Speech #1090138862

Mr. President. this amendment will ensure that asylum seekers. victims of trafficking. and other immigrants are able to secure meaningful judicial review of removal orders. It would strike from the bill a provision that would have the really absurd result of making it harder in many cases for an immigrant to get a Roberts Santorum Sessions Shelby Sununu Talent Thomas Thune Vitter Volnovich Menendez Murkowski Murray Obama Reid Salazar Sarbanes Schumer Smith Snowe Specter Stabenow Stevens Warner Wyden temporary stay of removal pending appeal than to actually win on the merits of the case. Before I go further. I thank Senator BROWNSACK for cosponsoring this amendment. He has been tireless in his efforts to help asylumseekers and trafficking victims. and I am very pleased that we could work together on a bipartisan basis on this effort. Under section 227(c) of the bill. a court cannot grant a temporary stay of removal pending appeal to an asylum applicant or other individual unless the immigrant proves by clear and convincing evidence that the order is prohibited as a matter of law. That. as we all know. is an extremely difficult standard to satisfy. particularly in the preliminary stage of an appeal. It is so difficult that the Chicago Bar Association called this provision a "potentially devastating threat to due process." This draconian provision could have a particularly harmful effect on asylumseekers. It could effectively deny all judicial review to many asylum applicants who might otherwise have successful appeals by allowing them to be sent back to countries where they can face persecution or even death before a Federal court can even rule on their cases. Section 227(c) would overturn the decisions of seven different courts of appeal that have determined that the Immigration and Nationality Act does not currently require immigrants to meet the very high "clear and convincing evidence" standard for temporary stays of removal pending appeal. I will explain in a bit more detail. as these courts already have. why this very stringent standard would be such bad policy. First of all. as I have said. in many cases this provision would result in an immigrant having to meet a higher standard of review to get a temporary stay of removal than to prevail on the merits of it. Federal courts review legal issues in asylum and other immigration cases de novo. and they review issues. such as credibility questions in asylum cases. using a lower. "substantial evidence" standard. These standards are nowhere near as difficult to satisfy as a "clear and convincing evidence" standard that the decision "prohibited as a matter of law." Indeed. courts of appeal have pointed out that the only individuals who could satisfy such a high standard would be U.S. citizens and individuals who hold visas of "unquestioned validity." I will read a quick passage from a decision of the First Circuit Court of Appeals that I think goes right to the heart of the issue: Perhaps most important. we recognize that extending [the] stringent clear and convincing evidence standard to stays pending appeal . . . would result in a peculiar situation in which adjudicating a stay request would necessitate full deliberation on the merits of the underlying case and. in the bargain. require the alien to carry a burden of proof higher than she would have to carry on the merits. This Kafkaesque design is counterintuitive. Lets pause for a moment to consider that--"this Kafkaesque design is counterintuitive." A panel of the First Circuit Court of Appeals. in a decision written by a judge appointed by President Reagan. has called the very provision that is in the bill "Kafkaesque." Surely. the Senate does not want to include such an extreme provision in this bill. Even in situations where the issue on appeal is subject to a very deferential standard of review. it makes no sense to require an immigrant to meet the stringent "clear and convincing evidence" standard of review at such a preliminary stage of the case. As one court has pointed out. the appellant may not even have obtained a copy of the administrative record that early in the case. How can appellants prove by clear and convincing evidence that they will win their appeal when they may not even have a copy of the administrative record?