ith the current political climate characterized by tax cuts, federal funding for faith-based charities, and the abject failure of campaign finance reform, it is difficult to get excited about the achievements of our government. But there is some cause for celebration, though it does not emanate from the lawmaking branches of the federal government. The Supreme Court, in a recent decision, rebuked congressional attempts to curtail the rights of detained immigrants.
The statutes in question were made law in ’96, in the afterglow of the Republican takeover of Congress in ’94. With their backs to the wall and hoping to extend an olive branch to the conservative majority, Democrats united with Republicans to crack down on a population with virtually no political capital: immigrants convicted of crimes. Together, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) totally reshaped the immigration landscape.
Prior to the enactment of these laws, the government still maintained a policy of deporting immigrants convicted of heinous crimes, but for aliens convicted of many crimes, Immigration Judges could waive deportation if they felt that the particular circumstance of the alien merited it. This practice, known as section 212(c) discretionary relief was ended by the IIRIRA. What’s more, the list of crimes for which the decision is automatic removal with no chance of relief, was greatly expanded.
This legislation gave immigrants convicted of even some of the pettiest crimes no hope of relief from removal. Immigration Judge Craig Zerbe of the Chicago Immigration Court said that, under the ’96 laws “‘aggravated felony’ has been extended to a new group of crimes most people do not consider aggravated and they may not even be felonies.
The Board [of Immigration Appeals] has held that convictions of simple drug possession, if felonies under state law, somebody can be barred from the US permanently if he has two drug convictions and serves no jail time…That is an extraordinarily harsh consequence that ignores the rest of the person’s life and the decision by the sentencing judge who did not impose a jail term and did not see the person as a danger to the community.”
The application of these laws, too, is cause for concern. When Immigration Judges had to apply the law, the issue arose of whether immigrants who had been convicted before the passage of the IIRIRA and AEDPA, yet whose removal proceedings commenced after the enactment of these statues should be tried under the old laws, where discretionary relief is available, or under the ’96 laws. The way that Immigration Judges and the body to which they are accountable, the Board of Immigration Appeals, resolved this issue was by finding that respondent aliens could be punished for crimes committed before ’96 under standards enacted in ’96.
One of the aliens to whom these laws were retroactively applied was Enrico St. Cyr. A Haitian and legal permanent resident, St. Cyr was accused of a narcotics offense and accepted a plea bargain in early ’96 that made him eligible for discretionary relief to avoid deportation.
By the time of his removal proceedings, though, in ’97, the relief he sought was gone and an Immigration Judge found him removable with no relief from removal available because he had committed one of the many crimes that now makes one automatically removable.
He appealed his case to a higher court, the Board of Immigration Appeals, and also with the Attorney General. They concurred with the first ruling, so his case moved into the federal court system, where he won his case. The INS, however, appealed, and the case made its way to the Supreme Court.
The Supreme Court, in a 5-4 decision reflecting the ideological divisions that characterize the current Court, sided with St. Cyr. Specifically, the Court found that the IIRIRA had unfairly been applied retroactively because the Congress had not specifically intended for the law to apply in this fashion.
In the majority opinion, Justice Stevens argued, “Because respondent, and other aliens like him, almost certainly relied upon that likelihood [of discretionary relief] in deciding whether to forgo their right to a trial, the elimination of 212(c) [discretionary] relief by IIRIRA has an obvious and severe retroactive effect.”
There is no question that this decision is a huge victory for champions of immigrant rights; the IIRIRA and AEDPA have been interpreted in a way that blindsided aliens who thought they were following the right course to maintain legal permanent resident status by plea bargaining. “It was a positive development and Congress will ultimately support it and will ultimately go further than it. It is consistent with due process. An Immigration Judge makes a decision considering the totality of an immigrant’s record,” said Judge Zerbe.
The importance of the St. Cyr decision extends beyond the immigration context, as well. By dismissing an argument put forth by the INS that the IIRIRA law repeals the ability of the federal courts to review EOIR decisions, the Court reassured the viability of judicial review and the right of the imprisoned to have their grievances addressed by a court.
Because EOIR is part of an executive agency and not the judicial system, there is no statutory mechanism for a detained alien to bring his or her case to a higher court once it has been decided by the highest court in the EOIR, the Board of Immigration Appeals. Therefore, these aliens must file a habeas corpus petition, asking that they be brought before a judge. In this case, the detained individual would appear in federal court. The ability of the immigrant to bring his or her case into the federal court system is what the INS objected to.
The attorneys for St. Cyr argued that the Suspension Clause of the Constitution provides that St. Cyr’s petition for habeas corpus cannot be denied. The Court agreed with St. Cyr, with Justice Stevens commenting in the majority opinion that “a serious Suspension Clause issue would be presented if we were to accept the INS’s submission that the ’96 statues have withdrawn that power from federal judges and provided no adequate substitute for its exercise.”
A ruling in favor of the INS on this issue would have been a disaster for the rights of the imprisoned, as well as the independence of the judiciary. If the ’96 statutes had forbade the courts from hearing habeas petitions, Congress would have effectively stripped the court system of one of its most crucial functions: assuring that the accused can refute charges brought against him or her. Were Congress to take this function from the courts, it would shut a minority group off from protection of the court system.
The right to have a habeas petition heard in court is especially crucial for immigrants. In criminal cases, the writ of habeas corpus is often considered just another way to challenge a criminal conviction. Habeas petitions in immigration are a crucial part of the system of checks and balances within the federal government. As Columbia Law professor Lucas Guttentag wrote for the ACLU, in immigration law, “we are returning to the core function of habeas: judicial review to determine whether the executive is holding someone in custody in violation of law.”
There are still fights to be won against the rights-denying effect of the IIRIRA/AEDPA. Its inflexibility and singular remedy run contrary to the purpose of the American judicial system. “[Under IIRIRA/AEDPA] you’ve made violation of law the end result of the process and made the [legal] process a complete formality and nothing which the judge has any choice in. You’ve undermined the judicial function and this is not a healthy development. Our judicial system is set up to provide remedies for individual acts, not universal rules. To dr
aw an analogy to criminal law, we do not sentence everyone accused of murder to execution. We don’t give everyone accused of a crime the highest punishment,” commented Judge Zerbe.
Equally frightening is one of the means used to refute the decision in the dissenting opinion. To his credit, the body of Justice Scalia’s dissent is purely on legal grounds. In both the introduction and conclusion, though, a more specious justification arises. Scalia argues that the decision “brings forth a version of the statue that affords criminal aliens more opportunities for delay-inducing judicial review than are afforded to non-criminal aliens.”
It seems almost comical that a person whose life is devoted to the law, ostensibly so that justice can be served, would refer to judicial review as “delay-inducing.” Judge Zerbe agreed, remarking that “the highest goal of the judicial process is not expediency. It should be due process. If expediency were the goal, you could make anyone in violation of the law deportable automatically by police officers or INS agents who pick them up on the street.”
The fact that federal courts may be clogged with immigrants’ habeas petitions is immaterial to the fact that they have a right to have their grievances heard in court.
The Supreme Court’s decision in INS v. St. Cyr is a resounding victory for the rights of immigrants and the health of the legal system. Despite the looming risk that “delay-inducing judicial review” melts down the legal system, this is an action by our government of which we can be proud.