Behind the Scenes on a Different Set: What Congress Needs to Do in the Aftermath of St. Cyr and Nguyen

As part of a symposium issue addressing the three major immigration cases decided by the Supreme Court in 2001, this article suggests actions Congress should take in the aftermath of INS v. St. Cyr and Nguyen v. INS. St. Cyr ruled that habeas corpus remains available to secure federal court review of at least pure questions of law raised by individuals in deportation proceedings, despite provisions in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act that seem to bar judicial review in a range of stated circumstances. Although supportive of preserving judicial review in cases like St. Cyr, the article outlines problems that will derive from the exact holding. In 1996, Congress cut back on judicial review in three ways: (1) by person, (2) by issue, and (3) by timing. Technique (1) is the most objectionable, barring access to the courtroom for classes of individuals (primarily those with criminal convictions), no matter what issue they raise. The St. Cyr Court was right to find fault with that measure, but instead of directly holding such a bar it unconstitutional, it instead used statutory construction to find that habeas is not precluded. The end result, however, causes considerable problems for the third technique -- limitations on the timing of review. Pursuant to this technique, it would be possible to consolidate review in such a way as to preserve genuine access to courts but to minimize chances for abuse and delay. The article outlines some of these sorts of timing problems that led to the 1996 changes and argues why careful attention to consolidation of issues remains highly important for the sound functioning of the immigration system. It also describes how the St. Cyr ruling undercuts technique (3), even though its only real target was technique (1), and it suggests what Congress should do to regain the benefits of consolidation while honoring the main points of the Court's decision. Further, Congress used technique (2) to bar judicial review of decisions to deny discretionary relief from deportation. The article explores why that technique may be more justifiable than technique (1): it could be seen as Congress's way of saying that baseline deportability is the salient fact, and that decisions to grant or deny relief once deportability is established are like executive pardons, which are not reviewable. Further, preserving Congress's ability to cabin judicial review of discretionary relief may be politically indispensable if Congress is to be persuaded to restore more generous substantive standards -- a far more important objective (for the sake of the aliens who are subject to these laws) than is preservation of judicial review. Nguyen upheld against equal protection challenge the provisions of the citizenship laws that provide for transmission of citizenship to children born out of wedlock. Such children receive citizenship almost automatically from a U.S. citizen mother, but will receive it through the father only if the father takes other administrative steps before the child turns 18. The underlying laws were adopted at a time when there was no reason to doubt the vitality of Court doctrine that had upheld severe gender distinctions in the nationality laws. Nonetheless, the 2001 holding seems deeply inconsistent with the most recent cases like U.S. v. Virginia. The article speculates that the real reason for this outcome was the majority's concern over remedial consequences, fearing that if the Court struck the citizenship distinction down, tens of thousands of persons with no genuine ties to life in the United States might have been able to claim citizenship. It would have been better for the Court to achieve this result by modifying its currently rigid rules about retroactivity of new constitutional rules. But in any case, Congress can and should now amend the law to equalize the rules as applied to both mothers and fathers, with purely prospective effect.