Monday, January 11, 2021
Today, the Supreme Court in Immigration and Customs Enforcement v. Padilla granted the petition for writ of certiorari, vacated the judgment, and remanded the case to the for further consideration in light of Department of Homeland Security v. Thuraissigiam (2020). In Thuraissigiam, the Court rejected constitutional challenges to the expedited removal of an asylum applicant apprehended in the United States shortly after crossing the border.
The questions presented in Padilla were (1) Whether 8 U.S.C. § 1225(b)(l)(B)(ii) — which authorizes the government to detain aliens who are placed in expedited removal proceedings, but who then establish a credible fear of persecution based on a protected ground — violates the due process clause of the Fifth Amendment because it contains no provision authorizing bond hearings; and (2) whether 8 U.S.C. § 1252(f)(1) prohibits lower courts from granting classwide injunctions against the operation of 8 U.S.C. §§ 1221–1232.