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Provisions of Immigration Laws Limiting Jurisdiction Cover Actions Purportedly Arising Under the Constitution

By Javier Lavagnino, Esq. on March 30, 2010 6:06 PM

In Elgharib v. Napolitano, No. 09-3029, the circuit court was faced with an appeal from a dismissal of a petition for a writ of prohibition challenging an in absentia removal order based on lack of jurisdiction under 8 U.S.C. section 1252(a)(5) & (g).

Petitioner argued that "[section] 1252 does not apply in this case because she has no other remedy available as a noncitizen, that the district court should not be foreclosed from adjudicating her constitutional claim, and that her action is not against the 'Attorney General' under the literal terms of § 1252(g)."

The circuit court affirmed, as an alien's petition for a writ of prohibition that directly challenges his or her final order of removal on constitutional grounds is subject to the jurisdictional bars in 8 U.S.C. section 1252(a)(5) and (g), and general federal-question subject matter jurisdiction is not available in the district court under 28 U.S.C. section 1331.

Contrary to petitioner's claim, the Constitution qualifies as "any other provision of law (statutory or nonstatutory)" under all subsections of section 1252.   

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