- The Washington Times - Sunday, May 22, 2005

A federal court is scheduled this week to hear the first case in which the Bush administration is using the tough provisions of the newly minted Real ID Act that limit the right of appeal against deportation.

Asylum seeker Ablavi Malm, 51, was ordered deported to Togo in 1998 because her application for refugee status was denied after she failed to turn up for the hearing, according to court documents.

Her subsequent appeal invoking the protection of anti-torture statutes was filed 20 days too late to be considered, said her attorney, Morton Sklar of the World Organization for Human Rights USA. Mr. Sklar says Togolese security forces are notorious for their poor human-rights record and that members of his client’s family there have been tortured.

Mrs. Malm’s case, say her supporters, is an excellent example of why habeas corpus is important, because it allows the courts to review cases without regard to time limits and take into account underlying constitutional issues.

The habeas appeal will be heard tomorrow by the 4th U.S. Circuit Court of Appeals in New Orleans. The Justice Department has filed papers saying the habeas bid should be rejected under the Real ID Act.

“I’m amazed that the government would use the legislation in this way,” Mr. Sklar said. “It is even harsher than Congress intended. This 51-year-old rape survivor is about as far from a terrorist threat as it is possible to get.”

The Real ID Act, signed into law last week, mainly deals with the integrity of the nation’s driver’s licensing systems — setting minimum standards and effectively denying licenses to undocumented migrants and other illegal aliens.

But other provisions in the new law, say its authors, were designed to prevent abuse of the immigration system by denying to those ordered deported, including terrorists, the ability to use repeated appeals to ignore time limits for filing court papers and to drag out their cases.

To do this, the law removes the right of deportees to file petitions under habeas corpus — a doctrine dating to English common law that allows courts to decide whether a person is being held legally.

The Department of Justice, in papers filed Tuesday, said the new law means the courts cannot hear Mrs. Malm’s appeal.

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