ACLU History: Access to the Courts: The Right to Judicial Review

September 1, 2010
In the mid-1990s, several legislative acts were passed that set the stage for major violations of immigrants' rights. The 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) attempted to strip the federal courts of their historic authority to review individual deportation orders as well as Immigration and Naturalization Service (INS) adjudication and enforcement policies. These restrictions on judicial review were unprecedented and threatened one of the most essential safeguards of personal liberty in our system of government – an independent judiciary.

In response to the 1996 'court-stripping' laws, the Immigrants' Rights Project conceived and implemented a national litigation strategy to challenge the denial of judicial review. The ACLU developed legal theories that became the core of major briefs, reached out to provide support and guidance to thousands of individual immigration practitioners, mobilized leading scholars to address the rights of immigrants to judicial review, and directly litigated leading cases throughout the country. The strategy bore fruit when the ACLU won five sweeping appellate judicial review victories in 1998-99. For example, the 9th Circuit Court of Appeals ruled, in Magana-Pizano v. INS, that '[t]he elimination of all judicial review of executive detention violates the Constitution.' These victories were preserved when the ACLU persuaded the Supreme Court to deny the INS' request for review and to leave standing these crucial decisions.


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