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

Cecillia Wang,
Deputy Legal Director,
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April 22, 2009

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.

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