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Immigrants can no longer seek habeas corpus review of deportation orders under the Real ID Act passed unanimously by the Senate last week, but they will have direct access to the courts of appeal. The new law requires, among other things, that drivers’ license applicants must prove they are lawfully in the country. It explicitly overturns 9th U.S. Circuit Court of Appeals precedent barring immigration judges from denying asylum claims “on the basis of adverse credibility determinations,” according to the joint conference report unanimously adopted by the U.S. Senate. While supporters say the law merely streamlines procedures, opponents paint a bleak picture of what the loss of habeas corpus protection will mean to people who have lost their initial bids to stay in the country, and for those who have been detained. Still others say that habeas corpus is in itself not critical, as long as what replaces it affords immigrants fundamental due process. But they worry that the bill-which is retroactive-lacks clarity. They say that the courts will have to interpret the legislation broadly in order to afford immigrants their constitutional rights. A petition for the writ of habeas corpus has always been available for noncitizens facing detention and deportation. It is meant to provide judicial inquiry into the lawfulness of detention by executive officials. While the Constitution mandates the preservation of the remedy, it permits the substitution of another, equally effective judicial remedy. “I think courts are going to have face the fact that a group of people have been stripped of their rights to habeas,” said Nancy Morawetz, who directs the immigrant rights clinic at New York University School of Law. “And they will have to interpret the petition for review to the court of appeals in a way that grants immigrants the same constitutionally protected rights habeas review had offered them.” Lee Gelernt, a senior staff counsel at the American Civil Liberties Union Immigrants’ Rights Project, said he doubts that is what some in Congress have in mind. “What you’re going to hear from supporters of the bill is that all we’re doing is streamlining them into the court of appeals,” said Gelernt. “But the truth is that there are going to be significant numbers of people who may end up not having access to the streamlines, and as a result will be deported without any federal court looking at their case. This will include asylum seekers.” As an example, Gelernt points to the 30-day filing deadline after an immigrant receives an adverse decision from the Board of Immigration Appeals. Habeas corpus petitions had no such time requirement. “If an immigrant’s lawyer doesn’t file on time because he or she is negligent or unscrupulous,” said Gelernt, “on the 31st day, their client may no longer be entitled to any relief-even if they had been tortured, depending on how courts interpret the act.” A spokesman for U.S. Citizenship and Immigration Services, which handles many asylum claims, said his department was in the process of determining how it would implement the law. The U.S. Department of Justice, which handles some asylum claims and all appeals, did not return calls seeking comment. The Real ID Act was part of an $82 billion emergency spending package for military troops and anti-terrorism measures that the House of Representatives had approved overwhelmingly. President George W. Bush signed it into law on May 11. The act also changes existing law by barring appeals courts from reviewing such discretionary issues as whether it is reasonable to require corroborating evidence from asylum seekers, and whether applicants could have but did not obtain such evidence. The Washington-based American Immigration Lawyers Association, an organization of practitioners and academics, takes issue with these and many other provisions. “The judicial review in the act precludes review of certain types of basic claims that have never been barred before, such as the universe of claims that don’t manifest until after the 30-day filing period,” said Marshall Fitz, associate director for advocacy. These include lack of notice and ineffective assistance of counsel, he said.

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