(1) Whether a detained noncitizen is entitled by statute, after six months of detention, to a bond hearing and possible release from detention; and
(2) whether the courts below had jurisdiction to grant class-wide injunctive relief.
The Court in Garland v. Aleman Gonzalez
held that Immigration and Nationality Act § 1252(f )(1) of the Immigration and Nationality Act barred the district courts from granting
class-wide injunctive relief on the detention of immigrants. Justice Alito wrote for the Court. Justice Sotomayor, joined by Justices Breyer and Kagan, concurred in the judgment and dissented in part. She wrote that the “inevitable consequence of barring classwide injunctive relief will be that . . . violations will go unremedied.” In recent years, injunctions in immigration cases has drawn critical attention.
Future cases will no doubt address the scope of Garland v. Aleman Gonzalez the extent to which Section 1252(f)(1) bars class-wide injunctive relief in immigration matters other than those involving detention. In the end, the impacts of Garland v. Gonzalez may be significant. Immigrant rights advocates often seek broad injunctive relief in impact cases and will no doubt resist an expansive application of the decision.
Result: U.S. Immigration Officer Wins
(1) Whether a Bivens claim exists for alleged enforcement of a law based on protected First Amendment activity; and
(2) Whether a Bivens claim exists against U.S. immigration enforcement officers for violating the Fourth Amendment.
"Respondent Robert Boule is a U.S. citizen who owns and runs the Smuggler’s Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington; drives a car with a SMUGLER license plate; and worked as a confidential informant for the Customs and Border Patrol. Petitioner Erik Egbert, a Border Patrol agent, attempted to speak with a guest, newly arrived from Turkey via New York, outside the inn. When Boule asked Egbert to leave his property and attempted to intervene, Egbert shoved him to the ground; when Boule complained to Egbert’s superiors, Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boule’s activities."
The Supreme Court, in an opinion by Justice Clarence Thomas, and joined by the Chief Justice and Justices Alito, Kavanaugh, and Barrett, rejected both Bivens claims. The majority emphasized that it generally is up to Congress to provide for rights of action against federal officers for violations of the Constitution. Justice Gorsuch concurred, stating that the case at hand is little different than Bivens and that the Court might just as well overrule that decision. Justice Sotomayor, joined by Justices Breyer and Kagan, concurred in part and dissented in part.
Howard Wasserman summarizes the holding in the case as follows: "Rejecting Fourth Amendment excessive-force and First Amendment retaliation damages claims against a U.S. Border Patrol agent by a U.S. citizen for an incident on his property near the U.S.-Canada border, the Supreme Court in Egbert v. Boule
narrowed, but did not eliminate, private civil damages actions for constitutional violations by federal officials under Bivens . . . .
is simply the latest decision that restricts Bivens
actions. In Hernandez v. Mesa (2019)
, for example, the Court rejected claims against border enforcement officers based on a deadly cross-border shooting. After Egbert,
the future of Bivens
claims is unclear.
Mark Joseph Stern for Slate
critically analyzes the civil rights implications of the Egbert
decision. He specifically notes Justice Sotomayor's opinion dissenting in part, which
"castigated the majority for shredding precedent in its quest to immunize federal officers from civil suits. The justice complained that `a restless and newly constituted court' rewrote the law to ensure that victims of federal police brutality have no redress. She also drew attention to the reason for this shift: the replacement of Anthony Kennedy and Ruth Bader Ginsburg with Brett Kavanaugh and Amy Coney Barrett, whose addition moved the court far to the right."
Official White House Photo
The issue in Biden v. Texas
was whether the Biden administration could dismantle the Trump administration's Migrant Protection Protocols
(MPP), or Remain in Mexico policy, which requires asylum seekers arriving at the U.S./Mexico border to be returned to Mexico while their claims are being decided. The MPP had come under critical scrutiny
amid concerns over the safety and conditions
to which asylum seekers were subjected in camps in Mexico. Human Rights Watch found that the policy
sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.” As the Council on Foreign Relations
put it, "[c]ritics say the program is inhumane and that it violates U.S. and international law, but courts have blocked President Joe Biden’s attempts to end it."
Result: Biden Administration/Immigrants Win
In perhaps the most significant immigration policy decision of the 2021 Term, the Supreme Court, in the very last decision of the 2021 Term, decided the Biden v. Texas
. In a 5-4 decision, Chief Justice Roberts, joined by Justices Breyer, Kagan, Sotomayor, and Kavanaugh, wrote for the majority. The Court held that the Biden administration's decision to terminate the MPP did not violate federal immigration law by not requiring the detention of all asylum seekers arriving at the border and that the administration had taken final agency action ending the program. Elaborating on his understanding of the majority's statutory analysis, Justice Kavanaugh filed a concurring opinion. There were two dissents. Justice Alito concluded that the statute required the detention of asylum seekers while their claims were being decided. Justice Barrett, in a dissent joined in large part by Justice Thomas, Alito, and Gorsuch, concluded that the Court should remand the case to consider whether the courts had jurisdiction under the immigration statute (as interpreted by the Court in its decision earlier in June in Garland v. Aleman Gonzalez), which fpound that the statutory provision in question barred a class-wide injunction.
Amy Howe analyzes the decision for SCOTUSBlog here
. She sees it as "hand[ing] the Biden administration a major victory, giving it the green light
to end one of the Trump administration’s signature immigration programs." I offer thoughts on Biden v. Texas here for The Conversation
The Court Punts in the Public Charge Case
In one of his signature immigration measures, President Trump through a proposed public charge rule
sought to tighten the requirements on low- and moderate-income noncitizens seeking to come to the United States. President Biden attempted to rescind the proposed rule and decided not to defend against the legal challenges to it. Several more conservative states, led by Arizona, sought to intervene to defend the public charge rule.
The Court granted certiorari in Arizona v. City and County of San Francisco
on the question whether states could intervene to defend a proposed rule that a new administration decided not to defend. The substantive issue at the core of the case was the lawfulness of the controversial public charge rule.
As the 2021 Term was coming to a close, the Court dismissed
the writ of certiorari as improvidently granted. Chief Justice Roberts
filed a concurring opinion, joined by Justices Thomas, Alito,
, emphasizing that the dismissal of the case did not decide the merits of the dispute.
Arizona v. City and County of San Francisco held the unfulfilled promise of being significant if for no other reason that it touched on one of the Trump administration's signature immigration measures.
The Supreme Court's immigration decisions from the 2021 Term do not include any blockbusters. As in previous Terms
, they follow relatively routine jurisprudential patterns, with interpreting the complicated immigration statute central to the majority of the cases. As in previous Terms, judicial review and detention came up. One complicating factor this Term was that the Court was asked to intervene in several cases in which the Biden administration sought to dismantle tough Trump administration immigration initiatives.
One notable pattern in the five decisions is that immigrants lost four of the five immigration decisions. The conservative super-majority controlled the outcomes.