(Cross-posted from Immigration Prof)
There are a number of immigrations cases currently before the Supreme Court (and here). We should get decisions by the end of the Term in June and will should get a better idea of how the newest Supreme Court Justice, Neil Gorsuch, looks at immigration law.
The cases before the Court raise a variety of different types of issues. The decisions could affect the direction of judicial review of the constitutionality of immigration laws and policies. In recent years, as explained in this article, the Supreme Court has slowly but surely moved immigration law into the mainstream of American jurisprudence.
The cases, which have been discussed regularly on this blog, include:
1. Sessions v. Morales-Santana Argued November 2016. Gender Distinctions in Derivative Citizenship.
Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. The Second Circuit, in an opinion by Judge Loheir, found that the gender distinction for citizenship was unconstitutional.
The Supreme Court has been divided on the constitutionality of gender distinctions in the citizenship laws in previous cases. See, e.g., Nguyen v. INS (2001); Miller v. Albright (1998). This case allows the Court to reconsider the issue.
2. Jennings v. Rodriquez Argued November 2016. Constitutionality of Immigration Detention.
Issue(s): (1) Whether noncitizens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist noncitizens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for noncitizens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the noncitizen is entitled to release unless the government demonstrates by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community, whether the length of the noncitizen’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that immigration judges must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.
3. Sessions v. Dimaya Argued January 2017. Constitutionality of Criminal Removal Provisions.
Issue(s): Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague. In a rare move, the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, stuck down a statute including the reference "crime of violence" as unconstitutionally vague. The Board of Immigration Appeals had found that burglary was a "crime of violence" for removal purposes. Dimaya was a lawful permanent resident from the Philippines who had lived in the United States since 1992.
4. Esquivel-Quintana v. Sessions Argued February 2017. Interpretation of "Sexual Abuse of Minor" for Removal.
Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.
5. Hernandez v. Mesa Argued February 2017. Liability for Cross Border Shooting by Immigration Officer.
This case raises the following questions (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.
6. Maslenjak v. United States Argued April 2017. Impact of Misrepresentation for Purposes of Denaturalization.
The denaturalization case raises the question whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. Amy Howe in a preview to the argument on SCOTUSBlog concludes:
"The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years. Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship."
Maslenjak v. United States makes it six immigration cases before the Supreme Court this Term, a large number compared to the immigration cases reviewed the last few Terms.
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The Court will consider the six immigration cases against a backdrop of considerable public discussion -- and many legal challenges -- to President Trump's executive orders on immigration enforcement. The role of the courts in reviewing the immigration actions of the President have been debated publicly over the last few months.
Stay tuned as we will see decisions in those cases, which involve crime-based removals, constitutional challenges to provisions of the Immigration and Nationality Act, a cross-border shooting, deference to agencies, and more.
Part of the reason that we see extreme measures in the immigration laws is the limited scope of constitutional rights of immigrants recognized by the Supreme Court. Historically, under the plenary power doctrine, noncitizens outside the United States have had few, if any, rights to enter the country. In contrast, noncitizens inside the country have seen the steady expansion over time of rights, especially to procedural due process.
Over the last fifty years, the Supreme Court has moved toward a more normal immigration jurisprudence and away from the plenary power doctrine. That trajectory has been marked by the use of ordinary methods of statutory interpretation in interpreting the immigration statute; the Supreme Court also has adhered to ordinary administrative deference doctrines in the review of immigration decisions. Moreover, the Court on a number of occasions has applied routine constitutional avoidance doctrines to avoid invoking the plenary power doctrine, which is out of synch with modern constitutional jurisprudence, and its harsh results. This pattern of avoiding the decision of constitutional questions in ensuring judicial review of immigration matters can be understood as an effort by the Court to avoid invoking the plenary power doctrine and its stark outcomes.
Commentators have observed the slow movement of immigration law toward the mainstream of constitutional jurisprudence. In essence, the plenary power doctrine is slowly but surely eroding away. In a number of cases, the Supreme Court effectively moved toward expanding the rights of noncitizens seeking admission into the United States.] Among other indications, in Kerry v. Din (2012), six Justices found that a State Department consular officer's denial of a visa was subject to rational basis review, which is a move away from the doctrine of consular non-reviewability.
One possibility is that, in the current cases before the Court, the decisions will move us toward a more unexceptional immigration law that is more consistent with general American constitutional law.
President Trump’s immigration initiatives push the envelope of contemporary constitutional norms, virtually daring the courts to address their constitutionality. By taking brash immigration policy measures that test constitutional limits, such as the travel ban and expanded expedited removal, the Trump administration ultimately may force the Supreme Court to reconsider the plenary power doctrine.Conclusion
The aggressive Trump immigration measures likely will continue to generate legal challenges centering on the rights of immigrants. Courts, which have been moving in a direction toward further recognition of immigrant rights for at least a generation, may intervene – as some have already – to curb some of the excesses of the Trump immigration initiatives. However, the long term solution to the problems of the modern immigration system is legislative reform of the immigration law. Deep and enduring reform of the comprehensive immigration statute forged in the Cold War is necessary for the nation to effectively and fairly address the immigration realties of the 21st century.
In short, the coming weeks may tell us a good deal about the future of immigration law in the United States. Stay tuned.
