                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

Kolkevich v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-2624




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT

                    _________

                   No. 06-2624
                   __________

          VLADISLAV KOLKEVICH,

                                    Petitioner
                         v.

ATTORNEY GENERAL OF THE UNITED STATES,

                                    Respondent
                   __________

      Petition for Review of an Order of the
       United States Department of Justice
          Board of Immigration Appeals
              BIA No. A71-230-359
       Immigration Judge: Jill H. Dufresne

        Initially Docketed as an Appeal from
                 EDPA No. 06-cv-1738
 Prior to the Enactment of the Real ID Act of 2005
                     __________
               Argued on July 11, 2007
     Before: RENDELL, AMBRO, and NYGAARD*,
                   Circuit Judges.

                 (Filed September 6, 2007 )


Steven A. Morley [ARGUED]
Morley, Surin & Griffin
325 Chestnut Street
Suite 1305-P
Philadelphia, PA 19106

Counsel for Petitioner
Vladislav Kolkevich


Richard M. Bernstein [ARGUED]
Office of Untied States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Respondent
Attorney General of the United States

     ________________
   * Honorable Richard L. Nygaard, Senior Judge of the
     United States Court of Appeals for the Third Circuit,
     participated via video conference.



                              2
                            _______


                  OPINION OF THE COURT
                        __________


RENDELL, Circuit Judge.

        At issue in this case are the rights of a criminal alien to
challenge the final order of removal entered against him by the
Attorney General, notwithstanding the fact that the passage of
the REAL ID Act of 2005 cut off Petitioner’s right to file a
petition for habeas corpus relief. The Government argues that
we are without jurisdiction to hear Petitioner’s tardy challenge
to the agency’s removal order. Petitioner argues, however, that,
were we to accept the Government’s position, he would be
without any opportunity for judicial review whatsoever and,
therefore, that such an interpretation of REAL ID would
constitute a Suspension Clause violation. Although we agree
with Petitioner that the Government’s interpretation of REAL
ID would have constitutional ramifications, we nevertheless
cannot accept his argument that he had an unlimited time in
which to complain of the removal order. Therefore, we hold
that Petitioner did not file for review in a timely fashion and,
consequently, that we are without jurisdiction. We will
accordingly dismiss the Petition.

                                3
       I. Factual and Procedural History

        Petitioner Vladislav Kolkevich is a twenty-five-year-old
male native and citizen of Russia who arrived in the United
States with his mother and father on March 11, 1994 at the age
of thirteen. Kolkevich became a lawful permanent resident on
May 3, 1995. Although both of his parents have since become
United States citizens, Kolkevich has not achieved that status.
On June 18, 2001, Kolkevich was convicted in the Philadelphia
Court of Common Pleas of two counts of robbery, two counts of
criminal conspiracy, one count of aggravated assault, and one
count of receiving stolen property. He was then sentenced to a
term of 4½ to 10 years in prison and remains incarcerated.

       On May 23, 2002, the then-Immigration and
Naturalization Service (“INS”) issued Kolkevich a Notice to
Appear, charging him, under Immigration and Nationality Act
(“INA”) §§ 237(a)(2)(A)(ii) and (iii), as removable for having
been convicted of multiple crimes of moral turpitude and having
been convicted of an aggravated felony. Kolkevich conceded
removability on each ground, but requested deferral of removal
under the Convention Against Torture (“CAT”), pursuant to
8 C.F.R. §§ 1208.16-18.

       An Immigration Judge (“IJ”) took testimony on this claim
on December 18, 2003, and granted Kolkevich relief on
February 26, 2004. The IJ’s ruling was based almost entirely on
her favorable view of the testimony given by Kolkevich’s expert

                               4
witness, Nickolai Butkevich, a scholar and country-watcher with
knowledge of anti-Semitism in the contemporary former Soviet
Union. Butkevich testified that police use torture “quite often”
against those whom they choose to detain. Appx. at 142. He
also stated that Kolkevich would be a likely candidate for
arbitrary detention because of his status as a criminal deportee,
a Jew, and a Chechen as well as his lack of a financial support
system in the country. Butkevich opined that, because
Kolkevich combined each of these four independently
problematic traits, he was a target for corrupt police and,
therefore, more likely than not to be tortured. Additionally, the
IJ also relied on the State Department’s Country Report on
Russia, noting “numerous statements in the Report” reflecting
the prevalence of arbitrary arrest, police corruption, torture, and
discrimination against Chechens and Jews. Appx. at 53-55.

       The Government appealed the IJ’s decision, and on
March 21, 2005, the Board of Immigration Appeals (“BIA”)
reversed and ordered Kolkevich removed to Russia. The BIA
found, in part, that the IJ erred by relying so heavily on
Butkevich’s testimony since, in the BIA’s view, Butkevich’s
expertise was in “the treatment of Jews in the former Soviet
Union,” rather than in matters such as police function and rule
of law that were integral aspects of Kolkevich’s claim. Appx.
at 37. Additionally, the BIA found that evidence of the
existence of anti-Semitic and anti-Chechen sentiment in Russia,
in general, was insufficient to establish that Kolkevich, “in
particular, will face torture at the direction of, or with the

                                5
acquiescence of, the Russian government.”          Id. (emphasis
added).

        Because the BIA’s decision both reversed the IJ and
ordered Kolkevich removed to Russia, it was the Agency’s final
order and, therefore, the order from which Kolkevich could have
brought an appeal. At this point, as will be explained in greater
detail below, Kolkevich had only one vehicle by which to
challenge the BIA’s decision: a § 2241 habeas corpus petition
filed in a United States district court, which could have been
filed at any time, without limit, following issuance of the order
of removal. However, this changed dramatically just 51 days
after the BIA issued Kolkevich’s final order of removal. On
May 11, 2005, President Bush signed into law the REAL ID
Act of 2005 (RIDA), Pub.L. No. 109-13, Div. B, 119 Stat. 231
(codified as amended at 8 U.S.C. § 1252). Section 106(a) of
RIDA eliminated the availability of habeas corpus relief in the
district courts for aliens seeking to challenge orders of removal.
Instead, Congress substituted petitions for review, filed with the
courts of appeals within the first 30 days after issuance of an
order of removal, as the sole vehicle whereby aliens could
challenge their removal.

       Under these new rules, Kolkevich’s 30-day window
opened on March 21, 2005, but had already closed by the time
RIDA was enacted on May 11, 2005, leaving him without a way
to timely challenge the BIA’s order of removal. Instead, on
April 25, 2006 – more than a year after his order of removal (but

                                6
not quite a year following the RIDA’s effective date) –
Kolkevich filed a § 2241 habeas petition in the United States
District Court for the Eastern District of Pennsylvania. RIDA’s
jurisdictional provisions prevented the District Court from
hearing this petition and, therefore, on May 4, 2006, the District
Court transferred Kolkevich’s petition to this Court.

       The questions before us now are whether Kolkevich may
bring his petition at all and, if so, how much time he should be
afforded.1 We conclude that while Kolkevich could have filed
an appeal from the BIA’s decision, he did not do so in a
reasonable time and, therefore, we need not reach the merits of
his appeal.

     II. History of Aliens’ Challenges to Final Orders of
Removal

       The issues raised in this case, as well as the parties’
arguments, are inseparable from the history of the laws
governing how aliens have been able to challenge the final
orders of removal2 entered against them.


      1
     “This court exercises plenary review over jurisdictional
issues.” Bromwell v. Mich. Mut. Ins. Co., 115 F.3d 208 (3d Cir.
1997).
  2
      We use the terms “final order of removal” and “deportation
                                                   (continued...)

                                 7
        “Before and after the enactment in 1875 of the first
statute regulating immigration [the habeas corpus provision
located in 28 U.S.C. § 2241] was regularly invoked on behalf of
noncitizens, particularly in the immigration context.” INS v. St.
Cyr, 533 U.S. 289, 305 (2001). Indeed, “[u]ntil the enactment
of the 1952 Immigration and Nationality Act, the sole means by
which an alien could test the legality of his or her deportation
order was by bringing a habeas corpus action in district court.”
Id. at 306; see also Zadvydas v. Davis, 533 U.S. 678, 687 (2001)
(“Before 1952, the federal courts considered challenges to the
lawfulness of immigration-related detention, including
challenges to the validity of a deportation order, in habeas
proceedings.”). However, habeas was only available to those
aliens who had already been detained in anticipation of
deportation. But see infra note 6. Needless to say, the need for
detention as a precondition to an alien’s challenge to his or her
deportation made it all the more difficult for an alien to bring
such a challenge.

       This obstacle fell after the enactment of the INA in 1952,
when the courts of appeals divided over whether, under that Act,
aliens could bring pre-detention actions for declaratory and
injunctive relief under § 10 of the Administrative Procedure Act
(“APA”). In Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), the
Supreme Court settled the circuit split by deciding that APA §


  2
   (...continued)
order” interchangeably.

                               8
10 actions were available to aliens seeking to challenge their
removal. Nevertheless, nothing in the INA or the APA
mentioned habeas or otherwise displaced it. The Supreme
Court’s ruling in Pedreiro, therefore, left the habeas pathway
intact and only expanded the options available to aliens.

        “Congress feared, however, that the availability of
judicial review created by Pedreiro . . . would be abused to
extend review beyond reasonable grounds.” Hiroshi Motomura,
Immigration Law and Federal Court Jurisdiction Through the
Lens of Habeas Corpus, 91 C ORNELL L. R EV. 459, 462 (2007).
For that reason, Congress amended the INA in 1961 to establish
the petition for review process set forth in the Hobbs Act, which
governs judicial review for determinations from agencies like
the Federal Communications Commission, as the “sole and
exclusive procedure” by which aliens could review their
deportation orders. See id. at 462-63 (quoting Act of
September 26, 1961, Pub L. No. 87-301, § 5, 75 Stat. 650, 651
(formerly codified at 8 U.S.C. § 1105a(a)) (repealed 1996)); see
also Foti v. INS, 375 U.S. 217, 217-20 (1963); St. Cyr, 533 U.S.
at 309.

       In doing so, however, Congress explicitly created an
exception for habeas review in § 106(a)(9) – later renumbered
§ 106(a)(10) – of the 1961 amendment, dictating that “‘any alien
held in custody pursuant to an order of deportation may obtain
review thereof by habeas corpus proceedings.’” St. Cyr, 533
U.S. at 309 (quoting 75 Stat. at 651). “While this provision

                               9
appears to conflict with section 106(a)’s designation of the
Hobbs Act as the ‘sole and exclusive procedure’ for reviewing
deportation orders, courts adopted several different ways of
limiting the reach of section 106(a)(10), making habeas review
of deportation available only in narrow circumstances as a
supplement to petitions for review in the courts of appeals.”
Motomura, supra at 463. In short, while each significantly
altered the landscape, neither the 1952 Act nor the 1961
amendments eliminated habeas. See St. Cyr, 533 U.S. at 309.

        This framework remained in place until 1996, when
Congress passed the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(codified as amended in scattered sections of 8 U.S.C.) and the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Pub L. No. 104-208, Div. C, 110 Stat.
3009-546 (codified as amended in scattered sections of
8 U.S.C.). One provision of AEDPA, § 401(e), and three
provisions of IIRIRA, contained in § 306, stripped district courts
of jurisdiction to entertain habeas petitions filed by aliens
seeking to challenge their removal, and established the petition
for review process as the sole avenue by which aliens could
challenge deportation orders. Of particular relevance to this
case is the provision of IIRIRA, now codified at 8 U.S.C.
§ 1252(a)(2)(C), which went further, stripping the courts of
appeals of jurisdiction to hear petitions for review filed by
“criminal aliens,” defined as those aliens who had been
convicted of multiple crimes, as well as those convicted, inter

                               10
alia, of aggravated felonies, drug crimes, and crimes of moral
turpitude. See 8 U.S.C. § 1252(a)(2)(C) (setting forth an
exhaustive list of each of the crimes that triggers “criminal
alien” status).

        In St. Cyr, however, the Supreme Court ruled that
IIRIRA had not clearly and unambiguously stripped district
courts of § 2241 habeas jurisdiction over the appeals of criminal
aliens. The Court reached this conclusion after determining, in
part, that to interpret IIRIRA as eliminating all forms of judicial
review for criminal aliens would be to risk violation of Article I,
Section 9, Clause 2 of the Constitution – the “Suspension
Clause.” St. Cyr, 533 U.S. at 305. To avoid such “serious
constitutional questions,” the Court held that IIRIRA should not
be read as eliminating all judicial review for criminal aliens and
that, while it explicitly prohibited them from pursuing relief via
petitions for review in the courts of appeals, the Act should be
interpreted as having preserved the ability of criminal aliens to
file habeas in district court. Id. at 305-14.

        Unfortunately, St. Cyr left in its wake a bifurcated system
in which criminal aliens followed one path and all other aliens
followed another. Indeed, even the criminal aliens’ path was
fraught with forks and dead ends. “Even with regard to a single
removal order, some issues needed to be raised on direct review
in the court of appeals, other issues needed to go first to the
district court (subject then to appeal by either side), and yet
other issues outside the traditional scope of habeas corpus could

                                11
be precluded altogether.” Gerald L. Neuman, On the Adequacy
of Direct Review After The REAL ID Act of 2005, 51 N.Y.L.
S CH. L.R EV. 133, 135 (2006).

        Congress attempted to address these problems in RIDA.
Generally, the immigration provisions of RIDA sought to end
the disparity between the way criminal and non-criminal aliens
were treated and, additionally, sought to “limit aliens to one bite
of the apple with regard to challenging an order of removal” by
eliminating district court involvement in the process and by
allowing all aliens, including criminal aliens, to challenge an
order of removal via petitions for review filed with the
appropriate court of appeals. Bonhometre v. Gonzales, 414 F.3d
442, 446 (3d Cir. 2005).

      Four specific provisions achieve this result or are
otherwise of particular importance.

      First, RIDA § 106(a)(1)(A)(iii) amended 8 U.S.C.
§ 1252(a)(2) to include the following:

       (D) JUDICIAL REVIEW OF CERTAIN LEGAL
       CLAIMS – Nothing in subparagraph (B)
       [governing issues related to the denial of
       discretionary relief] or (C) [governing appeals
       brought by criminal aliens], or in any other
       provision of this Act (other than this section)
       which limits or eliminates judicial review, shall be

                                12
      construed as precluding review of constitutional
      claims or questions of law raised upon a petition
      for review filed with an appropriate court of
      appeals in accordance with this section.

       Second, RIDA § 106(a)(1)(B) added the following to the
end of 8 U.S.C. § 1252(a):




      (5) EXCLUSIVE MEANS OF REVIEW –
      Notwithstanding any other provision of law
      (statutory or nonstatutory), including section 2241
      of title 28, United States Code, or any other
      habeas corpus provision, and sections 1361 and
      1651 of such title, a petition for review filed with
      an appropriate court of appeals in accordance with
      this section shall be the sole and exclusive means
      for judicial review of an order of removal entered
      or issued under any provision of this Act, except
      as provided in subsection (e) [a subsection not
      relevant to our case]. For purposes of this Act, in
      every provision that limits or eliminates judicial
      review or jurisdiction to review, the terms
      “judicial review” and “jurisdiction to review”
      include habeas corpus review pursuant to section
      2241 of title 28, United States Code, or any other
      habeas corpus provision, sections 1361 and 1651

                              13
       of such title, and review pursuant to any other
       provisions of law (statutory or nonstatutory).

       Third, RIDA § 106(b), not codified in the United State
Code, sets forth the date upon which RIDA’s changes were to
take effect:

       EFFECTIVE DATE – The amendments made by
       subsection (a) [including those noted above] shall
       take effect upon the date of the enactment of this
       division and shall apply to cases in which the final
       administrative order of removal, deportation, or
       exclusion was issued before, on, or after the date
       of the enactment of this division.

       Fourth, RIDA § 106(c), also not codified in the United
States Code, deals with those § 2241 petitions that had already
been filed and were pending in district courts:

       TRANSFER OF CASES – If an alien’s case,
       brought under section 2241 of title 28, United
       States Code, and challenging a final order of
       removal, deportation, or exclusion, is pending in
       a district court on the date of the enactment of this
       division, then the district court shall transfer the
       case (or the part of the case that challenges the
       order of removal, deportation, or exclusion) to the
       court of appeals for the circuit in which a petition

                                14
for review could have been properly filed under
section 242(b)(2) of the Immigration and
Nationality Act (8 U.S.C. 1252), as amended by
this section, or under section 309(c)(4)(D) of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1101 note).
The court of appeals shall treat the transferred
case as if it had been filed pursuant to a petition
for review under such section 242, except that




                        15
        subsection (b)(1) of such section [setting forth
       the 30-day time limit in which to file a petition for
       review] shall not apply.




        The sum total of these sections, in combination with the
pre-existing provisions of § 1252, gives rise to the current
system, under which all aliens, including criminal aliens, may
challenge the final orders of removal entered against them by
filing petitions for review in appropriate courts of appeals within
30 days after the final orders are entered. As noted, those aliens
with § 2241 petitions pending in district courts when RIDA was
passed may have their cases transferred to the appropriate courts
of appeals. Finally, RIDA makes clear that the § 2241 process
is no longer available to any alien, criminal or otherwise,
seeking to challenge his or her removal.

       However, while RIDA provides a pathway for aliens to
seek review of post-May 11, 2005 orders of removal, as well as
then-pending § 2241 habeas petitions, it is altogether silent as to
those aliens who, like Kolkevich, were entitled to file habeas
petitions after their removal orders were entered but did not do
so. We must now determine how RIDA applies to those aliens.




                                16
     III.      Whether Judicial Review is Available to
Kolkevich

       A. The Parties’ Arguments

        The Government’s argument is simple. Having failed to
file a habeas corpus petition before RIDA, Kolkevich was
required to file a petition for review in our Court within 30 days
of his final order of removal. He did not do so. Moreover, after
RIDA took effect on May 11, 2005, Kolkevich was no longer
permitted to file a § 2241 habeas petition. In the Government’s
view, had Kolkevich acted more quickly and filed a habeas
petition before RIDA became law, or had he filed a motion to
reconsider with the BIA, he would have had an opportunity to
challenge his final order of removal. However, because he took
neither of these opportunities, because he failed to file a petition
for review within 30 days of receiving his final order of
removal, and because he filed a habeas petition after such
petitions were disallowed by RIDA, Kolkevich’s appeal is
misplaced, not timely, and this Court is without jurisdiction to
entertain it.

        Kolkevich argues that, were we to accept the
Government’s view, he would be left without any opportunity
for judicial review. In Kolkevich’s view, he was unable to file
a petition for review within 30 days of receiving his final order
of removal because, during that 30-day period, RIDA was not
yet in effect and, therefore, the previous regime, under which

                                17
criminal aliens had an unfettered right to file for habeas relief,
still governed. When the final order of removal was issued, that
right still existed and continued to exist until it was taken away,
without replacement, in RIDA. In short, Kolkevich argues that
the Government’s interpretation of RIDA strips him of any
access to the courts and, therefore, constitutes an
unconstitutional suspension of the writ of habeas corpus. So
that we may avoid finding RIDA unconstitutional, we should, in
Kolkevich’s view, construe the statute in a way that would
permit us to exercise jurisdiction over his appeal.

       We are one of very few Courts to have been presented
with these arguments.

       B. Relevant Case Law

        The dearth of case law on this topic is due, undoubtedly,
to the fact that these issues are pertinent only to a very narrow
class of aliens. First, only criminal aliens are affected, since it
is only that type of alien that had access to habeas review prior
to RIDA’s enactment. Second, the pool is further reduced to
those criminal aliens who, at the time RIDA became effective,
had not yet filed their habeas petitions. Nevertheless, some
cases have emerged.

       The first case is one recently decided by the Court of
Appeals for the First Circuit, Fontes v. Gonzales (“Fontes I”),
483 F.3d 115 (1st Cir. 2007). The procedural and factual history

                                18
of that case is a tortured one that we need not recount in detail.
Suffice it to say that Fontes, also a criminal alien, received his
final order of removal on September 30, 2004. He took no
immediate action. Then, on May 20, 2005, nine days following
the enactment of RIDA, Fontes filed a petition for review. As
it has done here, the Government argued that Fontes’s petition
was time-barred because it was filed more than 30 days after the
final order. However, Fontes initially did not raise a Suspension
Clause argument, but, instead, argued that the Court should
fashion a post-RIDA 30-day “grace period” in which he could
bring his claim. The Court ruled that such a grace period was
unwarranted and that, therefore, Fontes’s appeal was untimely.
Although we will discuss the “grace period” issue at greater
length below, we note now that the question of how much time
an alien in Fontes’s or Kolkevich’s position should receive if
permitted to file is distinct from the threshold question of
whether a criminal alien with a pre-RIDA order of removal
should be permitted to file in the first place. Fontes does not
discuss the latter question.

       Fontes next filed a petition for panel rehearing and
rehearing en banc and, in that petition, raised for the first time
the same Suspension Clause argument that Kolkevich raises
here. Although the Court of Appeals declined to grant
rehearing, relying on the fact that, jurisdiction aside, the Court
did not see the substance of Fontes’s appeal as meritorious, it
recognized that “the Suspension Clause issue is not only of
constitutional dimension but also is colorable,” and made clear

                               19
that its decision should not be read to preclude full consideration
of such an argument should it be raised and fully briefed in the
future. Fontes v. Gonzales (“Fontes II”), No. 05-1755, 2007
WL 2306977, at *1-2 (1st Cir. Aug. 14, 2007).

        In the second case, Chen v. Gonzales, 435 F.3d 788
(7th Cir. 2006), the alien received her final order of removal on
April 25, 2005 and filed a habeas petition on June 29, 2005,
with RIDA intervening as of May 11, 2005. The Court ruled
that it did not have jurisdiction over Chen’s appeal, essentially
adopting the position advanced by the Government in this case:
that Chen’s appeal was not timely because it was not filed
within 30 days of the final order of removal. Chen fails to deal
with the constitutional issues raised by this particular fact
pattern however, and, for that reason, it is unenlightening.3

       Finally, the United States District Court for the Western
District of Texas dealt with similar facts in Okeezie v. Chertoff
(“Okeezie I”), 430 F. Supp. 2d 665 (W.D. Tex. 2006), and again
on reconsideration in Okeezie v. Chertoff (“Okeezie II”), 462
F. Supp. 2d 731 (W.D. Tex. 2006). In Okeezie I, the District
Court addressed the Suspension Clause issue, holding that RIDA
must be interpreted as preserving, rather than destroying,
judicial review because to interpret it otherwise would be to risk
an unconstitutional suspension of the writ. However, the


  3
   We would note that, in Chen, the alien proceeded pro se and
the Court of Appeals did not grant oral argument.

                                20
District Court changed course on reconsideration in Okeezie II,
adopting the Government’s argument and vacating its opinion
in Okeezie I. The reason for this change seems rooted in the
case’s strange procedural posture.

        Okeezie received his final order of removal on
February 3, 2005, and then, nearly a month after RIDA was
passed, filed a petition for review with the Court of Appeals for
the Fifth Circuit. Without any discussion, the Court of Appeals
granted the Government’s motion to dismiss – a motion
predicated on the same arguments advanced here. Okeezie then
proceeded to file a habeas petition in the Western District of
Texas and essentially attempted to relitigate the jurisdictional
arguments he had made before the Court of Appeals. Although
the District Court initially denied the Government’s motion to
dismiss in Okeezie I, it is clear that, on reconsideration in
Okeezie II, the District Court realized that there was “a
substantial conflict between the Fifth Circuit ruling and the
Court’s May 4, 2006 Order [in Okeezie I].” Okeezie II, 462 F.
Supp. 2d at 734. Therefore, in order to “[a]her[e] to the Fifth
Circuit’s dismissal of Okeezie’s petition for review,” the District
Court granted the Government’s motion to dismiss. Id. at 735.

        In sum, though only two known opinions, Fontes II and
Okeezie I, have commented on the Suspension Clause issues
raised in this case, both have noted that the Suspension Clause
challenge, raised now by Kolkevich, is “colorable,” if not



                                21
problematic.4 Although the issue is one of first impression for
this Court,5 we have previously dealt with other ambiguities in


  4
    Other cases dealing with this issue are now pending in the
Courts of Appeals for the Second and the Ninth Circuits. See
Williamson v. Gonzales, No. 05-3662 (2d Cir. filed July 19,
2005); Ruiz-Martinez v. Gonzales, No. 05-2903 (2d Cir. filed
June 16, 2005); Monroy v. Gonzales, No. 07-75287 (9th Cir.
filed Sept. 8, 2005).
      5
      We note that our non-precedential opinion in Scott v.
Attorney General, 171 Fed Appx. 404 (3d Cir. 2006), presents
a factual scenario somewhat similar to the one currently before
us. Although we do not typically cite to non-precedential
opinions, and although they are not binding precedent in this
circuit, see Third Circuit Internal Operating Procedure 5.7
(indicating that non-precedential “opinions are not regarded as
precedents that bind the court because they do not circulate to
the full court before filing”), the Government cites it as
persuasive authority, and therefore, we believe it appropriate to
comment on it here. In Scott, a criminal alien, like Kolkevich,
received his final order of removal on April 15, 2005 – less than
30 days before RIDA became law – and filed a § 2241 habeas
petition on May 20, 2005. We ruled that Scott’s petition was not
timely filed because he failed to file it by May 15, 2005 –
30 days from his final order of removal – despite the fact that
the alien was not on notice of the 30-day time limit until four
days prior to the period’s expiration. The Government argues
that, just as in Scott, we should apply the 30-day time limit
                                                   (continued...)

                               22
RIDA. In Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir.
2005), issued just after RIDA’s enactment, we discovered that,
while RIDA provides for the transfer of habeas petitions
pending in district courts at the time of the Act’s effective date,
it “was silent as to what was to be done with an appeal from a
district court habeas decision that is now pending before a court
of appeals.” 414 F.3d at 446. Bonhometre, of course, dealt with
a case falling precisely into that situation. To resolve the issue,
we employed a flexible approach that sought to vindicate
Congress’s intent “to have all challenges to removal orders
heard in a single forum (the court of appeals)” and, therefore


  5
    (...continued)
strictly in this case, especially because, as the Government
suggests, Scott presented facts “more sympathetic” to the alien
than those presented here. Br. for Appellee at 21. However,
Scott had some opportunity for judicial review. Here, were we
to accept the Government’s interpretation of RIDA, Kolkevich
would have no opportunity for judicial review. Therefore, it is
hard for us to imagine how the facts of this case are less
sympathetic than those in Scott. Indeed it is this difference –
Scott had time to file and Kolkevich did not – that distinguishes
Scott from the case before us. While it may be that, in Scott, we
did not explore whether a four-day petition for review filing
period was constitutionally sufficient, that question is simply not
presented here. Here, we must address whether an alien can be
stripped of any opportunity for judicial review. Therefore, both
Scott’s non-precedential status and its significant differences
render the case irrelevant to the issue before us.

                                23
determined that “those habeas petitions that were pending before
this Court on the effective date of the REAL ID Act are properly
converted to petitions for review and retained by this Court.” Id.
To effect this conversion, we decided that we would disregard
the District Court’s habeas decision and move forward as if it
had never happened. Although this case does not implicate
precisely the same issues, Bonhometre counsels that we should
eschew a formalistic reading of RIDA in favor of one that seeks
to fulfill Congress’s broader goals and purposes. We believe
that such an approach is similarly called for here.

       C. Discussion

        Our analysis begins with the Suspension Clause. Article
I, Section 9, Clause 2 of the Constitution provides that “[t]he
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety
may require it.” “Because of that Clause, some ‘judicial
intervention in deportation cases’ is unquestionably ‘required by
the Constitution.’” St. Cyr, 533 U.S. at 300 (quoting Heikkila v.
Barber, 345 U.S. 229, 235 (1953)). However, the Suspension
Clause does not require Congress to guarantee aliens the right to
petition for habeas in a district court at all times and under all
circumstances. For example, there is no question that the
current regime, in which aliens may petition for review in a
court of appeals but may not file habeas, is constitutional. This
is because “the substitution of a new collateral remedy which is



                               24
both adequate and effective” satisfies the requirements of the
Suspension Clause. Swain v. Pressly, 430 U.S. 372, 381 (1977).

        In St. Cyr, the Supreme Court confronted a situation
nearly identical to the one before us. The provisions of AEDPA
and IIRIRA at issue in that case threatened to strip criminal
aliens of all judicial review, if read as the INS then suggested.
Rather than read those acts as doing so – an interpretation that,
in the Supreme Court’s view, would have risked violation of the
Suspension Clause – the Court interpreted the statutes as
preserving review. Indeed, the Court made clear that even
having to inquire into the relationship between habeas corpus
and immigration was enough to counsel against a reading of
AEDPA and IIRIRA that would deny aliens review. St. Cyr,
533 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.”). Here, if we accept the
Government’s position and conclude that Kolkevich’s right to
judicial review was lost when he failed to file a petition for
review within 30 days after the issuance of his removal order,
we would undoubtedly face exactly the “serious constitutional
question[]” regarding the Suspension Clause that the Supreme
Court faced in St. Cyr because, as of May 11, 2005, Kolkevich
was left without any opportunity for judicial review of his order
of removal.



                               25
        Prior to RIDA’s enactment, Kolkevich could not have
filed a petition for review with this Court because no such relief
was available. See 8 U.S.C. § 1252(a)(2)(c). After RIDA
became law and criminal aliens were granted the ability to file
petitions for review, more than 30 days had elapsed since
Kolkevich received his final order of removal and, therefore, the
petition for review process never became available to him.
Additionally, according to the Government’s interpretation
Kolkevich could no longer file a § 2241 petition after RIDA’s
enactment. In short, under the Government’s reading of RIDA
Kolkevich went from a position where, on May 10, 2005, he
could have filed habeas to a position where, on May 11, 2005,
he could have filed neither habeas nor the substitute to habeas
provided by Congress.           Therefore, the Government’s
interpretation of the statutory scheme put in place by RIDA
would deny Kolkevich any opportunity for judicial review.

       The Government’s arguments to the contrary are entirely
unpersuasive. First, it argues that Kolkevich could have filed a
motion for reconsideration of his removal order with the BIA
pursuant to 8 C.F.R. § 1003.2(b) and that this would have
sufficed as a form of judicial review. However, “[a]t its
historical core, the writ of habeas corpus has served as a means
of reviewing the legality of Executive detention, and it is in that
context that its protections have been strongest.” St. Cyr, 533
U.S. at 301 (emphasis added). A motion to reconsider before
the BIA is simply another point on the continuum of Executive
action – it does not constitute judicial review of Executive

                                26
action. Indeed, the Government’s argument is akin to saying
that an appeal from the IJ to the BIA is an effective alternative
to habeas because the BIA reviews the IJ. A motion to
reconsider, like the BIA’s review of an IJ, is simply another
phase of an administrative agency’s adjudicative process – it is
not a collateral proceeding designed to review the legality of
that process. Furthermore, the agency’s consideration of such
a motion is clearly narrower in scope than a court’s “review”
function. Therefore, a motion to reconsider pursuant to 8 C.F.R.
§ 1003.2 is not an “adequate and effective” substitute for
habeas.

        Second, the Government argues that Kolkevich could
have had judicial review of the BIA’s decision had he filed his
§ 2241 petition during the 51-day period between the BIA’s
final order, on March 21, 2005, and the enactment of RIDA, on
May 11, 2005. The Government concedes, and it is not
disputed, that Kolkevich was under no obligation to file his
§ 2241 petition within that 51-day period or, in fact, within any
period.    On the day before President Bush signed RIDA,
Kolkevich had a clear and unfettered right to file a habeas
petition – a right neither extinguished nor diminished by his
choice not to file up until that point.6 On May 11, 2005, that


   6
   Under § 2241, an individual is required to be “in custody
under or by authority of the United States” in order to file a
habeas petition. 28 U.S.C. § 2241(c)(1). Although Kolkevich
                                                (continued...)

                               27
right was taken away. To say that Kolkevich could have filed
before RIDA was passed simply does not address whether, after
RIDA became law, Kolkevich’s right to habeas had been
replaced with an “adequate and effective substitute.”

       Given the Government’s failure to explain how,
following RIDA, Kolkevich continued to have access to habeas
or an alternative to it, the Government’s argument – that we are
without jurisdiction to hear Kolkevich’s appeal – presents us
with two options. The first is to declare RIDA unconstitutional
as applied to Kolkevich and remand the case to the District


  6
    (...continued)
is, and has been, “in custody,” his confinement is under the
authority of the Commonwealth of Pennsylvania, not that of the
United States. Although this distinction is generally a
meaningful one for § 2241 purposes, it is irrelevant here, where
the “custody” at issue is not Kolkevich’s current confinement
but, rather, the “restraint on liberty” that arises out of his order
of removal. “[A]n individual subject to a final deportation order
issued by the INS or its successor agency is in custody for
§ 2241 purposes.” Kumarasamy v. Att’y Gen., 453 F.3d 169,
173 (3d Cir. 2006); see also Rosales v. Bureau of Immigration
& Customs Enforcement, 426 F.3d 733, 735 (5th Cir. 2005) (“As
the Supreme Court recently noted [in Padilla v. Rumsfeld,
42 U.S. 426, 437 (2004)], physical detention (or here, physical
detention by federal, rather than state, authority) is no longer
required for a petitioner to meet the custody requirement and
obtain habeas relief.”).

                                28
Court for habeas proceedings. This option is not a favorable
one. As the Supreme Court made clear in St. Cyr, “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.” St. Cyr at 299-
300 (internal quotations and citations omitted). This directive
leads us to the second option:            adopt an “alternative
interpretation” of RIDA that would allow Kolkevich review of
his final order of removal in a court of appeals. Because such
an “alternative interpretation” of RIDA is “fairly possible,” the
second option is the best course.

        We should follow the first option only if we are
convinced that Congress intended to eliminate all the habeas
rights of an alien in Kolkevich’s position. The Supreme Court
has made clear that we should analyze statutes that could be read
as infringing on habeas rights with special scrutiny.
“Implications from statutory text or legislative history are not
sufficient to repeal habeas jurisdiction; instead, Congress must
articulate specific and unambiguous statutory directives to effect
a repeal.” Id. at 299. We are also mindful of “both the strong
presumption in favor of judicial review of administrative action
and the longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction.” Id. at 298.
Here, although the Government’s interpretation of RIDA may be
an “acceptable construction” of the statute, the Act nevertheless
does not contain a “specific and unambiguous statutory

                               29
directive[]” sufficiently communicating Congress’s intent to
deprive Kolkevich of all judicial review, such that we can
conclude that, in RIDA, Congress took the extraordinary step of
suspending the writ with respect to those who, like Kolkevich,
received final orders of removal more than 30 days prior to the
Act’s enactment.

        Although RIDA § 106(b) indicates that the Act “shall
apply to cases in which the final administrative order of
removal, deportation, or exclusion was issued before, on, or
after the date of . . . enactment,” this is the only portion of the
Act that specifically addresses those who received final orders
of removal prior to the Act’s enactment. And yet, this section
contains nothing about habeas, nothing about the Suspension
Clause, and nothing about judicial review. In fact, to conclude
that RIDA has suspended the writ with respect to Kolkevich,
one must look to the interplay of three different provisions:
RIDA § 106(b), indicating that RIDA shall apply to all prior
orders of removal; RIDA § 106(a)(1)(B), now codified at
8 U.S.C. § 1252(a)(5), indicating that petitions for review are to
“be the sole and exclusive means for judicial review of an order
of removal”; and 8 U.S.C. § 1252(b)(1), indicating that a
“petition for review must be filed not later than 30 days after the
date of the final order of removal.” Indeed, the last of these
provisions, 8 U.S.C. § 1252(b)(1), pre-dated RIDA. Therefore,
rather than there being one “clear indication” of Congressional
intent, there is instead a patchwork of different statutes that,
individually, have no direct effect on Kolkevich’s appeal and

                                30
that only produce such an effect when read in combination. To
emerge from this statutory labyrinth with the conclusion that
Congress sought to deprive Kolkevich of his right to habeas
would be to rely on exactly the sort of “[i]mplications from
statutory text” that, in St. Cyr, the Supreme Court said were
insufficient to communicate a suspension of the writ.

        Additionally, RIDA’s legislative history makes clear that,
rather than intending it to deprive aliens of judicial review,
Congress saw the Act as a vehicle by which it could ensure that
all aliens received an equal opportunity to have their challenges
heard. In the House Report accompanying RIDA, Congress
made clear that

       [u]nder section 106, all aliens who are ordered
       removed by an immigration judge will be able to
       appeal to the BIA and then raise constitutional
       and legal challenges in the courts of appeals. No
       alien, not even criminal aliens, will be deprived of
       judicial review of such claims. Unlike AEDPA
       and IIRIRA, which attempted to eliminate judicial
       review of criminal aliens’ removal orders, section
       106 would give every alien one day in the court of
       appeals, satisfying constitutional concerns. The
       Supreme Court has held that in supplanting the
       writ of habeas corpus with an alternative scheme,
       Congress need only provide a scheme which is an
       “adequate and effective” substitute for habeas

                               31
       corpus. Indeed, in St. Cyr . . ., the Supreme Court
       recognized that “Congress could, without raising
       any constitutional questions, provide an adequate
       substitute through the court of appeals.”
       By placing all review in the courts of appeals,
       [RIDA] would provide an “adequate and
       effective” alternative to habeas corpus.

H.R. Rep. No. 109-72, at 174-75 (internal citations omitted)
(emphasis added). Not only does the House Report demonstrate
that Congress had no desire to deprive any alien of his or her
right to judicial review of a removal order, it clearly indicates
that Congress acted to preserve review for “every alien.”
Moreover, the House Report explicitly demonstrates Congress’s
intention to craft legislation that comported with the Suspension
Clause as well as the holding in St. Cyr. In light of these
exceedingly clear statements, and the ambiguity in the statutory
scheme, we simply cannot say that Congress intended to risk
running afoul of the Suspension Clause by suspending the writ
of habeas corpus with respect to the small class of aliens who
received final orders of removal more than 30 days prior to the
enactment of RIDA.

       For these reasons, we conclude that RIDA must be
interpreted as permitting an avenue of appeal for Kolkevich.
Specifically, we conclude that RIDA § 106(c) should be read to
permit the transfer from a district court to a court of appeals not
only of those habeas petitions that were pending in the district

                                32
court at the time RIDA became law, but also those that could
have been brought in a district court prior to RIDA’s enactment,
but were not. We further hold that the 30-day time limit in
8 U.S.C. § 1252(b)(1) should not be interpreted as applying to
those aliens who received final orders of removal prior to the
enactment of RIDA, but who did not file a petition for review
directly in a court of appeals until after the enactment of RIDA.
As we will explain, however, this does not mean that aliens who
received orders of removal before RIDA have an unlimited time
to bring their appeal after RIDA.

       III. Time Limit

       The question of whether a criminal alien in Kolkevich’s
position should be permitted to file an appeal from his final
order of removal is distinct from the question of how much time
he should be afforded in which to do so. Kolkevich not only
argues that he should be able to file, but, at oral argument,
suggested that he had unlimited time to bring his appeal.
Although we agree with Kolkevich that he should be afforded
an opportunity to challenge the final order of removal entered
against him, we disagree that such an opportunity knows no
temporal bounds.

       We dealt with an analogous situation following the
enactment of AEDPA, which created a one-year period for state
and federal prisoners who wanted to challenge their confinement
via habeas corpus in federal court. In Morton v. Burns, 134 F.3d

                               33
109 (3d Cir. 1998), we addressed how this filing deadline should
be applied to those prisoners whose claims had accrued prior to
AEDPA’s enactment and, ultimately, agreed with nearly every
other court of appeals that such prisoners should have one year
from the effective date of the statute within which to file their
claims.7 134 F.3d at 111-12. Indeed, although Morton did not
rely specifically on any previous Supreme Court precedent,
many of the cases to which Morton cited approvingly, especially
Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996), located
the one-year grace period rule within the broader context of the
Supreme Court’s jurisprudence on statutes of limitation.

        Duarte discussed the Supreme Court’s statute of
limitations jurisprudence and determined that revised statutes
that extinguish live claims must provide a “reasonable time” for
pre-revision claimants to file. Duarte looked particularly to
Texaco, Inc. v. Short, 454 U.S. 516 (1982), and the case on
which Texaco relied, Wilson v. Iseminger, 185 U.S. 55 (1902).
In Wilson, for instance, the Court stated:

       [i]t may be properly conceded that all statutes of
       limitation must proceed on the idea that the party


  7
    We noted that the Court of Appeals for the Second Circuit
“articulated a somewhat more flexible rule that a habeas
petitioner must be afforded a ‘reasonable time’ after [AEDPA’s
enactment] to file his petition.” Morton, 134 F.3d at 111 (citing
Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997)).

                               34
       has full opportunity afforded him to try his right
       in the courts. A statute could not bar existing
       rights of claimants without affording this
       opportunity; if it should attempt to do so, it would
       not be a statute of limitations, but an unlawful
       attempt to extinguish rights arbitrarily, whatever
       might be the purport of its provisions. It is
       essential that such statutes allow a reasonable
       time after they take effect for the commencement
       of suits upon existing causes of action; though
       what shall be considered a reasonable time must
       be settled by the judgment of the legislature, and
       the courts will not inquire into the wisdom of its
       decision in establishing the period of legal bar,
       unless the time allowed is manifestly so
       insufficient that the statute becomes a denial of
       justice.

Wilson, 185 U.S. at 62-63.

        With this in mind, Duarte set out to determine what a
“reasonable time” was and determined that “[w]here a shortened
limitations period would bar pre-accrued claims, other circuits
have provided claimants the shorter of: (1) the pre-shortened
limitation period, commencing at the time the action accrued; or
(2) the shortened limitation period, commencing from the date
the statute became effective.” Duarte, 947 F. Supp. at 149
(citing cases from the Courts of Appeals for the 5th, 7th and 9th

                               35
Circuits). Duarte, therefore, adopted the one-year grace period
of which we approved in Morton and which, essentially, became
the law across the circuits.

        We believe a similar approach is warranted here.
Therefore, under Morton and Duarte, we will provide pre-RIDA
claimants with the lesser of either the pre- or the post-RIDA
filing period. In this case, the pre-RIDA filing period is the one
applicable to § 2241 habeas petitions, which, as discussed, was
infinite. The post-RIDA filing period is the one applicable to
petitions for review and is 30 days. Therefore, following
Morton and Duarte, those in Kolkevich’s situation shall be
afforded 30 days from the date of RIDA’s enactment to bring
their claims – that is, until June 11, 2005. Of course, this date
has long passed. Only those who filed their petitions for review
by that date will be allowed to proceed in this Court.

       We believe that this 30-day period is reasonable. As is
made clear by the House Report, one of Congress’s primary
concerns in passing RIDA was to ensure that criminal aliens
received the same type and amount of judicial review as other
aliens. Were we to allow a grace period of longer than 30 days
– for instance, six months or one year – a criminal alien who
received his final order of removal on May 10, 2005 would
receive more time to file his petition than a criminal alien, or
even a non-criminal alien, ordered removed on May 12, 2005.




                               36
This is exactly the sort of disparity that Congress sought to
avoid by passing RIDA.8

      The implications of this rule for our case are clear.
Kolkevich failed to file within 30 days of the enactment of
RIDA, and his appeal is therefore foreclosed. Accordingly, we
are without jurisdiction to consider Kolkevich’s request for
review.9

  8
    In a case currently pending in the Court of Appeals for the
Ninth Circuit, Monroy v. Gonzales, the ACLU is arguing as
amicus that “the Court should hold that the 30-day deadline runs
from the date on which aliens removable on the basis of a
criminal conviction became eligible to file petitions for review
(May 11, 2005, when the REAL ID Act took effect), and that
such aliens have a reasonable period from that date to file their
petitions in this Court. And because Mr. Monroy filed his
petition for review within 30 days of that date, this Court can
reserve the question of what would constitute a reasonable
period beyond 30 days.” Brief for American Civil Liberties
Union Immigrants’ Rights Project as Amicus Curiae Supporting
Petitioner, Monroy v. Gonzales, No. 07-75287, (9th Cir.
June 26, 2006), 2006 WL 2450900, at *1-2. As we have said,
we believe 30 days to be a reasonable time.
      9
    At oral argument, counsel for Kolkevich suggested that
applying the 30-day grace period to his client would be “unfair”
and that such a rule should be applied only in a purely
prospective fashion – that is, to future litigants, but not to him.
                                                     (continued...)

                                37
  9
    (...continued)
However, as some commentators have noted, it is unclear
whether we have the power to do so in light of the Supreme
Court’s decision in Harper v. VA Department of Taxation, 509
U.S. 86 (1993). See Harper, 509 U.S. at 97 (“When this Court
applies a rule of federal law to the parties before it, that rule is
the controlling interpretation of federal law and must be given
full retroactive effect in all cases still open on direct review and
as to all events, regardless of whether such events predate or
postdate our announcement of the rule.”). See R ICHARD H.
F ALLON, J R. ET AL., H ART AND W ESCHLER’S T HE F EDERAL
C OURTS AND T HE F EDERAL S YSTEM 76 (5th ed. 2003) (noting
that much of Harper’s reasoning “raises doubts that the Court
would regard purely prospective adjudication as legitimate”).
We need not express any opinion on that issue here, however,
for, even assuming that pure prospectivity remains an option,
application of that doctrine to the present case would be
inappropriate. To apply a ruling in a purely prospective fashion,
we must be convinced: (1) that the decision establishes “a new
principle of law, either by overruling clear past precedent on
which litigants may have relied” or decides “an issue of first
impression whose resolution was not clearly foreshadowed”; (2)
that application of the new rule retroactively would “further or
retard” the rule’s operation; and (3) that the equities cut in favor
of prospective application. Chevron Oil Co. v. Huson, 404 U.S.
97, 106-107 (1971).

       In this case, the third factor cuts decidedly against
                                               (continued...)

                                38
       IV. Conclusion

      For the reasons set forth, we will DISMISS the Petition
for Review.




  9
    (...continued)
Kolkevich. When President Bush signed RIDA on May 11,
2005, Kolkevich was put on notice that a significant change to
our immigration laws had taken place – a change that had a
clear, and grave, effect on his prospects for judicial review and
his future. Despite this knowledge, Kolkevich not only failed to
file immediately, he sat on his appeal until nearly one year after
RIDA had been passed and until more than one year after the
issuance of his final order of removal. Given that RIDA clearly
expressed Congress’s intention to cut short the filing time
afforded criminal aliens under § 2241, Kolkevich should have
been aware that something was afoot. In light of his failure to
act, we cannot say that the equities cut in Kolkevich’s favor and,
therefore, cannot determine that he should be exempted from
this ruling.

                               39
