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Marlene Ramallo, the widow of former Washington Redskins owner Jack Kent Cooke, has long been the poster child for our broken deportation system. Her saga well illustrates the sad truth that deportable aliens who have the money to hire a good lawyer never seem to be deported, no matter how badly they behave. It takes the courts years to dispose of one ground for avoiding deportation, at which point the lawyer begins a new round of appeals on a new issue. In the meantime, alien felons continue to roam the streets while their appeals languish. But judicial-review streamlining measures adopted this past May as part of the REAL ID Act of 2005 hold out promise for imposing strict time limits on the deportation process. A SOCIALITE’S SAGA The Immigration and Naturalization Service began attempting to deport Ramallo to her native Bolivia in 1986, after she was convicted of conspiracy to import cocaine and served a 51/2-month prison sentence. That felony conviction mandated Ramallo’s deportation, but the INS never seemed to be able to get her out of the country, despite winning virtually every courtroom skirmish over the next 15 years. Her record of good behavior in the ensuing years included a September 1993 arrest after police saw her driving down a Georgetown street with a man riding on the hood of her Jaguar; a 1994 guilty plea on reckless driving charges after being charged with striking a police officer’s motorcycle; and a 1999 conviction for driving under the influence of alcohol, for which she served additional jail time. The INS finally gave up trying to deport Ramallo after she voluntarily left the country for Italy, where she reportedly has been living for the past several years. There is little doubt that with her financial resources, Ramallo could return to this country and renew her protracted battles with the federal government any time she chose. The principal obstacle that the INS and its successor, the Bureau of Immigration and Customs Enforcement (ICE), have faced in attempting to remove deportable aliens is an overly cumbersome system of judicial review. To obtain a removal order, ICE must bring formal proceedings against an alien before an immigration judge. If the immigration judge issues a removal order, the alien is entitled to appeal to the Board of Immigration Appeals, whose huge backlog of cases ensures a lengthy delay in the deportation process. The alien can then appeal an adverse ruling to the federal courts, which tend to be generous in granting stays of removal while appeals are pending. And any immigration lawyer worth his salt can delay proceedings considerably longer by filing a pre-emptive federal district court action long before a final removal order has been issued. PREVIOUS JUDICIAL REVIEW For decades, congressional leaders have been working to streamline the time-consuming judicial review procedures. Starting in 1961, Congress provided that all final deportation orders were reviewable only in a federal appeals court, on the basis of the record established in administrative proceedings. Although that provision was intended to channel into the appeals courts most judicial reviews of INS actions, federal courts became increasingly receptive to district court actions, which took the form of challenges to a wide variety of INS actions taken well in advance of issuance of a final deportation order. In one case that reached the U.S. Supreme Court in 1999, Reno v. American-Arab Anti-Discrimination Committee, the INS had been enjoined by a district court for 12 years from even initiating deportation proceedings against eight Palestinians suspected of providing aid to a terrorist group. In response to growing frustration over deportation delays brought on by lengthy judicial review procedures, Congress in 1996 adopted the Illegal Immigration Reform and Immigrant Responsibility Act. The IIRIRA mandated consolidation of all of an alien’s judicial challenges to deportation proceedings into a single challenge, to be filed in a federal appeals court. The act went so far as to eliminate all judicial review in certain types of cases, including appeals from a final order of removal against an alien convicted of a serious criminal offense or an order denying a removable alien’s request for discretionary relief from removal. But things did not work out as many in Congress had intended. The courts responded by interpreting the IIRIRA in a manner that had the effect of expanding federal court jurisdiction. In INS v. St. Cyr (2001), a habeas corpus case filed by an alien who had been ordered removed after being convicted of a serious felony, the Supreme Court indicated that any interpretation of the IIRIRA that denied the alien all judicial review would raise serious constitutional concerns. Accordingly, despite statutory language providing that “no court shall have jurisdiction to review any final order of removal” against an alien felon, the Court applied the doctrine of constitutional doubt to hold that Congress had not intended to eliminate district court habeas jurisdiction over the alien’s challenge to his removal order. The immigration rights bar was, of course, overjoyed by this result: A district court proceeding (with its opportunities for delay-inducing discovery proceedings) followed by an appeal to the appellate court is far more advantageous to their clients than the previously available judicial review (a direct filing in the appeals court, with proceedings limited to the administrative record). As the four St. Cyr dissenters pointed out, the ironic result of the Court’s decision was to afford criminal aliens “ more opportunities for delay-inducing judicial review than others have.” (The Court majority did explain, however, that because the IIRIRA permitted appeals court review of final removal orders issued on the basis of anything other than criminal activity, Congress was free to eliminate habeas review for those noncriminals. Constitutional problems arise only if abolition of habeas jurisdiction deprives the alien of all judicial review.) In the years since St. Cyr, alien felons seeking to avoid removal have flooded the district courts with habeas petitions. By filing in district court, they have stretched out the judicial review process considerably, thereby slowing removals even more. Several federal appeals courts have compounded the problem by interpreting St. Cyr as permitting noncriminals facing removal to file district court habeas petitions as well. Congress adopted the REAL ID Act in direct response to the delays brought about by St. Cyr and its progeny. THIS TIME, WE MEAN IT In St. Cyr and later decisions, the Supreme Court held that an intent to strip the courts of habeas corpus jurisdiction will not be inferred based on anything less than statutory language explicitly stating such an intent. Such intent will not be inferred based solely on sweeping but nonspecific language such as “no court shall have jurisdiction to review” or “No court may set aside any action or decision by the Attorney General under this Section.” In adopting the REAL ID Act, Congress has taken up the Court’s challenge: It has added language to numerous provisions of the immigration law explicitly mentioning habeas corpus jurisdiction and thereby made explicit its intent that a habeas corpus petition is virtually never an appropriate means of challenging any aspect of a removal proceeding. Rather, the new law makes clear that the only appropriate means of challenging removal is filing an action in the court of appeals following entry of a final order of removal. Because, unlike the IIRIRA, the new law does not attempt altogether to foreclose federal court jurisdiction over certain types of claims but instead simply provides an alternative to habeas corpus that, in the words of St. Cyr, “is neither inadequate nor ineffective to test the legality of” the government’s action, it is unlikely that the Court will view the REAL ID Act’s elimination of habeas corpus review as a violation of the Constitution’s suspension clause in Article I, Section 9. Also, the jurisdiction-stripping provisions of the REAL ID Act are limited to actions directly related to removal proceedings. The new statute does not purport to eliminate habeas corpus as a means of challenging other aspects of the deportation process, such as detention pending removal. It remains to be seen whether this time around, the courts will honor congressional intent. But given the explicit language of the REAL ID Act, it is difficult to believe that the courts will allow those challenging a removal proceeding to initiate any proceeding other than an appeals court action after entry of a final order of removal. If courts adhere to the new law as written, a significantly increased level of rationality and expedition will be provided to immigration proceedings. For one thing, the appeals court proceeding must be filed within 30 days of entry of the challenged final order. The absence of a similar time limit on the habeas corpus petitions that were filed in the district courts up until May has led to considerable delays in the removal process. Although the REAL ID Act, unlike the IIRIRA, grants the appeals courts jurisdiction over claims regarding denial of discretionary relief and permits judicial review of appeals filed by alien felons, the new law makes clear that any such review is to be extremely limited. Any such review is now limited to “constitutional claims” and “questions of law.” Thus, it appears that aliens fighting removal orders will no longer be permitted to argue that a federal official abused his discretion in denying discretionary relief, such as denial of a petition for cancellation of removal. What constitutes “questions of law” that are subject to judicial review is likely to be the subject of extensive litigation in the years to come. But it would appear that while some aspects of discretionary relief provisions could properly be deemed “questions of law” (e.g., a claim by the federal government, as in St. Cyr, that it lacks statutory authority to grant certain types of discretionary relief), the actual decision of whether to grant discretionary relief under a given set of facts would not qualify as a question of law. If courts adhere to that distinction, the REAL ID Act will lead to a significant decrease in the number of appeals of decisions of the Board of Immigration Appeals. Most important, if the courts adhere to Congress’ mandate that all challenges to a removal proceeding be consolidated into a single appeals court proceeding filed after the final removal order has been entered, the REAL ID Act will have made a significant contribution toward simplifying and expediting the immigration litigation process. It might even be that a future battle over Marlene Ramallo’s immigration status could be resolved in less than 20 years.
Richard A. Samp is chief counsel of the Washington Legal Foundation.

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