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Thursday, October 3, 2013

An Overview of Judicial Review of Immigration Matters

Margaret Mikyung Lee
Legislative Attorney

Congress has plenary or sovereign power over the conditions for admitting aliens into the United States and permitting them to remain. This power is so completely entrusted to the political branch to legislate and implement as to be largely free from judicial review. However, this power is still subject to constitutional limitations, including substantive and procedural due process protections. In immigration cases, due process may be a flexible concept and the particular procedures that may be constitutionally required depend on the relative interests involved.

Historically, immigration policy has sought to encourage and enable the admission and integration of desirable immigrants (workers, family, refugees/asylees), while discouraging and preventing the entry of undesirable aliens (national security risks/terrorists, criminals, public charges). Accordingly, in deciding what degree of judicial review is appropriate in immigration matters, Congress has sought a balance between a system that is fair to desired immigrants, yet facilitates the removal of undesired aliens. Initially, a habeas corpus proceeding provided the primary avenue of judicial review of various immigration determinations. In the wake of Supreme Court decisions construing the Administrative Procedure Act as applying to and providing an avenue for judicial review of immigration adjudications, Congress amended the Immigration and Nationality Act (INA) of 1952 by adding a judicial review provision in 1961 that provided for review by federal courts of appeal for deportation orders, but only for habeas corpus review of exclusion orders by federal district courts.

Beginning with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), legislation and administrative actions have focused on reducing immigration litigation by limiting and streamlining both administrative appeal and judicial review procedures regarding removal of aliens and by rendering aliens in certain categories ineligible for certain types of relief from removal. Even when an alien may be considered for discretionary relief, judicial review of denials of relief from removal is restricted, as is review of removal orders issued to criminal aliens or national security risks. Also, the REAL ID Act restricted habeas review and certain other nondirect judicial review in response to U.S. Supreme Court holdings that such review was still available after the 1996 acts. In the 113
th Congress, S. 744 and H.R. 2278, among other bills, would generally continue the trend of limiting judicial review; however, S. 744 provides for judicial review of its legalization programs.

This report will summarize judicial review for immigration matters, including visa denials and revocations; removal orders and detention; naturalization delays, denials, and revocations; expatriation; and legalization denials. Administrative adjudications such as removal proceedings or determination of immigration benefits such as naturalization are beyond the scope of this report.

Date of Report: September 11, 2013
Number of Pages: 14
Order Number: R43226
Price: $29.95

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