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U.S. Supreme Court Hands Over Right to States to Prosecute Illegal Immigrants While Considering Whether or Not Immigrants Seeking Asylum Have the Right to Judicial Review


The Supreme Court has had a busy month hearing and deciding on cases that involve important criminal defense, immigration, and civil rights issues. In a narrow majority, the Court increased the ability for states to regulate and police the issue of illegal immigration and work authorization; an issue that has historically been under the sole jurisdiction of the federal government. In doing so, it overturned a decision voiding the conviction of three workers who were convicted for fraudulently using Social Security numbers that were not their own on their federal I-9 forms.

In addition, in what will likely become a historic decision, the Court also heard arguments on the current administration’s policy of expediting the deportations of immigrants seeking asylum without allowing their cases to first be reviewed by a judge, contravening the right of habeas corpus, as guaranteed by the U.S. Constitution, as well as a long line of Supreme Court cases that have long protected that right, including for those who are in the U.S. illegally.

Court Hands States the Ability to Prosecute Illegal Immigrants for Crimes

The 1986 Immigration Reform and Control Act dictates that the essential elements of immigration control and reform, as well as enforcement, is under the sole discretion of the federal government and federal agencies. However, The Supreme Court’s March decision to allow the state of Kansas (and thus every other state) to now step in and prosecute illegal immigrants for engaging in crimes that have always been within the sole jurisdiction of the federal government, in the words of Justice Stephen Breyer, who authored the dissent in the case, “opens a colossal loophole” in what will likely turn into some states engaging in a free-for-all when it comes to taking immigration policy into their own hands.

Court Hears Arguments On Whether Asylum Seekers Facing Expedited Deportation Are Entitled to Judicial Review

The current administration has sought to expand a 2004 immigration policy that allows any undocumented immigrant to be picked up within 100 miles of the border within 14 days of entering the U.S. for quick deportation such that they can be picked up anywhere in the US for any reason and deported for up to two years after they arrive in the U.S.

In this case, an immigration officer denied an immigrant’s asylum claim and an immigration judge upheld the decision, allowing for the immigrant to be fast tracked for deportation, pursuant to the new deportation policy. The immigrant then filed a habeas petition, alleging that the officer failed to conduct an asylum interview, as required. The district court ruled that he was not entitled to judicial review because he was subject to expedited removal, however, the Ninth Circuit Court of Appeals reversed, finding that the immigrant had a right to have his claim reviewed by the judiciary in order to ensure that, at a minimum, mistakes were not made by the officer who handled the case.

This case is of extreme importance, as there has never been an instance when a non-citizen has been deported without having the ability to request that a court to examine whether or not their deportation was legal.

If You Have Questions or Concerns, Contact an Immigration & Criminal Defense Attorney

Immigration issues are becoming more and more complex, restrictive, and difficult with every day and legal decision that removes one right or another. If you or a loved one has any questions or concerns, it is best to consult an attorney who knows both criminal defense law and immigration law.

North Carolina criminal lawyer Rashad Hauter has been working to help families with these issues for years, both at the local level and with federal legal issues. Contact our office today to set up a consultation and find out how we can help you.



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