Wednesday, May 11, 2016
The plenary power doctrine in immigration is a Cold War relic. It's old, it's tired, and it's a menace to due process and equal protection. The War on Terror gave it new life but what is that life exactly considering that Kiyemba v. Obama has yet to properly face off against Boumediene v. Bush in a truly landmark immigration case.
Other action is afoot. The Solicitor General has filed a couple of very interesting cert petitions to challenge appellate court rulings that lay siege to plenary power.
The Second Circuit panel declared the petitioner a US citizen by invoking equal protection. They used heightened scrutiny to examine INA 309/1409 and suitably unimpressed, extended the generously lax physical presence requirement for unwed US citizen mothers who give birth abroad to similarly situated fathers. The panel, after considering Kristin Coopers scholarship on this issue, severed the offending part of the INA to expand its citizenship scope, perfectly in keeping with the family values intent of the 1952 INA, the pertinent version. The government understandably does not like this because it steps on the toes of plenary power and rational basis analysis of Congressional intent. What other parts of the INA's derivative citizenship scheme, both at birth and naturalization, are next to fall?
Could this Ninth Circuit case cause the expedited removal system of 1225(b) to finally meet its maker? Not likely. But if the court takes this case, issues of plenary power, habeas substitutes and separation of powers will certainly be discussed. Under Boumediene, all habeas substitutes must satisfy the following criteria. From Luna v. Holder (Second Circuit 2011): Although the Supreme Court has not comprehensively detailed what makes a substitute for habeas adequate and effective, it has provided guideposts that help us determine this case. First, in the cases in which the Supreme Court has found a substitute to be adequate and effective, "the purpose and effect of the [substitute] was to expedite consideration of the [detainee's] claims, not to delay or frustrate it." Id. at 775-76, 128 S.Ct. 2229. "When Congress has intended to replace traditional habeas corpus with habeas-like substitutes,... it has granted to the courts broad remedial powers to secure the historic office of the writ." Id. at 776-77, 128 S.Ct. 2229 (noting that in the Section 2255 context, Congress has granted to the reviewing court power to "determine the issues and make findings of fact and conclusions of law" (internal quotation marks omitted)). If Congress succeeds in creating a procedure that is meaningfully "more limited" than habeas review, id.at 778, 128 S.Ct. 2229, as measured by "the sum total of procedural protections afforded to the detainee at all stages, direct and collateral," then that procedure is not an adequate replacement for habeas, id. at 783, 128 S.Ct. 2229. Second, because habeas is "designed to restrain" the Government's power, the scope of the substitute procedure must not be "subject to manipulation" by the Government.Id. at 765-66, 128 S.Ct. 2229. Third, a mechanism for review that "is wholly a discretionary one" is "an insufficient replacement" for habeas. Id. at 791, 128 S.Ct. 2229. Fourth, the entity substituting for a habeas court "must have adequate authority ... to formulate and issue appropriate orders for relief," id. at 787, 128 S.Ct. 2229, including "the power to order the conditional release of an individual unlawfully detained," id. at 779, 128 S.Ct. 2229.
Bond set by an Article III court allows conditional release into the United States. Parole granted by an administrative agency is not release. One is an entry, the other works through the "entry fiction" with no admission. The Solicitor General argues that parole from either ICE or the CBP is the only relief from detention, under plenary power, that is available to people facing removal under the expedited removal system. But if the system fails to meet the standard mandated by Boumediene, then what authority does the system have to detain aliens who ultimately won't get a fair shake on their claims?
I suspect that Zydavas v. Davis and Demore v. Kim will get a good workout as well. Boumediene announced a new sheriff was in town and plenary power has a nice big target on its back with diminished firepower in its holster