The Disappearing Federal Courts
Ira J. Kurzban is a partner in the firm of Kurzban Kurzban Weinger Tetzeli and Pratt, P.A. , Miami, FL. A past president and former general counsel of the American Immigration Lawyers Association (AILA), he specializes in immigration and labor law. He is an adjunct faculty member at the University of Miami School of Law and the Nova University School of Law where he teaches immigration and nationality law and is currently general counsel in the U.S. for the Republic of Haiti.
The extraordinary changes brought about by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), thoughtfully discussed here in Kari Converse's article, create substantial obstacles to immigration lawyers, criminal defense lawyers and their respective clients. Perhaps the most sweeping aspect of these new laws is its effort to remove completely Immigration and Naturalization Service (INS) officials from judicial scrutiny. Congress began to walk down this dangerous and slippery slope in Section 440(a) of the AEDPA when it amended one of the sections of the Immigration and Nationality Act (INA) concerning judicial review. Congress amended INA 106(a)(10) to prevent any alien who was convicted of virtually any serious criminal offense from appealing to the circuit courts of appeal his final order of deportation. This provision has been upheld in virtually every circuit court that has addressed it.1 However, one court recently found that Section 440(a) of AEDPA does not repeal or preclude habeas corpus review under 28 U.S.C. 2241.2 Federal courts have also recognized that the court must have jurisdiction to review whether its jurisdiction is precluded, that is, whether the person is a deportable alien.3 Even the government has conceded in these cases that the courts of appeal (but not the district courts) have jurisdiction over constitutional claims. These issues are highly significant in light of the decision of the Attorney General in Matter of Soriano4 to retroactively prevent long-term permanent residents from seeking relief from deportation under INA 212(c). Mojica is the first case in the United States where an order was entered finding jurisdiction and determining that the Attorney General's decision in Matter of Soriano was incorrect.
Judicial Review Virtually Eliminated
The IIRIRA has taken judicial preclusion one step further. This act seeks to virtually eliminate judicial review of all immigration matters. The government, for example, has relied on recently amended INA 242(g) to argue that Congress has eliminated judicial review in most matters concerning the Attorney General. This provision states: "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." Similarly, the IIRIRA eliminates judicial review in at least 15 other places throughout the INA.
Another shocking provision in this regard is the amended INA 236(e). Here, Congress has precluded judicial review and shielded the Attorney General from any "decisions regarding detention or release, including the grant, revocation or denial of bond or parole." In short, Congress has sought to eliminate completely the writ of habeas corpus in immigration proceedings.
The issue of judicial review, obviously, has far-reaching consequences. As Judge Weinstein pointed out in his decision in Mojica, interpreting our law to preclude judicial review strikes not only at the heart of our own Constitution and particularly the writ of habeas corpus, but also our international obligations under numerous conventions and treaties. Over the next year, the issue whether Congress can abolish the writ of habeas corpus is likely to percolate up to the United States Supreme Court. In light of Felker v. Turpin,5 it is unlikely that the courts will be as jaundiced as Congress to the writ of habeas corpus.
In addition to the judicial review provisions, Congress has made certain changes in regard to judicial deportation and other forms of negotiated pleas. Under the IIRIRA, Congress has expanded judicial deportation beyond aggravated felonies to include all convictions for which a person could be deported. The U.S. Attorney may initiate the process by filing with the U.S. District Court prior to the commencement of trial or entry of a guilty plea a notice of intent to request judicial deportation. At least 30 days prior to the date set for sentencing, the U.S. Attorney with the concurrence of the INS Commissioner, shall file removal charges with the court.6 The judicial deportation procedure in general provides the opportunity for the defendant to present evidence on his behalf.
A person may also seek a judicial order of deportation by stipulation.7 The advantage of seeking a stipulated order of deportation is that the U.S. Attorney may agree to a downward departure in sentence if deportation is agreed to by the defendant. Although Congress appears to have abolished the right of judicial deportation as a condition of supervised release, it does permit a federal judge or magistrate to order the deportation of a person as a condition of probation.8
The Attorney General under the new law is also authorized to deport someone prior to the completion of their criminal sentence where the person is determined to be a non-violent offender.9 If the person is in federal custody he may obtain early removal if the Attorney General determines that it is in the best interest of the United States and he is not confined for alien smuggling or certain other aggravated felonies, including drug trafficking, arms trafficking, certain firearms offenses and child pornography. If he is in state custody he may obtain early removal if he submits a written request to the Attorney General, the Attorney General determines it is in the best interest of the state to remove him, and he has not been convicted of arms trafficking or certain firearms offenses. The act specifically precludes a private right of action by the defendant.10
Negotiated Pleas
In addition to these changes, the Attorney General has made certain critical changes in regard to negotiated pleas. On September 13, 1996, the Attorney General published in the Federal Register11 a provision that recognized that the INS would not be bound by any pleas or agreements negotiated by a U.S. Attorney's Office that affect immigration matters, unless the U.S. Attorney received authorization from the INS Commissioner or the INS Commissioner's delegate and the authorization is in writing and attached to the agreement.12 Thus, criminal defense lawyers should be aware that any agreement made with a U.S. Attorney is not binding on the INS unless the INS is at the table and an authorization has been obtained from the INS Commissioner or her delegate.
Notes
1. See, e.g., Boston-Bollers v. INS, 106 F.3d 352 (11th Cir. 1997) [and cases cited therein]; Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996); Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996).
2. Mojica v. Reno, Case No. 97 CV 1085 (JBW), ___ F.Supp. ___ (E.D.N.Y. June 24, 1997) (Weinstein, J.).
3. Anwar v. INS, ___ F.3d ___ (5th Cir. June 16, 1997); Yang v. INS, 109 F.3d 1185 (7th Cir. 1997).
4. Int. Dec. #3289 (AG Feb. 21, 1997).
5. 116 S. Ct. 2333 (1996),
6. INA 238(c)(2)(B).
7. INA 238(c)(5).
8. 8 U.S.C. 3563(b)(21).
9. INA 241(a)(4)(B), 8 U.S. . 1251(a)(4)(B).
10. 8 U.S.C. 1251(a)(4)(D).
11. (61 Fed. Reg. 48,405).
12. 28 CFR 0.197.
