ACLU Says Immigration Bills Must Protect Due Process and Privacy, Urges Lawmakers to Fix Shortcomings in Pending Legislation

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WASHINGTON – As the Senate Judiciary Committee met today to examine immigration, the American Civil Liberties Union urged lawmakers to reject two proposals that would deprive immigrants of their right to appeal and overburden the judicial system. The Judiciary Committee recently passed an immigration bill that does not include these two objectionable provisions, but lawmakers may yet seek to include them in the final measure.

“These proposed amendments pose serious problems, in effect barring the courthouse door for many immigrants who deserve their day in court,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Too many provisions of the various immigration bills paint immigrants as the new scapegoats. Congress must approach the issue in a manner that upholds our commitment to our core American values.”

The two proposed changes to the legislation were included in Sections 701 and 707 of the “Comprehensive Immigration Reform Act of 2006,” but were not in the final version adopted by the committee. Both provisions would limit the effective right of immigrants to appeal adverse rulings on their cases.

Section 701 would direct all immigration appeals to the United States Court of Appeals for the Federal Circuit, greatly increasing the workload of that court. While the Senate Judiciary Committee did not include this proposal in its bill, today’s hearing examined that proposal. The ACLU urged lawmakers to reject the radical proposal, which would undermine the rights of immigrants to judicial review, noting the Federal Circuit has no experience with immigration, civil rights or related constitutional claims. That court currently hears only cases concerning patents, trademarks and veterans’ benefits.

Opposition to the proposal to give exclusive jurisdiction to the Federal Circuit has been diverse: the Chief Judges of the Seventh and Ninth Circuit Courts of Appeal and numerous law school deans and professors have voiced their concerns.

Section 707 of the bill would create a new barrier to judicial review of immigration appeals by instituting one-judge pre-screening of cases that get to the federal circuit court level. Under this provision, if the judge does not act on a case within 60 days, the case gets dismissed. If the judge does find the case meritorious, that judge would then issue a “certificate of reviewability” that allows the case to be heard by a three-judge panel.

The ACLU noted that given the high workloads faced by America’s federal courts, it is all too likely that many immigrants’ appeals would never receive serious review from a judge and would be dismissed without any judicial consideration of their merits.

“Due process should not be undermined under the guise of immigration reform,” said Timothy D. Sparapani, an ACLU Legislative Counsel. “This unwise proposal transferring 11,000 or more cases per year to a dozen judges should be rejected.”