September 1, 2010
In 2001, the ACLU achieved historic victories in its five-year battle against the court-stripping provisions of the 1996 immigration laws, 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Two cases argued by Immigrants' Rights Project (IRP) Director, Lucas Guttentag, INS v. St. Cyr and Calcano v. Martinez, resulted in landmark rulings by the Supreme Court that upheld the fundamental right of non-citizens to challenge the legality of governmental action in a judicial forum and rejected the government's argument that the Attorney General was vested with unilateral authority to order an immigrant's deportation.
In the historic decisions, authored by Justice John Paul Stevens, the Court explicitly affirmed that judicial review of a deportation order is constitutionally required under the Suspension Clause of the Constitution that guarantees the writ of habeas corpus and that this right had not been and could not be extinguished by Congress. The Court squarely rejected the position of both the Clinton and Bush Administrations that the IIRIRA and AEDPA amendments gave the Attorney General unilateral authority to deport non-citizens without judicial review. This ruling became a critical building block in the Supreme Court's later ruling Boumediene v. Bush that upheld the right to habeas corpus for post-9/11 detainees held at Guantánamo.
Also at issue in the St. Cyr decision was whether the Attorney General could apply the 1996 mandatory deportation provision retroactively. For decades prior, longtime legal residents convicted of minor criminal offenses that made them vulnerable to deportation were eligible to apply for a waiver of deportation. This gave them the possibility of preserving legal resident status based on an individual evaluation of their specific circumstances. IIRIRA severely restricted eligibility for the waiver; and the severity of this change was increased exponentially when the Clinton Justice Department decided to apply the no-waiver rule retroactively to all longtime legal residents including those whose conduct had been exemplary for decades since pleading guilty to a minor offense. The ACLU challenged the retroactive application of the harsh new waiver-elimination law and the Supreme Court held that laws governing immigrants are subject to the same historic presumption against retroactivity as all other new legislation. As a result, thousands of longtime legal residents many who had lived in the United States for decades were once again eligible to apply for a waiver of deportation.