Two Supreme Court Victories for Immigrants


The Supreme Court last week issued two important immigration-related

decisions that will have a huge impact on thousands of people who are

detained and who plead guilty to crimes before the passage of the 1996

immigration laws.   The decisions involved the Illegal Immigration and

Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and

Effective Death Penalty Act (AEDPA) which had stripped immigrants who

had committed crimes many of their rights.


AEDPA made immigrants convicted of crimes ineligible for certain kinds

of relief such as waiver of deportation, a discretionary form of

administrative relief that had frequently been granted to deportable

aliens with family ties in this country or with a minor offense.  The

law also restricted judicial review for aliens in custody for various

reasons.  IIRIRA made detention mandatory and required the retroactive

deportation of non-citizens convicted of certain criminal offenses.

However, this law failed to take into account those deportees who are

stateless because they have no country to which they can return.  Thus,

when a stateless person is confined to mandatory detention pending a

deportation, the result is a potential life sentence because the

deportation cannot take place.  Both laws stripped the courts of

jurisdiction to hear legal challenges to the Immigration and

Naturalization’s Service (INS) enforcement of the new laws.


In the first immigration-related cased decided on June 25, 2001, the

Supreme Court stated that the 1996 laws should be interpreted to retain

the jurisdiction of the federal district courts to issue writs of habeas

corpus which had always been available to review the legality of the

“executive detention.”   The Court ruled that legal residents are

entitled to have their cases reviewed by a court before facing

deportation and that new deportation laws could not be applied

retroactively.  By a vote of 5-4 decision, Justice John Paul Stevens,

in the majority opinion, said that aliens who pleaded guilty under the

old law “almost certainly relied” on their right to court review “in

deciding whether to forgo their right to a trial.”  The “elimination of

any possibility of…relief has an obvious and severe retroactive

effect.” Petitioners in this case were lawful permanent United States

residents subject to administratively final removal orders because they

were convicted of aggravated felonies.  Immigration and Naturalization

Service v. St. Cyr, No.00-767.


On June 28, 2001, the Supreme Court issued yet another

immigration-related ruling pertaining to immigrants who committed crimes

and were being held indefinitely by the INS pending deportation.   In

its 5-4 decision, the Court ruled that the government cannot detain

immigrants who are seeking deportation indefinitely. Zadvydas v. Davis

  1. Kim Ho Ma, Nos. 99-7791 and 0038. The Court considered two cases,

one from the Fifth Circuit Court of Appeals and one from the Ninth

Circuit.  The Court ruled that aliens are entitled to due process

protections and that government detention violates the Due Process

Clause of the Constitution “unless it is ordered in a criminal

proceeding with adequate procedural safeguards or a special

justification outweighs the individual’s liberty interest.” In regards

to the issue of detention, the Court stated that the Immigration and

Nationality Act’s (INA) post-removal-detention provision contains

implicit reasonableness limitation.    The Court added that federal

habeas corpus statutes are available as a forum for statutory and

constitutional challenges to post-removal detention of an alien.


Furthermore, “for the sake of uniform administration in the federal

courts,” the Court recognized that the presumptive limit to reasonable

duration of post-removal period is six months.  The Court stated, “After

a six-month period, once the alien provides good reason to believe that

there is no significant likelihood of removal in the reasonably

foreseeable future, the Government must respond with sufficient evidence

to rebut that showing.”  The Court also said that Congress’ plenary

power to create immigration law and the administration’s power to

implement it is subject to constitutional limits.


Carol F.Khawly. J.D.

Kareem W. Shora, J.D.

ADC Legal Advisors