July 7, 2023

Immigration in the Supreme Court, 2022 Term

[Cross-Post from ImmigrationProf Blog]

By Kevin R. Johnson

No Supreme Court Term could be expected to attract the national attention given to the 2021 Term, which saw the unprecedented leak of the opinion in the Dobbs case overruling Roe v. Wade and changing the constitutional trajectory of reproductive freedom in the United States.  Still, some decisions in the 2022 Term brought great change to the law.  Flirting with the outcome for years, the Court finally put in the minds of many an end to race-conscious affirmative action in university admissions.  At the same time, there were some pleasant surprises for liberals, including notable voting rightselection law, and Indian law decisions.  There also was time for a light moment or two.  Lovers of dogs and whiskey had to take glee in Jack Daniel's beat back in a trademark case of the manufacturer of a "Bad Spaniels" dog toy.

Each year, I compile the Supreme Court's immigration decisions from the most recent Term.  My recap of immigration decisions from the 2021 Term is here.   

The 2022 Term saw the Court issue four immigration decisions, the same number as last Term.  None were immigration law blockbusters, although the Court's disposal of the challenges of states to the Biden immigration enforcement priorities case (United States v. Texas) and Title 42 border closure case (Arizona v. Mayorkas) were important to the Biden administration's overall immigration program. 

The four merits decisions -- three of which came down in the last week of June -- dealt with executive power over immigration enforcement priorities, exhaustion of remedies for judicial review, criminal removals, and a (rare) First Amendment decision involving an immigration attorney  The U.S. government won in three cases.  Noncitizens won in two.  Immigration attorneys lost in one.  States lost in one case.

Merits Decisions

1.  Executive Power over Immigration Enforcement Priorities:   United States v. Texas.

U.S. government wins.  Noncitizens win.  States Lose.

In an opinion by Justice Brett Kavanaugh, the Court in United States v. Texas held that Texas and Louisiana lacked Article III standing to challenge the Biden administration’s immigration enforcement priorities, namely its more targeted approach focused on criminal noncitizens and other dangers to public safety than the Trump administration's "zero tolerance" approach to all undocumented immigrants.  Justice Samuel Alito was the lone dissenter.

The Court specifically held that the states could not challenge the Biden administration's Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law.

Writing for the majority, Justice Kavanaugh emphasized that “[t]he States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Amy Howe for SCOTUSBlog summarized the decision as follows:

"In a major victory for the Biden administration, the Supreme Court . . . ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority. . . . Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).

Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states `already laboring under the effects of massive illegal immigration even more helpless.'

The policy at the center of . . . United States v. Texas, was outlined in a . . . memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border." (bold added).

The Court went to some length to make it clear that its holding does not affect the ongoing challenges by several states to the lawfulness of the Deferred Action for Childhood Arrivals policy.   As the National Immigration Project stated in a "practice advisory" to United States v. Texas

"[t]he decision may have broader implications on states’ standing to challenge federal immigration policies, but the Court repeatedly noted that its decision is limited to the context of enforcement discretion over arrests and prosecutions. The Court explained that it does not reach questions regarding standing to challenge provision of legal benefits (such as DACA) or detention of noncitizens who have already been arrested." (bold added).

Secretary of Homeland Security Alejandro N. Mayorkas released the following statement on the Court’s ruling in United States v. Texas:  “We applaud the Supreme Court’s ruling. DHS looks forward to reinstituting these Guidelines, which had been effectively applied . . . to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security. The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress."

On the same day that it decided United States v. Texas, the Court decided United States v. Hansen.  The two decisions were the final immigration decisions of the Term.

2.  Exhaustion of Remedies and Judicial Review:  Santos-Zacaria v. Garland

Noncitizen wins.

Justice Jackson delivered the unanimous opinion of the Courtwhich Chief Justice Roberts and Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett joined.  Justice Alito concurred in the judgment, which Justice Thomas joined. 

In a straight-forward statutory interpretation case, the Court held that 8 U.S.C. 1252(d)(1), which requires noncitizens to “exhaus[t] all administrative remedies . . . as of right” before challenging a Board of Immigration Appeals final order of removal in federal court, does not require noncitizens to file motions for reconsideration before seeking review in the court of appeals.  The ruling vacated in part and remanded the Fifth Circuit decision rejecting an appeal by a Guatemalan transgender woman.  

3.  First Amendment Challenge to a Criminal Immigration Statute:  United States. v. Hansen

U.S. government wins.   Immigration attorneys lose.

The case presented the question whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain violates the First Amendment.  The Supreme Court in United States v. Hansen rejected the First Amendment challenge to the law. 

The U.S. government prosecuted Helaman Hansen for promising noncitizens a path to citizenship through "adult adoption," a form of relief that does not exist under the law.  8 U.S.C. §1324(a)(1)(A)(iv) makes it unlawful to “encourag[e] or induc[e] 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.”  Hansen challenged the law as overbroad in violation of the First Amendment. The Ninth Circuit agreed.  The Supreme Court in 2020 had been presented the same First Amendment issue (United States v. Sineneng-Smith) but had disposed of the case on procedural grounds.  

In a 7-2 decision authored by Justice Amy Coney Barrett, the Court reversed, finding that the law does not prohibit a substantial amount of protected speech and does not violate the First Amendment.  Justice Ketanji Brown Jackson dissented, in an opinion joined by Justice Sonia Sotomayor. The dissent states:

"At bottom, this case is about how to interpret a statute that prohibits `encourag[ing] or induc[ing]' a noncitizen `to come to, enter, or reside in the United States' unlawfully. . . . The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration—and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century."

4.  Criminal Removal for Obstruction of Justice:  Pugin v. Garland (consolidated with Garland v. Cordero-Garcia)

U.S. government wins.

The issue is these cases was whether, to qualify as “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S), an offense must have a nexus to a pending or ongoing investigation or judicial proceeding?  The issue is of practical immigration significance because an “offense relating to the obstruction of justice” is among the criminal convictions that are classified by the immigration statute as an "aggravated felony" subjecting noncitizens to mandatory removal from the United States. 

Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Jackson joined.  Justice Jackson filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, which Justice Gorsuch joined, along with Justice Kagan (except for Part III).  The majority held that a criminal offense may "relat[e] to obstruction of justice” under the statute even if the offense does not require that an investigation or proceeding be pending.  The Court observed that obstruction of justice is often “most effective” when it prevents “an investigation or proceeding from commencing in the first place.” 

The bottom line of the SCOTUSBlog analysis of the decision by Karen Pita Loor and Cassidy Heverling is that "the majority’s decision in Pugin opens the door for the government to argue that an ever-expanding array of crimes warrant deportation."

Case Dismissed from Merits Docket

The immigration case of the 2022 Term that perhaps received the most attention involved the Title 42 order, which President Trump originally issued to close the border to migrants ostensibly to reduce the spread of COVID.  Arizona v. Mayorkas involved challenges to the Title 42 order.  After the Biden administration abandoned the appeal, the Court agreed to review whether states may intervene to challenge the district court’s entry of summary judgment order in the case  In December 2022, the Court allowed the Title 42 order to remain in place pending the appeal.   In May 2023, the Biden administration lifted the Title 42 order.   Despite considerable (and exaggerated) concern with the mass movement of migrants, the end of Title 42 was uneventful.  Not long after, the Supreme Court dismissed the appeal and sent the case back to the lower court with instructions to dismiss the states’ request as moot.