Non-self-executing treaties and the suspension clause after St. Cyr.

• Jurisdiction: United States
• Date: 01 June 2004
• Author: Vladeck, Stephen I.
• Published date: 01 June 2004
• Author: Vladeck, Stephen I.

Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003).

In INS v. St. Cyr, (1) the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 (2) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. (3) The St. Cyr Court held that Congress must be extraordinarily explicit whenever it intends for legislation to strip courts of the jurisdiction to hear any class of habeas petitions, including the deportation-related claims that AEDPA and IIRIRA sought to restrict. (4) Such a "superclear" (5) statement, the Court concluded, was needed to avoid the potential constitutional problem posed by the Suspension Clause, which bars foreclosure of habeas "unless when in Cases of Rebellion or Invasion the public Safety may require it." (6)

Habeas has traditionally been available to allege violations of not only the Constitution and statutory law, but also of ratified treaties that are "self-executing" (7) and statutes implementing (8) ratified treaties that are not. (9) On August 22, 2003, the Third Circuit, in Ogbudimkpa v. Ashcroft, (10) became the fourth circuit court (following the First, Second, and Ninth Circuits (11)) to consider whether the jurisdiction-stripping provisions of the Foreign Affairs Reform and Restructuring Act (FARRA) of 1998 (12) sufficed to bar habeas petitions alleging violations of the U.N. Convention Against Torture (CAT). (13) FARRA implemented the United States's treaty obligations under the non-self-executing CAT, and the Ogbudimkpa court, like the others before it, found FARRA's language materially similar to that which the St. Cyr Court had held to be insufficiently clear to foreclose habeas.

At first glance, Ogbudimkpa appears to be a straightforward result compelled by St. Cyr. But in applying St. Cyr to another habeas-stripping statute, the Third Circuit paid an unusual amount of attention to the interaction between habeas and non-self-executing treaties themselves, considered apart from any implementing legislation. In the past several years, no fewer than seven circuits have held that habeas is not available to enforce rights conferred only by non-self-executing treaties. (14) This Comment argues, however, that after St. Cyr, courts are on far shakier ground in barring the use of habeas to litigate claims under non-self-executing treaties, and that Ogbudimkpa, though not directly on point, suggests why.

The argument begins with an overview of FARRA and St. Cyr's superclear statement rule, and the extension of the latter to the former in Ogbudimkpa. Part II focuses on an intriguing footnote in Ogbudimkpa that suggests one statutory explanation for why other circuits that have considered the relationship between habeas petitions and non-self-executing treaties absent implementing legislation may have thus far gotten it wrong. Part III moves on to the constitutional question implicitly suggested by the Third Circuit: Because a superclear statement of legislative intent to foreclose habeas is required when Congress enacts statutory law, then shouldn't the Supremacy Clause require the same in the treaty context, whether the treaty is self-executing or not? Part IV concludes.

I

In 1998, Congress enacted FARRA, section 2242(a) of which implemented the United States's nonrefoulment obligations under Article 3 of CAT. (15) In section 2242(d), Congress attempted to restrict judicial review of CAT claims, mandating that "nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section ... except as part of the review of a final order of removal." (16)

Three years later, the St. Cyr Court found analogous language in AEDPA and IIRIRA insufficient to foreclose the availability of habeas corpus. (17) Distinguishing between "judicial review" in general and habeas specifically, (18) Justice Stevens, writing for the majority, found that reading AEDPA and IIRIRA to foreclose habeas would raise serious constitutional questions under the Suspension Clause. (19) Invoking the constitutional avoidance canon, the Court concluded that "[t]he necessity of resolving such a serious and difficult constitutional issue--and the desirability of avoiding that necessity--simply reinforce the reasons for requiring a clear and unambiguous statement of congressional intent." (20) Except where congressional intent to foreclose habeas was absolutely manifest (and the constitutional question thus squarely unavoidable), habeas would lie.

On the heels of St. Cyr, the Third Circuit's decision in Ogbudimkpa was unsurprising. Christopher Ogbudimkpa, a Nigerian citizen, was ordered deported in 1996, but he successfully reopened his removal proceedings in 1999 on the ground that he credibly feared torture if he was removed to Nigeria. After a complicated procedural back-and-forth between the Middle District of Pennsylvania and the Third Circuit, the district court eventually dismissed his habeas petition for want of subject matter jurisdiction, finding habeas foreclosed by FARRA. (21)

A unanimous Third Circuit panel reversed, holding, as the First and Second Circuits had before it, (22) that section 2242(d) of FARRA was in no material way different from the statutory provisions at issue in St. Cyr:

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. (23) II

The government's argument in Ogbudimkpa centered on CAT's status as a non-self-executing treaty. St. Cyr, it claimed, was inapposite because no habeas jurisdiction had existed under CAT in the first place: FARRA's restrictive language had been written to limit its additional grant of habeas jurisdiction, not to strip a preexisting jurisdictional source. (24) The court disagreed, concluding 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." (25) The fact that FARRA's additional grant of jurisdiction had been enacted contemporaneously with its related restrictions was immaterial to the Ogbudimkpa court; St. Cyr still controlled. (26)

In refusing to adopt the government's position, the Third Circuit also moved beyond other circuits in its discussion of Ogbudimkpa's argument (itself a response to the government's claim) that habeas can be based on non-self-executing treaties that have not been implemented by statute. The court considered the conventional claim that such treaties cannot create any jurisdiction because non-self-executing treaties "must be implemented by legislation before [they] give[] rise to a private cause of action," (27) and because jurisdiction, in turn, must be limited to the adjudication of those private rights of action that a treaty confers.

Although the court shied away from expressing any final opinion on the question, it nonetheless seemed to reject the conventional argument, noting that "[r]atification purporting to cabin a treaty as non-self-executing nonetheless provides jurisdiction to the United States courts to hear cases premised on its violation," even though such a treaty "does not provide a cause of action." (28) The private cause of action for habeas, the court argued, is guaranteed by other provisions of federal law; a treaty need only provide jurisdiction for the courts to hear such a claim. (29) As the Third Circuit summarized, "[T]he general habeas statute provides a cause of action that 28 U.S.C. § 1331 does not. As a result ... a treaty that is ratified but not self-executing need not be implemented in order for a party to have a habeas cause of action under that treaty." (30)

The court's contention--that jurisdiction created by non-self-executing treaties may be enforceable through otherwise available causes of action--is an important one, for it highlights how the other circuits that have considered the interaction between non-self-executing treaties and habeas have ignored the critical distinction between a court's jurisdiction and a litigant's cause of action. In its discussion, the Third Circuit thus uncovered a potentially serious inconsistency in the basic premise of non-self-executing habeas law. Contrary to the Third Circuit, most courts assume that non-self-execution is a bar to the enforcement of treaty rights in any form. Yet it is possible that the non-self-executing nature of a treaty is not fatal to an assertion of jurisdiction under it, provided that the cause of action over which jurisdiction is asserted already exists in some other statute--as is the case for habeas petitions.

III

The Third Circuit's consideration in Ogbudimkpa of the difference between jurisdiction and causes of action was focused at the statutory level. But the Ogbudimkpa court also hinted at another, more significant potential problem with barring habeas claims when a non-self-executing treaty lacks implementing legislation: the constitutional concerns raised by the Suspension Clause and highlighted by St. Cyr. The court noted that under the government's argument,

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...