Saturday, July 8, 2017
So far, the Supreme Court has three immigration cases on the docket for the 2017 Term. The travel ban cases no doubt will receive the most attention, with the per curiam order granting certiorari and staying part of the preliminary injunctions in the two consolidated cases already receiving considerable attention. But the other two cases raise important -- and constitutional -- questions that could have significant impacts on the enforcement of the immigration laws.
Here is the current immigration line-up:
1. Trump v. Int'l Refugee Assistance Project and Trump v. Hawaii have been consolidated. Granting certiorari on the last day of the Term, the Court has before it the constitutional and statutory challenges to President Trump's revised "travel ban" executive order. I am encouraged by the fact that a majority of the Court allowed the lower court injunctions to remain in effect for noncitizens "with respect to nationals [with] any bona fide relationship with a person or entity in the United States." In reaching that conclusion, a majority implicitly recognized that at least this group had legitimate rights and interests at stake.
Also on the last day of the Term, the Court ordered re-argument in two immigration cases, which will allow Justice Gorsuch to participate in the decision. (Arguments had been heard before he was confirmed.). The re-argument order suggests that the Justices were closely divided on the cases and that the new Justice may well make a difference in the outcomes.
Unlike the average immigration case before the Court involving issues of interpretation of the immigration statute and deference to administrative agencies, both cases raise serious constitutional questions.
2. Jennings v. Rodriguez involves a class action challenge to immigrant detention. Detained immigrants, like citizens, traditionally have been eligible to post bond and be allowed release from custody. Generally speaking, criminal and civil detention of U.S. citizens have a constitutional right to a bond hearing. Jennings v. Rodriguez raises the question whether immigrants also must be guaranteed a bond hearing. The U.S. Court of Appeals for the Ninth Circuit affirmed a district court injunction requiring bond hearings every six months for immigrant detainees. Some justices at oral argument seemed concerned that the Ninth Circuit had acted more like a legislature than a court in mandating a hearing every six months.
A decision in the case has implications for part of the Trump immigration enforcement agenda. In a January 25, 2017, executive order, President Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond thus became official immigration-enforcement policy.
3. Sessions v. Dimaya involves a void-for-vagueness challenge to a removal provision of the immigration laws. In defining “aggravated felonies” subjecting a noncitizen to mandatory removal, the immigration statute incorporates 18 U.S.C. § 16(b), which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” A long term lawful permanent resident, James Garcia Dimaya has two residential burglary convictions; neither involved violence. Setting aside Dimaya's removal order, the U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, found that Section 16(b) was unconstitutionally vague. The court relied on the Supreme Court’s 2015 opinion in Johnson v. United States, in which the Court in an opinion by Justice Scalia found the Armed Career Criminal Act’s similarly worded definition of “violent felony” was so vague as to violate due process.
Last Term, immigration cases constituted about 10 percent of the cases that the Court accepted for review. That fact should not be too surprising. Immigration enforcement was a priority during the Obama years (with the administration deporting in the neighborhood of 400,000 noncitizens a year early in the presidency) and the Trump administration has been even more aggressive in immigration enforcement. Moreover, the Trump administration in the travel ban and other executive orders seems more than willing to push the constitutional envelope when it comes to immigration. My bet is that we continue seeing a fair number of immigration cases before the Court.