JURIST - Paper Chase: Monday, September 6, 2010

[JURIST] French President Nicolas Sarkozy [official website, in French] said Monday his government would proceed to draft a law [press release, in French] that would make it easier to deport illegal immigrants and strip immigrants accused of violent crimes of their French citizenship. The proposal targets immigrants who kill or attempt to kill public officials or police officers within 10 years of having gaining French citizenship. The law will also set out financial sanctions for those accused of polygamy and gives local authorities greater power to dismantle and evacuate illegal settlements. The French president's office said the proposals had been "developed in strict compliance with republican principles, the jurisprudence of the Constitutional Council and European law and must be implemented on the same principles." The measures will be part of a homeland security bill (LLOPSI2) [official materials, in French] to be considered in the French Senate [official website] starting Tuesday.

Last month, the UN Committee on the Elimination of Racial Discrimination [official website] concluded its review [JURIST report] of France's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [text], finding that while France has a laudable action plan for eradicating racial discrimination, it must increase efforts to make the plan a reality. The report also questioned Sarkozy's July measures against illegal Roma communities [JURIST report] in France and the legislation aimed at making their deportation easier following riots by members of the Roma community.

[JURIST] Prosecutors in Bahrain [BBC backgrounder] on Saturday charged 23 Shiite Muslims with terrorism-related offenses and conspiring to overthrow the government, claiming that they were acting under the direction of an unnamed foreign government. The suspects, who have been under arrest since August, are charged with undermining national security [NYT report] and planning violence, intimidation and subversion through an international terrorist network. At least 10 prominent Shiite opposition figures were formally charged by prosecution officials, including Abduljalil al-Singace, Mohamed Habeeb al-Saffaf and Abdulhadi al-Mokhaidar, part of the leadership of the the Haq Movement, a Shiite-dominated opposition group. The men were arrested in an operation last month along with more than 250 opposition members [Guardian report], building political tension between the Shiite majority and the Sunni-led government before the October 23 parliamentary election [official website]. Rights groups have criticized the charges as signs of repression .

The Bahraini government has faced repeated criticism over its human rights record in recent years. In February Human Rights Watch claimed the government had reverted to using torture [JURIST report] to gain confessions from detainees after a decade of reform banning such practices. The US State Department deplored impunity for human rights violations and crimes in Bahrain in its 2008 Country Reports on Human Rights Practices [JURIST report], The Cairo Institute for Human Rights Studies (CIHRS) [advocacy website] has voiced similar concerns.

[JURIST] The US Court of Appeals for the Second Circuit [official website] issued a decision [text, PDF] Friday allowing two people to file habeas corpus petitions against removal orders from the Board of Immigration Appeals (BIA) [official website] despite provisions of the REAL ID Act (RIDA) [text, PDF; JURIST news archive] removing jurisdiction from federal courts to hear such claims when they are late. The government had moved to dismiss the appeals for untimeliness under RIDA, but the petitioners, Worklis Luna and Tasmann Anthony Thompson, alleged they were prevented from filing on time by circumstances beyond their control, including ineffective assistance of counsel and governmental roadblocks. RIDA requires that a petition for review be filed within 30 days of the final order. The court, interpreting the act in a manner intended to avoid reviewing its constitutionality, held that because the petitioners' claims of ineffective assistance and government delays were collateral attacks on the removal orders, and not a challenge to the removal orders themselves, they could seek habeas relief in the district court. Holding otherwise, the court stated, would raise "serious constitutional questions" under the Suspension Clause of the US Constitution [text]:

Petitioners could not have raised their claims regarding the timeliness of their petitions before the BIA because their claims arose after the entry of the final orders of removal. Nor could they have raised such claims in a timely petition in this Court because they only arose upon the expiration of the 30-day period within which they could have filed a timely petition for review. Thus, if the REAL ID Act is interpreted as precluding habeas review over petitioners' claims, there is no forum in which petitioners could seek relief. Moreover, petitioners raise precisely the type of constitutional claims for which habeas review, or an adequate and effective substitute, is most essential.

Jennifer Chang Newell, a staff attorney for the American Civil Liberties Union (ACLU) [advocacy website] which filed several briefs on behalf of the petitioners, applauded the court's decision in an email to JURIST, stating that the decision "recognizes that fairness applies to everyone, including immigrants. Everyone's most basic constitutional rights are severely threatened when people's ability to go to court is restricted or denied."

In 2008, the US Court of Appeals for the Ninth Circuit held that RIDA gives a "reasonable opportunity" for judicial review [JURIST report] to those aliens whose removal orders became final before it entered into effect. Prior to RIDA's enactment, aliens convicted of crimes in the US could request judicial review through habeas petitions [28 USC § 2241 text], which were not subject to time restraints. In 2005, Judge William Young, chief judge of the US District Court for the District of Massachusetts criticized RIDA as a "virtually unprecedented" attack [JURIST report] on judicial independence, placing a "chokehold" on federal courts by removing their authority to hear deportation cases. Young claimed RIDA makes it harder for immigrants to gain amnesty by requiring deportation cases to be heard in a federal courts of appeals. Initially drafted after the 9/11 terror attacks [JURIST news archive] and designed to discourage illegal immigration, RIDA was passed in 2005 [JURIST report].