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 12, 2007
                                                                         Amended: April 16, 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

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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



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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.

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                                           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


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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


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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 Elkimya’s motion for bail. In considering a

petitioner’s fitness for bail, we must determine whether the petition raises “substantial claims”

and whether “extraordinary circumstances exist[] that make the grant of bail necessary to make

the [petition for review] remedy effective.” Id. at 230 (internal quotation marks omitted). We do

not opine on whether Elkimya’s petition raises substantial claims, because we hold that he has

failed to demonstrate extraordinary circumstances making the grant of bail necessary. 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.




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