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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 implementing8 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 Circuits11) 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...