The Leadership Conference on Civil and Human Rights

In the final week of its 2001 term, the United States Supreme Court handed down 5-4 rulings in a consolidated case that challenged provisions of the 1996 immigration law reforms. In Calcano-Martinez v. INS and INS v. St. Cyr, the Court reaffirmed the right of noncitizens to seek federal court review of legal interpretations made in deportation cases, and eliminated the ability of the INS to subject many legal residents to "mandatory" deportation for old criminal offenses.

In 1996, responding to a wave of anti-immigrant sentiment, Congress passed and the Clinton Administration signed two laws that, in part, were intended to expedite the deportation of immigrants who had been convicted of criminal offenses. The Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) vastly expanded the types of criminal offenses that triggered deportation, eliminated the ability of an immigration judge to waive deportation upon a showing of rehabilitation or hardship, stripped the federal courts of jurisdiction to review most immigration cases, and required the detention without bail of any immigrant who faced removal for a criminal offense. Many of the provisions were retroactive, meaning that immigrants faced deportation for past offenses even though the laws at the time the offenses were committed did not impose such a punishment.

Immigration advocates quickly protested that the 1996 laws had gone too far, and that long-term legal residents were unfairly facing mandatory detention and deportation for petty offenses, often committed long ago. Deportations were taking place without any consideration of the circumstances of each case, such as the seriousness of the offense or whether the individual had been rehabilitated, and advocates claimed that many deportations were needlessly tearing apart American families. In response, a broad coalition of nonprofit organizations, including the Leadership Conference on Civil Rights (LCCR) and many of its member organizations, mounted a public education and legislative advocacy campaign known as "Fix '96." Some organizations, including the American Civil Liberties Union (ACLU), challenged many of the 1996 provisions in court.

In the companion Calcano-Martinez v. INS and INS v. St. Cyr cases, several legal permanent residents faced deportation based on their pre-IIRIRA guilty pleas to deportable offenses, and had applied for a waiver of deportation known as "212(c) relief," which had been available until it was repealed by the 1996 laws. Legal permanent residents who had been eligible for this waiver were entitled to a hearing before an immigration judge, who could grant or deny relief based on factors such as rehabilitation, family ties, military service, and community involvement. Instead of denying the waivers on the individual merits of each case, though, the Department of Justice took the position that, as a matter of law, waivers were no longer attainable—even though they had existed at the time of their guilty pleas. The ACLU appealed the cases, but the DOJ also argued that its ruling could not even be appealed: IIRIRA, they claimed, also precluded any federal court from reviewing a deportation case where a criminal conviction was involved. The Supreme Court, in an opinion by Justice Stevens, disagreed with the Department of Justice on both counts. Both the availability of judicial review and the issue of retroactivity were addressed in the 5-4 opinion in the St. Cyr case.

On the ability of deportable immigrants to seek federal court review of Justice Department legal interpretations, such as the DOJ's ruling on the availability of 212(c) relief, the Court held that not all avenues of appeal had explicitly been eliminated by IIRIRA and that deportable immigrants could still seek habeas corpus review. Because a repeal of habeas corpus jurisdiction would have raised "substantial constitutional questions" given the Suspension Clause of the U.S. Constitution, the Court was not willing to infer such a repeal from the broad, sweeping language.

In dissent, Justice Scalia protested that the language of IIRIRA was perfectly clear: all types of judicial review had been eliminated, including habeas corpus review, he said, for immigrants facing deportation based on criminal convictions. Scalia pointed out that by allowing "criminal aliens" to seek review under the habeas corpus law, the Court was actually putting them in a better position than immigrants facing deportation for other reasons that did not involve criminal activity. Others facing deportation had to take their cases directly to the federal courts of appeals under far stricter limitations. The result of this, he argued, "speaks for itself: no Congress ever imagined it."

The Court then turned to the question of whether 212(c) relief was still available to a legal resident who pled guilty to a criminal offense before the waiver was repealed. The DOJ had maintained that the language of IIRIRA which repealed the waiver clearly expressed an intent that waivers would no longer available to any legal resident, regardless of the date of the conviction leading to deportation proceedings.

In order to highlight the severe toll the DOJ's position was taking on American legal residents and their families, the LCCR and several LCCR members, including the Mexican American Legal Defense and Educational Fund (MALDEF), National Council of La Raza (NCLR), the American Jewish Committee (AJC), and Union of Needletrades, Industrial and Textile Employees (UNITE) joined with a number of other organizations to file an amicus curiae brief. The brief, spearheaded by the Florida Immigrant Advocacy Center, portrayed a number of real-life cases in which legal residents had faced mandatory deportation on the basis of minor criminal offenses that had taken place well before 1996. By showing that each of the individuals had repaid their debts to society, and had become contributing members of their families and communities, the brief brought to life the harsh consequences of the DOJ's legal position.

The brief, for example, discussed the INS' efforts to deport Jose Velasquez under its retroactive interpretation of the law. At age 53, he had been a legal permanent resident of the United States since 1960, was married to a U.S. citizen, had three U.S. citizen children, and ran his own delicatessen in Philadelphia, Pa. His only encounter with the criminal justice system occurred in 1980, when he was asked at a party if he had any cocaine to sell. He replied that he did not, but suggested someone else who might. For this, Mr. Velasquez paid a $5000 fine, and served five years probation, but received no jail time and never had any subsequent criminal problems. The INS could have deported Mr. Velasquez at the time of his offense, but made no effort to do so. If it had, he would have been eligible to apply for 212(c) relief, and might have been granted the waiver on the basis of his length of residency and his family ties. Instead, the INS placed him in removal proceedings in 1998, after 212(c) had been repealed. The INS then took the position that Mr. Velasquez was no longer eligible for any form of relief, due to the 1996 changes in the law, and that he was now to face mandatory deportation for a criminal conviction that the INS itself had disregarded for nearly two decades.

"The immigrant and civil rights advocates' brief was a critical part of presenting the full dimension of the issue," explained Lucas Guttentag, who successfully argued the St. Cyr and Calcano-Martinez cases before the Court. "Our brief focused on the the role of habeas corpus and strong presumption against retroactive laws. The amicus brief put a human face on these legal arguments and demonstrated that Congress could not have intended the law to apply to so many longtime legal residents with minor offenses from long ago. I believe these real-life examples played a crucial role in showing that the goverment's position was wrong."

In a 5-4 decision, the Court agreed with the plaintiffs. Justice Stevens, in writing for the Court, refrained from exploring whether the DOJ's retroactive application of the law was unconstitutional under the Ex Post Facto clause, because earlier decisions by the Court had stated that the clause only applied to criminal punishments, and that deportation—even when based on a crime— did not amount to "punishment" in any constitutional sense. Instead, he applied a two-part test, previously set out by the Court in Landgraf v. USI Film Products, for determining whether noncriminal laws could apply retroactively.

The first question was whether Congress had clearly intended the law to apply retroactively. While many of the other provisions in the 1996 laws were explicit on this question, such as the expanded definition of the term "aggravated felony," the Court ruled that the provision that repealed the 212(c) waiver was not. Because the DOJ had interpreted the law retroactively anyway, the second question was whether it was fair and therefore permissible.

In resolving this question, the Court paid special attention to the fact that St. Cyr had, before the repeal had gone into effect, pled guilty to an offense that made him deportable but still allowed him to apply for the waiver. It decided that it was reasonable to presume that St. Cyr had agreed to the guilty plea, rather than fight the charge, so that he wouldn't risk being convicted at trial and possibly receive a longer sentence, one that could have made him ineligible to apply for the waiver should he later face deportation. St. Cyr's decision to plead guilty may have rested on the opportunity to apply for a waiver of deportation. The Court found that DOJ was unfair in ruling that he could no longer even merely apply for it and have his case heard. According to the Court, it would be contrary to "considerations of fair notice, reasonable reliance, and settled expectations" for the DOJ to decide—after the criminal case that now formed the basis for deportation had long been closed—that the rules of the game had subsequently been changed.

In conclusion, the Court ruled that if a legal permanent resident pled guilty to a deportable offense before the 212(c) waiver was repealed, and was eligible to apply for it at the time of the plea agreement, he or she could still apply for it. Justice Scalia did not address this issue in his dissenting opinion; his objection, again, was that under the provisions of IIRIRA that eliminated federal court review of deportation orders, the Court simply should not have been reviewing the question in the first place.

Immigration and civil rights advocates hailed the rulings as a rejection by the courts of harsh provision in the 1996 laws, and are pressing Congress to move legislation to further roll back their provisions. The LCCR issued a statement regarding the cases, which read in part: "The rulings by the Supreme Court represent a major turning point in the efforts to restore fairness to our immigration laws. We were incredibly pleased to see the Court, in three decisions with major civil rights implications, agree that the 1996 immigration reforms simply went too far. We now hope that Congress and the Bush Administration take the strong message the Court has sent them very seriously."

"These court rulings are the strongest signal to date that Congress went too far in 1996," said Angela Kelley, deputy director of the National Immigration Forum. Yet the decisions only partially limited the harsh due process implications of the 1996 immigration laws, and advocates have renewed their calls for legislative remedies. Jeanne Butterfield, executive director of the American Immigration Lawyers Association, characterized the rulings as "a resounding step in the right direction, but it leaves much to be done by Congress."

One question that the St. Cyr ruling left unanswered is whether legal residents who were already deported, after having been improperly denied a chance to apply for the 212(c) waiver, will be given a chance to reapply and possibly return to the United States. This is a question of great concern to advocates. According to Charles Kamasaki, co-chair of LCCR's Immigration Task Force, "it would be especially cruel for the government, having illegally deported legal residents long after they paid their debts to society, to continue punishing them. Congress and the INS now need to repay their debt to the victims of these laws." Legislation was introduced in the House and Senate (H.R. 1452, S. 955 in the last Congress) to address this concern. They would also address another concern: mandatory "zero tolerance" deportation procedures still exist, in any case that arose after the 1996 laws went into effect.