Senators Orrin Hatch (R-UT), Jon Kyl (R-AZ), John Cornyn (R-TX), Saxby Chambliss (R-GA) and Jeff Sessions (R-AL) introduced the Fairness in Immigration Litigation Act (FILA) last week in the Senate. 

According to the bill’s authors, its intention is to create equal access to the courts and level the playing field between foreign-born nationals who have been convicted of crimes and those who have not.  They claim that this leveling is needed because non-citizens with criminal convictions currently possess more opportunities for judicial review than do other non-citizens.  FILA is also intended to curtail a rising number of immigration-related habeas corpus claims file in the federal courts since 1996.  The sponsors of the bill allege that their proposed restrictions on habeas are necessary to deal with the surge.

The American Immigration Lawyers Association (AILA) released a press statement last week denouncing FILA, saying the measure would put the rights of immigrants at stake and contradict the United States’ tradition of allowing people their day in court.  AILA’s position is that the premise of FILA is based on the core premise that those with criminal convictions now can obtain habeas corpus review in the Federal District Courts and can appeal any adverse decision to the Federal Courts of Appeal, while others may only challenge their removal in the Federal Courts of Appeal.  However, the association has provided two facts that underscore the flaw of this position. 

The first point AILA has brought up is that the scope of issues that can be reviewed in a habeas claim are significantly more limited than those that can be heard on direct review, so even though two courts may consider the claim, the extent of such review is more narrow.  Additionally, Congress in 1996 already had barred federal appellate review for “criminal aliens,” which is why these foreign born individuals have been forced to seek review via habeas petitions.  This is why AILA claims that FILA would not create equal access to the courts and instead preclude all review for these non-citizens.

According to AILA, the 1996 immigration laws caused the escalating rate of habeas claims, as it expanded the definition of “aggravated felony” to include minor non-violent infractions.  This expansion was made retroactive, so that people could then be deported for crimes that were not deportable offences when they were committed.  The expanded aggravated felony definition carries harsh consequences, including mandatory detention with no possibility of release.  The increasing number of detentions, in turn, led to the marked increase in petitions for habeas corpus review.

The press statement from AILA suggested that the intention of the Fairness in Immigration Litigation Act is to restrict habeas review for all non-citizens, not only those convicted of crimes and that FILA would, in fact, undermine fairness in immigration litigation.  AILA is urging Members of Congress to focus on ensuring that the country’s laws and judicial system work to reflect the nation’s core values of a day in court and due process.