A New 'Extraordinary Circumstances' Standard for Suspension Clause As-Applied Challenges to the REAL ID ACT?

Author:Andrew Bhaltazor
Position:Florida International University College of Law
Pages:511-528
SUMMARY

Some persons facing deportation in the United States are successfully staying removal in extraordinary circumstances. Not all removal orders are immediately executed. In some situations a person may wait years or decades in the United States prior to deportation. During that time, changing conditions in a person’s country of origin may create a hostile"even deadly"environment. While those changed ... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2018 e Institute for Migrant Rights Press
a nEw “ExtraordinarY
CirCuMstanCEs” standard for
suspEnsion ClausE as-appliEd
ChallEngEs to thE rEal id aCt?
Andrew Balthazor
Florida International University College of Law
E-mail: andrew.balthazor1@u.edu
Some persons facing deportation in the United States are successfully staying re-
moval in extraordinary circumstances. Not all removal orders are immediately
executed. In some situations a person may wait years or decades in the United
States prior to deportation. During that time, changing conditions in a persons
country of origin may create a hostile—even deadly—environment. While those
changed conditions may be grounds to cancel a removal order, there are times
when the United States will seek to deport a person before their petition to cancel
removal has been decided and reviewed. Some district courts are recognizing
that deporting persons into a country hostile to them, where they are unable to
communicate with attorneys or prosecute their petitions, is eectively a denial of
habeas corpus. Ordinarily, district courts are powerless to intervene: the REAL
ID Act strips them of subject matter jurisdiction over immigration cases. How-
ever, when this jurisdictional bar results in a petitioner being denied a habeas
remedy, then that statutory jurisdictional limit is an unconstitutional suspen-
sion of habeas corpus as applied to those petitioners. In such “extraordinary
circumstances,” district courts are exercising limited jurisdiction to ensure peti-
tioners are aorded a habeas remedy and staying deportations while petitions
are considered and reviewed. is note discusses the requirements, limits, and
appropriateness of this as-applied suspension-clause challenge to the jurisdic-
tion-stripping provision of the REAL ID Act.
Keywords: Immigration Law, Habeas Corpus, Suspension Clause, Staying Deporta-
tion.
V Indonesian Journal of International & Comparative Law 511-27 (July 2018)
512
Balthazor
I. INTRODUCTION
In Hamama v. Adducci, 1,444 Iraqi nationals—subject to removal—
secured a temporary stay of execution of their removal orders, per-
suading the district court that their deportation prior to prosecuting
their challenges to the removal orders would amount to a suspension
of the writ of habeas corpus.1 Subsequently, over a dozen district courts
across six circuits considered similar arguments. Four district courts
agreed that executing removal orders prior to a fully reviewed chal-
lenge to those orders strips deportees of their privilege to the writ
under “extraordinary circumstances.2 Equating deportation in these
extraordinary circumstances with an unconstitutional suspension of
the writ of habeas corpus, district courts are temporarily enjoining de-
portations, notwithstanding a statutory jurisdictional bar to doing so.3
ese courts reason that the immigration-related jurisdictional limits
violate the Suspension Clause when those jurisdictional restrictions
prevent a district court from ensuring a person’s privilege to the writ
of habeas corpus.4
ese decisions potentially create a new fact-specic extraordinary
circumstances standard for challenging deportations in district
court—prior to a full review of removal orders—as violations of the
Suspension Clause.5 No appellate courts have reviewed these decisions.
However, surveying the district court orders gives insight to the
requirements and scope of this avenue for relief for those subject to
removal. And analyzing the rationale for the decisions in light of the
historical purpose of the writ may indicate whether the extraordinary
circumstances standard has legal longevity.
1. 258 F. Supp. 3d 828, 829 (E.D. Mich. 2017).
2. See, e.g., Ibrahim v. Acosta, No. 17-CV-24574, 2018 WL 582520, at *6 (S.D. Fla.
Jan.26,2018).
3. See, e.g., Hamama, 258 F. Supp. 3d at 842 (“To enforce [the jurisdictional bar]
in these circumstances would amount to a suspension of the right to habeas
corpus. e Constitution prohibits that outcome.”).
4. See id.
5. See U.S. C. art. I, § 9, cl. 2 (“e Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the pub-
lic safety may require it.”).

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