The Supreme Court and Immigration

The Statue of Liberty stands as a symbol that this nation was built on immigration.  This past term (and apparently this upcoming term) immigration was a significant part of the Supreme Court docket.  Of the eight cases involving immigration or the border, the Supreme Court issued decisions in five, sent one back to the lower courts (in light of one of the four decisions), and set two for re-argument in the fall (as both were argued before Justice Gorsuch joined the bench, the implication is that there was a 4-4 split or that the majority lacked a consensus on the legal theory for the result).  In addition, the Supreme Court is going to hear argument on the travel ban.

Going in chronological order, at the end of May, the Supreme Court issued a decision on the crimes that trigger deportation — narrowly interpreting the statute to limit the state offenses that trigger deportation.  The decision involved charges of sexual abuse against minors with the court defining minor as under 16 and requiring that the state offense be limited to minors under sixteen.  On the cases that were decided, as discussed in an earlier post, the Supreme Court struck down the law governing birth citizenship when a child is born abroad to parents with split citizenship (i.e. one is a U.S. citizen and the other is not) because the law discriminated based on the gender of the U.S. citizen.

In the next to last week of the term, the Supreme Court issued three more decisions.  The first case — involving a challenge to immigrants arrested after 9/11 — technically was not about immigration but about the right to sue the government and government official for civil rights violations.  While there is a federal statute authorizing individuals to sue state officials, there is no such statute for civil rights violations by federal officials.  While the Supreme Court has authorized such suits in a limited number of circumstances, the Supreme Court has been reluctant to expand that right.  The Supreme Court found that the claim in the most recent case were not similar to the previously recognized claims and decided that it was up to Congress to decide whether to enact a statute authorizing such claims.  That decision also led to the decision to send the second civil rights case (involving a cross-border shooting) back to the lower court to review whether it was the type of claim that could be brought.  (The lower court had originally decided the case on the issue of whether it was a civil rights violation.  In sending the case back, the Supreme Court raised doubts about some of that reasoning.)

The other two decided cases were both criminal cases.  One involved fraud in connection with the citizenship application.  In that case, the Supreme Court found that the fraud or misstatement had to be relevant to the application or the review of the application.  The other case involved erroneous legal advice as to whether accepting the plea offer would trigger deportation.  (The plea offense did require deportation but counsel told his client that it did not.)  The Supreme Court held that, regardless of the strength of the government’s case, a defendant could withdraw his plea if he actually based his plea decision on whether or not he would be deported.  In both cases, the defendants are still looking at likely convictions and deportations.  The false statement in the citizenship application was that the applicant’s husband was likely to be persecuted in Bosnia as he was trying to avoid being forced to fight on behalf of one of the factions when, in fact, her husband had fought for one of the factions and potentially committed war crimes.  In the other case, as the phrasing of the issue indicates, the evidence that the defendant committed the offense (a drug charge) was very strong and — unless he gets a better plea offer — he will probably lose at trial and still get deported.

The two cases rescheduled for next term both involve deportation.  One involves the issue of bond on someone facing deportation.  As any attorney involved in criminal cases knows, bond changes everything in a criminal case.  Somebody who can’t post bond is more likely to look for a quick resolution of the case (either to get released on probation or to go to prison where the conditions tend to be better than in county jails).  On the other hand, somebody on bond is more likely to be happy with delaying the case.  The original briefing and argument focused on statutory interpretation (mostly the doctrine that a statute should be interpreted to avoid potential issues of constitutionality), but — after the argument — the Supreme Court asked for additional briefing on whether the statute was unconstitutional.  The other case involves the deportation statute.  That statute contains a “residual” clause designed to catch state offenses that are similar to the listed offenses.  A similar clause in a criminal statute was struck down because it was too vague.  The issue is whether the vagueness of the definition also requires striking down the clause in the immigration statute.

And that leaves the big case of the week — the travel ban.  To me the interesting thing about the opinion modifying the travel ban are two terms not emphasized in the opinion — standing & class-action.  Standing is a limitation on who can sue.  To have standing, a person must actually be injured by the policy challenged and have a remedy that can cure that injury.  A class-action is a type of lawsuit in which one person can raise a challenge as a representative of a larger group that is suffering the same injury.

While not mentioning these two terms, they seem to be motivating the partial stay of the injunction.  The parties who brought these cases are individuals with relatives seeking visas and governments asserting, in part, the interests of public universities in relation to admitted students and those hired to teach at the universities.  The opinion recognizes that these claims are legitimate and that the lower courts could grant temporary injunctions to protect the interests of these individuals and universities.  It also recognized that the lower court could grant temporary injunctions to cover visa applicants in the same situation as the relatives and employees of the parties bringing the case.  The Supreme Court, however, found that the injunction was overbroad in connection with applicants that did not have close relatives in the U.S. or some other “bona fide” connection to somebody in the United States (whether a school or an employer or something similar.)

There were three justices who would have stayed the entire injunction — Justices Thomas, Alito, and Gorsuch.  There opinion suffers from two flaws that are not unusual in this situation.  First, they confuse the requirements for a temporary injunction with the requirements for a permanent injunction with the requirements for a stay of the injunction.  At the temporary injunction stage, the applicant seeking an injunction must show a reasonable probability that they will prevail at the permanent injunction stage, not that they will win.  By definition that means that there is often a reasonable probability that the applicant will lose at the permanent injunction stage.  The fact that the argument behind the temporary injunction is debatable (and potentially wrong) does not by itself mean that the stay should be lifted if the harm caused by lifting the stay (the exclusion of people with a legitimate claim for entry) outweighs the benefits (an unsupported and false claim of national security).

There are two issues raised by the opinions in the travel ban case.  First, the Supreme Court has requested that the briefing address mootness.  By its plain terms, the ban part of the executive order will expire before or shortly after argument in this case which would normally make the case moot — i.e. the decision would have no impact.  While there is an exception to mootness if a case is important enough that might apply to this case, this could be a way for the Supreme Court to punt the case.  Second, while we only have one month of arguments and several opinions on order, Justice Gorsuch seems to be lining up between Justice Alito and Justice Thomas — i.e. on the far right and approaching the loony right.  If this tendency continues, a lot of people will be worse off than they should have been thanks to Senator McConnell’s obstruction of the Merrick Garland nomination last year and the results of the 2016 election.

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One thought on “The Supreme Court and Immigration

  1. Anthony Uplandpoet Watkins

    A lot of people will not be worse because of McConnell. His actions and intentions were a known, as were those of ANY incoming GOP president.
    People are going to be hurt in the next session and probably for every session in the lives of those of us over 50 because of a failure to secure the white house for Hillary…

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