January 30, 2017

ABA urges high court to review Third Circuit’s decision denying habeas corpus in immigrant case

CHICAGO, Jan. 26, 2017 — The American Bar Association filed an amicus brief Thursday, asking the U.S. Supreme Court to hear arguments on why a panel of the U.S. Court of Appeals for the Third Circuit erred in determining immigrant petitioners could not challenge their removal orders in court.

The case involves a group of 28 Central American mothers and their 33 children who were arrested in Texas, moved to Pennsylvania and placed into summary “expedited removal” proceedings. The U.S. Department of Homeland Security denied the families interviews that could lead to asylum and ordered them removed from the country. Each family subsequently filed petitions to challenge their removal and both a federal district court and a panel of the Third Circuit upheld the administrative order for removal without allowing judicial review on the merits.

The three-judge appellate panel unanimously held that the Suspension Clause of the Constitution, which states the privilege of the writ of habeas corpus shall not be suspended except in certain cases, does not protect noncitizens who are physically but unlawfully present within the United States. In its brief supporting the petition for certiorari, the ABA said it was the “first time in our country’s history” that a federal court of appeals held that noncitizens within the United States can be denied the protections of the Suspension Clause.

“Until the Third Circuit’s decision, no individual found on U.S. soil has been deemed outside the protections of the Suspension Clause absent a formal suspension of the habeas writ,” the ABA brief said. “Such a sea change in the law should not escape this (Supreme) Court’s review.”

The ABA amicus brief in Rosa Elida Castro, et al., vs. U.S. Department of Homeland Security, et al, is available here.  

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