Aguilar v. U.S. Immigration and Customs Enforcement, No. 07-1819. Judge Seyla uses big words to say that the District Court and First Circuit lack jurisdiction to hear claims of many illegal immigrants that were working at a Department of Defense Contractor. Many bad things happened. Selya says that they should not have happened. He condemns the government. But, then he sides with them. So, Selya sends a clear message to the government: do whatever you want. Be as ham-handed as possible. You have the green light to do anything you want. Read on.
There is some language that 8 U.S.C. § 1252(b)(9) does not “strip[] district courts of jurisdiction over all pattern and practice claims.” in this case “To sum up, while Congress probably cannot nullify rights guaranteed in the Constitution by prohibiting all remedies for the violation of those rights, see, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988) (requiring clear expression of congressional intent to preclude judicial review of constitutional claims); but see id. at 613 (Scalia, J., dissenting) (asserting that "it is simply untenable that there must be a judicial remedy for every constitutional violation"), this is not such a case. The remedies left open by section 1252(b)(9) are neither inadequate nor ineffective to protect the petitioners' rights.”
In the course of the underlying raid the government arrested many people. Including minors and legal immigrants. It didn’t really matter. It released some. It transported some all over the country. The petitioners claim that the government didn’t really care about the children that were left without parents and gave local social services inadequate notice of the raid. The government “inhibited” the right to counsel. (Again, this is what Selya seems to be approving of, by condemning but saying that the courts lack jurisdiction to provide a remedy.) Eventually, a lawsuit was filed seeking 1) release; and 2) asking that further “hide the defendant” actions be taken. An injunction was granted. The government filed a motion to dismiss saying that the REAL ID Act of 2005 stripped the court of jurisdiction. Eventually the District Court agreed that there were no constitutional issues that were actually ripe for review.
As to the “family integrity claims” the First holds that under 8 U.S.C. § 1231(g)(1) and holds that the statutes “does not strip the district courts of jurisdiction over substantive due process claims that are collateral to removal proceedings when those claims challenge decisions about the detention and transfer of aliens on family integrity grounds.” Therefore, the substantive due process claims are cognizable. However, guess what? The government’s behavior didn’t shock the conscience. So, Selya gives the green light again. (Again, there is some language condemning the government’s policies, but we all know that this means “Go ahead.”)
Looking at 8 U.S.C. § 1252(b)(9), Selya holds that rather the INA doesn’t divest the District Courts just of power to enjoin administrative proceedings, but also “all” questions that arise from the government’s behavior, even if they are consolidated like a class action, and so he “thus read the words "arising from" in section 1252(b)(9) to exclude claims that are independent of, or wholly collateral to, the removal process”
Then Selya says that because the amended complaint isn’t alleging harsh or inhumane treatments, he doesn’t need to address the issue of whether administrative exhaustion is required. Likewise, the “right to counsel” fails because apparently there is no “right to counsel” in removal proceedings. There is a right to due process. The petitioners claim that the ritualistic playing of “hide the detainee” interfered with their right to due process. Selya claims that “So viewed, an alien's right to counsel possesses a direct link to, and is inextricably intertwined with, the administrative process that Congress so painstakingly fashioned.” And, guess what, those claims must be administratively exhausted and might somehow be raised before an immigration judge. Selya says that there wasn’t any showing of irreparable harm. Seriously, does he really think that holding people incommunicado isn’t irreparable harm?
Finally, he writes that McNary v. Haitian Refugee Ctr. , 498 U.S. 479, 492 (1991) doesn’t create a substantive constitutional question, and therefore there is no reason to deal with “constitutional avoidance” issues. He writes “The bottom line is that immigration judges possess ample evidence-gathering faculties, including the authority to administer oaths, receive evidence, issue subpoenas, call witnesses, and entertain cross-examination.” Got that? Immigration Judges are not political hacks and exercise truly independent judgment. And, a seeking a remedy for large-scale violations of constitutional rights cannot be used to get around administrative exhaustion requirements.
This case might be useful for dealing with the concepts of “channeling” rights. However, it is unclear how persuasive it is.
Boston Globe comments here. ImmigrationProfBlog comments here.
Comments