IMMIGRATION MAN

By LUCAS GUTTENTAG
[Illustration]

Will Immigrants Be Denied Their Day In Court?
Court-Stripping and The New Immigration Laws

Americans passionately differed on whether Elian Gonzales should be returned to his father in Cuba, or should stay with his other relatives in the United States. But Elian, his father, his relatives -- and the federal government -- all had their "day in court." Most Americans took it for granted that all participants in the dispute should have the right to present their claims to a federal court, and to be heard by a federal judge, who has a lifetime appointment under the Constitution to guarantee judicial independence. Unlike Elian, however, other immigrants are now threatened with denial of that basic right: the right of judicial review.

For Immigrants, The Prosecutor Claims To Be Judge and Jury Too

of law against the Immigration and Naturalization Service has never been more under attack. The immigration laws were exhaustively amended in 1996 -- first by the Anti-Terrorism and Effective Death Penalty Act (known as "AEDPA") and then by the Illegal Immigration Reform and Immigrant Responsibility Act (known as "IIRIRA"). Since then, immigrants' right to judicial review has been the subject of extensive litigation in the federal appellate courts. So far the Supreme Court has declined to intervene.

In countless immigration cases around the country, the Justice Department is invoking IIRIRA to argue that, for many immigrants, Congress repealed the Judiciary's historic authority -- dating from Justice John Marshall's seminal decision in Marbury v. Madison -- to "say what the law is." In the government's view, IIRIRA virtually eliminated judicial oversight of the INS and conferred on the Attorney General the power to decide -- unilaterally -- how to interpret and enforce the immigration laws.

According to DOJ, then, the very branch of government charged with enforcing the law is now the branch that also, in a sense, adjudicates it. The elimination of checks and balances is obvious: No one wants the very police officer that arrests him, or the very prosecutor who brings claims against him, also sitting as the judge in his case.

Immigrants Are Being Deported Forever For Small Past Offenses And DOJ Claims No Court Can Hear Their Challenge To The Law

Various provisions of IIRIRA dictated that there "shall be no appeal" or that "no court shall have jurisdiction" to review deportation orders issued against many immigrants. The impact of these "court-stripping" provisions was immediate. Attorney General Janet Reno issued a legal ruling that another immigration amendment, enacted by AEDPA, applied retroactively to mandate the deportation of many longtime legal permanent residents who were, in the past, convicted of minor criminal offenses.

For these permanent residents, many of whom have spent almost their entire lives in the United States, deportation often means being condemned to live forever in a country totally foreign to them, and being separated from their children, who are native-born citizens of the United States. What type of offenses merit this kind of suffering, according to the Attorney General? Well-known examples include misdemeanor assault for pulling someone's hair, sleeping with an underage girlfriend, simple theft and virtually any drug-related charge, no matter how minor.

Many immigrants around the country whose immigration case (or criminal offense) occurred long before the law changed challenged the legality of Reno's order to apply the new law retroactively to old conduct. But the Justice Department responded that no court could review the Attorney General's ruling, on the ground that Congress had repealed the courts' authority to do so. Immigrants should not even have their day in court, according to DOJ. Instead, DOJ should win automatically.

In response, lawyers, led by the ACLU Immigrants' Rights Project, argued that such "court-stripping" was not authorized by the law and, if permitted, violated the Constitution.

The Checkered History Of Court-Stripping

The concept of "court-stripping" is not new. Historically it has been proposed -- but never enacted -- as a way of denying equal rights to vulnerable members of our society. When the courts held that segregated schools, restrictions on abortion or prayer in schools were unconstitutional, proponents of those prohibited practices sought to resurrect them by emasculating the judiciary's power to enforce the Constitution.

Court's historic decision in Brown v. Board of Education ordering an end to segregated schools. Unhappy with the Court's ruling, Congress repeatedly considered legislation that claimed to "strip" the courts of the power to hear school desegregation suits, or to order busing as a means to achieve integration.

Later in our history, similar proposals were introduced to try to strip courts of jurisdiction to hear challenges to laws prohibiting abortion, or requiring prayer in public schools. Those proposals were defeated because they were recognized as procedural devices designed to deny substantive rights through a kind of "backdoor" amendment to the Constitution. If Congress can eliminate rights by preventing their judicial enforcement, then the protections of the Constitution and the duty of the Executive Branch to obey the law are eviscerated.

It does little good to have an abstract constitutional right if no court can ever enforce it. The courts, James Madison intoned two centuries ago, are the "impenetrable bulwark" that translate the "parchment barrier" of the Bill of Rights into enforceable rights.

Why Court-Stripping Is Particularly Devastating For Immigrants:
A Threat To The Great Writ

Now immigrants are the target of the latest attempt at court-stripping. Whether a new statute applies retroactively, whether an immigrant is legally deportable, or whether an asylum claim -- like Elian's -- must be considered by the INS, typically turns on whether the Attorney General, or her INS subordinates, are correctly applying the relevant statute and regulations. The resolution of these claims will determine whether an immigrant is forcibly expelled from the country and in, the words of the Supreme Court, loses "all that makes life worth living."

Because deportation cannot be accomplished without physical restraint, the courts have long recognized that the legality of a deportation order is subject to challenge by the oldest protection against government abuse in Anglo-American law, the Great Writ of Habeas Corpus. The Constitution specifically provides that the writ of habeas corpus "shall not be suspended" except in times of rebellion or invasion.

In recent times, habeas corpus has become associated with challenges to the criminal conviction of a death row (or other) prison inmate. And Congress and the courts have increasingly imposed limitations on the role of habeas for these purposes.

The government has argued that the same restrictions on the use of the writ should apply to immigrants who challenge their deportation orders. But the courts have rejected that analogy -- for an immigrant litigating the legality of his expulsion is challenging executive detention where no court has acted. Put another way, an immigrant who seeks a writ of habeas corpus is not trying to overturn a judicial proceeding, he or she is trying to obtain one in the first place.

In light of these principles, most courts of appeals have held that immigrants are entitled to judicial review of the Attorney General's retroactivity ruling and, on the merits, that her decision that the deportation statute applies retroactively was erroneous. Nonetheless, the government continues to argue that such legal claims are not reviewable by any court and the Clinton Administration may still ask the Supreme Court to overturn the rulings of the courts of appeals. If the Court hears this dispute, it may be faced with an historic issue concerning the role of the judiciary in our system of government.

Lucas Guttentag is Director of the Immigrants' Rights Project of the National Office of the American Civil Liberties Union. He is directing the legal challenges to the IIRIRA's court-stripping provisions and has argued the issue in many federal courts of appeals.