The Assault on Habeas Corpus in Immigration Law

Neuman, Gerald
January 2001
Human Rights;Winter2001, Vol. 28 Issue 1, p17
Most lawyers know that the U.S. Congress cut back sharply on the availability of habeas corpus for state prisoners in 1996. Fewer realize that a second, more fundamental assault on habeas corpus began that year in the field of immigration law. That second assault aims at the historical core of the writ of habeas corpus its guarantee of a judicial remedy for detention by executive authority. The 1996 immigration legislation has divided the courts of appeals and has raised crucial issues that either Congress or the Supreme Court will be forced to resolve. Since the federal government first began regulating immigration in the late nineteenth century, habeas corpus has always been available for noncitizens facing detention and deportation. Habeas corpus provides an essential safeguard for the rule of law by affording judicial inquiry into the lawfulness of detention by executive officials. Accepting the government's arguments would eliminate judicial remedies both for individual statutory violations and for systematic statutory violations by the immigration agencies.


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