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- Title
WHEN JURISDICTION STRIPPING RAISES FACTUAL QUESTIONS.
- Authors
HAUSMAN, DAVID K.
- Abstract
Courts apply a strong presumption in favor of judicial review of government action. When they apply that presumption, they silently presume that they can determine, as a matter of law, whether such judicial review exists. In fact, however, whether judicial review exists may present a factual question. Consider a catch-22 at the center of immigration jurisdiction doctrine: for certain due process claims, the only review available is review that is unavailable. Some federal courts have read a jurisdictional statute to allow only direct appeals of deportation orders, regardless of what claims are at issue. Appealing without a lawyer is difficult and extremely rare; as a result, judicial review does not exist in fact for due process violations that affect only pro se noncitizens. For example, the government has ignored its obligation to translate the asylum application for non-English speakers. But no one has challenged that violation on appeal because any appeal itself has to be filed in English. Similarly, the government does not provide lawyers for children--even toddlers--in immigration court. But that clear due process violation has never received judicial review because children who need counsel are unable to appeal and raise that claim themselves. In the immigration context, courts should solve these problems by applying the presumption in favor of judicial review to allow jurisdiction in district court where the facts show that the government action would otherwise evade review. But more broadly, these problems point to a problem with jurisdiction-stripping doctrine. Judges and scholars have assumed that determining the extent of jurisdiction-stripping statutes requires answering questions of law. But determining whether Congress has withdrawn jurisdiction often raises questions of fact, just as standing doctrine requires a factual inquiry into the imminence of harm.
- Subjects
PRESUMPTIONS (Law); JUDICIAL review; IMMIGRATION law; FEDERAL courts; LEGAL claims
- Publication
Washington University Law Review, 2024, Vol 101, Issue 5, p1677
- ISSN
2166-7993
- Publication type
Article