Tuesday, July 3, 2018
The Supreme Court decided four core immigration cases in the 2017 Term. The travel ban case was significant but there was much more.
Interestingly, immigrants won as much as the Trump administration. I would argue that the cases support the claim that the Court's immigration jurisprudence continues to become unexceptional and more consistent with mainstream American law.
Sessions v. Dimaya (5-4) by Justice Kagan. The Court invalidated a criminal removal provision of the immigration laws was unconstitutionally vague. Justice Gorsuch joined the majority in a vote that I predicted after the oral argument. It is extremely rare for the Court to strike down a removal provision of the immigration laws. (Immigrant Win)
Jennings v. Rodriguez (5-3) by Justice Alito. The Court found that various provisions of the immigration statute permitted detention pending a removal hearing without a bond hearing and remanded to the court of appeals to determine the constitutionality of the provisions. (Draw; lean toward the government).
Pereira v. Sessions (8-1) by Justice Sotomayor. Finding that the text of the statute was clear and thus that deference was unjustified, the Court rejected the Trump administration's interpretation of the immigration statute and found for the immigrant resisting removal. (Immigrant Win).
Trump v. Hawaii (5-4) by Chief Justice Roberts. The Court upheld President Trump's third version of the travel ban and, in so doing, overruled the Court's infamous decision in Korematsu v. United States upholding the internment of persons of Japanese ancestry. The Court, however, did apply rationality review to the administration's national security rationale for the policy. (Trump Administration Win).
In the 2018 Term, the Court has another immigrant detention case on the docket: Nielsen v. Preap, No. 16-1363. It presents the questions whether an immigrant convicted of a crime becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after he is released from criminal custody, the Department of Homeland Security does not immediately take him into immigrant detention.