Slamming the Courthouse Door: Immigrants and the Right to Judicial Review
By Lucas Guttentag
In 1996, Congress made dramatic, confusing, and successive changes to the country's immigration laws. Legislation of such scope or controversy is not unusual in our history, nor is it surprising that within weeks, hotly contested disputes emerged over the meaning of the new provisions-especially whether the new law applied to pending immigration cases.
What is extraordinary-if not unprecedented-is that the U.S. Justice Department took the remarkable position that Congress had "stripped" the federal courts of their historic authority to do what Marbury v. Madison (5 U.S. 137, 177 (1803)) pronounced as "emphatically the province" of the judiciary: to "say what the law is." In case after case, the government argued that Congress had amended the Immigration Act, that the Attorney General would determine what those amendments meant, and that the new laws had repealed the federal courts' power to review the Attorney General's rulings. As a result, longtime legal resident immigrants would be deported without any recourse to a judicial process to adjudicate whether their deportation was authorized by statute, in violation of congressional intent, or based on an erroneous legal ruling. In the words of many critics, the Attorney General would become the "judge, jury, and executioner," and someone receiving a traffic ticket would be entitled to more judicial process than a longtime legal immigrant of the United States whose deportation would deprive her, in the words of the Supreme Court, of "all that makes life worth living." (Bridges v. Wixon, 326 U.S. 135, 147 (1945).)
In earlier battles over judicial review, Congress had proposed but never enacted provisions that would have stripped the federal courts of their jurisdiction to hear school desegregation, abortion, and prayer-in-school cases or to order meaningful remedies even if the claim could be heard. In one respect, the controversy engendered by the 1996 immigration laws is even more fundamental because even state courts do not have residual authority over immigration issues, as they do over other cases. Hence, the fundamental question at issue in the immigration context is whether a long-time immigrant can be ordered deported without any access to a judicial forum to challenge the legality of the government's action.
Take the question whether certain of the 1996 amendments apply retroactively. In the last six years, the Supreme Court has grappled with the question of how to determine the retroactive reach of a new law in no fewer than four major opinions: Landgraf v. USI Film Products (511 U.S. 244 (1994)); Hughes Aircraft Co. v. U.S. ex rel. Schumer (520 U.S. 939 (1997)); Lindh v. Murphy (521 U.S. 320 (1997)); and Martin v. Hadix (527 U.S. 343 (1999)). The 1996 amendments present the same thorny legal question in an especially critical context. Before 1996, a longtime legal resident who became deportable based on a conviction for a criminal offense was eligible for a "waiver" of deportation if he or she met some basic eligibility requirements, i.e., seven years of residence in the United States and a sentence served of less than five years. Assuming those threshold criteria were met, an immigration judge had discretion to grant a waiver of deportation. That waiver provision had been part of the immigration law for decades, was ingrained in the practice of both immigration lawyers and criminal defense counsel, and had been granted in more than half the cases in recent years (based on Justice Department statistics). (Goncalves v. Reno, 144 F.3d 110, 128 (1st Cir. 1998).)
In 1996, the waiver eligibility criteria were dramatically restricted. First the Anti-terrorism and Effective Death Penalty Act (AEDPA) (Pub. L. 104-132) denied eligibility to any immigrant, based on the criminal sentence that could have been imposed rather than the sentence that had actually been served, and lowered the maximum allowable sentence from five years to one year. Then, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Pub. L. 104-208) further restricted eligibility by completely barring any immigrant who had been convicted of an "aggravated felony"-an immigration term that bears a scant relationship to the seriousness of the offense and can include misdemeanors under state law.
Immediately, the question arose: do the new restrictions apply retroactively? Some immigrants had already applied for the immigration waiver before the law changed, for others' immigration proceedings had already started, and-importantly-still other individuals had pled guilty years ago but carefully crafted their pleas to preserve their waiver eligibility. For all these immigrants, the amendments were devastating. Instead of the possibility of deportation with the likelihood of waiver, they became subject to mandatory deportation without any opportunity to apply for relief. Their deportation went from a 50-50 possibility to a legal certainty.
Consider the case of JLT. He became a legal permanent resident of the United States in 1981, when he was nine years old. In 1992, he pled guilty to a drug offense and accepted a sentence that his defense lawyer, an experienced public defender, correctly advised would entitle him to apply for the waiver of deportation. Preserving the opportunity to remain in the U.S. was a critical factor for JLT. He gave little consideration to the very real prospect of an acquittal after trial (as had occurred in the case of one of his co-defendants) and instead placed a heavy premium on obtaining a sentence that would safeguard his waiver eligibility. He served three years in prison in order to remain statutorily entitled to apply for the waiver. By the time he finished his sentence and INS started immigration proceedings, however, it was 1997, and the law had changed. Under the new terms, he would be barred from applying for the waiver. The question is: Should JLT's immigration case be adjudicated under the law on which he relied when he pleaded guilty or the law as amended by the time the INS decided to initiate the removal proceedings? The Attorney General ruled that the new restrictions applied retroactively to all cases and conduct.
Immediately, JLT and other immigrants challenged the Attorney General's ruling in cases throughout the country. Typically, these challenges arose in the circuit courts because the normal route for challenging immigration deportation orders is by a "petition for review" filed directly in the court of appeals under procedures governing judicial review of final administrative rulings.
Under normal circumstances, there would be no question that resolving the pure legal question of whether a new law applies retroactively is within the province of the courts, but not in the opinion of the Justice Department. In response to the legal challenges, the government asserted the argument that it continues to press to this day: no court can review the Attorney General's legal ruling to apply the new restrictions retroactively. The intent of Congress regarding the temporal scope of the statute is-in the government's view-to be determined exclusively by the executive branch, and this pure question of law is beyond challenge in any federal or state court.
The government bases its argument on several provisions of AEDPA and IIRIRA that, in various formulations, provide that no court shall review a final deportation order where the immigrant is deportable based on a criminal conviction. The Immigrants' Rights Project of the American Civil Liberties Union (ACLU) responded with a concerted challenge to the government's "court- stripping" contention. In virtually every circuit court in the country, we argued that immigrants were constitutionally entitled to judicial review of their challenge to the Attorney General's retroactivity ruling and that the new restrictions must be construed to preserve that right. Two arguments proved especially compelling. First, as elaborated in Professor Gerald Neuman's scholarship, the Great Writ of Habeas Corpus, guaranteed by the Constitution against suspension, entitles immigrants to a judicial forum for challenging the legality of their deportation order. Second, under the Supreme Court's Felker v. Turpin decision (518 U.S. 651 (1996))-issued before Congress enacted the jurisdiction-limiting provisions-the restrictions on petition for review jurisdiction did not repeal the right of immigrants to proceed under the venerable federal Habeas Corpus statute. (28 U.S.C. § 2241.)
The courts of appeals overwhelmingly found that habeas corpus jurisdiction remained. In one decision, Henderson v. Reno (157 F.3d 106 (2d Cir. 1998), cert. denied sub nom., Reno v. Navas, 119 S. Ct. 1141 (1999)), the Second Circuit canvassed the historical right of immigrants to challenge the legality of their deportation in a habeas corpus action. Judge Guido Calabresi explained that 100 years of precedent demonstrated that even during times when Congress had restricted judicial review of deportation orders to that which "was required by the Constitution," the Supreme Court had regularly reviewed statutory (and other) legal challenges asserted by immigrants. The Second Circuit emphasized that the government's claim that review could be precluded was "to put it mildly, not only at war with the historical record [of] at least a hundred years . . . [but] hard to square with the core conception of habeas corpus as applied over many centuries." (Henderson, 157 F.3d at 120.)
Since the initial appellate court decisions preserving the right to judicial review, additional jurisdictional provisions of IIRIRA have gone into effect. The government has renewed its arguments that all review of the legal retroactivity question-including in habeas corpus under § 2241-has been repealed and immigrants cannot assert their legal challenge in any court. Some courts of appeals have again rejected that contention, but others have suggested that the question remains unresolved. In January 2001, the Supreme Court granted certiorari in two cases arising under the new IIRIRA statute. Thus, the fundamental question remains: did Congress intend to, and is it constitutionally permitted to, vest the executive branch with the exclusive power to say what the immigration laws mean? The protection of individual liberty and the bedrock constitutional principle of judicial review require a resounding rejection of such a contention.
Lucas Guttentag is director of the Immigrants' Rights Project of the National Office of the American Civil Liberties Union. The Immigrants' Rights Project has successfully litigated the right to judicial review under AEDPA and IIRIRA in numerous courts of appeals.
