Part One of this Comment will examine the developments of the writ of habeas corpus throughout the history of the United States, beginning with the importance the Founding Fathers placed on the writ. This section will also examine the recent changes in federal court review of alien removal orders, beginning with the 1996 legislation and continuing with the REAL ID Act, along with the federal courts’ responses to those acts. Part Two will then examine the majority opinion in Boumediene v. Bush, addressing the meaning and purpose that Justice Kennedy attached to the writ of habeas corpus and the analytical approach he set forth to determine if a substitute is “adequate and effective.” Part Three will then analyze whether the current system for review of alien removal orders comports with the guidelines set forth by Justice Kennedy in Boumediene. This section will draw comparisons between the Combatant Status Review Tribunals (CSRTs) that the Court examined in Boumediene and the immigration hearings concerning alien removal orders. This section will then contrast the level of review provided to courts of appeals when reviewing alien removal orders with the Court of Appeals for the District of Columbia’s level of review over the CSRTs’ decisions. Finally, this section will examine the courts of appeals’ decisions since the passage of the REAL ID Act to determine whether the current system provides for adequate review in light of Boumediene. Part Four recommends the restoration of the right of aliens to seek habeas review of their removal orders due to the deficiencies in the earlier proceedings and the lack of “adequate and effective” review in the courts of appeals.
Norako, Jennifer. “Accuracy or Fairness: The Meaning of Habeas Corpus after Boumediene v. Bush and Its Implications on Alien Removal Orders.” American University Law Review 58, no. 6 (August 2009): 1611-1651.