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In the final week of the U.S. Supreme Court term, the justices sent a clear message to Congress and the executive branch that there are limits to their power to control immigration even when anti-immigration sentiments run high. The high court refused to fold its tent and vacate the arena of immigration policy in four cases, despite the government’s arguments that it should defer to the other branches. “None of these rulings was a direct constitutional ruling,” says immigration and constitutional law litigator Seth M. Stodder of the Washington, D.C., office of Los Angeles’ Gibson, Dunn & Crutcher. “They were all statutory interpretation rulings. But in each instance, the Supreme Court looked at the statutes cognizant of basic constitutional norms that have governed this country since its inception.” Immigration lawyers including Stodder, who filed an amicus brief in two of the cases on behalf of the Lawyers Committee for Human Rights, describes those basic constitutional norms as follows: � An alien who has been ordered to be deported cannot be held in detention indefinitely but only for a reasonable period necessary to bring about his removal from the country. � The federal courts have the authority to determine whether the detention period is reasonable. � Federal district courts retain habeas corpus jurisdiction to review an alien’s legal challenge to a deportation order. � The 1996 congressional restrictions on the attorney general’s authority to grant discretionary relief from deportation do not apply retroactively to aliens who pled guilty to a deportable crime before their enactment. “I think all of the cases really reaffirm not only the right to judicial review in the abstract,” says Lucas Guttentag of the American Civil Liberties Union (ACLU), “but the critical importance of the Court in limiting congressional administrative action to the Constitution’s requirements.” Guttentag, director of the ACLU’s immigration rights project, argued and won two of the four cases. “In all of the cases,” he says, “the Court rejected a sort of abdication of judicial scrutiny, which was what the government was advocating.” The four cases represented the first wave of major challenges to comprehensive amendments by Congress to the Immigration and Nationality Act. The amendments — many designed to speed the removal of permanent resident aliens with criminal convictions — are contained in two 1996 laws: the Antiterrorism and Effective Death Penalty Act, and the Illegal Immigration Reform and Immigrant Responsibility Act. The outcome of the challenges was by no means a sure thing for either the civil rights lawyers involved in the cases or the government. But, heading into the oral arguments, the government seemed to have an edge because of the so-called plenary power doctrine. Throughout its history, the high court has paid enormous deference to the authority of Congress and the executive branch to control immigration, particularly in determining entry and citizenship qualifications — the plenary power of Congress. At the same time, however, the justices have struck down laws that were discriminatory or violated due process. “In the past, you could probably count 50 cases in which the Supreme Court has said that due to the plenary power that the Constitution gives to Congress and the executive branch in immigration and naturalization matters, there’s a very limited role for the courts,” says Richard Samp of the Washington Legal Foundation, which supported the government in the cases. But with the latest rulings, he adds, “You don’t get any sense of that at all here.” CRIME AND DEPORTATION The first pair of challenges that the high court confronted this year concerned a group of resident aliens who had pleaded guilty to crimes and were ordered deported. They had entered their pleas before the 1996 reforms when the attorney general had discretionary authority to grant waivers of deportation. After the 1996 changes, the attorney general decided that Congress had eliminated that discretion for requests by convicted aliens and that the elimination was retroactive. The aliens in the high court cases wanted to challenge the retroactivity decision through petitions for habeas corpus. The government argued that Congress had stripped the federal courts of jurisdiction to review that type of claim. But in a 5-4 ruling, the Court held that the government’s argument would create substantial constitutional questions, particularly under the Suspension Clause, which protects the privilege of the writ of habeas corpus. To avoid the constitutional confrontation, the Court examined the 1996 laws for an alternative interpretation. In an opinion by Justice John Paul Stevens, the majority held that there must be a clear and unambiguous indication that Congress intended to eliminate habeas jurisdiction, and that such a statement was missing from the laws. “Moreover, to conclude that the writ is no longer available in this context would represent a departure from historical practice,” Justice Stevens wrote. “The writ of habeas corpus has always been available to review the legality of executive detention.” Immigration and Naturalization Service v. St. Cyr, No. 00-767, and Calcano-Martinez v. INS, No. 00-1011. The majority also held that a statute’s language must make clear that it is to be applied retroactively, and that there again was no clear language to that effect. “There’s never been a time in our history without the opportunity to challenge the validity of a deportation order,” says the ACLU’s Guttentag, who argued the two cases. “Even at the time of the most restrictive or racist immigration laws — during the time of the Chinese exclusion statutes — courts were available.” Disagreeing with the Washington Legal Foundation’s Samp, he adds that the Court’s ruling is entirely consistent with the nation’s history. The retroactivity holding, he says, will affect thousands of resident aliens. “Historically, half the people eligible for the waiver have been granted,” he says. “It’s a significant number of people [who] now actually will be allowed to remain.” And, he says, “Judicial review applies across the board.” The second pair of rulings may have the more far-reaching effect, according to immigration scholars and litigators. In Zadvydas v. Davis, No. 99-7791, and Ashcroft v. Ma, No. 00-38, convicted resident aliens who were to be deported had been held in detention beyond the law’s 90-day removal period because the government could not repatriate them. They challenged the indefinite detention. Once again, a 5-4 majority said that to accept the government’s argument that indefinite detention was authorized would raise serious constitutional problems, this time under the Fifth Amendment’s Due Process Clause. To avoid that problem, the justices examined the laws and found nothing in the language or history to suggest that Congress authorized indefinite detention. TIME LIMIT Instead, the majority, led by Justice Stephen G. Breyer, held the statute implicitly limits detention to a reasonable period necessary to bring about deportation. The reasonable period, wrote Justice Breyer, is six months after the 90 days. At that point, he said, an alien can go to court and show there is no significant likelihood of removal in the reasonably foreseeable future. The government, he added, must provide sufficient evidence to rebut that showing. And the courts must take account of the executive branch’s greater immigration and foreign policy expertise. “There’s a lot of deference even in this opinion to the primacy of the political branches when it comes to setting basic rules for entry into the United States and remaining here,” says George A. Cumming Jr. of San Francisco’s Brobeck, Phleger & Harrison, who filed an amicus brief supporting the aliens on behalf of a number of immigration law professors. Disagreeing with the dissenters, Cumming says that the majority’s “significant likelihood” standard won’t be terribly difficult for courts to apply. “Courts are not without the ability to deal with complicated matters,” he says. “In this case, for example, the government came forward with affidavits from people at the State Department that explained the status of negotiations with Cambodia. I’ve seen them and read them. I can understand them. I’m sure if somebody came in from State and said, ‘We’re right on the cusp of doing a deal, give us a little time,’ the vast majority of federal judges would do it. But when they come in and say, ‘Well, we’re thinking about it; there’s always hope’ — that’s just crap.” The detention decision is “far more expansive” than the habeas review ruling, says Samp. “You could say St. Cyr was just a way for the Court to say there ought to be an opportunity for judicial review, but it didn’t suggest the answer to what review would be. But Zadvydas provided the answer — they’re creating all sorts of substantive due process rights for aliens not thought to exist before.” LOOMING ISSUE While Justice Breyer provided a road map for applying Zadvydas, Stodder says, it is still a somewhat vague standard. “We’re going to have to see how that plays out in the lower courts,” he says, adding, “A case may be back to the Supreme Court in a few years.” Zadvydas may play a role in another looming question, says Stodder: What about aliens who are not permanent resident aliens, but who, like the Mariel Cubans, are excludable aliens who washed up on American shores and are now being detained? At least one federal circuit has held that the indefinite detention of excludable aliens is unconstitutional, says Stodder. Does it matter for purposes of detention whether the alien is a resident alien or an excludable alien? asks Stodder. In a slightly different category, the Court’s ruling this term in Nguyen v. INS, No. 99-2071, also fits the justices’ pattern in the other immigration cases of cautious deference to the political branches. In Nguyen, the American father of a son born abroad out of wedlock to a Vietnamese woman challenged the different and more burdensome requirements on citizen fathers than on citizen mothers for conveying citizenship to the child. A 5-4 majority rejected the father’s claim that the requirements discriminated on the basis of gender. “The issue was whether the Court would defer to Congress,” says Martha Davis, legal director of the National Organization for Women Legal Defense and Education Fund, who argued the father’s challenge. “But the majority went right to saying, ‘We apply heightened scrutiny.’ “It certainly was less deferential than what some people argued was appropriate under the Court’s precedents, even though the Court ended up supporting Congress,” Davis says. Guttentag agrees, adding that although the context was immigration, the justices applied established equal- protection standards as it would in any gender discrimination challenge. Ultimately, he says, all of the immigration decisions “send an unmistakable message” to both Congress and the administration that they went too far in 1996. “These decisions reaffirm core principles that plenary power is not unlimited,” he adds. “To reaffirm that now, in this setting, in the face of the most recent anti-immigration legislation, is very significant.”

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