FEDERAL COURT UPDATE

Nguyen v. Fasano, Southern District of California

In this case, the court ruled that the indefinite detention of those whom it is highly unlikely the government will be able to deport is unconstitutional, joining an ever growing number of courts reaching this conclusion.

Five men who have been in INS custody for over two and a half years filed petitions for habeas corpus seeking their release from INS detention.  Each of them was subject to a final order of deportation, but because the US does not have the necessary agreements with their home countries, they could not be deported.  In this suit that argued that their continuing custody violated their substantive due process rights. 

The INS made two arguments that the federal court lacked jurisdiction to hear the case.  First, the federal court jurisdiction over such claims had been eliminated by statute.  Second, the petitioners could not yet file suit because they had not exhausted their administrative remedies. 

The INS argued that section 242(g) of the Immigration and Nationality Act eliminated federal court jurisdiction over the claims.  The court rejected this argument, finding that even though section 242(g) bars jurisdiction over all claims “arising from the decision or action by the Attorney General to commence proceedings, adjudicate case, or execute removal orders,” it was inapplicable in this case.  The claims in these cases deal with the Attorney General’s decision to continue detention, and not one of the decisions listed in the statute. 

The INS also argued that section 242(b)(9) would prevent the federal court from hearing the case.  This section provides that “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any actions taken or proceeding brought to remove an alien from the US . . . shall be available only in judicial review of a final order of removal.”  The court found that this section, while very broad, did not apply to the case at hand because it deals only with review of actions or proceedings brought to remove an alien, whereas this case dealt with the detention of aliens. 

The court dismissed the INS’s argument about exhaustion very easily, finding that because at no point in the administrative process would the petitioners have the opportunity to present their constitutional claims, they should not be required to pursue it at the administrative level.

After determining that the court retained jurisdiction over this matter, the court proceeded to address the merits of the claim.  After a final order of removal has been issued, there is a 90-day window in which the INS is to deport the alien, during which time the alien may be detained.  After this 90-day period, detention can continue in two situations: 1) when the alien is being removed because of certain criminal convictions, and 2) if the Attorney General determines that the alien will be a risk to the community or will abscond and won’t be present for removal.  There are also regulations and internal guidance on how the INS should make the determination on whether to continue custody.

The court also focused on the question of “liberty.”  Liberty is one of the most important rights protected by the Constitution.  It is what is called a fundamental right, meaning that before the government can interfere with it, it must show a compelling need.  In a case such as this, where the person has served out their criminal sentence, their detention cannot be for purposes of punishment – if it is, it is clearly unconstitutional.  The court agreed with the INS that detention in this case was for regulatory purposes.  But even when detention is for such purposes, it cannot be excessive. 

According to this court, when “deportation is not foreseeable, likely and realistic, detention becomes increasingly excessive in relation to a detainee’s liberty interest.”  Moreover, when deportation is not likely to occur, the burden should shift to the INS to show that detention is not excessive. 

In this case the judge found that the INS did not demonstrate any compelling need to continue the detention of the five petitioners, and that the review given to their detention did not properly weigh the regulatory factors.  If the review given in these cases is any indication of what is occurring nationwide, the process is totally inadequate.  According to the judge in this case “each determination that each Petitioner should remain in custody appears to have been predicated solely on each Petitioner’s criminal history,” without consideration of the factors INS regulations point

to for making a release determination.  Therefore, the judge ordered the petitioners released.  In the event they become deportable – namely if a repatriation agreement with Vietnam is ever concluded – the INS may again take them into custody in preparation for deportation.  

Pena-Rosario v. Reno, Eastern District of New York

In this case, the court ruled that the petitioners were eligible to apply for discretionary waivers of deportation, even though such relief was eliminated after 1996, because in these cases the criminal conduct occurred before 1996. 

The cases of five people were consolidated for the decision.  Each of the five was a permanent resident who had been convicted of crimes that, after 1996, were considered aggravated felonies.  Some were convicted before the 1996 change in the immigration laws and some after.  Each sought a waiver of deportation.  In each case, the request was denied, with the Immigration Judges finding, in accordance with a decision by the Attorney General, that the 1996 elimination of the waiver applied to all cases, regardless of when the criminal conduct occurred.  Each person then filed a petition for a writ of habeas corpus with the district court in New York.

The one primary argument made by the immigrants was that the rule making them ineligible for a waiver was impermissibly retroactive since their criminal conduct occurred before the statute was enacted.  The INS argued that the district court did not have jurisdiction to hear these claims, and that even if it did, there was no legal problem in applying the 1996 changes to them.

One result of the rapid and dramatic changes to immigration law in 1996 was the creation of many different schemes for review of deportation related rulings.  Before 1996, a decision denying a waiver of deportation could be appealed to a federal court of appeal.  The Immigration and Nationality Act also contained a provision that allowed an alien to petition for a writ of habeas corpus. 

The first 1996 law, the Anti-Terrorism and Effective Death Penalty Act, eliminated the habeas corpus provision and also eliminated the right to appeal from a final deportation order based on certain criminal offenses.  The second 1996 law, the Illegal Immigration Reform and Immigrant Responsibility Act, created two new systems of review.  One applies to cases begun before April 1, 1997 (transitional rules).  The other applies to cases begun after that date (permanent rules).  Most litigation thus far has dealt with the transitional rules, but this case addressed the permanent rules. 

The permanent rules contain a number of provisions that attempt to strictly limit federal court jurisdiction to review INS decisions.  One of these states that “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any actions taken or proceeding brought to remove an alien from the US . . . shall be available only in judicial review of a final order of (deportation).”  The INS has consistently argued that this provision eliminates the right to petition for habeas corpus, a position that has been rejected by most courts that have addressed the question.

To understand the issues here, it helps to know the legal definitions of the terms that are being used.  Administrative law deals with federal agencies, and immigration law is a specialized form of administrative law.  Most rules of administrative procedure are found in the Administrative Procedures Act.  While the INS is bound by many of the rules contained in the APA, many specialized rules of immigration procedure are found in the Immigration and Nationality Act.  Even after immigration was separated out from the rest of administrative law, many similarities remained.  One of these is the concept of judicial review.  Under this scheme, a decision about federal agency action can be appealed only to a federal court of appeal. 

Habeas corpus is not an appeal or a form of judicial review.  It is a civil lawsuit brought in federal district court.  The purpose of habeas corpus is to determine whether a person’s custody violates the Constitution or laws of the US.  While many of the same issues are addressed in a habeas corpus claim as would be heard in an appeal, habeas corpus is not judicial review. 

Even though the AEDPA eliminated the provision for habeas corpus found within the INA, most courts have found this insufficient to eliminate all opportunities for habeas corpus.  There still exists a general federal habeas corpus statute that was not mentioned in any of the 1996 immigration laws.  It is a rule of constitutional law that Congress cannot repeal habeas corpus by implication.  Therefore, without an explicit elimination of the general federal habeas corpus statute, it remains available to noncitzens challenging their deportation. 

Because of the habeas corpus statute, the court retained jurisdiction over these cases.  Therefore, the court went on to address the question of whether the petitioners were eligible for a waiver of deportation.  The Second Circuit, in which the court deciding this case is located, has already ruled that the waiver is still available to those who were in deportation proceedings when the waiver was eliminated, but has not addressed the issue in the circumstances of this case, where the criminal activity occurred before, but deportation proceedings were not started until after.

Because deportation is not a criminal proceeding, rules relating to it are not subject to the Ex Post Facto clause of the Constitution that prohibits retroactive criminal legislation.  However, under basic due process principles, deportation rules may be examined to see if they are impermissibly retroactive.  The first step in such an analysis is to see whether Congress intended for the law to apply retroactively.  In this case, the judge found that there was no clear indication of Congress’ intent and the court rejected the petitioners’ argument that the express retroactivity of some sections meant the rest are not to be applied retroactively.  Also, the INS’ argument that the overall thrust of the statute indicated Congress’ intent that the elimination of the waiver be applied retroactively was dismissed. 

In the absence of clear congressional intent, the next inquiry is whether application of the law would have a retroactive effect, particularly whether it would attach new legal consequences to past actions.  The judge found the elimination of the waiver clearly had a retroactive effect – before there was a possibility of deportation, afterwards, deportation became a certainty.  When a statute has a clear retroactive effect such as this, it will not be applied without a clear sign Congress intended retroactive application.  Because Congress’ intent was not clear, the elimination of the waiver of deportation could not be used in this case, meaning that the five people are now eligible to pursue their claims to relief from deportation via a waiver.