Legal Challenge Could Paralyze Immigration Enforcement

The Supreme Court this week considered a case that could grind the U.S. immigration enforcement system to a halt and severely complicate President-Elect Donald Trump’s plans to step up deportations of criminals.

The San Francisco-based 9th U.S. Circuit Court of Appeals allowed a class-action lawsuit on behalf of immigrants in mandatory detention and ruled that the government must give anyone who is detained with a pending deportation case a bond hearing after six months. The ruling, for now, applies only to California. But if five Supreme Court justices vote to uphold the ruling, it would affect immigration cases nationwide.

“When even the Obama administration is arguing for detention, that tells you how far in la-la land the 9th Circuit was in this ruling.”

The plaintiffs argue that indefinite detention in unconstitutional. The Obama administration argues that the appellate court improperly made up a new standard, contradicting the will of Congress when it reformed immigration detention rules in 1996. It is the most important immigration case of the current term.

Critics of the ruling said the reason that immigration-deportation cases drag on for so long is that the immigrants delay them by pursuing ever-expanding legal means to fight removal. Anyone detained an immigration facility can leave at any time — by agreeing to return to his or her own country.

“The intent is to prevent enforcement of immigration law, to make it impossible to enforce immigration law. That’s the goal,” said Mark Krikorian, executive director of the Center for Immigration Studies. “When even the Obama administration is arguing for detention, that tells you how far in la-la land the 9th Circuit was in this ruling.”

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Michael Hethmon, a lawyer who filed a friend-of-the court brief at an earlier stage of the case and attended oral arguments this week, said an affirmation by the Supreme Court would encourage a flood of new appeals by immigration lawyers hoping to delay deportation proceedings long enough to force bond hearings for their clients.

“It’s a great strategy and one of the main tools in the toolbox for immigration lawyers representing clients,” said Hethmon, senior counsel for the Immigration Reform Law Institute.

One of the plaintiffs in the case, Astrid Morataya, was a legal permanent resident who had been convicted 15 years earlier on a minor drug charge. When the government tried to deport her based on that crime, she sat in a detention facility for 2.5 years while she fought deportation, with no way to get out. She eventually ended up winning her immigration appeal and won the right to remain in the United States.

Acting Solicitor General Ian Gershengorn argued that detained immigrants have an avenue in unusual cases, a “safety valve,” in the words of Chief Justice John Roberts — the ability to file so-called habeas corpus claims asking a federal judge to review the case. But to “impose a rigid six-month rule like the Court of Appeals did is really a mistake,” Gershengorn said.

Hethmon noted that the appeals court also required that the government prove by “clear and convincing” evidence that the detained immigrant poses a danger or is a risk to flee. That is a standard of proof that is higher than what is required at bail hearings in criminal cases. He said it would shift the burden that now is on the immigrant to prove that his detention is unwarranted.

If applied nationwide, Hethmon said, the result would be to force the government to expend massive resources fighting for detention orders for immigrants convicted of crimes who are challenging deportation proceedings. It likely would result in the release of many of those criminals, a portion of whom would “disappear into the woodwork” by the time immigration courts had issued final deportation orders.

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“It’s a real challenge to immigration enforcement,” he said. “It went far beyond any other circuit’s formulation … It would create procedural hurdles. They don’t have enough immigration judges to go around or [Department of Homeland Security] hearing officers to go around, as it is.”

How the Supreme Court might rule is unclear. The liberal members of the court seemed sympathetic to the plaintiffs’ argument that the government cannot lock someone up indefinitely. Roberts and Justice Samuel Alito, meanwhile, appeared uncomfortable with the notion of the courts rewriting a statute. They intimated that the case should return to a lower court for further review.

If the justices uphold the appeal, it would apply nationwide. If they split 4-4, it would leave the 9th Circuit decision intact. For now, that would apply only to immigrants held in California. But eventually, plaintiffs in other states under that court’s jurisdiction likely would seek similar rulings. A 4-4 split also would hold up the possibility that the court could take up the issue again — after Trump fills the vacancy created by the death of Justice Antonin Scalia.