Wednesday, June 3, 2015

Dugdale Case Before DC Circuit

Timothy Dugdale, an occasional blogger on ImmigrationProf, has his own case before the U.S. Court of Appeals of the District of Columbia Circuit.  Here is his post about the case:

On Monday, the appeal of my challenge to an expedited removal was docketed in DC Circuit court - Timothy Dugdale v. Loretta Lynch 15-5146. I am now in the belly of the beast. As a pro se litigant I suppose I should be shivering my timbers. This is the second most powerful court in the country after all. Strangely, though, I'm feeling pretty sanguine. The Zen of pro se litigation is to focus not on yourself but the job at hand, arguing about questions of law and constitutional issues. In district court, Judge Christopher Cooper claimed jurisdiction on all three of the prongs of judicial review under 1252(e)(2). In addition, he punted with sympathy on the constitutionality of the expedited
removal statute itself but implicitly agreed that under Chada I had standing to challenge the law that was used to deport me from the United States.

The last time any judges considered this question was in AILA v. Reno (2000), almost ancient history when you consider all that has gone on in the world and in American jurisprudence. With that in mind, I am pouring over the Supreme Court briefs for Kiyemba and Boumediene. These two cases, although not immigration law cases, nonetheless square off on the contested terrain between
the executive and judicial branches. The DC Circuit in its seminal 2009 Kiyemba ruling invoked Mezei and Knauff as controls over the exclusion and admission of aliens with no significant ties to the United States per Verdugo. On the other hand, the Supreme's ruling in Boumediene addresses not just the extraterritoriality of the constitution but sets benchmarks for the adequacy of habeas substitutes, which of course is what the expedited removal statute is.

The big issues, then, are the Suspension Clause and the Due Process Clause. The DC Circuit in its AILA v. Reno ruling focused mainly on the Article III standing of the AILA to bring a suit. Since then, there have been no expedited removal cases in that court. Ah but when you dig deeper into the closet, you find Rafeedie v. INS. More on this in my next post.

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