Immigration in the Supreme Court, 2021 Term

by Kevin Johnson

Few will soon forget the 2021 Term in U.S. Supreme Court history. For weeks, news was dominated by a leaked draft opinion in a blockbuster abortion case, which foreshadowed the overruling of Roe v. Wade (1973) in Dobbs v. Jackson Women’s Health Organization. In addition, controversy surrounded conservative Justice Clarence Thomas's ethical obligations in connection with the Court's consideration of cases in which his conservative wife's political activities were implicated. On the last day of the term, Associate Justice Stephen Breyer retired and the first African American woman Justice, Ketanji Brown Jackson, was sworn in to replace him. In most turbulent times, the Court slowly but surely completed the work of the 2021 Term. 

With the 2021 Term now concluded, ImmigrationProf in this post collects the Court's various immigration decisions from the Term. See last year's recap of the 2020 Term. The 2021 Term did not include any true blockbuster decisions. Biden v. Texas probably received the most attention in light of the fact that the Court cleared the way for the Biden administration to dismantle a signature Trump administration immigration enforcement policy, which requires asylum seekers to be returned to Mexico while their claims are being decided.

The Court decided five immigration cases in the 2021 Term, an average number for the Court in recent years. (There, of course, are other cases, such as United States v. Taylor, a criminal case involving the definition of a "crime of violence," which indirectly impact immigrant cases.). What is different this Term is that what can be classified as the pro-immigrant position failed in four of the five immigration cases, showing the direction of the current Supreme Court's conservative super-majority.

The Court's immigration decisions include ones requiring careful, but rather routine (if not ponderous), interpretation of the immigration statute as well as more general legal principles.

  1. Judicial Review: Patel v. Garland

Issue: Whether the immigration statute bars judicial review of agency fact-findings in determining that a noncitizen is ineligible for discretionary relief from removal. The disputed fact finding in Patel involved whether the noncitizen, Pankajkumar Patel, a native of India, had intentionally or mistakenly stated that he was a U.S. citizen on an application for a Georgia driver's license.

RESULT: U.S. Government Wins

In a 5-4 opinion by the most junior justice, Amy Coney Barrett, the Court held that Congress in the immigration statute precluded judicial review of the fact findings in an adjustment of status case. As stated in the syllabus to the opinion, the Court specifically held that "[f]ederal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i)." Justice Barrett's opinion was joined by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh.

Justice Barrett began the majority opinion as follows:

"Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances. Federal courts have a very limited role to play in this process. With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends -- specifically, whether it precludes judicial review of factual findings that underlie a denial of relief. It does." (bold added). 

Justice Gorsuch dissented in an opinion joined by the more liberal contingent of justices, Breyer, Sotomayor, and Kagan. “Today, the court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it,” Justice Gorsuch wrote. “No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants.”

In a sentiment similar to that of the Justice Gorsuch's dissent, Stacy Caplow laments that the majority in Patel v. Garland "effectively forecloses judicial review of fact-finding by immigration courts or agencies regardless of whether the fact-finding was unreasonable and produced an incorrect legal conclusion." Geoffrey Hoffman and Shoba Sivaprasad Wadhia analyze the Court's decision.

The Patel decision is a standard statutory interpretation case involving the Supreme Court applying a provision of the immigration statute that imposes congressional limits on the judicial review of agency immigration decisions. It is one of a number of recent decisions of this type.

  1. Two Detention Cases (Garland v. Aleman Gonzales and Johnson v. Arteaga-Martinez)

Congress passed immigration reforms in 1996 that led to the U.S. government's increased use of detention in immigration enforcement. On several occasions, including in Jennings v. Rodriguez (2018), the Court has addressed whether the law requires some form of judicial review of detention decisions. Relying on the Court's 2001 decision in Zadvydas v. Davis, written by retiring Justice Stephen Breyer, a number of lower courts have read into the statute the requirement of a regular bond hearing and avoided the serious constitutional questions raised by indefinite detention without judicial review. Of course, detention of a U.S. citizen without judicial review would be patently unconstitutional. The review of immigrant detention decisions raises the broader issue of the role of the courts in reviewing the constitutionality of provisions of the immigration laws and the modern vitality of the plenary power doctrine, which restricts judicial review of the immigration decisions of Congress. 

On the same day, the Supreme Court decided Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez, which both involved judicial review of immigrant detention decisions. In the end, the Court, as it did in Jennings, ducked the question of the constitutionality of the detention of a noncitizen without a court hearing.

Results:U.S. Government Wins in Both Cases

Garland v. Aleman Gonzalez 

Issues

(1) Whether a detained noncitizen is entitled by statute, after six months of detention, to a bond hearing and possible release from detention; and

(2) whether the courts below had jurisdiction to grant class-wide injunctive relief 

The Court in Garland v. Aleman Gonzalez held that Immigration and Nationality Act § 1252(f )(1) of the Immigration and Nationality Act barred the district courts from granting class-wide injunctive relief on the detention of immigrants. Justice Alito wrote for the Court. Justice Sotomayor, joined by Justices Breyer and Kagan, concurred in the judgment and dissented in part. She wrote that the “inevitable consequence of barring classwide injunctive relief will be that . . . violations will go unremedied.” In recent years, injunctions in immigration cases has drawn critical attention.

Future cases will no doubt address the scope of Garland v. Aleman Gonzalez the extent to which Section 1252(f)(1) bars class-wide injunctive relief in immigration matters other than those involving detention. In the end, the impacts of Garland v. Gonzalez may be significant. Immigrant rights advocates often seek broad injunctive relief in impact cases and will no doubt resist an expansive application of the decision.

Johnson v. Arteaga-Martinez

Issue: Whether a detained noncitizen is entitled by statute, after six months of detention, to a bond hearing and possible release.

In Arteaga-Martinez, the Court reversed a court of appeals decision and held that the immigration statute did not require a bond hearing for a detained noncitizen and remanded the case to the court of appeals to decide the statute's constitutionality. The Court thus rejected the practice of lower courts relying on the Court's 2001 decision in Zadvydas v. Davis to read into the statute the requirement of a regular bond hearing.

Justice Sotomayor wrote for the Court and was joined by all of the Justices except Justice Breyer, the author of Zadvydas v. Davis. He filed an opinion concurring in part and dissenting in part.

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Shalini Bhargava Ray analyzes the two decisions here for SCOTUSBlog. Her conclusion:

"The implications of these decisions are serious. Under Arteaga-Martinez, noncitizens challenging indefinite detention under Section 1231 must resort to constitutional litigation (or advocacy to pressure DHS to voluntarily change its practices). But under Gonzalez, very few noncitizens will be able to bring such challenges or win relief against unconstitutional detention because they must retain counsel individually or engage in complex federal litigation pro se. Detained immigrants face many hurdles in finding and consulting with counsel as it is. With the additional burden, Gonzalez denies them, in Sotomayor’s words, `a meaningful opportunity to protect their rights.'”

  1. Bivens Claims Against Border Enforcement Officers: Egbert v. Boule

Egbert v. Boule is the latest in a line of decisions restricting the ability of private parties to sue government officials for violation of the U.S. Constitution under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971).

Result: U.S. Immigration Officer Wins

Issues

(1) Whether a Bivens claim exists for alleged enforcement of a law based on protected First Amendment activity; and

(2) Whether a Bivens claim exists against U.S. immigration enforcement officers for violating the Fourth Amendment.

Howard Wasserman for SCOTUSBlog succinctly encapsulates the fun facts of the Egbert case:

"Respondent Robert Boule is a U.S. citizen who owns and runs the Smuggler’s Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington; drives a car with a SMUGLER license plate; and worked as a confidential informant for the Customs and Border Patrol. Petitioner Erik Egbert, a Border Patrol agent, attempted to speak with a guest, newly arrived from Turkey via New York, outside the inn. When Boule asked Egbert to leave his property and attempted to intervene, Egbert shoved him to the ground; when Boule complained to Egbert’s superiors, Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boule’s activities."

The Supreme Court, in an opinion by Justice Clarence Thomas, and joined by the Chief Justice and Justices Alito, Kavanaugh, and Barrett, rejected both Bivens claims. The majority emphasized that it generally is up to Congress to provide for rights of action against federal officers for violations of the Constitution. Justice Gorsuch concurred, stating that the case at hand is little different than Bivens and that the Court might just as well overrule that decision. Justice Sotomayor, joined by Justices Breyer and Kagan, concurred in part and dissented in part.

Howard Wasserman summarizes the holding in the case as follows: "Rejecting Fourth Amendment excessive-force and First Amendment retaliation damages claims against a U.S. Border Patrol agent by a U.S. citizen for an incident on his property near the U.S.-Canada border, the Supreme Court in Egbert v. Boule narrowed, but did not eliminate, private civil damages actions for constitutional violations by federal officials under Bivens . . . ."

Egbert is simply the latest decision that restricts Bivens actions. In Hernandez v. Mesa (2019), for example, the Court rejected claims against border enforcement officers based on a deadly cross-border shooting. After Egbert, the future of Bivens claims is unclear.

Mark Joseph Stern for Slate critically analyzes the civil rights implications of the Egbert decision. He specifically notes Justice Sotomayor's opinion dissenting in part, which

"castigated the majority for shredding precedent in its quest to immunize federal officers from civil suits. The justice complained that `a restless and newly constituted court' rewrote the law to ensure that victims of federal police brutality have no redress. She also drew attention to the reason for this shift: the replacement of Anthony Kennedy and Ruth Bader Ginsburg with Brett Kavanaugh and Amy Coney Barrett, whose addition moved the court far to the right."

  1. Remain in Mexico Policy:Biden v. Texas 

The issue in Biden v. Texas was whether the Biden administration could dismantle the Trump administration's Migrant Protection Protocols (MPP), or Remain in Mexico policy, which requires asylum seekers arriving at the U.S./Mexico border to be returned to Mexico while their claims are being decided. The MPP had come under critical scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps in Mexico. Human Rights Watch found that the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.” As the Council on Foreign Relations put it, "[c]ritics say the program is inhumane and that it violates U.S. and international law, but courts have blocked President Joe Biden’s attempts to end it."

Result: Biden Administration/Immigrants Win

In perhaps the most significant immigration policy decision of the 2021 Term, the Supreme Court, in the very last decision of the 2021 Term, decided the Biden v. Texas. In a 5-4 decision, Chief Justice Roberts, joined by Justices Breyer, Kagan, Sotomayor, and Kavanaugh, wrote for the majority. The Court held that the Biden administration's decision to terminate the MPP did not violate federal immigration law by not requiring the detention of all asylum seekers arriving at the border and that the administration had taken final agency action ending the program. Elaborating on his understanding of the majority's statutory analysis, Justice Kavanaugh filed a concurring opinion. There were two dissents. Justice Alito concluded that the statute required the detention of asylum seekers while their claims were being decided. Justice Barrett, in a dissent joined in large part by Justice Thomas, Alito, and Gorsuch, concluded that the Court should remand the case to consider whether the courts had jurisdiction under the immigration statute (as interpreted by the Court in its decision earlier in June in Garland v. Aleman Gonzalez), which fpound that the statutory provision in question barred a class-wide injunction.

Amy Howe analyzes the decision for SCOTUSBlog here. She sees it as "hand[ing] the Biden administration a major victory, giving it the green light to end one of the Trump administration’s signature immigration programs." I offer thoughts on Biden v. Texas here for The Conversation.

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The Court Punts in the Public Charge Case

In one of his signature immigration measures, President Trump through a proposed public charge rule sought to tighten the requirements on low- and moderate-income noncitizens seeking to come to the United States. President Biden attempted to rescind the proposed rule and decided not to defend against the legal challenges to it. Several more conservative states, led by Arizona, sought to intervene to defend the public charge rule. 

The Court granted certiorari in Arizona v. City and County of San Francisco on the question whether states could intervene to defend a proposed rule that a new administration decided not to defend. The substantive issue at the core of the case was the lawfulness of the controversial public charge rule.

As the 2021 Term was coming to a close, the Court dismissed the writ of certiorari as improvidently granted. Chief Justice Roberts filed a concurring opinion, joined by Justices Thomas, Alito, and Gorsuch, emphasizing that the dismissal of the case did not decide the merits of the dispute.

John Kruzel for The Hill and Amy Howe for SCOTUSBlog analyze the per curiam order and concurrence.

Arizona v. City and County of San Francisco held the unfulfilled promise of being significant if for no other reason that it touched on one of the Trump administration's signature immigration measures.

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The Supreme Court's immigration decisions from the 2021 Term do not include any blockbusters. As in previous Terms, they follow relatively routine jurisprudential patterns, with interpreting the complicated immigration statute central to the majority of the cases. As in previous Terms, judicial review and detention came up. One complicating factor this Term was that the Court was asked to intervene in several cases in which the Biden administration sought to dismantle tough Trump administration immigration initiatives. 

One notable pattern in the five decisions is that immigrants lost four of the five immigration decisions. The conservative super-majority controlled the outcomes.

This post originally appeared on ImmigrationProf Blog Reprinted with permission.


About The Author

Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.