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Supreme Court declines to hear US-Mexico border fence, 'Cuban Five' appeals

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Supreme Court on Monday declined to review a challenge to the construction of a fence along the US-Mexico border. The Court denied certiorari in County of El Paso, Texas v. Napolitano, in which it was asked to consider whether the grant of authority to the secretary of the Department of Homeland Security (DHS) to "waive all legal requirements" necessary to ensure rapid construction of a border fence, with no provision for judicial review to test the statutory and factual basis of the secretary's waiver orders, is an unconstitutional delegation of legislative power. The Court denied certiorari on the same issue last year. The 700-mile US-Mexico border fence, authorized in 2006 by then-president George W. Bush, has faced numerous legal challenges. Last month, a judge in the US District Court for the District of Columbia dismissed a lawsuit against the DHS that sought to block construction of the fence. The Texas Border Coalition, a group of Texan officials and business owners, filed suit last year challenging the condemnation of land for the construction of the fence and the compensation paid to landowners for access to conduct surveys under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment. Also Monday, the Court denied certiorari in Campa v. United States, better known as the "Cuban Five" case. The Court had been asked to consider whether the US Court of Appeals for the Eleventh Circuit applied an erroneous legal standard in holding that petitioners did not establish a right to a change of venue and whether a party's failure to use all of its peremptory strikes to strike all minority members of the jury per se precludes a prima facie challenge under Batson v. Kentucky. The men were convicted in 2001 of spying for Cuba and sentenced to 15 years in prison. They admitted they were Cuban spies, but said they were watching the activities of exile groups opposed to former Cuban leader Fidel Castro, rather than the US government. In 2005, the Eleventh Circuit ruled that the trial in Miami was biased due to community prejudice and extensive media coverage. The government appealed that decision, and during a rehearing before the full appeals court, the defendants argued that "the pervasive community prejudice against the Cuban government and its agents and the publicity surrounding the trial that existed in Miami prevented them from obtaining a fair and impartial trial." The full federal appeals court upheld the convictions.

Full post as published by JURIST - The Paper Chase on June 15, 2009 (boomark / email).