Nancy Morawetz, How Last Monday’s Argument in Garcia-Dimaya Helps Answer Questions from Last Tuesday’s Argument in Jennings

During Tuesday’s argument in Jennings v. Rodriguez – in which the government is seeking to overturn an order that requires a bond hearing for noncitizens who have been held in detention from more than six months – Chief Justice Roberts repeatedly returned to the theme that individuals facing prolonged detention might be responsible for some of the delay in their cases.  That question suggests that the Court might have missed the lesson from the previous day’s argument in Garcia- Dimaya – in which the Court saw just how complicated immigration law is and how protracted proceedings can be for a person who raises serious challenges to deportation.  Although not every individual facing prolonged detention has his or her case lead to Supreme Court review, many face months or even years in immigration jails and prisons because the system is designed to force prolonged detention of those with the most meritorious claims.

Immigration court cases are most likely to be delayed when there are serious defenses to the government’s claims for deportation. This should come as no surprise.  Being in detention is a horrible experience, where detainees are held in dangerous prison conditions, often far away from their families, and often for the first time in their lives (since mandatory detention is applied even to those whose only contact with the criminal justice system led to a probationary sentence).   Immigrants who have made the United States their home – like Mr. Rodriguez who came to the United States at the age of one – try to steel themselves to detention while they pursue the claims that are their right under the law. These claims – that they are not even subject to deportation, that they are protected by statutes that are designed to prevent deportation that leads to persecution, and/or that deportation is not justified under the two step immigration laws that, in limited cases, allow a judge to look at the whole facts of the case – are designed to protect against wrongful deportations.  Each one is firmly rooted in statutes and caselaw.  And pursuing these claims takes time.

Immigrants in detention face serious obstacles in pursuing their claims.   Despite being held in prisons, they are denied any right to counsel.  Instead, they must take advantage of limited time in detention libraries to research an area of law that courts have repeatedly characterized as highly complex.  They then must brief the issues pro se, or with the help of lawyers that their families retain on the highly limited budgets they often have with a breadwinner in detention.  In addition, they face laws that require them to meet a high burden of proof in showing that they should not be deported due to risk of persecution or because of the facts of their cases.  The tenacity of some immigrants in the face of these odds is a testament to how deeply they are tied to this country.  

The claims noncitizens raise are serious arguments recognized by our laws.  Garcia-Dimaya illustrates a claim that the individual’s convictions are being misclassified under the law. The “aggravated felony” definition in immigration law is a perennial source of litigation because the government has consistently applied it more broadly than it is written.  As I wrote about last June, lawful permanent residents have prevailed in many Supreme Court cases – and often by highly lopsided margins – because the government has sought to extend the term far beyond its reach.  Just last Term the petitioner in Esquivel-Quintana won his case with a unanimous ruling.  Each of those victories began with a noncitizen in detention bravely enduring added months and years in jail in order to pursue the legal argument that he or she never should have been detained in the first place.

For those who are misclassified as having an “aggravated felony,” an immigration judge will not hear a claim of asylum. Instead, those individuals are relegated to withholding of removal – a protection against deportation that is designed to meet the United States’ obligations under the Refugee Convention. Withholding has a high standard of proof and the noncitizen is tasked to meeting that burden before the immigration court even if the judge’s initial classification of a conviction as an aggravated felony was wrong in the first place.  As with any trial court, the immigration judge controls what is happening before the court and challenges to legal rulings must await the appeals process.  Even for those who are not misclassified as having an “aggravated felony” conviction, the law is designed to place a heavy burden on the person who faces persecution.  Preparing such a case is hardly the fault of the person trying to meet a standard of proof from behind bars in a remote location.

A shrinking subset of people facing deportation are designated by Congress as persons whose deportation depends on a balancing of the equities.  This longstanding feature of immigration laws tempers the vast sweep of the deportation laws – which have no recognized statute of limitations and can target a lawful permanent resident with a long passed minor conviction – by allowing a judge to consider whether it is in “the interests of the United States” for the person to be deported.  This relief is limited to lawful permanent residents who have lived legally in the United States for over seven years and do not have a conviction labeled as an “aggravated felony.”   A judge is supposed to weigh such facts as service in the United States military, a record of rehabilitation, arrival in the United States at a young age, deep family ties in the United States and a lack of ties to the country of origin.  Embedded in the legal standard is a recognition that relief under these provisions is not just for the individual but for the community as a whole.  No one benefits from forcing a person with a strong claim from giving up, getting deported, and leaving behind a family without a breadwinner.

As the government argued In Jennings, the logical extension of its argument is that it can hold noncitizens for any amount of time simply because they are not citizens.  But our laws are not so callous.  Defenses to removal are in the law to sort out whether deportation is the right result.  The due process clause does not permit ongoing detention of those who pursue these legitimate defenses without any inquiry into their danger or flight risk.

Nancy Morawetz is a professor at NYU School of Law.

KJ