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Supreme Court to Decide Case That Opens Door for Government to Potentially Detain Immigrants Indefinitely

The nine Supreme Court justices pose for a group picture in 2021

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

The Supreme Court of the United States on Monday added a high-profile case to next term’s docket that could have major implications for how immigration law is allowed to be litigated in the first place.

At least four justices signed off on granting the writ of certiorari in the case stylized as Garland v. Aleman Gonzalez, a controversy that was initially brought before the nation’s high court by former President Donald Trump’s then-Attorney General Bill Barr in September 2020.

Esteban Aleman Gonzalez and Jose Eduardo Gutierrez Sanchez are Mexican nationals who were previously deported. They both reentered the country and their previous removal orders were reinstated. During an interview with immigration officials, they were found to have a reasonable fear of persecution based on protected grounds or torture and subsequently detained under 8 U.S.C. §1231.

They both requested bond hearings but immigration judges denied those requests so the two immigrants sued in the Northern District of California and won at the district and appellate levels. The Ninth Circuit Court of Appeals affirmed the district court’s order which granted an injunction prohibiting the government from detaining Aleman Gonzalez and Gutierrez Sanchez as well as a class of similarly situated immigrants for more than 180 days without providing a bond hearing before an immigration judge under 8 U.S.C. §1231(a)(6).

The Trump administration appealed to the Supreme Court for the ability to keep immigrants in custody without bond hearings. After the Biden administration inherited the case, current Attorney General Merrick Garland did not move to dismiss it, and he became a named party in the lawsuit. A companion case stylized as Johnson v. Arteaga-Martinez will be heard in tandem. The petitioner in that case alludes to Acting Immigration and Customs Enforcement Director Tae Johnson, whose tenure during the Trump administration spilled over into the Biden administration.

The original question presented in the petition is: “Whether an alien who is detained under 8 U.S.C. 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community.”

The Supreme Court also instructed the government and pro-immigrant attorneys to answer a related question. That second question is: “Whether, under 8 U. S. C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.”

Combined, both questions stand to drastically disrupt the way immigration detention can be challenged in the United States.

The original question is similar in fact and closely-linked by statute to a recent decision by the conservative majority which ruled 6-3 that immigrants who return after being deported must be held without bond. The question presented was technically different in that case, however, asking whether an immigrant “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.”

The similarity between the original question in the present case and the question in the recently-decided case (and which both rely on the same statute) suggests a likelihood that the Ninth Circuit will be reversed and the immigrants in question will lose.

The addition of the second question, however, could portend an even more dire outcome for immigrants who are detained by the state. That’s because the question is asking whether or not any court other than the Supreme Court has authority to entertain a request for an injunction or writ of habeas corpus filed by a class of detained immigrants.

Although the question inserted for briefing by the high court on Monday specifies “classwide” injunctions, the referenced statute also discusses individual review–giving the court’s conservatives another chance to further diminish the availability of redress while detained. This potentiality distressed many legal experts and immigration advocates.

Immigration attorneys and advocates believe the court’s conservative majority will answer that question in the negative.

University of Michigan Law Professor Leah Litman addressed those concerns in a Twitter thread where she noted that “habeas petitions/requests for injunctive relief are basically the only way” an immigrant can challenge detention pending immigration proceedings.

“[I]f you can only file a petition for review, you have to wait for the BIA decision to to court,” she explained, “[B]ut sometimes, it will take YEARS to get a BIA decision. [M]oreover, sometimes your argument is that, even if you might be removable, the government can’t DETAIN you for the several years it takes them to decide to deport you. [O]r in any case, can’t detain you without a bond hearing to determine whether you’re a flight risk or risk to public safety.”

The reason immigrants have so few options in the first place is because Congress, in the mid-1990s, limited the jurisdiction of federal courts to offer immigrants most forms of relief.

“In 1996, a Congress at the height of ‘tough on crime’ blocked federal courts from hearing most immigration civil rights lawsuits,” Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, noted on Twitter. “Only a handful of options remain open for litigating civil rights abuses.”

Justices Clarence Thomas and Neil Gorsuch have previously opined in dicta (commentary lacking the power of true precedent) in two different cases that they don’t believe detained immigrants have any such right to contest their detention beyond what is provided for via petitions for review within the Board of Immigration Appeals system. But the full court didn’t address the relevant statute here, §1252(f)(1), in either prior opinion.

Monday’s insertion of the statute gives the conservative majority an opportunity to deal with that dispute head-on.

“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”

[image via ERIN SCHAFF/POOL/AFP via Getty Images]

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