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Supreme Court Protects Immigrants under the Constitution
by Cyrus D. Mehta

The Supreme Court recently issued two landmark judgments that would strengthen the rights of immigrants under the U.S. constitution.

On June 26, 2001, the Supreme Court issued its first ruling in two consolidated companion cases, INS v. St. Cyr No. 00-767 and Calcano-Martinez v. INS, No. 00-1011. In both cases, the Supreme Court upheld the rights of noncitizens facing final removal orders to seek judicial review of the correctness of their deportation in federal courts. Notwithstanding the stripping of judicial review in the 1996 immigration laws, the Supreme Court held that a noncitizen can seek Habeas Corpus review in a federal court.

Habeas corpus review is a very powerful remedy that an individual has under the U.S. Constitution to challenge his or her detention or impending deportation.

The facts in INS v. St. Cyr were compelling. Enrico St. Cyr, a citizen of Haiti, became a green card holder in 1986. Ten years later, on March 8, 1996, he pled guilty to a charge of selling a controlled substance in violation of Connecticut law. That conviction made him deportable. Under the pre-1996 law, St. Cyr would have been eligible for a waiver of deportation at the discretion of an immigration judge.

Unfortunately, the 1996 laws were enacted soon after his guilty plea and prior to his removal hearing. Under the new law, a green card holder could no longer apply for a waiver before an immigration judge and was also debarred from challenging his or her deportation in federal courts.

The Supreme Court upheld St. Cyr's right to seek review of a final deportation order even though he was a noncitizen convicted of a crime. The Supreme Court was extremely concerned that preventing an individual from seeking habeas corpus review in a federal court, as the Clinton and Bush administrations argued under the 1996 law, would give rise to serious constitutional concerns. Justice John Paul Stevens, writing for the 5 to 4 majority, said that the 1996 law could not be read to forclose all judicial review unless Congress made that intention "clear, unambigious and express." The Supreme court found no such clarity in the law to preclude review under habeas corpus.

The Supreme Court also held that St. Cyr was entitled to apply for a waiver of deportation under a former provision that was repealed after the passage of the 1996 laws. According to the Supreme Court, the 1996 laws could not be applied retroactively and "sweep away settled expectations," unless the law clearly stated that it would apply retroactively. St. Cyr had pleaded guilty to the conviction on the ground that he would be able to apply for a waiver against deportation. This expectation was suddenly undermined with the passage of the 1996 law, where Congress had not made clear the intention to apply the law retroactively.

The Supreme Court decision would now allow immigrants who have been convicted prior to the 1996 laws to seek a waiver against their deportation before an immigration judge. Unfortunately, immigrants who have been convicted after the 1996 laws will not be protected by this landmark decision.

On June 28, 2001, the Supreme Court held that the government may not detain deportable aliens indefinitely simply for lack of their country willing to take them. In Zadvydas v. Davis, No. 99-7791, Mr. Zadvydas sued the U.S. for indefinitely detaining him. Mr. Zadvydas was born in 1948 to Lithunian parents in a displaced persons camp in Germany. The family was admitted to the U.S. when he was a child. He compiled a long criminal record, served prison time and was eventually taken into immigration custody and ordered deported to Germany in 1994. But Germany refused to accept him, because he was not a German citizen. Lithuania also disclaimed any responsibility. He remained in custody indefinitely. The Supreme Court held that such a person cannot be indefinitely detained.

Justice Stephen Breyer, for a different 5-to-4 majority, said a law allowing indefinite detention would raise a serious issue under the clause of the Fifth amendment forbidding the government to deprive anyone of liberty "without due process of law." According to Justice Breyer, "Freedom from imprisonment - from government custody, detention or other forms of physical restraint - lies at the heart of the liberty that Clause protects."

The Supreme Court construed the 1996 laws narrowly to avoid a serious and constitutional question of individual rights. These decisions also send a clear message to Congress to ameliorate the harsh provisions of the 1996 Act, and also demonstrate a growing unease in the United States about their draconian and unfair impact on immigrants .

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or