The Assault on Habeas Corpus in Immigration Law
By Gerald Neuman
Most lawyers know that Congress cut back sharply on the availability of habeas corpus for state prisoners in 1996. Fewer realize that a second, more fundamental assault on habeas corpus began that year in the field of immigration law. That second assault aims at the historical core of the writ of habeas corpus: its guarantee of a judicial remedy for detention by executive authority. The 1996 immigration legislation has divided the courts of appeals and has raised crucial issues that either Congress or the Supreme Court will be forced to resolve.
Since the federal government first began regulating immigration in the late nineteenth century, habeas corpus has always been available for noncitizens facing detention and deportation. Habeas corpus provides an essential safeguard for the rule of law by affording judicial inquiry into the lawfulness of detention by executive officials. The Constitution mandates the preservation of this remedy, declaring in the Suspension Clause of Article I that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." The clause prohibits suspension of the writ with regard to particular categories of detainees as well as the total abrogation of the writ. It permits the substitution of another, equally effective judicial remedy for the particular procedural avenue known as habeas corpus, so long as judicial supervision of the lawfulness of detention is ensured.
In the 1890s, Congress attempted to make executive orders of exclusion and deportation conclusive on the judiciary. But the Supreme Court limited this finality to issues of fact and preserved full judicial authority to correct issues of law. (Fong Yue Ting v. United States, 149 U.S. 693 (1893); Nishimura Ekiu v. United States, 142 U.S. 651 (1892).) Looking back over this era after the advent of the Administrative Procedure Act, the Supreme Court emphasized that the earlier statutes had had "the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution." (Heikkila v. Barber, 345 U.S. 229, 234-35 (1953).)
In 1996, Congress rewrote the jurisdictional rules governing judicial review of deportation orders (now known as "removal orders"). Both the Antiterrorism and Effective Death Penalty Act-the same statute that cut back on habeas corpus as a method of postconviction relief in criminal cases-and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) contain restrictions on judicial review of particular categories of decisions relating to the detention and deportation of aliens. Congress clearly intended to facilitate the deportation process and to narrow the availability of judicial review. How sharply Congress intended to restrict judicial review is less clear. In the resulting litigation, the executive branch has attempted to insulate its decisions from judicial oversight as fully as possible. Its arguments have enjoyed mixed success in the lower federal courts.
The most frequently litigated restrictions concern the deportation of aliens who have previously been convicted of criminal offenses. For example, 8 U.S.C. § 1252(a)(2)(C) states: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense [listed in cross-referenced sections of Title 8]." This restriction raises questions of interpretation and questions of constitutionality. Does it prohibit the use of habeas corpus to determine the lawfulness of a deportation order? If so, does it violate the Constitution?
Government lawyers have argued that the Constitution permits Congress to preclude all challenges to deportation orders that are based on claims of statutory violations. In their view, only constitutional violations must be subject to judicial correction. This argument confuses the use of habeas corpus as a method for attacking a state criminal conviction with the central historical role of habeas corpus as a remedy for unlawful detention by the executive. After all, the United States inherited habeas corpus from the English legal system, in which there was no separate category of constitutional error. The guarantee of the writ ensures judicial participation in the enforcement of the rule of law, not merely a remedy for constitutional violations.
Accepting the government's arguments would eliminate judicial remedies both for individual statutory violations and for systematic statutory violations by the immigration agencies. Two recent examples illustrate the dangers involved. First, after the enactment of IIRIRA, the INS misconstrued new rules on detention, insisting that they required it to arrest and imprison noncitizens who had served jail sentences in the past, and deprived it of discretion to release them. After numerous district courts rejected the INS interpretation of the statute, the agency reversed its policy and accepted its statutory responsibility to make individual decisions regarding detention. Without judicial oversight, that acceptance of responsibility would never have occurred. Second, the attorney general construed the 1996 amendments as retroactively abolishing the right of permanent residents with past criminal convictions to be considered for discretionary relief from deportation. A majority of the circuits have ruled that the attorney general misinterpreted the statute, unlawfully depriving hundreds of noncitizens of their chance to retain their permanent resident status.
Furthermore, the government's arguments imply that the courts can be stripped of jurisdiction to review erroneous interpretations of the statutory grounds of deportation, permitting the INS to expel resident aliens for reasons unsupported by law. The government concedes that the current statutes permit review of whether aliens are deportable, but it attributes this conclusion to the fortuity that the statutory language makes the fact that the alien "is removable" an element of the jurisdictional bar. The government does not recognize the basic principle of habeas corpus law: that jurisdiction must always exist to determine whether individuals-be they citizens or aliens-are being imprisoned for reasons unauthorized by law.
Most of the court of appeals decisions, thus far, have preserved habeas corpus jurisdiction over deportation decisions, but a minority of the circuits have accepted the government's arguments. Courts preserving habeas corpus jurisdiction have relied on three major arguments. First, a longstanding rule of statutory interpretation requires very clear language before habeas jurisdiction will be repealed. (Felker v. Turpin, 518 U.S. 651 (1996).) Second, traditional usage distinguishes between a broader form of judicial "review" and a narrower form of habeas corpus inquiry into the lawfulness of detention, so that restrictions on "review" do not necessarily preclude habeas inquiry. Third, the statutes must be construed if possible to avoid the serious constitutional questions that divesting habeas corpus jurisdiction would raise under the Suspension Clause. Judge Guido Calabresi provided an especially full exploration of these issues in the Second Circuit's decision in Henderson v. INS (157 F.3d 106 (2d Cir. 1998), cert. denied, 526 U.S. 1004 (1999)).
The Fifth and Seventh Circuits, however, have construed the new statutory structure as eliminating both direct review and habeas inquiry into decisions to deport convicted aliens. These circuits have diverged in their reasoning. The Fifth Circuit maintained that Congress's plenary power over immigration authorizes it to restrict habeas corpus in ways that would be unacceptable if applied to citizens. (Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000).) This loose invocation of the "plenary power" doctrine overlooks the Supreme Court's insistence that the framework for deportation must comply with normal constitutional requirements of procedural due process and separation of powers. The Seventh Circuit's approach is, if anything, even more dangerous. The Seventh Circuit has accepted the government's argument that habeas corpus need not be available to protect against executive detention that violates statutory commands. The Seventh Circuit would limit the habeas corpus guarantee, both for citizens and for aliens, to determinations of the agency's "jurisdiction," which it construes narrowly. The court failed to recognize that, in habeas corpus law, an executive agency that violates statutory restrictions is always acting beyond its "jurisdiction." (LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998), cert. denied, 120 S. Ct. 1157 (2000).)
The Fifth Circuit's ruling exposes noncitizens to serious risks of unlawful action by the Justice Department. The Seventh Circuit's interpretation of the Suspension Clause threatens both aliens and citizens with the loss of a fundamental constitutional safeguard against unlawful imprisonment by the executive.
If Congress does not intervene to clarify the entitlement of noncitizens to habeas corpus in deportation proceedings, then the responsibility for vindicating that right will fall to the Supreme Court. In January 2001, the Court granted certiorari in two cases that raise the question of the continuing availability of habeas inquiry for deportable aliens. It may resolve this question by the end of its October 2001 term. The Court will have available a variety of interpretive strategies that would avoid express decision of the constitutional questions, or the Court may directly confront the incompatibility of restricting habeas corpus inquiry into executive detention with the Suspension Clause. Either way, it is essential that the United States reaffirm its traditional commitment to the rule of law.
Gerald Neuman is the Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School. He has written extensively on immigration law, constitutional law, and human rights.
