Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan.
Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States
In the 2023 Term, the Supreme Court decided
three immigration decisions. The decisions included ones reaffirming the doctrine of consular nonreviewability (
Department of State v. Muñoz) and marking the end of
Chevron deference (
Loper Bright Enterprises v. Raimondo), which had required the courts to defer to the Board of Immigration Appeals' interpretations of ambiguous provisions of the immigration statute.
In the 2024 Term, the Court delivered several important immigration decisions. With an immigration agenda zealously pursued like no other modern President, Donald Trump in less than six months had four major immigration cases. Some of the cases came through the Supreme Court's emergency docket because the administration had moved with lightning speed and, in some instances, abandoned any semblance of due process in seeking removal of noncitizens from the country. The Court in the 2024 Term also saw several routine immigration cases.
The Court in the 2024 Term issued a total of seven immigration decisions. This does not include immigration matters on the emergency docket that did not result in opinions. The results were mixed, with some pro-noncitizen, others pro-government. Some are difficult to categorize. The Executive Branch will no doubt savor the limits imposed by the Court on district courts in issuing nationwide injunctions, which was announced in the birthright citizenship case (Trump v. CASA, Inc.). I take solace in the fact that birthright citizenship was not questioned by any justice in that case.
Dutifully applying precedent, the Court in three immigration decisions informed the Trump administration that noncitizens, including undocumented migrants, have the right to Due Process before they are removed from the United States. The question remains, however, whether the Court will be able to ensure that the administration fully complies with its rulings.
1. Wrongful Deportation: Noem v. Abrego Garcia (April 10, 2025)
In March 2025, the United States removed Kilmar Abrego Garcia without a hearing from the United States to El Salvador. Several years ago, an immigration court had found that Abrego could not be removed there because his life or liberty would be at risk. The U.S. government initially admitted that his removal and incarceration in a maximum security Salvadoran prison was an “administrative error.” The administration later insisted that Abrego should have been removed from the country because he is a member of the MS-13 gang, which President Trump has designated as a foreign terrorist organization. Denying any gang affiliation, Abrego had lived in the United States with his family, including a developmentally disabled child, for a decade and had never been charged with a crime (although he apparently had some run-ins with the law).
In reviewing his wrongful removal from the United States, the Supreme Court in Noem v. Abrego Garcia found that the lower court order “properly requires the Government to `facilitate’ Abrego Garcia’s release from custody in El Salvador . . . . ” However, the Court also concluded that the district court’s requirement that the administration “effectuate” his return may have exceeded the court’s authority. The Court directed the district court to “clarify” its order “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” The Court observed that, “[f]or its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
In a separate "statement" in the case, Justice Sotomayor, joined by Justices Kagan and Jackson, wrote that “[i]n the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.”
Despite the Court’s ruling, Abrego remained in El Salvador until early June. The administration stated that, as a criminal, he was rightfully removed from the country. It further alleged that the Salvadoran government would not return him, which strained credulity given that the U.S. government paid that same government to imprison Abrego.
In June, Abrego was returned to the United States and indicted on human smuggling charges based on conduct that allegedly took place in 2022. A chief prosecutor in the U.S. Attorney's Office stepped down after the indictment. In considering bail on the charges, a magistrate judge found that there was no evidence that Abrego was a MS-13 member or a criminal. Nonetheless, Abrego, as of July 2, remains in U.S. custody.
2. Due Process for Migrants Before Removal: Trump v. J.G.G (April 7, 2025) (per curiam)
In Trump v. J.G.G., the Supreme Court addressed challenges to the detention and removal of Venezuelan nationals alleged by the Trump administration to be members of Tren de Aragua (TdA), a gang that the State Department has designated as a foreign terrorist organization. The President issued a Proclamation invoking the Alien Enemies Act of 1798 to detain and summarily remove (i.e., remove without a hearing) Venezuelan gang members.
A class sought to halt their removal under the Proclamation. Lower courts enjoined the Trump administration from removing the class of detainees. Limiting the federal court’s power to issue injunctive relief, the Supreme Court held that challenges to removals under the Alien Enemies Act must be brought in individual habeas corpus proceedings in the court with jurisdiction over where the noncitizen is detained. The Court held that, because the detainees were being held in Texas, venue was improper in the District of Columbia where the case was brought.
Importantly, the Court further acknowledged that
"[i]t is well established that the Fifth Amendment entitles [noncitizens] to due process of law in the context of removal proceedings. [citation omitted]. So, the detainees are entitled to notice and opportunity to be heard `appropriate to the nature of the case.' [citation omitted]. . . . [The] detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."
The Court made it clear that noncitizens who the U.S. government seeks to remove from the country have Due Process rights to reasonable notice and opportunity to be heard in a removal hearing before a judge. Hearings are designed to avoid wrongful deportations like that suffered by Kilmar Abrego Garcia.
Justice Sotomayor, joined by Justices Kagan and Jackson (and Justice Barrett in part), objected to the Court limiting detainees to habeas corpus relief and handling the case on the Court’s emergency docket, with limited briefing and no oral argument. She also observed that “[t]his case arises out of the President’s unprecedented peacetime invocation of a wartime law known as the Alien Enemies Act. . . . Before today, U.S. Presidents have invoked the Alien Enemies Act only three times, each in the context of an ongoing war: the War of 1812, World War I, and World War II.” (bold added) (footnotes omitted).
3. More Due Process Before Removal: A.A.R.P. v. Trump (May 16, 2025) (per curiam)
In this decision, the Supreme Court, with Justice Alito, joined by Justice Thomas, dissenting, again was required to halt the Trump administration’s efforts to remove without a hearing Venezuelan migrants under the Alien Enemies Act of 1798 (AEA). In so doing, the Court wrote:
"[I]n J.G.G., this Court explained—with all nine Justices agreeing—that `AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief ' before removal. [citation omitted]. In order to `actually seek habeas relief,' a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief."
As for the plaintiffs in the lawsuit, the Court wrote that "notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster." The holding seems right to me.
In short, the Supreme Court twice has rejected the Trump administration’s efforts at summary removal of noncitizens under the Alien Enemies Act. However, the administration continues to push for the removal of migrants without due process.
4. Birthright Citizenship/Nationwide Injunctions
The birthright citizenship case of Trump v. CASA, Inc. attracted considerable attention.
The Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .” The language “subject to the jurisdiction” conventionally has been considered to apply to foreign diplomats, who are generally immune from U.S. laws even when present on U.S. territory. One of the Reconstruction Amendments, the Citizenship Clause rejected the Supreme Court’s decision in Dred Scott v. Sandford (1857), which had denied U.S. citizenship to freed slaves and contributed to the outbreak of the Civil War.
In 1898, the Supreme Court held that that the Citizenship Clause “affirms the ancient and fundamental rule of citizenship by birth within the territory.” United States v. Wong Kim Ark (1898). The Court rejected the U.S. government’s argument that that a man born in the United States was not a U.S. citizen because his parents were citizens of China. Before and after the decision, courts generally recognized citizenship for all persons born on United States soil -- whatever the citizenship status of their parents. Wong Kim Ark is part of an unbroken line of precedent recognizing birthright citizenship. For an excellent summary of the history of the birthright citizenship clause, see Testimony of Professor Amanda Frost on Birthright Citizenship and the Fourteenth Amendment, U.S. House of Representatives Committee on the Judiciary (2025).
President Trump long has criticized birthright citizenship and verbally attacked "anchor babies," his disparaging phrase for children born to undocumented immigrants who are afforded U.S. citizenship under the 14th Amendment. On January 20, 2025, he issued an executive order entitled “Protecting the Meaning and Value of American Citizenship.” Section 2(b)of the order is a frontal assault on birthright citizenship:
"[T]he United States government shall [not] issue documents recognizing United States citizenship . . . to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth."
The Executive Order would bar citizenship to persons born in the United States to undocumented parents as well as ones lawfully in the U.S. on a temporary (student, tourist, business, etc.) visa. In three cases, lower courts granted nationwide injunctions barring the President from eliminating birthright citizenship. The Court granted review on the question whether federal courts had the power to issue nationwide, or universal, injunctions, which enjoin a president’s actions across the entire nation.
At oral argument, the Justices focused on whether the lower courts have the power to bar on a nationwide basis implementation of President Trump’s executive order. No Justice questioned the settled law about birthright citizenship. In fact, during oral arguments, Justice Sotomayor highlighted several times that the executive order conflicted with three Supreme Court decisions and an act of Congress. In the various opinions in the case, no Justice suggested that birthright citizenship could be abrogated in whole or in part through executive order.
The Justices grappled at oral arguments with balancing the (1) desire to efficiently and quickly halt the implementation of an unconstitutional executive action; with (2) restricting to a certain degree the federal judicial power to enter nationwide injunctions. The Justices did not seem overly hostile to nationwide injunctions, but then again, this is a case with a clearly unconstitutional executive order – the strongest case for a nationwide injunction. Moreover, the executive order, if implemented, could affect the citizenship of hundreds of thousands, if not millions, of residents.
The Court issued a decision in Trump v. CASA, Inc. As Amy Howe for SCOUTSBlog.com summarized,"[b]y a vote of 6-3, the justices repudiated the concept of universal or nationwide injunctions . . . . The justices did not, however, weigh in on the question at the center of the three lawsuits before the court: whether the birthright citizenship order itself is constitutional." (bold added).
Justice Barrett wrote for the majority, which included Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justices Thomas, Alito, and Kavanaugh each wrote separate concurrences. Justices Sotomayor and Jackson both wrote dissents.
The opening paragraph of the majority opinion states:
Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit. The injunctions before us today reflect a more recent development: district courts asserting the power to prohibit enforcement of a law or policy against anyone. These injunctions—known as “universal injunctions”—likely exceed the equitable authority that Congress has granted to federal courts. We therefore grant the Government’s applications to partially stay the injunctions entered below.
At page 24 of the opinion, the majority writes that "the birthright citizenship issue is not before us."
In III. A., the Court writes that "[a] universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power." As Kit Johnson blogged,
"[t]he majority places great weight on the decision of Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999) and its holding that Congress has only granted district court the authority to exercise the equitable authority `traditionally accorded by courts of equity' at our country’s inception. And so the Court moves into a history lesson where it concludes `Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.' The sentiment is repeated: `Nothing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter. Thus, under the Judiciary Act, federal courts lack authority to issue them.'"
In conclusion, the Court states that
"The Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity." (bold added).
Justice Sotomayor, joined by Justices Kagan and Jackson, wrote a forceful dissent:
"No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent."
Justice Jackson dissents even more forcefully:
"I agree with every word of JUSTICE SOTOMAYOR’s dissent. I write separately to emphasize a key conceptual point: The
Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law." (bold added).
The White House declared that the decision in Trump v. CASA, Inc. was "A BIG WIN". The decision restricts the power and authority of the lower federal courts and will have ripple effects on cases far beyond immigration law. Steve Vladeck, Harold Koh, and Eric Berger analyze the decision.
5. Judicial Review of Visa Revocations: Bouarfa v. Mayorkas (2024)
In this case, the Court addressed the judicial review of the revocation of an approved visa petition under the immigration statute based on a determination that the noncitizen had entered into a sham marriage. In an opinion by Justice Jackson, the Court unanimously affirmed the lower court ruling that it lacked jurisdiction over the appeal. The Court held that the discretionary judgment by the Secretary of Homeland Security is precisely the kind of discretionary decision that the immigration statute bars from review by the federal courts.
6. Time Deadlines and Weekends/Holidays: Velazquez v. Garland (2025)
In Velazquez v. Garland, the Court held that, under the immigration statute, a voluntary departure deadline that falls on a weekend or legal holiday extends to the next business day. The Court in an opinion by Justice Gorsuch reversed a lower court ruling to the contrary. Justice Thomas filed a dissenting opinion, in which Justice Alito joined, and in which Justices Kavanaugh and Barrett partially joined. Justices Alito and Barrett filed dissenting opinions, in which Justice Kavanaugh joined.
7. Time for Filing Appeal: Riley v. Bondi (2025)
The question presented in this case was whether
8 U.S.C. § 1252(b)(1)'s 30-day deadline is jurisdictional, or merely a mandatory claims-processing rule that can be waived or forfeited; and (2) whether a person can obtain review of the Board of Immigration Appeals' decision in a withholding-only proceeding by filing a petition within 30 days of that decision.
In Riley v. Bondi,
Justice Alito wrote for the majority, which included
Chief Justice Roberts and
Justices Thomas Kavanaugh, and
Barrett.
Justices Sotomayor, Kagan, Gorsuch, and
Jackson, joined Part II.B. of the opinion. As
SCOTUSBlog summarizes the case,
"the court considered whether and when a noncitizen who overstayed his visa and is subject to a deportation order can challenge an order denying his request for withholding of removal – a remedy that prevents him from being deported to his home country . . . . The case centered on Pierre Riley, a Jamaican citizen who overstayed his visa in the U.S. and did not challenge his final order of removal within the 30-day deadline to do so because he was waiting on word about a separate order on withholding, or relief from, removal.
In a 5-4 decision by [Justice] Alito, the court held that the latter order is not the same as a final order of removal. `[T]he statutory text and our precedents make clear that … withholding-only proceedings do not disturb the finality of an otherwise final order of removal,' Alito wrote. The court also held that the lower court can reconsider the case because the 30-day filing deadline to challenge a final order `is not jurisdictional' – that is, it can be waived or forfeited."
Part II.A. of the opinion concerns Immigration and Nationality Act § 242(b)(1), 8 U.S.C. § 1252(b)(1), which states that judicial review of a final order of removal "must be filed not later than 30 days after the date of the final order of removal." Riley sought judicial review of the BIA's order denying Convention Against Torture (CAT) relief and not his earlier removal order. The Court determined that the BIA's denial of CAT relief was not a "final order of removal."
As Kit Johnson blogged, "Section II-B of the opinion (with 9 justices agreeing to it) concludes that the 30-day filing deadline is not a jurisdictional rule but a `claim-processing rule.' Thus, the Fourth Circuit could reach the decision as to whether the BIA correctly concluded that Riley was ineligible for CAT relief."
Conclusion
The 2024 Supreme Court Term saw immigration fireworks. Replete with harsh rhetoric, the Trump administration brought more immigration cases to the Court in the first six months of Trump 2.0 than ordinarily is the case for the entire Term. Besides the ones discussed above, the Court on May 30 stayed a lower court injunction, clearing the way for the administration to end temporary relief for removal to more than a half million migrants from Cuba, Haiti, Nicaragua, and Venezuela. The Court order stayed an injunction that barred the Trump administration from lifting the relief. Justice Jackson, joined by Justice Sotomayor, dissented from the grant of the stay.
In an immigration adjacent case, Amy Howe for SCOTUSBlog reported that the Supreme Court granted review in The GEO Group v. Menocal, which allows the Court "to decide whether a government contractor’s claim that it is entitled to sovereign immunity for work that it did on behalf of Immigration and Customs Enforcement falls within what is known as the collateral order doctrine. Normally, courts of appeals can only hear appeals from final decisions by district courts. But under the collateral order doctrine, courts of appeals also have the power to rule on appeals from a narrow category of orders that do not end the litigation – for example, orders denying claims of qualified or absolute immunity."
While the U.S. government prevailed in some cases, the Supreme Court at times in the 2024 Term was willing to blunt President Trump’s more extreme immigration actions and ensure compliance with Due Process. However, enforcement of the Courts orders have to this point been easier said than done. It appears that while the Court is responding (as it should) with a judicious approach, the President Trump embraces a scorched earth war on immigration law.
KJ
July 2, 2025 in Current Affairs | Permalink
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