The first good news: The Ninth Circuit Court in California ruled on November 10, 2008 that ICE may not detain people who have non-frivolous claims to US citizenship. The decision Flores v. Mukasey (November 10, 2008)reverses earlier holdings denying habeas review of Herbert Flores-Torres's detention. The Court wrote:
"The government's authority to detain Torres appears to depend on the question of whether he was legitimated by his father under El Salvadoran law. The district court is the appropriate forum to resolve such a claim. We hold that Torres does not have to wait until his removal proceedings are completed and a final removal order is issued before he can secure habeas review of his citizenship claim andof his contention that he may not be detained under the INA."
In other words, the law says that ICE does not have jurisdiction over US citizens and ICE has to stop holding people who have non-frivolous claims to US citizenship.
Before this decision, people who were born outside of the US had to endure detention while their appeals were winding their way through the immigration review process.
As I've reported in The Nation, this was a ludicrous approach for the simple reason that US citizens are not the right targets of an immigration review: they're CITIZENS. It's great to see the 9th Circuit Court also take this position, and will be even better if the DHS attorneys and immigration judges adhere to it.
Congratulations to Holly Cooper, Supervising Attorney at UC Davis Immigration Law Clinic, for her work on this.