December 26, 2008

Whether federal law can be construed to make it more difficult for an alien facing removal from the country to obtain a temporary stay pending judicial review of the agency decision than to obtain a final judgment reversing the removal order. 

An alien facing removal from the country as a result of an administrative order has a constitutional right to challenge the basis for that removal in court. Furthermore, the judicial review process that Congress provides must, at a minimum, meet the standards that would traditionally have applied in a habeas corpus proceeding. In an amicus brief filed on behalf of a group of distinguished law professors, the ACLU argues that a legal standard that does not ensure that the alien will be protected from harm pending judicial review cannot be described as an adequate substitute for habeas corpus, and thus violates the Suspension Clause.

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