Some Hope For Aliens

Immigration law has long been a specialty in which relatively few lawyers, members of Congress and even federal judges have true expertise. In 1996 Congress greatly increased the complexities of this body of law by enacting two statutes: the Antiterrorism and Effective Death Penalty Act (AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). If the acronyms look daunting, they are as nothing compared with the actual text of these and other relevant statutes.

At the end of June, the U.S. Supreme Court wrestled with deportation and detention statutes in two important cases. The good news is that the court’s judgments resulted in at least a temporary alleviation of unjust hardships created by the executive department’s interpretations of certain sections of these laws.

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In the first case, Enrico St. Cyr, an alien, was a lawful long-time U.S. resident. He pled guilty to a drug crime that made him deportable. At the time he entered into the plea bargain, the U.S. attorney general had authority to grant a waiver of deportation, and frequently did so in situations like St. Cyr’s. No removal proceedings were brought against St. Cyr until after the effective dates of AEDPA and IIRIRA. When St. Cyr sued in federal court, the attorney general claimed that the statutes had withdrawn the authority to grant a waiver in cases like St. Cyr’s. Moreover, the attorney general contended that no federal court had jurisdiction to review the executive department’s interpretation of the law.

Five justices, however, read the statutes differently. They did not hold that the attorney general had to waive a deportation order against St. Cyr. They did hold that the attorney general had to consider whether to waive such an order in St. Cyr’s case. Neither did the majority hold that Congress could not do what the attorney general interpreted the statutes as having accomplished. But to accomplish those purposes, Congress must amend the statutes to make its intention unmistakably clear.

Lacking that clear direction from Congress, the majority followed the court’s tradition of interpreting federal statutes as safely within the boundaries of Congress’s powers in three areas: the jurisdiction of federal courts, the suspension of the writ of habeas corpus and the enactment of laws with retroactive effects.

In the second case, on the final day of its term and just three days after the St. Cyr decision, the court held 5 to 4 that Congress had not authorized the indefinite detention of an alien who had been a lawful resident of the United States but who had been ordered deported because he had committed many crimes. The deportation order against Kestutis Zadvydas could not be carried out because none of the related countries would accept him.

Again, the court stopped short of saying that Congress could not authorize permanent detention of a person like Zadvydas. Since, however, such a law would raise substantial constitutional questionsabout deprivation of physical liberty without proper justification and careful procedural protectionsthe court read the statute as permitting detention only for a reasonable time to make sure that deportation was in fact impossible. After that time the alien would have to be released but could be kept, like a parolee, under reasonable supervision.

On the surface, the liberal wing of the court prevailed in both cases: in St. Cyr because Justice Kennedy joined the four usually identified as liberals, and in Zadvydas because Justice Sandra Day O’Connor joined them. In highly controversial and complex cases like these, the votes of Justices O’Connor, Kennedy and David Souter usually prove critical. This fact, however, does not mean that these justices control the court. Every justice’s vote has the same value. Attorneys preparing briefs for the Supreme Court pay special attention to Justices O’Connor, Kennedy and Souter, but they cannot ignore the other six. Three does not equal five.

The critical question now is how should Congress respond to these decisions? The court decided only what Congress did donot what it could or could not do. To avoid serious constitutional questions, the court interpreted certain sections of the alien statutes in a manner more favorable to certain classes of aliens than Congress may have intended. If Congress amends the statutes to make them mean what the court said they do not yet mean, the aliens will sue again, and the court will have to resolve the difficult constitutional questions.

There are no compelling reasons why Congress should create this confrontation. And there are compelling reasons of basic human justice why Congress should not do so. Aliens are a significant and productive part of our national population. They deserve much more carefully tailored treatment than the statutes currently provide. As Justice Kennedy said in his powerful dissent in Zadvydas: The aliens’ claims are substantial; their plight is real.

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