[Congressional Record Volume 150, Number 71 (Wednesday, May 19, 2004)]
[Senate]
[Pages S5802-S5803]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Kyl, Mr. Cornyn, Mr. Sessions, and 
        Mr. Chambliss):
  S. 2443. A bill to reform the judicial review process of orders of 
removal for purposes of the Immigration and Nationality Act; to the 
Committee on the Judiciary.
  Mr. HATCH. Mr. President, I rise today to introduce the Fairness in 
Immigration Litigation Act. The purpose of the Fairness in Immigration 
Litigation Act is to reform the statutory scheme governing judicial 
review of immigration removal orders. Currently, we have an absurd 
situation in which criminal aliens are entitled to

[[Page S5803]]

more review and have more opportunities to file frivolous dilatory 
appeals than non-criminal aliens. The legislation which I am 
introducing will streamline the process of reviewing final 
administrative immigration orders, thereby eliminating such unfair 
results under the current statutory scheme.
  In 1961, Congress amended Section 106 of the Immigration and 
Nationality Act, or INA, to specify the circumstances under which final 
orders of deportation and exclusion could be reviewed in the federal 
courts. The statute provided that petitions for review in the circuit 
courts of appeal were the ``sole and exclusive'' procedure for 
reviewing deportation orders, and that habeas corpus was available only 
to challenge exclusion orders of the custodial aspects of immigration 
detention. The jurisprudence was settled that there were no alternative 
or additional avenues of judicial review of immigration orders beyond 
those provided in Section 106.
  In 1996, seeking to provide for the more efficient and expeditious 
removal of aliens who commit serious crimes in the United States, 
Congress attempted to streamline the judicial review of immigration 
orders against such aliens. Passed by wide, bipartisan margins, the 
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) 
eliminated judicial review of immigration orders for most criminals. 
IIRIRA recognized that criminal aliens had already received a full 
measure of due process in their criminal cases, as well as in their 
immigration proceedings, and that additional review typically only 
served to delay their inevitable removal.
  However, because the 1996 reforms lacked express language precluding 
habeas corpus review, the Supreme Court decided in INS v. St. Cyr that 
habeas review remained available to criminal aliens other than or in 
addition to the review specified in the INA. Consequently, under 
current law, criminal aliens may seek habeas review of their 
deportation orders in district courts and then appeal adverse decisions 
to the courts of appeals. By contrast, non-criminal aliens are governed 
by INA Sec. 242, and must appeal directly to the court of appeals 
without the additional layer of review in the district courts. The 
result is that criminal aliens who have no claim to relief from 
deportation file frivolous petitions, causing serious delay in securing 
final judgment against them. This is a complete perversion of the 
reforms intended by Congress in 1996, and it must be corrected.

  Let me illustrate the extent of the problem. In 1995, just before 
IIRIRA's enactment, there were 403 immigration habeas petitions filed. 
In 2003, that number rose to 2,374. Over the same period, the total 
number of immigration-related cases in federal courts rose from 1,939 
to 11,906. This is after Congress passed a law to limit the review for 
criminal aliens. Clearly, the intent of Congress has been frustrated.
  Consistent with the settled principled that petitions for review 
should be the ``sole and exclusive'' means of judicial review for 
aliens challenging their removal (as reaffirmed in 8 U.S.C. 
Sec. 1252(b)(9) requiring that all issues pertaining to removal orders 
be brought to the circuit courts of appeal), the Fairness in 
Immigration Litigation Act streamlines immigration review and protects 
an alien's right to review by an independent judiciary. It also ensures 
that even criminal aliens may receive review of pure questions of law 
and Constitutional claims, as dictated by the Supreme Court in S. Cyr.
  With the expanded subject matter jurisdiction in the courts of 
appeals, the proposed legislation will eliminate the confusing, and 
indeed inequitable practice of allowing criminal aliens to obtain an 
additional layer of review through habeas corpus petitions. This 
legislation is fully consistent with both the Supreme Court's decision 
in S. Cyr and settled jurisprudence regarding the availability of 
habeas corpus. These reforms will ensure that aliens will have their 
day in court, and ensures that the law does not place criminals in a 
position that is superior to non-criminals. In sum, the Act restores 
order to the judicial review process in the courts as well as fairness 
for alien petitioners.
  Moreover, the deportation proceedings too often are frustrated by 
activist judges who place unreasonable burdens on the government to 
show why a lawfully issued deportation order should be enforced, and 
who stop the lawful execution of deportation orders even though the 
aliens have advanced no legal basis to challenge the deportation order. 
Such activism combined with murkiness in the law have slowed and in 
some cases halted the government's ability to deport criminal aliens 
and others who have no right to stay. It is time we clarify the law so 
that the government can effectively deport those who should be 
deported.

  Often, we hear complaints that the government is not doing enough to 
protect our borders against illegal entry, and that we need to do more 
to catch and deport the illegal aliens who have made their way into our 
country. Without question, sealing our borders and arresting every 
illegal alien is a monumental undertaking. But with this legislation, 
we can easily address the immediate problem of removing the illegal 
aliens that we already have in the system, and sometimes even in our 
custody.
  I want to emphasize that the Fairness in Immigration Litigation Act 
does not abridge an immigration detainee's right to challenge actual, 
physical custody through a habeas corpus petition. It is not my 
intention at all to take away the habeas petition as a legitimate way 
to challenge physical custody. Instead, this legislation narrowly 
applies to judicial review of final agency orders of removal, which 
involve legal issues that should be reviewed through a petition for 
review by the court of appeals.
  I further want to emphasize that nothing in this legislation deprives 
deportable aliens of all the procedural and substantive due process 
that the Supreme Court said was required. It simply bars unnecessary 
delays through collateral attacks. In fact, the only ones who are 
affected by this bill are criminals who have had their review, but who 
want to avoid enforcement of their deportation orders by initiating 
dilatory, collateral attacks, and perhaps their lawyers who charge 
thousands of dollars to file petitions that they know to be without 
merit.
  In sum, the legislation which I am introducing today will expand the 
subject matter jurisdiction of the court of appeals so that criminal 
aliens will receive the judicial review to which they are entitled 
according to St. Cyr. At the same time, the legislation will streamline 
the process so that we no longer have the absurd result of criminals 
getting more protection than non-criminals. The legislation also will 
reduce the possibility that criminals who are without any statutory 
relief from deportation can abuse the system by filing frivolous 
petitions solely to delay their eventual removal from the United 
States. Furthermore, the legislation will properly place the burden of 
showing eligibility for relief from deportation upon the applicants for 
relief, and will clarify our statute so that the government can more 
effectively execute deportation orders without encountering the 
obstacles that ambiguous statutes have created.
  I ask for the support of my colleagues in passing the Fairness in 
Immigration Litigation Act, which will restore procedural fairness for 
all immigrants, but will significantly reduce the backlog in our 
judicial system created by frivolous and dilatory appeals.
                                 ______