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

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 person’s

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.”).