The untold story of noncriminal habeas corpus and the 1996 Immigration Acts.

Author:Hafetz, Jonathan L.

In 1996, Congress passed and the President signed the Antiterrorism and Effective Death Penalty Act (AEDPA)(1) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),(2) which seek to curtail judicial review of final orders of deportation for legal permanent residents convicted of certain enumerated criminal offenses.(3) The acts threaten to entrust the deportation process from beginning to end to the executive branch without any opportunity for judicial review,(4) notwithstanding the practical(5) and symbolic(6) importance of judicial review in this context. The acts thus raise jurisdictional issues of great importance, and they portend a sea change in immigration law that endangers the judiciary's role in safeguarding the rights of all individuals.

As a consequence of the acts, courts arguably may be foreclosed from reviewing a range of legal questions, including whether the acts' elimination of waivers of deportation under section 212(c) of the Immigration and Nationality Act (INA)(7) for aliens convicted of certain criminal offenses(8) applies retroactively.(9) Prior to 1996, aliens found deportable could apply for relief pursuant to section 212(c) of the INA, under which immigration judges took into account a variety of favorable elements in determining whether to grant a waiver of deportation.(10) The retroactive elimination of section 212(c) relief would not only ensnare aliens convicted of minor crimes,(11) but it would also negate their ties to, and accomplishments in, the United States.(12) Moreover, while the jurisdictional provisions of the AEDPA target criminal aliens, numerous provisions of the IIRIRA apply to noncriminal aliens. Several district courts have already found that the IIRIRA narrows judicial review of the INS's denial of a noncriminal alien's attempt to stay deportation pending a motion to reconsider his deportation order.(13) In addition, the IIRIRA seeks to eliminate judicial review over all denials of discretionary relief except asylum,(14) including denials of suspensions of deportation based on the alien's continuous physical presence in the United States, his good moral character, and the degree of hardship that would result from deportation.(15)

As an initial matter, courts have addressed whether the acts eliminate all statutory jurisdiction over final orders of deportation. In the first wave of cases, courts of appeals unanimously held that the AEDPA eliminated their jurisdiction to review deportation orders directly under the preexisting petition-for-review scheme established by the Immigration and Nationality Act of 1961.(16) Several courts emphasized that the AEPDA did not raise a constitutional issue because other avenues of review remained available,(17) while other courts did not address the constitutional issues raised by the Act.(18)

Subsequently, numerous legal permanent residents sought judicial review of their deportation orders by filing habeas actions in federal district courts.(19) The district courts have adopted a two-step inquiry. First, they determine whether, as a matter of statutory construction, the acts eliminated or narrowed the scope of review under the general habeas statute of 28 U.S.C. [Sections] 2241.(20) If so, they then determine whether the acts violate the Suspension Clause of the U.S. Constitution, which provides that "[t]he 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."(21)

Virtually all courts have held that they retain habeas jurisdiction under the general habeas statute,(22) but have disagreed as to whether the acts altered the scope of review(23) Courts that have construed the AEDPA and the IIRIRA as narrowing their jurisdiction under [Sections] 2241 have nonetheless upheld the acts on the ground that they "preserve[] the balance between the Suspension Clause and Congress's plenary authority to control immigration."(24) For example, in Mbiya v. INS,(25) the district court defined the scope of review of deportation orders required by the Constitution by balancing the requirements of the Suspension Clause and Congress's plenary authority to control immigration.(26) The Mbiya court adopted this balancing test, however, without providing either a satisfactory explanation for or a discussion of the writ, other than as a generic limitation on Congress's otherwise plenary power over immigration. First, the court relied on a statement by the Supreme Court in Heikkila v. Barber(27) for the proposition that habeas review of deportation orders "`has always been limited to the enforcement of due process requirements.'"(28) The Mbiya court, however, misunderstood the Court's statement in Heikkila,(29) and indeed, the case law belies the notion that habeas has ever been limited to enforcing Fifth Amendment due process requirements in the deportation context.(30) The court then applied a balancing test similar to that used in Mathews v. Eldridge(31) to determine the scope of the constitutional writ.(32) Weighing the private interest (an individual's right to habeas corpus) against the government interest (Congress's plenary power over immigration), it determined that a "fundamental miscarriage of justice" standard should apply to habeas decisions in immigration.(33) The Mbiya court, however, failed not only to include the third element of the Mathews balancing test, the risk of erroneous decision and probable value of additional procedural safeguards,(34) but also to explain why the Suspension Clause should be collapsed into a balancing test in which the dominant component is the judicially created plenary power doctrine.

The Seventh Circuit's opinion in Yang v. INS(35) exemplifies a second approach taken by courts reviewing the acts. The court relied on past Supreme Court deportation cases to assert, in dictum, that the Suspension Clause does not encompass review of discretionary decisions or errors of law in deportation proceedings.(36) The Yang court's use of these cases, however, is both questionable and misleading.(37) Numerous cases demonstrate that the Supreme Court has reviewed deportation orders under the Suspension Clause not only for constitutional claims, but also for legal error,(38) abuses of discretion,(39) and factual findings not supported by any evidence.(40)

Although the Supreme Court has recognized Congress's plenary power over substantive immigration decisions,(41) it has maintained that this power is "subject to judicial intervention under the `paramount law of the Constitution'"(42) and that it therefore does not trump the requirements of the Suspension Clause, the Fifth Amendment Due Process Clause,(43) or the constitutionally mandated separation of powers.(44) Thus, despite past efforts by Congress to confer "finality" over administrative deportation orders,(45) habeas corpus has always been available to aliens to test the legality of those orders before an Article III court.(46)

Determining the full scope of review guaranteed by the Suspension Clause may at first seem a difficult task.(47) In part, this is because the existence of statutory habeas jurisdiction for claims of federal prisoners since the Judiciary Act of 1789,(48) the direct ancestor of [Sections] 2241, has obviated the need for the Supreme Court to engage in a sustained analysis of the constitutional writ. As a result of this difficulty, this Note returns to first principles to examine the availability and scope of judicial review guaranteed by the Suspension Clause to aliens facing deportation. Based on the Court's limited Suspension Clause jurisprudence and the history of the common law writ, it concludes that the constitutional writ not only applies to aliens facing deportation,(49) but also supports a broad scope of review over deportation orders, encompassing both constitutional and nonconstitutional claims.

Part I examines the Supreme Court's view of the relationship between the common law writ of habeas corpus and the Suspension Clause. It also discusses the Court's understanding of the purported common law rule that the writ serves only to test the jurisdiction of the committing court(50) and the related rule of the incontrovertibility of the truth of the return.(51) Part II demonstrates the common law writ's applicability to noncriminal detentions generally and to aliens in particular. It then explores the scope of review that courts exercised in noncriminal habeas cases and cases of summary criminal convictions at common law. Part Ill reexamines the 1996 legislation in light of the common law writ as constitutionalized in the Suspension Clause and explains why the writ compels a broad scope of review over deportation orders today.


    It is well established that the common law history of habeas corpus is integral to the Suspension Clause. In fact, the writ's importance and use in the United States predate the Constitution, as the early colonists "laid claim to [the writ] as one of the rights due them as Englishmen."(52) The Supreme Court first directly addressed the scope and nature of the writ in Ex parte Bollman.(53) In that case, Chief Justice Marshall unequivocally declared that "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law."(54) Similarly, in more recent cases expanding the range of claims cognizable on habeas, the Court has looked to the writ's use at common law.(55) Thus, although its view of habeas has evolved over time, the Supreme Court has never wavered from the proposition that the Suspension Clause incorporates the common law writ of habeas corpus as it existed in 1789.(56)

    The Court has consistently paid homage to the importance and value of habeas corpus historically;(57) nevertheless, it has generally articulated a narrow view of the writ's scope at common law. Throughout most...

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