ACLU Revised Interested Persons Memo Opposing the Anti-Immigrant Court-Stripping Provisions in the House Leadership Bill to Implement Recommendations of the 9-11 Commission

Document Date: September 27, 2004

To: Interested Persons

From: Timothy H. Edgar, legislative counsel

The Republican leadership of the House of Representatives has included extraneous anti-immigrant court-stripping provisions in H.R. 10, the so-called “”9-11 Commission Recommendations Implementation Act.”” These provisions would strike at the heart of our system of checks and balances by restricting the ability of federal courts to correct unlawful government action in immigration cases through the “”Great Writ”” of habeas corpus. They have nothing to do with any recommendation of the 9-11 Commission and should be rejected.

The court-stripping provisions are drawn from so-called Fairness in Immigration Litigation Act (S. 2443 and H.R. 4406) (FILA). Supporters insist FILA is a modest measure designedly only to streamline immigration litigation without affecting the substantive rights of non-citizens. In fact, FILA is a radical overhaul of important federal laws guaranteeing persons in immigration proceedings access to the courts and ensuring review of unlawful government action. If passed, FILA would give “”fairness”” a bad name.

These court-stripping provisions, drawn from FILA, seriously weaken the judicial review process in immigration proceedings, even going so far as to explicitly forbid, in some cases, access to the constitutionally-mandated “”Great Writ”” of habeas corpus. These provisions contradict international law and violate the United States Constitution. They take away important powers from the federal courts and provide, at least in some cases, merely the illusion, not the reality, of judicial oversight of immigration matters.

Section 3007 — Raises burden of proof for asylum-seekers and forces them to return to face persecution if they cannot “”corroborate”” claims with documents or other evidence.

Section 3007 is drawn from section 5 of FILA. It does not, as the sponsors claim, merely codify the requirement in asylum cases that applicants bear the burden of proof, but instead substantially raises the standard for establishing asylum. Under current law, an asylum seeker must show persecution, but that the persecution was based on the asylum applicant’s race, religion, nationality, or membership in a particular social group. INA § 101(a)(42)(A). Sometimes persecution may result from multiple motives – for example, a dissident might face a criminal charge for an offense that is a pretext for punishing an individual for his political opinion. The Board of Immigration Appeals has held that, in these cases, persecution must be in part motivated by one of the grounds for asylum. Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996).

Section 3007 dramatically raises this standard, requiring asylum applicants to prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be the “”central motive”” for the persecution. This newly proposed “”central motive standard”” is a burden that many persons fleeing persecution will not be able to prove. Such a standard, if it had prevailed in the past, would have sent many deserving refugees back to face persecution or even death. For example, a Tibetan monk who faces a sentence to forced labor in a Chinese labor camp would have to show not only that the sentence was motivated “”in part”” by the monk’s ethnicity or religion, but was the “”central motive.”” If the “”central motive”” was, instead, to provide profit for the company that uses the forced labor, the monk would be ineligible for asylum. The amendment flies in the face of the UN Convention on the Protocol and Status of Refugees as well as the Congressional attempt to afford a generous standard for protection in cases of doubt to comply with the UN Convention.

Section 3007 also will create insurmountable evidence barriers for some asylum petitioners. Under current law, the testimony of the applicant – if credible – may alone be sufficient to sustain the burden of proving refugee status. The corroboration of other witnesses, documents, or forms of proof are not necessary for the obvious reason that it may be very difficult for a person fleeing a repressive government to obtain such proof. The proposed language allows a judge to require a petitioner to produce corroborating evidence “”unless a reasonable explanation is given as to why it is not provided.”” The result is to force the asylum applicant not only to bear the burden of establishing asylum, but to bear an additional burden of explaining the absence of corroborating evidence.

The bill then insulates a decision to require corroboration from judicial review by providing that a federal court may not reverse a decision about the availability of evidence unless the reviewing court finds that a “”reasonable adjudicator is compelled to conclude”” that the evidence is unavailable. This amendment requires excessive deference in asylum cases, reversing the rule in most federal circuits that requires a “”specific cogent”” reasons for an adverse credibility finding. For example, a federal courts could be prevented from reversing an arbitrary denial of asylum on credibility grounds that resulted from an exhausted woman’s failure to discuss a deeply personal issue, such as a sexual assault by a government official, with an immigration inspector at the airport. This requirement also ignores the fact that corroboration is impossible to attain as “”flight or defection from a country that engages in widespread persecution leaves refugees in an already difficult situation.”” Wiransane v. Ashcroft, 366 F.3d 889 (10th Cir. 2004).

The bill’s sponsors say that section 3007 ensures the burden of proof in asylum cases is on the applicant. The burden of proof already rests with the applicant. The bill is really attempting to raise the bar for asylum claims, and make it more difficult for asylum seekers whose claims are mistakenly rejected to correct those mistakes on appeal.

Section 3009 – Barring, in some circumstances, access to the constitutionally-guaranteed “”Great Writ”” of habeas corpus.

Section 3006 of the House leadership bill is drawn from section 2 of FILA. The language, in certain cases, specifically precludes review of immigration decision by habeas corpus, barring access to the constitutionally-guaranteed “”Great Writ.”” These restrictions will affect a large number of cases involving non-citizens, including long-term, lawful permanent residents. Contrary to the claims of the bill’s sponsors, these cases are not limited non-citizens who are facing removal after completing criminal sentences, but also include a wide array of other claims including claims involving discretionary humanitarian waivers of deportation in cases of “”extreme hardship,”” such as a non-citizen who is the sole breadwinner for a disabled United States citizen child.

If the bill is enacted, the constitutionally-compelled remedy of habeas corpus will be eliminated, and a plainly inadequate court of appeals review will be substituted that will leave many non-citizens without a forum to raise legitimate claims of governmental error or misconduct. At the same time, the bill creates an extremely high burden for obtaining a stay of deportation – inviting the government to race to deport non-citizens before a federal court can rule on the merits of the case.

Restrictions on “”Great Writ”” of Habeas Corpus. The sponsors argue limitation on the right to file a writ of habeas corpus merely ensures that all appeals to the federal courts in these cases will be channeled to the federal courts of appeals, which is where immigration appeals that are not barred are heard, and does not affect the right of non-citizens to judicial review. That is not true. In fact, the limitations on review in section 3006 go much further. They do not merely address the issue of which court can hear claims of unlawful government action, but whether certain claims can be made at all.

The problem the sponsors seek to address is one that Congress itself created in an earlier, misguided effort to restrict judicial review of deportation proceedings. Legislation adopted in 1996 amended the Immigration and Nationality Act (INA), stripped the power of the federal courts of appeals to review on a “”petition for review”” in a number of immigration cases, including those many claims involving discretionary relief and criminal convictions.

The Supreme Court reviewed the 1996 law’s restrictions on judicial review in 2001, and decided that “”serious constitutional questions”” would be presented by a law that would strip the federal courts of power to review unlawful government actions. INS v. St. Cyr, 533 U.S. 289, 314 (2001). The Supreme Court avoided these questions by ruling that the law’s limitations on the typical form of judicial review in immigration cases – a “”petition for review,”” filed directly in a federal appellate court – did not bar review by habeas corpus. Id. The Supreme Court also decided that, where a writ of habeas corpus is sought to review the conduct of immigration officials, it should be filed in the district court – the normal procedure in habeas cases. Id. at 313-14, nn. 37 & 38.

The sponsors note that the 1996 laws, as interpreted in St. Cyr, have resulted in a situation in which judicial review in most immigration cases goes to straight to the federal appellate courts – whose decisions are final unless the Supreme Court agrees to review them – while some immigrants may obtain review by a writ of habeas corpus in the district court. As a result, they argue, habeas cases provide review by two courts – “”more”” review – because an adverse decision by the district court on a habeas petition may be appealed as of right to a federal appeals court.

In fact, habeas cases do not truly provide “”more”” review. In fact, the scope of review is much narrower. And of course, the final word in habeas cases – just as in the ordinary immigration cases involving a “”petition for review”” – still comes from the federal appeals court, unless the Supreme Court intervenes, even though habeas cases start in the district court. If the sponsors were genuinely interested only in channeling claims that, as a result of the 1996 laws, may now be heard in federal district court directly to the courts of appeals – and not in restricting the scope of judicial review – the solution would be straightforward.

The bill could simply repeal the misguided restrictions on judicial review in the 1996 laws, ensuring that all immigrants, without exception, have a full and fair opportunity to present their claims to a federal appellate court on a “”petition for review.”” Repealing the 1996 restrictions would put an end to litigation over the differences between the scope of judicial review on a “”petition for review”” and the more limited scope of review on a writ of habeas corpus. It would instead make available to all persons who face detention and deportation a timely, meaningful appeal to federal court under a single deferential, but fair, standard of review.

Restoring direct judicial review in the federal appeals courts would be constitutional and fair if it provides at least the same review that is available in habeas cases now. The Supreme Court made clear in St. Cyr that “”Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals.”” Id. at 314 n.38 (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)).

Instead, the legislation provides a plainly inadequate substitute. The legislation’s substitute for habeas corpus review in the district court is inadequate because it goes beyond directing which court may hear a claim. While it preserves the specific kind of claims directly at issue in St. Cyr – constitutional questions and pure questions of law, involving the interpretation of federal statutes, that are otherwise barred by the 1996 laws’ judicial review restrictions – it bars other claims that have historically been available in immigration cases on habeas corpus. These include:

  • Claims involving “”mixed questions”” of law and fact. While St. Cyr involved a “”pure question of law,”” habeas corpus review in immigration cases has historically been available to test the validity of deportation orders, and to correct unlawful action involving a mixed question of law and fact, such as those involving the application of the law to issues of discretionary relief. See id. at 301 n.30. By limiting the review it preserves only to pure questions of law like that at issue in the St. Cyr case itself, the bill specifically precludes review of such mixed questions even if they have long been regarded as within the scope of the what is the admittedly narrow review available on habeas.
  • Certain claims for relief under the Convention Against Torture. The bill specifically bars any review on habeas corpus alleging a violation of the Convention Against Torture, restricting such review to the courts of appeals. The Convention bars the United States from sending a person to a country if the person would likely be tortured as a result. Habeas corpus has always been available to test violations of the “”Constitution or laws or treaties of the United States,”” 28 U.S.C. § 2241 (emphasis added). Congress has also enacted legislation giving effect to the Torture Convention through the Foreign Affairs Reform and Restructuring Act of 1998. See Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3rd Cir. 2003) (holding Torture Convention claims can be heard on a writ of habeas corpus, joining three other circuit courts in doing so). Specifically excepting some Torture Convention claims would thus violate both the United States Constitution and international law. While Torture Convention claims could be heard by the court of appeals in ordinary circumstances, habeas corpus must remain, as it always has been, the last remedy to prevent serious injustices where such review is barred for whatever reason, so that a federal court may intervene and prevent the deportation of a non-citizen facing torture in the country to which he or she is being sent.
  • Virtually all claims of unlawful use of “”expedited removal procedure.”” The bill bars virtually all court review, including by habeas corpus, of even the most egregious misconduct involving non-citizens who are subjected to “”expedited removal.”” These currently include non-citizens arriving at the airport with documents an officer thinks are improper and anyone arriving by sea. The statute also allows expedited removal to be used even for non-citizens who not at the border if an official decides they were not admitted lawfully and have been in the country for less than two years; currently, a pilot project will apply this rule to persons within 100 miles of the border whom an officer believes has been in the country less than 14 days. The federal courts are barred entirely unless the person can show he or she is in fact a citizen, lawful permanent resident, or has been granted asylum or refugee status. Already, the hurdles for any form of judicial review of “”expedited removal”” are extremely high because access to counsel is usually difficult or impossible. This bill would bar such review almost entirely. A woman facing persecution in Iran, or a Sudanese fleeing genocide, who arrives with documents an inspector believes are questionable could be sent back without any hearing and without even the possibility that a federal court could hear a claim of government misconduct even on application for a writ of habeas corpus.
  • Manifest injustices caused by fraudulent or incompetent assistance of counsel. Immigrants can often be victimized by unscrupulous persons who charge high fees but are not qualified or competent in their representation. As a result, they may lose their right to court review of their cases from missed filing deadlines or other actions completely outside their control. Today, where such claims present serious injustices, a federal court may be able to provide a safety valve to correct unlawful action by way of habeas corpus even if ordinary judicial review is barred because of the negligence of another. If the bill passes, this avenue will be barred.

The bill not only forecloses habeas corpus review in those cases where a “”petition for review”” is barred under section 242(a)(2) of the INA – it goes much further by redefining “”judicial review”” and “”jurisdiction to review”” throughout the Immigration and Nationality Act to include review by habeas corpus. This is a radical departure in immigration law, because it changes the longstanding, historical meaning of “”jurisdiction to review”” and “”judicial review”” – “”terms of art”” that have been long interpreted in immigration matters as distinct from review by writ of habeas corpus. See St. Cyr at 312 n. 35. This section would redefine the meaning of these terms to explicitly forbid access to the “”Great Writ”” for all claims where “”judicial review”” or “”jurisdiction to review”” is barred, dramatically altering at least thirteen separate provisions of the Immigration Act that affect agricultural workers, asylum petitioners, non-immigrants and others. In these cases, habeas review must be available as a safety valve. The Constitution demands court review for all actions that affect the liberty of persons detained by the government.

After barring these claims, the legislation explicitly bars the federal courthouse doors to any alternative appeal through the “”Great Writ”” of liberty. In so doing, the bill violates the Constitution, which provides that “”the Privilege of the Writ of Habeas Corpus shall not be suspended”” except in cases of “”Rebellion or Invasion.”” U.S. Const. art. I § 9. The Supreme Court has held that the Constitution requires any substitute remedy for habeas corpus to be “”neither inadequate nor ineffective to test the legality of a person’s detention.”” See Pressley at 381.

Restrictions on Ability to Obtain Stay of Deportation. The bill does not merely restrict the availability of judicial review, it also weakens the ability of the federal courts to prevent unlawful deportations by limiting the courts’ power to grant stays of deportation. The bill does so by imposing a very high “”clear and convincing evidence”” standard to obtain a stay in all cases – even in cases where the standard for reversal on the merits is less demanding. As one federal appeals court made clear, this would require full scale emergency briefings and “”effectively require automatic deportation of large numbers of immigrants with meritorious claims.”” Andrieu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001). This “”absurd”” result, according to the court, would not be “”at all sensible as a matter of judicial administration.”” Id.

The Supreme Court has affirmed that some judicial intervention in deportation cases is unquestionably required by the Constitution. See St. Cyr, Heikkila v. Barber, 345 U.S. 229 (1953). The bill seeks not merely to direct appeals to the federal appellate courts, but to close the courthouse door entirely for some categories of cases. Even in those cases where the door is left open, the bill makes the promise of judicial review hollow by limiting the power of a court to stay a deportation pending review. As a result, the bill is unconstitutional and should be rejected.

Section 3035 – Allows the government to deport a person to a country with no workable government, or whose government refuses to accept that person.

Section 3035 is drawn from section 4 of FILA and eliminates the statutory requirement that a receiving government must accept a person before the United States may send them to that country. The proposed amendment provides that removal can occur, regardless of the receiving country’s acceptance, “”unless the country physically prevents the alien from entering the county upon the alien’s removal there.””

“”For nearly half a century the courts have held that the US cannot deport an alien unless the receiving country advises it is willing to accept the alien.”” Ali v. Ashcroft, 346 F.3d 873, 882 (9th Cir. 2003). One federal appeals court has recently departed from that longstanding precedent, and the Supreme Court has agreed to hear that case in late 2004. See Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted 124 S.Ct. 1407 (2004).

The issue before the Supreme Court is whether the government may deport Somalis to Somalia, despite the fact that it lacks a functioning government that can accept them. According to the Department of Homeland Security, “”Major regions of the country are under the control of bandits and the population is beyond the reach of the rule of law.””[1] The amendment attempts to short-circuit the Supreme Court case to decide the issue in the government’s favor.

This amendment would be unworkable, inhumane and could seriously harm international relations. The standard of country acceptance ensures that deportation is an orderly process that operates within the rule of law. The bill facilitates deportation to a “”failed state”” that lacks a government, a country that is hostile to the United States and refuses to accept its nationals, or a country that does not agree with the decision of the United States that a particular person is a national of that country.

The requirement of a functioning government that is capable of giving its consent to accept a person being deported is basic principle of international human rights law. A necessary condition to any regime of human rights is a functioning government that is capable of enforcing basic human rights throughout its territory. As a result, any rule that would dispense with the requirement of a functioning government violates fundamental international law, and would violate United States treaty obligations under a number of international instruments.[2]

Deportations to “”failed states”” that lack a functioning government would allow the government to dump people in an essentially lawless environment, worsening the dire conditions in that country while endangering those whom the government has deported. The standard also invites those governments who do not wish to receive deportees to attempt to “”physically prevent[]”” the deportation, inviting violence against the deportees and the United States. The standard is also inhumane, as deportees whose government refuses to accept them are likely to detain or otherwise abuse them if they manage to be returned.


Clearly, these restrictions are not mere technical corrections to the immigration statutes to streamline court review. Rather, they involve a radical overhaul of our system of checks and balances that does serious damage to vital constitutional and human rights protections for asylum-seekers and other non-citizens. The legislation makes the promise of fair judicial review for non-citizens an empty one. The bill substitutes ineffective remedies for effective ones, and short-circuits an important Supreme Court case about the legality of deportations to Somalia and other failed states. Much of the litigation to which the sponsors object is the direct result of Congress’s own earlier misguided attempts to limit judicial review in the 1996 immigration laws.

These restrictions have nothing to do with any recommendation of the 9-11 Commission and should be rejected.

[1] Extension of the Designation of Somalia under Temporary Protected Status Program, 68 Fed. Reg. 43,147 (July 21, 2003).

[2] See Brief Amici Curiae of International Human Rights Organizations and International Law Professors in Support of the Petitioner, Jama v. INS, No. 03-674 (US May 18, 2004).