Wednesday, June 29, 2016
The 2015 Term of the Supreme Court just ended. Next Term. the Supreme Court will review two potentially significant immigration cases. Both implicate significant doctrinal issues of immigration law that have perplexed the courts for many years. The Solicitor General sought review of adverse lower court decisions in both cases.
The cases are:
Jennings v. Rodriguez, No. 15-1204
Issue(s): (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
This immigration detention case will give the Court the chance to address immigrant detention, which has skyrocketed since 1996 immigration reforms. The Obama administration has employed detention as an immigration enforcement tool and some immigrants have been held in detention indefinitely pending removal. Because some nations have refused to accept some immigrants subject to removal, some immigrants have been indefinitely detained. The circuits are split and the Supreme Court has decided a number of immigrant detention cases (Zadvydas v. Davis (2001) and Demore v. Kim (2003) in somewhat inconsistent fashion in the post-1996 era. Indefinite detention without bond possibilities are unheard of with respect to criminal defendants. The lower courts have reached different conclusions on immigrant detention issues.
Lynch v. Morales-Santana, No. 15-1191
Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. The Second Circuit agreed with Morales-Santana that the gender distinctions in the derivative citizenship provisions was unconstitutional.
The Supreme Court has been sharply divided on the lawfulness of gender distinctions in the laws granting citizenship to children. See, for example, Flores-Villar v. United States (2011) and Nguyen v. INS (2001). Besides the issue of gender stereotypes, Morales-Santana implicates the venerable plenary power doctrine , which historically has shielded the immigration laws from judicial review. Although there have been "cracks" in the doctrine, it remains largely intact.