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Supreme Court Opens a Door, Barely, for Immigrants Fighting Deportation

New America Media, Commentary, Rochelle Bobroff and Harper Jean Tobin Posted: Apr 28, 2009

Editor's Note: A recent ruling by the U.S. Supreme Court makes it difficult for asylum-seekers to challenge deportation orders. At most, it gives the petitioner a temporary relief, writes Rochelle Bobroff and Harper Jean Tobin of the Federal Rights Project of the National Senior Citizens Law Center. Immigration Matters regularly features the views of immigration advocates and experts.

Jean Marc Nken applied for asylum in the United States in 2001, claiming that he had been arrested and beaten in his home country of Cameroon for participating in protests against the Cameroonian government. An Immigration Judge did not believe him and denied the application. Nken then tried unsuccessfully to stop his deportation on the basis of his marriage to an American citizen, with whom he has a child. The federal immigration board rebuffed this request, as well. Finally, Nken sought to reopen his case, arguing that circumstances in Cameroon had worsened but by then, he was about to be deported. A federal appeals court refused to delay his deportation while it considered his appeal. Nken challenged that ruling in the Supreme Court, and on April 22nd, the Supreme Court gave Nken a temporary reprieve, delaying his deportation.

Nkens dilemma stemmed from a law passed by the Republican-led Congress in 1996, which included a flurry of changes limiting the power of courts and restricting the ability of immigrants to challenge the legality of their deportation. These included eliminating automatic stays while an immigrant appeals his deportation, and imposing a tough standard for courts to stop deportation. The U.S. Fourth Circuit Court of Appeals decided that under this new strict standard, Nken should be deported right away.

The Supreme Court held that the new law did not alter the courts traditional responsibility to prevent injustice while an appeal proceeds. Instead, asylum-seekers could obtain a temporary stay on the same terms as any other person seeking appeal. The court refused to interpret the law to restrict the ability of courts to prevent irreparable harm while deciding a case. Thus, the court threw Nken a lifeline, temporarily halting his impending deportation, and opening the courthouse door to his claim that returning to Cameroon would endanger his life.

But in sending the case back to the Fourth Circuit for further deliberation, Chief Justice John Roberts (appointed in 2005 by President Bush) nevertheless tightened the screws on asylum-seekers, making it harder for Nken and others like him to escape deportation. He stressed that immigrants will have no guarantee of temporary relief, due to the 1996 law, so that showing the mere possibility of danger is not good enough to prevent deportation during an appeal. Roberts criticized lower court decisions that had said it is generally unfair to deport an immigrant before he completes the judicial appeals process. The decision thus gives Nken a shot at staying in the country to pursue his claims, but makes it very hard to succeed.

The Supreme Courts four more liberal justices silently joined Roberts decision, but in other cases have advocated for greater court access and more protective standards when individuals allege impending harm.

The courts most conservative members were even less sympathetic than Roberts to Nkens claim. Justice Kennedy, writing for himself and Justice Scalia, stated that delaying deportation during an appeal should be done only in extraordinary circumstances and not in the ordinary case. Justices Alito and Thomas would have affirmed the Fourth Circuit and deported Nken immediately.

Without a stay, an asylum-seeker like Jean Nken could be returned to the hands of a repressive government. If the court later ruled that he was in danger, his victory could have come too late. This case illustrates why both Congress and the courts should be hesitant to deny individuals a meaningful opportunity to make their case. The right to access the courts to prevent imminent harm is part and parcel of the rule of law. The high courts decision in Nkens case is a small and imperfect step in that direction.

The decision: http://www.supremecourtus.gov/opinions/08pdf/08-681.pdf
Learn more about the federal rights project: http://www.nsclc.org/areas/federal-rights

Rochelle Bobroff is the directing attorney at the Federal Rights Project of the National Senior Citizens Law Center. Harper Jean Tobin is a staff attorney there.

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