Calcano-Martinez, Deboris, et al. v. INS (06/25/2001)

By: Lauren Dunn & Lynn Corney, Medill News Service

Questions presented

1) Did the appeals court correctly conclude that, under 8 U.S.C. @ 1252(a)(2)(C), it lacked jurisdiction over Calcano-Martinezs appeal of orders to be immediately deported, though it allowed review through habeas corpus relief? (2) Does the 1996 Illegal Immigration Reform and Immigrant Responsibility Act violate the suspension of habeas corpus clause, Article III, or due process clause of 5th Amendment if they preclude all review of Calcano-Martinez's constitutional or statutory claims?

Brief

Deboris Calcano-Martinez has been a legal, permanent resident of the United States since 1971, when she came from the Dominican Republic as a 3-year-old.

She has raised four children here, all U.S. citizens, and she has also pled guilty here to attempting to sell heroin.

That conviction in New York could send her back to the Dominican Republican if the U.S. Immigration and Naturalization Service has its way.

After Calcano-Martinez was sentenced to one-to-three years in prison, the INS began deportation proceedings against her under immigration laws that authorize the deportation of aliens convicted of an aggravated felony or convicted of a violation of a controlled substance law.

The 1996 immigration law -- the Illegal Immigration Reform and Immigrant Responsibility Act -- allows the INS to seek immediate deportation without judicial review.

Calcano-Martinez appeared before an immigration judge in June 1997 and was ordered back to the Dominican Republic.

Her appeal to the Board of Immigration Appeals was dismissed.

While her appeal to the 2nd Circuit Court of Appeals was pending, she also filed a habeas corpus petition in U.S. District Court. That petition was dismissed pending a decision by the federal appeals court.

In the 2nd Circuit, Calcano-Martinez's case was consolidated with two others, both of which also involved orders to deport legal aliens who had been convicted of crimes in the U.S.

On Sept. 1, 2000, a unanimous 2nd Circuit panel sided with Calcano-Martinez, holding that although the federal courts are precluded from directly reviewing the deportation order, they are not precluded from considering the ""purely legal claims"" as a matter of habeas corpus relief.

Citing its 1998 opinion in Jean-Baptiste v. Reno, the court concluded that the 1996 Antiterrorism and Effective Death Penalty Act, as well as IIRIRA, did not repeal the habeas jurisdiction granted to federal courts by Congress to review challenges to final deportation orders.

""Nothing in the language of either the [AEDPA] or [IIRIRA] suggests that Congress expressly repealed [habeas jurisdiction], limited its scope, or eliminated the jurisdiction of the district courts under that statute to entertain petitions seeking writs of habeas corpus.""

The court added that decisions made by the 3rd and 9th federal circuits ""held that IIRIRAs permanent rules do not use language explicit enough to repeal a federal courts habeas jurisdiction to review final removal orders.""

In so holding, the 2nd Circuit indicated that it was following decisions issued by the 3rd and 9th federal circuits.

On Jan. 12, 2001, the U.S. Supreme Court granted certiorari in the case, and ihttp://docket.medill.northwestern.edu/archives/000542.phpn INS v. St. Cyr, another immigration case decided on Sept. 1, 2000 by the 2nd Circuit Court of Appeals. St. Cyr is docketed as 00-767.

On June 25, 2001, the Court held 5-4 that the government could not deny court hearings to immigrants who pleaded guilty to crimes before the enactment of the 1996 provisions in the federal immigration law.

The Courts brief opinion in Calcano-Martinez was issued the same day as its companion opinion in INS v. St. Cyr. In that case, the Court also divided 5-4.

In Justice John Paul Stevens brief majority opinion, he concluded that although Calcano-Martinez and other resident aliens were not entitled to direct review by the federal courts, they were entitled to habeas relief, along the lines set out in the St. Cyr opinion.

In St. Cyr, Justice Steven wrote for the majority that barring courts from reviewing claims of resident immigrants like St. Cyr (and Calcano-Martinez) would raise ""substantial constitutional questions."" Also Stevens said, Congress did not make its intent clear in the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act to strip courts of its traditional habeas jurisdiction that dates all the way back to 1789 when the Constitution was ratified, with the following Suspension Clause in Article I, §9: ""The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.""

""In England prior to 1789, in the Colonies, and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens. It enabled them to challenge executive and private detention in civil cases as well as criminal,"" Stevens elaborated. ""Moreover, the issuance of the writ was not limited to challenges to the jurisdiction of the custodian, but encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes. It was used to command the discharge of seamen who had a statutory exemption from impressment into the British Navy, to emancipate slaves, and to obtain the freedom of apprentices and asylum inmates. Most important, for our purposes, those early cases contain no suggestion that habeas relief in cases involving executive detention was only available for constitutional error.""

The majority concluded that ""a serious Suspension Clause issue would be presented if we were to accept the INS submission that the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute for its exerciseÉThe necessity of resolving such a serious and difficult constitutional issue—and the desirability of avoiding that necessity—simply reinforce the reasons for requiring a clear and unambiguous statement of constitutional intent. ""

Joining Stevens were Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Congress could not have been clearer in expressing its intent to strip the courts of jurisdiction in the deportation of resident aliens convicted of aggravated felonies, wrote Justice Antonin Scalia in dissent for himself, Chief Justice William Rehnquist and Justices Clarence Thomas and Sandra Day OConnor.

""The Court today finds ambiguity in the utterly clear language of a statute that forbids the district court (and all other courts) to entertain the claims of aliens such as respondent St. Cyr, who have been found deportable by reason of their criminal acts. It fabricates a superclear statement, Ômagic words requirement for the congressional expression of such an intent, unjustified in law and unparalleled in any other area of our jurisprudence,"" wrote Scalia. ""And as the fruit of its labors, it brings forth a version of the statute that affords criminal aliens more opportunities for delay-inducing judicial review than are afforded to non-criminal aliens.""

As to whether Congresss clear intention violates the Suspension Clause of the Constitution, Scalia wrote that the clause is not applicable here because resident aliens facing deportation never had a habeas right that was suspended.

But taking away the rihttp://docket.medill.northwestern.edu/archives/000542.phpghts of court review from immigrants facing deportation ""has an obnoxious and severe retroactive effect,"" Stevens said. Non-citizens like St. Cyr and Calcano-Martinez ""almost certainly relied"" on their right to a hearing before deciding to plead guilty, he added.

Lawyers for St. Cyr and Calcano-Martinez lauded the Supreme Courts decision.

""It is a ringing endorsement of the rights of legal residents to be treated fairly based on the law in effect when they make their decisions. Its a ringing endorsement of the power of the courts to supervise the INS and make sure that the INS isnt getting the law wrong,"" said Nancy Morawetz, a New York University law professor who helped write the brief on behalf of St. Cyr and Calcano-Martinez.