent powers. Mapp, 241 F.3d at 227. Absent such direction, we held that we were
“unprepared to hold that powers that are inherent in the federal courts, like that of granting bail to
habeas petitioners, can be limited by general attitudes cobbled together from laws of varying
vintage and scope, rather than by specific statutory provisions.” Id. at 229.
The Real ID Act of 2005 further altered the landscape of immigration law, but did not
qualify our inherent authority to admit to bail petitioners in immigration cases. The Real ID Act
Free access — add to your briefcase to read the full text and ask questions with AI
05-2984 Elkimya v. Dep’t of Homeland Security
B.I.A. No. A 21 033 045 Montante, I.J.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT ________________
August Term, 2006
(Submitted: March 28, 2007 Decided: April 13, 2007)
Docket No. 05-2984-ag _____________________________________________
ABDELAZIZ ELKIMYA, Petitioner,
– v. –
DEPARTMENT OF HOMELAND SECURITY, Respondent. ____________________________________________
Before: FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges. ____________________________________________
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”) affirming the
Immigration Judge’s order 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 BIA order, but we
deny Elkimya’s motion because he has failed to demonstrate the requisite “extraordinary
-1- circumstances,” Mapp, 241 F.3d at 230, for bail pending consideration of his petition for review.
Abdelaziz Elkimya, Perry County Correctional Center, Uniontown, Alabama, pro se.
Gail Y. Mitchell, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York), Buffalo, New York, for respondent.
SOTOMAYOR, Circuit Judge:
Petitioner Abdelaziz Elkimya moves this Court for bail pending consideration of his
petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming
Immigration Judge (“IJ”) 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 are seeking bail pending our consideration of their petition for review of a BIA order. 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 Elkimya’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 Morocco, arrived in the United States in 1975. He thereafter
married a United States citizen and on November 22, 1976, obtained lawful permanent resident
status. Elkimya and his wife divorced in 1983. In February 1993, he departed from the United
States for Morocco, returning to the United States in July 1997 from what he claimed was a
temporary visit abroad. Upon return, he applied for admission as a returning lawful permanent
resident. His application was denied following an airport interview, and the Immigration and
-2- Naturalization Service (“INS”)1 thereafter served him with a Notice to Appear, which stated that
he was removable because he had remained outside the United States continuously for four years
without permission and thus did not appear to be a bona fide permanent resident returning after a
temporary visit abroad, and because he did not have a valid entry document, valid unexpired
passport, or other suitable travel document as required by the Immigration and Nationality Act.
Elkimya was subsequently placed in removal proceedings.
On February 15, 2000, following a hearing, the IJ ordered Elkimya removed based on his
abandonment of his lawful permanent resident status. See In re Abdelaziz Elkimya, No. A 21 033
045 (Immig. Ct. Buffalo Feb. 15, 2000). On October 10, 2002, the BIA affirmed the IJ’s
decision without opinion. See In re Abdelaziz Elkimya, No. A 21 033 045 (BIA Oct. 10, 2002).
In September 2003, Elkimya filed a petition for a writ of habeas corpus under 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 transferred 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 Elkimya. Elkimya is currently being detained by
United States immigration officials, and moves this Court for bail pending consideration of his
reinstated petition for review.
1 Responsibility for enforcing United States immigration laws was transferred in 2002 to the Bureau of Immigration 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 and consistency, we refer to the Government’s immigration enforcement authority as the INS throughout this opinion.
-3- DISCUSSION
We raise sua sponte the question of whether we have the power to consider Elkimya’s
motion for bail pending consideration of his petition for review. It has long been law in this
Circuit that a federal court “has inherent power to enter an order affecting the custody of a habeas
petitioner who is properly before it contesting the legality of his custody.” Ostrer v. United
States, 584 F.2d 594, 596 n.1 (2d Cir. 1978). Moreover, federal courts of appeals are empowered
to release individuals being detained “[w]hile a decision not to release [the detainee] is under
review.” Fed. R. App. P. 23(b). In Mapp, we held that our inherent power to “affect[] the
custody” of a detainee extends to admitting petitioners to bail in the immigration habeas context,
rejecting the government’s view 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 (internal quotation marks omitted). We further noted the retrenchment in
judicial review of immigration decisions begun by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and expanded by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009, but observed that there was no “clear direction from Congress” limiting
our inherent powers. Mapp, 241 F.3d at 227. Absent such direction, we held that we were
“unprepared to hold that powers that are inherent in the federal courts, like that of granting bail to
habeas petitioners, can be limited by general attitudes cobbled together from laws of varying
vintage and scope, rather than by specific statutory provisions.” Id. at 229.
The Real ID Act of 2005 further altered the landscape of immigration law, but did not
qualify our inherent authority to admit to bail petitioners in immigration cases. The Real ID Act
-4- repealed the use of habeas petitions to challenge orders of removal; petitions for review filed in
the courts of appeals are now the exclusive procedural 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
petitions should be extended to these petitions for review. The core desideratum of the Real ID
Act was to “restor[e] uniformity and order to the law,” H.R. Rep. No. 109-72, at 174 (2005); see
also Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) (describing the Real ID Act’s
jurisdictional modifications as “an effort to streamline what the Congress saw as uncertain and
piecemeal review of orders of removal, 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
efficient manner of exercising our “inherent authority to admit to bail individuals properly within
[our] jurisdiction.” Mapp, 241 F.3d at 226. This power is therefore rightly extended to situations
where detained individuals are seeking bail pending our consideration of their petition for review
of a BIA order.
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 INS.
Congress is presumed to be aware of a judicial interpretation of a statute such as AEDPA or
IIRIRA, see Lorillard v. Pons, 434 U.S. 575, 580 (1978), and the Real ID Act’s silence regarding
our holding in Mapp constitutes an implicit adoption of our interpretation of AEDPA and
IIRIRA, id. If Congress sees fit to deprive federal courts of their authority to admit to bail those
detained aliens awaiting consideration of their petitions 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
-5- so through the law.” Mapp, 241 F.3d at 227. Until that time, we exercise the inherent authority
we possess to grant bail where it is “necessary to make the . . . [petition for review] remedy
effective.” Id. at 226 (quoting Ostrer, 584 F.2d at 596 n.1).
We decline in this case, however, to grant bail because Elkimya’s motion for bail presents
no “extraordinary circumstances . . . that make the grant of bail necessary to make the [petition
for review] remedy effective.” Id. (internal quotation marks omitted). We see no reason, and
Elkimya has proffered none other than convenience, why his continued detention by the INS
would affect this Court’s ultimate consideration of the legal issues presented in his petition for
review.
CONCLUSION
For the foregoing reasons, Elkimya’s motion for bail pending consideration of his petition
for review is DENIED.
-6-