A federal appeals court in San Francisco has issued a 3-0 ruling that could have a major impact on the future of deportation procedures in this country. In Magana-Pizano v. INS, the Ninth Federal Circuit Court held that immigrants have a constitutional right to fight a deportation order in court. 1996's Anti-Terrorism and Effective Death Penalty Act of 1996 Act eliminated the right to appeal a number of different kinds of drug-related crimes. Congress was attempting to block people from filing frivolous appeals, but the measure has been criticized by human rights and Constitutional Law scholars.

The case has been linked on our web site at http://www.visalaw.com/docs/.

Specifically, the court found that the law is contrary to the Constitution's Suspension Clause which states 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 INS tried to argue that the Suspension Clause only required access to the courts when there could be a serious miscarriage of justice. But the Court rejected such a restrictive interpretation.

In an interview with the Washington Post, Lucas Guttentag, one of the lawyers who argued the case, and also the director of the national immigrants' rights project of the American Civil Liberties Union, stated "This is a ringing endorsement of judicial review and the constitutional requirement that any individual subject to government abuse can challenge the government's actions in a court." In a separate interview in the Los Angeles Times, Guttentag commented that "The court has found that the US Constitution does not permit the attorney general or the INS to be judge, jury and prosecutor in a deportation case."

The case involved Daniel Magana-Pizano, a twenty-five year old Mexican national who had been a permanent resident of the US since the age of five. He was convicted in 1995 of the misdemeanor drug offense of being under the influence of cocaine and methamphetamine. The INS sought to remove him and Magana-Pizano conceded deportability. But he sought a waiver of deportability to avoid having to leave the country. The INS blocked the waiver by retroactively applying a provision in the 1996 Immigration Act and argued that the courts lacked authority to review their decision. The INS lost and Magana-Pizano will now be able to argue for a waiver in front of a federal district court in Arizona if the case stands.

The INS loss could mean that thousands of people now have the ability to appeal INS decisions. And though this case deals specifically with legal immigrants in deportation proceedings, many feel that the same principles could be applied to illegal immigrants.