Posted on March 11, 2019

Court Gives Illegal Immigrants New Right of Appeal Before Deportation

Stephen Dinan, Washington Times, March 7, 2019

Some illegal immigrants gained a new right of appeal Thursday when a federal appeals court ruled that Congress cannot prevent them from challenging their deportations in federal courts.

The American Civil Liberties Union, which had argued the case, called it a “sweeping” decision that will give asylum-seekers the chance to make their case in a regular U.S. court, rather than being limited to bureaucrats and judges in the immigration court system.

The ruling was issued by the 9th U.S. Circuit Court of Appeals and only applies to cases within that region — including the border states of California and Arizona.

The three-judge panel — all appointees of President Clinton — said Congress cannot short-circuit access to the courts for illegal immigrants who say they wanted to ask for asylum but were given short-shrift by the Homeland Security Department.

They said migrants arriving in the U.S., even those without status, have a habeas corpus right to have their treatment reviewed by federal courts, particularly because there are only “meager” safeguards built into the system already.


The 9th Circuit’s ruling overturned a district court judge, an Obama appointee. It also conflicts with another decision by the 3rd U.S. Circuit, which looked at the same question and came to the opposite conclusion.


The government argued federal courts couldn’t hear the case, pointing to the law that only allows court challenges in limited cases where someone claims he’s actually a citizen, whether he has another legal right to be in the U.S., and whether he was actually ordered deported.

The 9th Circuit said those circumstances were too limited.

It said the Supreme Court had extended habeas rights to terrorism suspects at Guantanamo, who’d never set foot on U.S. soil, so under that same framework, people who have reached the U.S., even if they did so without authorization, have habeas rights.