Supreme Court Says "No" to Government Effort to Deprive Immigrants of Fair Day in Court

Today the Supreme Court rejected the government's effort to deprive immigrants seeking review of a removal order of a fair day in court. In Nken v. Holder, the Court considered the proper legal standard governing an immigrant's application for a stay pending court review of an administrative removal order: Should the immigrant have to show “clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law”? Or does the immigrant have to meet the lower traditional standard for preliminary relief, which is based on a balancing of factors in the case, including whether the petitioner is likely to win at the end of the day and whether he will suffer irreparable harm without the temporary relief?

To put it in plain English: After an immigrant gets ordered deported by an administrative immigration court, he petitions a federal court if he thinks the immigration court got it wrong. At the beginning of such cases, the immigrant always asks the federal court to issue an order freezing the removal order, to make sure that the government doesn't send him away before the court can decide the case. Nken is about how hard it is to get that temporary order freezing the status quo.

This may seem like a technical question that only a lawyer could find interesting. But it can actually be a matter of life and death. If the government had its way in Nken, an immigrant who has been ordered deported by the administrative immigration courts would have to meet a higher standard to get a temporary order delaying the deportation until after the U.S. Court of Appeals has a chance to look at the case, than to win the case itself. The government cavalierly argued that immigrants could always keep their cases going after they were deported — but this ignored the fact that many immigrants are seeking court review precisely because they face torture or other persecution upon deportation to the foreign country. In such cases, by the time the immigrant has “won” his case in court, he will have an empty victory indeed. As Chief Justice Roberts noted in the Court's opinion today, “[t]he choice for a reviewing court should not be between justice on the fly or participation in what may be an 'idle ceremony.'”

Thankfully, the Supreme Court rejected the government's argument and ensured that immigrants will have their day in court. As the ACLU explained in its amicus brief on behalf of law professors who are experts in immigration and federal jurisdiction, such court review is guaranteed by the Constitution. And as a practical matter, it is absolutely essential that U.S. judges review the work of the administrative immigration courts. As countless commentators including a U.S. Court of Appeals have pointed out, the immigration courts are overburdened and extremely error-prone. For that reason, our American system of justice ensures that the federal courts will check the administrative agencies' work. The Supreme Court's decision today in Nken upholds the basic American ideal that no person should have his liberty taken away by the government without at least a fair day in court.

Add a comment (9)
Read the Terms of Use


Where does the Immigrant? stay during this time. Are they held or are the release to melt back into society so they go through this every time they are picked up? How many times can they do this?


I wonder if the ACLU fought this hard for the children of American soldiers who did not make it out of Vietnam? They were and are our children, our children and certainly deserved better than strangers.


I live in Colorado and I don't understand why the ACLU is so concerned with illegal Alien rights to privacy and yet the ACLU does nothing to protect the rights of U.S. citizens rights to privacy when their identities are stolen by illegals. Since when do citizens of this country are not as important as someone who comes in this country, steals someone's social security number? Are you people trying to destroy our country? I hope this orginization goes down the tubes. You certainly don't care about my rights!
Shame on you and although you don't believe, I hope GOD will forgive you for what you are doing to our country. You and those like you are turning it into something that our founding fathers would be appauled over. Love how you call them immigrants, instead of illegals. You people are sick and of course just so politically correct.

Disgusted in Colorado


It must be a real pain for folks at the spend so much time and effort to protect the freedom of speech of fanatics only to be spat upon by those same idiots.
Personaly I think the organisation is doing important work even if the Wing Nuts think they eat babies for breakfast.

free speech

Supreme Court agrees to hear case on dogfighting videos
April 25 2009 at 3:41 AM
No score for this post DOGMAN
Supreme Court agrees to hear case on dogfighting videos

Tuesday, April 21, 2009
About the writer

Jason Cato can be reached via e-mail or at 412-325-4301.
Home Delivery

Subscribe to our publications

The Supreme Court announced Monday it will review a Pittsburgh case pitting dogfighting videos against free-speech rights.

In January 2005, Robert J. Stevens of Pittsville, Va., became the first person convicted under a federal law prohibiting the sale of materials depicting animal cruelty when a jury found him guilty in U.S. District Court, Downtown. Senior U.S. District Judge Alan N. Bloch sentenced Stevens to 37 months in prison.

In a 10-3 vote, the 3rd U.S. Circuit Court of Appeals in July deemed the law to be an unconstitutional restriction on free speech and vacated Stevens' conviction.

The Department of Justice wants the conviction reinstated, which would require the Supreme Court for the first time in 27 years to declare an entire category of speech unprotected by the First Amendment. The high court ruled in 1982 that certain sexual depictions of children are not protected by free speech.

Oral arguments are expected in the court's next term, which begins in October.

The Justice Department declined to comment. Stevens' lawyer could not be reached. He is being represented by the federal public defender's office in Pittsburgh.

Congress in 1999 made it illegal "to create, sell or possess videos depicting animal cruelty with the intention of profiting financially from them." The primary reason behind the law was to ban "crush videos," which depict women in bare feet or wearing heels stomping on animals to inflict pain or death.

The federal law does not criminalize the act of animal cruelty -- which is addressed by state laws nationwide -- and allows exemptions for materials deemed to have "serious religious, political, scientific, educational, journalistic, historical or artistic value."

Federal agents in Western Pennsylvania ordered three videos Stevens advertised in "Sporting Dog Journal," an underground dog-fighting magazine. Two of the videos include footage from the 1960s and '70s showing organized dog fights in the United States and Japan, a country where dog fighting is legal. The third video shows pit bulls used to hunt wild boar and includes footage of a dog mauling a farm pig.

Stevens argued in his appeal that the federal law was unconstitutionally vague and overbroad because it criminalized depictions of conduct that was either legal or happened before dogfighting was outlawed, prosecuted people who did not take part in the underlying conduct or could be extended to hunting and fishing violations.

Justice Department lawyers said dog-fighting videos should be barred the same as child pornography, which is not protected by free-speech rights.

Bloch declined to comment on the Stevens case. He did not recall the Supreme Court taking a case he handled at the district level, where he became a judge in 1979. He said the Supreme Court once affirmed a decision he helped make while serving as a visiting judge on the 3rd Circuit.


Good for the supreme court. Finally they are following our laws and getting these illegals out of our country. If these illegal aliens want to live in our country then do it legally and don't break our laws. No illegal immigrant has a right to our court system period.


Well that is what free speech is all about! Welcome to the real world.
I might not like what you say but I will defend it to the death. I wonder if you would be willing to do the same?


Why would anybody buy what the ACLU has to offer? After all, they support the stomping of small animals for pleasure "First Amendment" rights. Go get killed.


Shame on ACLU! What next, support dissipating the depiction of other illegal acts: child pornography, murder of humans as well.

Sign Up for Breaking News