Latest Scholarship

June 27, 2017

Supreme Court Ends 2016 Term, Agrees to Hear Travel Ban Cases, Vacates and Remands Cross-Border Shooting Case, Punts in Two Immigration Cases

[Cross-posted from Immigration Prof.]

The Supreme Court's 2016 Term has come to an end.  Today, the last day of the Term, the Court in the biggest news agreed to review the travel ban decisions in the 2017 Term. In a per curiam order, the Court stayed the injunction in part.  Justice Thomas, joined by Justices Alito and Gorsuch, concurred in part and dissented in part.   He would have stayed the injunctions in full.   

In Hernandez v. Mesa, which involved a cross border shooting by U.S. immigration enforcement officer of a young Mexican national, the Court in a per curiam pinionr vacated and remanded the case to the court of appeals to consider whether the family could sue for violation of the Fourth Amendment under the Supreme Court's 1971 Bivens decision.  The order, which is analyzed here, observed that the case involved "a heartbreaking loss of life."  Justice Gorsuch did not participate in the case.

The Court ordered reargument in two immigration cases.  

In Jennings v. Rodriguez  (reviewing the legality of detention of immigrants without a bond hearing) and Sessions v. Dimaya (reviewing a Ninth Circuit decision, written by Judge Stephen Reinhardt, striking down a criminal removal provision as unconstitutionally vague), the Court will hear rearguments next fall.   The Court likely was split 4-4 in these cases  Justice Gorsuch will break the tie.

The Court earlier this Term decided four decisions touching on immigration:

1.  Sessions v. Morales-Santana (invalidating gender distinctions favoring women over men based on antiquated on stereotypes in derivative citizenship laws).

2.  Esquivel-Quintana v. Sessions  (interpreting criminal removal provision).

3.  Maslenjak v.. United States  (denaturalization).

4.  Lee v. United States  (ineffective assistance of counsel claim based on erroneous advice on immigration consequences of guilty plea).

The Court agreed to review is seven immigration-related cases  in total in  the 2016 Term, which is a relatively large number. Two  (Maslenjak and Santana-Morales) touched on citizenship and denaturalization.  Five (Jennings, Dimaya, Esquivel-Quintana, Lee v. U.S.. Hernandez v. Mesa) involved immigration enforcement, which should not be surprising in light of the Obama administration's immigration enforcement push.  Increased immigration enforcement under President Trump will likely lead to a steady stream of immigration cases to the Supreme Court.