Deportations Ruled Subject to Review

TIMES LEGAL AFFAIRS WRITER

In an important victory for immigrants' rights, the U.S. Supreme Court ruled Monday that the government cannot deport resident immigrants who have been convicted of certain crimes without giving them a court hearing.

In the 5-4 decision that could affect thousands of people, the high court rejected the contention of the U.S. Immigration and Naturalization Service that two 1996 laws stripped federal courts of jurisdiction to consider legal issues raised by such deportation cases.

The majority, led by Justice John Paul Stevens, said that if individuals who had pleaded guilty to certain crimes, including minor drug offenses, were denied any review of a pending deportation it "would give rise to substantial constitutional questions."

"This decision is a ringing endorsement of the right of immigrants to judicial review and to have access to the courts to challenge a deportation order," said Oakland attorney Lucas Guttentag, who heads the immigrant rights project of the American Civil Liberties Union and who argued the case at the Supreme Court.

Georgetown University law professor David D. Cole, an expert on immigration issues, said the ruling "is very significant because the right of judicial review underlies all other rights. If you can't go to court, you can't vindicate your other rights."

Monday's ruling in INS vs. St. Cyr (00-767) was a setback for the Justice Department, which had contended that the pair of laws--the Antiterrorism and Effective Death Penalty Act of 1996 and the Immigration Reform and Immigrant Responsibility Act of 1996--were designed to hasten the removal of immigrants who had been convicted of certain "aggravated felonies."

This is a large category of crimes for which the maximum sentence is less than five years, ranging from drug cases to fraud, theft and repeated drunken-driving offenses.

The high court majority also rejected the Justice Department's contention that the 1996 laws could be applied retroactively--a significant issue because the government was attempting to deport many people who had pleaded guilty to crimes before 1996 when a less restrictive statute on deportation appeals was in effect.

Noncitizens who pleaded guilty prior to 1996 "almost certainly relied" on their right to a court review of a possible deportation in deciding whether to forgo their right to trial in the underlying criminal case, Stevens wrote. The elimination of any possibility of relief from a deportation order "has an obnoxious and severe retroactive effect," Stevens added.

The majority said that stripping courts of their ability to hear claims in cases such as this would be a harsh act and that Congress had not spoken with sufficient clarity to bar such review. Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined in the majority opinion.

Writing for the minority, Justice Antonin Scalia issued a stinging dissent. "The majority 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 Enrico St. Cyr "who have been found deportable by reason of their criminal acts," Scalia wrote.

"The court has created a version of (the immigration law) that is not only unrecognizable to its framers (or anyone who can read)" but produced a result that is the opposite of the statute's intended effect--giving the immigrants more opportunity to delay their deportation, Scalia added.

Chief Justice William H. Rehnquist and associate justices Sandra Day O'Connor and Clarence Thomas also dissented.

St. Cyr, a citizen of Haiti, was admitted to the U.S. as a lawful permanent resident in 1986. A decade later, in March 1996, St. Cyr pleaded guilty in a state court to a charge of selling a controlled substance in violation of Connecticut law, a conviction that made him deportable. Under federal laws in effect at the time, St. Cyr would have been eligible for a waiver of deportation at the discretion of then-Atty. Gen. Janet Reno.

However, removal proceedings against him were not commenced until April 1997, after the two 1996 laws had taken effect. Justice Department attorneys maintained that under their interpretation of the new laws, St. Cyr was no longer eligible for a waiver of deportation.

St. Cyr filed a habeas corpus petition alleging that the 1996 restrictions did not apply to him because he pleaded guilty before the 1996 laws were enacted. A federal trial judge and the U.S. 2nd Circuit Court of Appeals agreed and their position was upheld by Monday's ruling.

The court also decided a companion case, Calcano-Martinez vs. INS (00-1011). In that case, the INS sought to deport three individuals who had pleaded guilty to drug offenses before 1996. The high court, in an identical 5-4 split, upheld a 2nd Circuit opinion that the defendants were entitled to a hearing in federal District Court.

Representatives of the INS and its parent agency, the Justice Department, declined immediate comment, saying their attorneys were still reviewing the decisions.

The rulings were hailed by the potential deportees and a bevy of liberal civil rights organizations.

"I think it's incredible," said Adrian Sanchez of North Hollywood, who works in the city of Los Angeles' Department of Public Works. Sanchez, a native of Zacatecas, Mexico, who has been a permanent legal resident since 1980, pleaded guilty in 1990 to possession and sale of $20 worth of marijuana, served three days in jail and then completed a two-month work furlough.

Sanchez was arrested by the INS in 1998 while returning from a family reunion in Mexico. He spent five months in INS detention and has faced deportation since then. "Up till this point, I had been living real nervously; there was no avenue of relief for me," Sanchez said. He expressed confidence that as a result of the ruling, "I am not going to be taken away from my three children, which is my biggest concern. I am really excited."

Susan Alva, director of the immigration and citizenship project for the Coalition for Humane Immigrant Rights of Los Angeles, said the rulings were "a step in the right direction." However, she said there still is a need for reform legislation "to rectify more broadly the damage caused by the two 1996 laws that took away a lot of due process guarantees that people had in deportation proceedings before that."

In fact, there are at least two bills pending in the House of Representatives, introduced by Rep. Lincoln Diaz-Balart (R-Fla.) and Rep. Bob Filner (D-San Diego), designed to address what they consider some of the excesses of the 1996 laws. The statutes were enacted at the height of anti-immigrant fervor in the U.S., coming in the wake of the passage of Proposition 187 in California in 1994.

But attorney Paul Kamenar of the conservative Washington Legal Foundation blasted the rulings as "a perfect example of judicial activism run riot." Kamenar, whose organization filed a friend-of-the-court brief in the case, said "the opinion reverses the reforms Congress enacted to expedite the deportation of criminals," such as St. Cyr. "This totally upsets the framework Congress instituted."

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