Tuesday, June 29, 2021

Supreme Court Decides Immigrant Detention Case

The Supreme Court decided the last immigration case of the 2020 Term today.  In Johnson v. Guzman Chavez, the Court held justices held 6-3 that 8 U.S.C. § 1231, not § 1226, governs the detention of noncitizens subject to reinstated orders of removal.  Section 1231, which the U.S. government argued applied, was narrower  than Section 1226, in providing bond hearings to the noncitizen.  The decision involved a complex question of interpretation of the immigration statute.

Justice Alito delivered the opinion of the Court, except as to footnote 4, which was joined by Chief Justice Roberts, Kavanaugh, and Barrett.  Justice Thomas concurred except for footnote 4 and concurred in the judgment, which Justice Gorsuch joined.  Footnote 4 reads "We have jurisdiction to review the decision below. See Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) . . . . "  Justice Thomas concluded that the statute barred jurisdiction and did not join the footnote.

Justice Breyer, joined by Justices Sotomayor and Kagan dissented.   The dissent summarized the case as follows:

"The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of persecution or torture) to have their removal withheld. The Court points to two statutory provisions that might answer that question. The first, §1226, is a more general provision governing detention, and favors respondents. It says that `pending a decision on whether the alien is to be removed from the United States,' 8 U. S. C. §1226(a), the Government `may release the alien on . . . bond' or `conditional parole.' §§1226(a)(2)(A), (B) . . . .  The second, §1231, is a provision that more specifically applies to `aliens ordered removed,' and can be read to favor the Government because it does not expressly provide for a bond hearing during what it calls the 90-day `removal period.' 8 U. S. C. §1231(a)(2) . . . .

The Court agrees with the Government."

We will post analysis of the opinion in updates.

UPDATE (June 29, 4:00 p.m. PST):  Jess Bravin for the Wall Street Journal summarizes the holding in this articleJack Chin in his opinion analysis for SCOTUSblog characterized the split on the Court as revealing the Court's "ideological divide."  He also observed that:

"There was also a terminological disagreement [among the justices]. Alito and Thomas both used the word `alien' to refer to a person who is not a national or citizen of the United States. That term is often used in the Immigration and Nationality Act. Breyer, in parts of his dissent, used `noncitizen,' the nomenclature preferred by those who contend that “alien” is dehumanizing. Justice Brett Kavanaugh is among the justices who prefer the term `noncitizen.” The solicitor general’s office also has recently used `noncitizen' in place of `alien.'"  The terminology of immigration law has been the subject of discussion in recent days.

KJ

https://lawprofessors.typepad.com/immigration/2021/06/supreme-court-decides-immigrant-detention-case.html

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