Document Type
Article
Publication Title
New York Law School Law Review
Abstract
Nine years ago, following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRIRA”), the Connecticut Law Review published a symposium issue focusing on how these statutory enactments affected immigrants. As part of that Symposium, Professor Lenni Benson wrote an article trying to predict the consequences of the new restrictions on the ability of immigrants to challenge deportation orders through petitions for review filed in the courts of appeals. In Back to the Future: Congress Attacks the Right to Judicial Review in Immigration Proceedings, Professor Benson reviewed the history of Congress’s efforts to restrict access to the courts over deportation matters and demonstrated how, despite these efforts, judicial review proved resilient. She reminded readers of Newton’s Third Law of Motion: that for every action there is an equal and opposite reaction. With respect to the 1996 laws, she predicted that restrictions on petition for review jurisdiction would lead to a surge in habeas litigation, ultimately resulting in a more inefficient and cumbersome process of judicial review. Professor Benson’s predictions about habeas litigation were borne out. In fact, the 1996 laws did lead to a significant increase in habeas litigation throughout the country. This essay will examine the results of litigation over the restrictions on judicial review found in the 1996 legislation, and extrapolate from them to suggest some of the problems the REAL ID Act may cause. Part II of this essay discusses the shifting statutory schemes for judicial review and the revisions enacted through the REAL ID Act. Part III discusses lessons that can be learned from litigation surrounding the 1996 laws about the importance of litigation positions regarding unclear aspects of the statutory scheme. Part IV discusses some of the issues lurking in the statutory scheme created by REAL ID and the implications of litigation positions and court interpretations of the new statute for the adequacy of that scheme. Part V discusses some early indications that parties litigating the application of REAL ID may have learned some lessons from the past.
First Page
113
Volume
51
Publication Date
2006
Recommended Citation
Nancy Morawetz,
Back to Back to the Future? Lessons Learned from Litigation Over the 1996 Restrictions on Judicial Review,
51
New York Law School Law Review
113
(2006).
Available at:
https://gretchen.law.nyu.edu/fac-articles/785
