We administrative lawyers assume the availability of review in most contexts. Where it has been restricted, we have supported a change in the law--as in the Veterans Judicial Review Act of 1988, 38 U.S.C. §§ 7251 et seq., in which this Section and the ABA supported a change to allow review. However, this long-standing presumption of reviewability is now under severe attack in one corner of administrative law that probably has more to do with the adjudication of individual rights than any agency of the Federal Government--immigration.

Legislation enacted by the 104^th Congress in 1996, primarily the lengthy and intricate Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), (Pub.L. 104-208, Div. C, Sept. 30, 1996, 110 Stat. 3009-546, explicitly strips courts of jurisdiction to review immigrants' claims in several crucial areas:

• •Expedited removal of aliens seeking to enter the country--The 1996 laws created a expedited removal process for those attempting to enter the United States with no documents or fraudulent documents or who attempt to enter by "misrepresentation," 8 U.S.C. §1182(a) (6) & (7). Such persons may seek review of the inspector's decision by his supervisor, but unless the person can demonstrate "a credible fear of persecution" upon return to her former country, any further administrative or judicial review is barred. See 8 U.S.C. § 1275(b)(A)(ii). Such persons may also be barred by the INS officer from re-entry to the US for a minimum of 5 years and possibly for life. This determination is also unreviewable. According to reports, this provision is being used broadly by INS inspectors against persons with facially valid documents whom an inspector believes may have the intent to violate the terms of an otherwise valid visa.⁽³⁾
• Deportation for prior criminal offenses--Since 1988, immigrants convicted of a crime deemed an "aggravated felony" are deportable. When this concept was introduced ten years ago, it covered only the crimes of murder, drug trafficking and firearms trafficking. Since then it has been expanded to the point that a plethora of crimes are covered, including some where the minimum sentence is as short as one year, see e.g., offenses listed in 8 U.S.C. § 1101(a)(43) (G) and (H), and even including suspended sentences and probation, see 8 USC §1101(a)(48)(B) --thus embracing crimes such as shoplifting or driving while intoxicated (DWI) in some states. While that perhaps is an unfortunate draconian judgment call that Congress is entitled to make, it is extremely troubling that IIRIRA makes the effect of this provision retroactive and also eliminated any appeal in such cases. This creates a great potential of unfairness that cannot be challenged in court. For example, the Wall Street Journal has reported the story of a permanent resident alien who has lived in the United States for 22 years and who is a rehabilitated alcoholic and a model "citizen" supporting his wife and family--all of whom are US citizens--but is now scheduled for deportation (renamed "removal," but deportation by any other name), though he has not had a DWI conviction in six years.⁽⁴⁾ According to the INS official involved in the sweep of those with DWI records, "There's no latitude under the Act. If a person's been convicted, it doesn't matter when--they're deportable."⁽⁵⁾ Another case reported by the article involved a permanent resident single mother now being held for deportation for shoplifting a $15 child's dress. Though a misdemeanor in Georgia, she received 12 months' probation--making her an "aggravated felon" under the IIRIRA. Moreover, the law now also requires that such aggravated felons may not be released on bond and must be held until they are deported or their permanent residency restored by a court. Obviously there are many such persons, many of whom may have relied on counsel's advice years ago to plead guilty to a small offense, who are now, years later, effectively barred from seeking citizenship or risk being caught up in this dragnet.
• Suspension of deportation--IIRIRA also cut to the bone the possibility of discretionary relief earlier known as "suspension of deportation" (now called "cancellation of removal"), 8 U.S.C § 1229b(b). Under prior law a deportable immigrant could ask for relief if he could show physical presence in the US for seven years and that either he or his citizen/permanent-resident family members would suffer "extreme hardship" if he were deported. IIRIRA upped the physical presence requirement to ten years and required an immigration judge to find that the immigrant's family members (but not including the immigrant himself) will suffer "exceptional and extremely unusual hardship"--a standard that few applicants will be able to make. And again denials are unreviewable. 8 U.S.C. § 1534(k)(3).
• Preclusion of review of INS discretion. Even where INS does retain some discretion to waive requirements, e.g., for adjustment of status, the IIRIRA precludes judicial review of the exercise of that discretion, 8 U.S.C. § 1534(k)(3). In Eyoum v. INS, 125 F.3d 889, 891 (5th Cir 1997), the court gave effect to this provision. But see Stephen H. Legomsky, Immigration and Refugee Law and Policy 623 (2d. ed. 1998) (arguing that this court-stripping provision bars judicial review only of the discretionary component of the decision, not whether the applicant is eligible under the statute). Moreover all courts but the Supreme Court are barred from granting injunctive relief against the INS, 8 U.S.C. § 1252(f)(1).

The Courts' Responses:

Immigration lawyers have mounted creative challenges to these court-stripping provisions. Perhaps the most promising line of attack is that the laws cannot constitutionally be read to eliminate habeas corpus review.

Two recent circuit court decisions have supported this argument. The First Circuit ruled that the application of the general statutory habeas corpus provision in 28 U.S.C. §2241 to immigration cases was not affected by the 1996 laws and remains available for review of statutory claims including "the immigration authorities' failure to exercise discretion granted by statute," Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir. 1998); accord Henderson v. INS, 1998 U.S. App. LEXIS 24393 (2nd Cir. September 18, 1998), and the Ninth Circuit has similarly allowed habeas review for colorable constitutional challenges to a proposed deportation, Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998). In so doing, the courts have avoided having to decide the issue whether Congress may have violated Article I, Section 9, clause 2 of the Constitution, which prohibits suspension of habeas corpus except in times of "rebellion or invasion." On the other hand, the courts' preservation of habeas relief has provided the rationale for them to find that direct review of other claims -- even constitutional claims -- are precluded.⁽⁶⁾

A hint as to the Supreme Court's view on these matters may come in the case of American-Arab Anti-Discrimination Comm. v. Reno, 119 F.3d 1367 (9th Cir 1997) cert. granted sub nom, Reno v. American-Arab Anti-Discrimination Comm., 118 S. Ct. 2059 (1998). The 9th Circuit ruled that Palestinian activists threatened with deportation could challenge the constitutionality of the proceeding in district court. Before the Supreme Court, the government argued that the district court lacked jurisdiction to enjoin the proceedings because a challenge can only be filed in the court of appeals after a deportation order has been entered. Because the deportation proceedings were instituted before IIRIRA's effective date, most of the Act is not directly applicable, although the government argues that the new exclusive review provisions in 8 U.S.C. §1252(g) are applicable. The ABA has filed an amicus brief in support of respondents.

The cumulative effect of these provisions makes it almost impossible for persons with immigration disputes to seek judicial review. Immigration lawyers now have few options to advise their clients in many cases, other than to "lay low and skirt the authorities." This hardly breeds respect for the law, nor does it engender much enthusiasm for starting a legal practice in the immigration area. Additionally, legislative restrictions on use of federal legal assistance funds for most immigrants lacking permanent residence has dried up legal resources for many immigrants. Pub. L. No. 104-134, §504(11), 110 Stat. 1321-54 to 1321-55.

As administrative lawyers, dedicated to the proposition that those subject to the power of government should have a right to seek judicial review of the exercise of that power, we should be especially concerned with eliminating the right of judicial review in these circumstances. The stakes in many of these cases are unusually high--especially for long-term permanent residents and others whose families live here. Moreover, there is particular reason to worry about the accuracy of the results in agency proceedings since these cases often involve unrepresented parties with the most meager of resources who have a limited understanding of English. This corner of administrative law has lost the appropriate balance between efficiency and fairness, and the immigration bar needs our help in restoring that balance.1.

^* Fellow in Administrative Law, American University, Washington College of Law, and Section representative on the ABA's Coordinating Committee on Immigration Law.

¹ See Webster v. Doe, 486 U.S. 592 (1985). 3.

² See "IIRIRA Reform," The Ellis Islander (published by the ABA Immigration Pro Bono Development Project at p.4 (April 1998), reprinting article from AILA Monthly (February 1998).

³ Bob Ortega, "Texas Agents Spark Outcry in Roundup of Legal Immigrants", Wall St. J. (October 12, 1998), p.A.1.

⁴ Id. (quoting Neil Jacobs, INS Assistant District Director for Investigations in Dallas).

⁵ See, e.g., de Garcia v. INS, 141 F.3d 215 (5th Cir. 1998) (finding constitutional challenge to BIA ruling unreviewable, due to availability of habeas review); Mansour v. INS, 123 F.3d 423 (6th Cir. 1997) (same); King Sang Chow v. INS, 113 F.3d 659 (7th Cir. 1997) (same).