June 25, 2020

Immigration decisions in the 2019 Supreme Court term, upcoming cases in the 2020 term

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The 2019 Term is not quite over, but the Court today decided its final immigration case.

Immigration proved to comprise a significant part of the U.S. Supreme Court's docket for the 2019 Term.  Eight decisions directly or indirectly address immigration issues.  The eight cases are a couple more than the Court's average number of immigration decisions in a Term. 

The case that received the most public attention (and hereherehere) was the Court's surprising rejection of the Trump administration's attempt to rescind the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy The DACA case attracted more attention than almost any immigration case in recent years.  Although the legal issues decided by the Court in the case are relatively narrow, the political repercussions of the decision will shape the future of immigration reform.

The immigration decisions from the 2019 Term, with links to case information from SCOTUSblog, are listed below.  The Court devoted considerable attention to the judicial review of immigration matters and decided those cases in relatively conventional fashion.

1.  DACA

Department of Homeland Security v. Regents of the University of CaliforniaNo. 18-587 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Trump v. NAACPNo. 18-588 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Wolf v. VidalNo. 18-589 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]

In a decision that surprised some Court watchers, the Court, in an majority opinion authored by Chief Justice John Roberts, held that the Department of Homeland Security’s decision to rescind the DACA policy was arbitrary and capricious in violation of the Administrative Procedure Act (APA). 

Some other aspects of the decision merit attention.  First, as an initial matter, the majority held that there were no jurisdictional hurdles to judicial review of the Trump administration's rescission of DACA.  Second, in Part IV of the the Chief Justice's opinion discussing the Equal Protection challenge to the rescission of DACA, Chief Justice Roberts wrote for only four justices; the plurality concluded that the pleadings did not give rise to facts leading to a reasonable inference that anti-Latina/o animus motivated the decision to rescind DACA.  Finding that the the Equal Protection claim should be allowed to be litigated, Justice Sotomayor did not join that part of the Chief's opinion.

2.  Cross-Border Shooting

Hernandez v. MesaNo. 17-1678 [Arg: 11.12.2019 Trans./Aud.; Decided 2.25.2020]

The Court held that the family of a young Mexican national who was killed by a U.S. border officer in a cross-border shooting, did not have a private right of action to sue.  This case had previously been to the Court and remanded for further consideration by the court of appeals.

Justice Alito, who wrote for the Court, summarized the facts of the case:

"The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa, . . . (2017) (per curiam). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border."

3.  Judicial Review of the Application of Law to Undisputed Facts

Guerrero-Lasprilla v. BarrNo. 18-776 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]; Ovalles v. BarrNo. 18-1015 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]

Resolving a split in the circuits, the Court held that the phrase “questions of law” in the Immigration and Nationality Act’s 8 U. S. C. § 1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts.

4.  Judicial Review and Expedited Removal

Department of Homeland Security v. ThuraissigiamNo. 19-161 [Arg: 3.2.2020 Trans./Aud.

The case raised the issue of the constitutionality of expedited removal of noncitizens.  The Trump administration has sought to expand expedited removal, which increased the importance of the Court's resolution of the case.  The issue is whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.  As Kari Hong summarized the issue in the case:

"In Department of Homeland Security v. Thuraissigiam, the government is asking the Supreme Court to uphold a system of limited and narrow judicial review over the expedited removal procedure. In 1996, Congress created the expedited removal process, along with other bare-bones administrative procedures, that privilege speed over process. In expedited review, one front-line immigration officer can make the immediate decision to deport someone without a hearing if that the person is not a citizen and cannot prove that they lived in the United States for the past two years. If the person expresses a fear of persecution, an asylum officer then conducts a `credible fear interview' to assess a potential claim. Only if a `significant possibility' exists that the applicant’s asylum claim would succeed, are they given a full immigration hearing."

A 5-4 Court, in an opinion by Justice Alito, held that, as applied to the case at hand, the expedited removal statute does not does not violate the provision of the U.S. Constitution barring suspension of habeas corpus.  Thuraissigiam, who was apprehended about 25 yards from the U.S./Mexico border after entering the United States without inspection, did not seek release from custody, but an additional opportunity to obtain asylum.  Applying an originalist approach to constitutional interpretation, the majority held that, because it applies to challenges to detention, the Suspension Clause did not apply to this case and that the 1996 immigration reforms barred judicial review of the Thuraissigiam's asylum claim.  The Court also rejected the arguments that Thuraissigiam's due process rights had been violated by the lack of a court hearing on his asylum claims.  In so doing, the majority invoked extreme plenary power cases, including Knauff and Mezei, which the U.S. government will likely find useful in the future in seeking to limit the rights of noncitizens seeking admission into the United States.    

5.  Judicial Review/Torture Convention

Nasrallah v. BarrNo. 18-1432 [Arg: 3.2.2020 Trans./Aud.; Decided 6.1.2020]

The Court held that 8 U. S. C. §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to an order denying relief under the Convention Against Torture, which protects noncitizens from removal to a country where they would likely face torture. Torture Convention claims thus will continue to be subject to judicial review.

6.  Identity Fraud and Federalism

Kansas v. GarciaNo. 17-834 [Arg: 10.16.2019 Trans./Aud.; Decided 3.3.2020

The Court held that federal immigration law did not preempt the Kansas identity fraud statutes under which three undocumented immigrants were convicted  for using another person’s Social Security number on tax-withholding forms submitted to their employers. 

7.  Cancellation of Removal

Barton v. BarrNo. 18-725 [Arg: 11.4.2019 Trans./Aud.; Decided 4.23.2020].

The Court held that, in determining eligibility for cancellation of removal of a lawful permanent resident who commits a crime, an offense listed in 8 U. S. C. § 1182(a)(2) committed during the initial seven years of residence need not be one of the offenses of removal.  Jayesh Rathod for SCOTUSblog reviews the competing views among the justices about the (1) proper interpretation of the immigration statute; and (2) the treatment of eligibility for removal of noncitizens with criminal convictions.  In Rathod's view, Justice Kavanaugh's majority opinion "upholds [a] restrictive reading of [the] immigration statute, limiting relief to noncitizens facing removal."

The Immigrant Legal Resource Center provides this practice advisory on the technical cancellation of removal issues decided by Barton v. Barr.

8.  First Amendment/Immigration Representation

U.S. v. Sineneng-SmithNo. 19-67 [Arg: 2.25.2020 Trans./Aud.; Decided 5.7.2020]. 

The Supreme Court held that the Ninth Circuit abused its discretion in reaching out to decide a question never raised by the respondent (an immigration consultant) -- whether 8 U. S. C. § 1324(a)(1)(A)(iv) (making it unlawful to "encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law) is unconstitutionally overbroad in violation of the First Amendment.  The Court did not address the First Amendment question in its decision.

As summarized by Jack Chin on SCOTUSblog,

The Supreme Court . . . resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the . . .  9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits `inducing or encouraging' unauthorized immigration. . . .  After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. . . . The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that `the panel’s takeover of the appeal' warranted reversal and remand for reconsideration in light of `the case shaped by the parties.'”

The 2020 Term

At least for now, there do not appear to be any major cases on the Court's docket for the 2020 Term.  The following immigration cases currently are set for consideration in the Supreme Court's 2020 Term:

1.  Relief from Removal

Pereida v. BarrNo. 19-438

This case raises the issue whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.   As described by Amy Howe on SCOTUSblog.

"The question arises in the case of Clemente Pereida, who was convicted in Nebraska of `attempted criminal impersonation,' a misdemeanor for which he was fined $100. The dispute centers on whether the conviction was a `crime of moral turpitude,' which would bar Pereida from applying for relief from deportation. The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation."

2.  Effectiveness of Notice to Appear

Niz-Chavez v. BarrNo. 19-863

This case is a followup to Pereira v. Sessions (2018), which addressed the effectiveness of a notice to appear that fails to comply with the statutory requirements.  The issue in Niz-Chavez is whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule (the rule that the time stops for satisfying the time requirement for eligibility for relief from removal), the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information in a series of documents issued at the time of its choosing. 

3.  Immigrant Detention and Bond Eligibility 

Albence v. Guzman ChavezNo. 19-897 

The issue in this case is whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.  As John Elwood explained on SCOTUSblog, the distinction between the two provisions matters because under Section 1226 noncitizens generally have the right to a bond hearing, while the government argues that they do not have that right under Section 1231.