Immigration in the Supreme Court, 2023 Term

by Kevin Johnson

Official Picture of the Justices of the U.S. Supreme Court

Each year, at the end of the Supreme Court Term in June, I summarize the Supreme Court's immigration decisions from the current Term. See Immigration in the Supreme Court, 2022 Term. This post summarizes the Court's immigration decisions from the 2023 Term. The Court has four remaining cases, with decisions expected on July 1. None involve immigration matters

As expected, the Court decided some cases that grabbed headlines. No doubt the upcoming decision on whether former President Trump is immune from criminal prosecution for his actions while in office, will dominate the headlines for weeks. The Court rejected the bump stock ban on Second Amendment grounds and preserved -- at least for now -- access to the abortion pill.

When it came to immigration, the Court did not decide any blockbuster decisions this Term. The Court issued three immigration decisions, a normal allotment for the Term. Two involved questions of interpretation of the Immigration and Nationality Act. The other was an important decision re-affirming, if not reinvigorating, the bar on judicial review of consular officer visa decisions.

The U.S. government won two of three of the cases, which are summarized in the order that the Court decided them.

1. Wilkinson v. Garland (and here)

Under the immigration statute, questions of fact are generally not subject to judicial review while questions of law are. In an opinion by Justice Sotomayor, the Court in Wilkinson v. Garland held that the application of the hardship standard for cancellation of removal is a mixed question of law and fact that is subject to judicial review. The lower courts had been split on the question, with several circuits barring review of hardship determinations as questions of fact. The majority applied its 2020 decision in Guerrero-Lasprilla v. Barr to hold that the hardship determination for cancellation is subject to judicial review. 

The immigration court had found that Situ Kamu Wilkinson, who was born in Trinidad and Tobago, failed to satisfy the statute's “exceptional and extremely unusual” hardship necessary for a grant of cancellation of removal. The U.S. Court of Appeals for the Third Circuit had held that the immigration court's decision was unreviewable. The Supreme Court reversed. Justice Sotomayor delivered the opinion of the Court, in which Justices Kagan, Gorsuch, Kavanaugh, and Barrett joined. Justice Jackson filed an opinion concurring in the judgment. Chief Justice Roberts filed a dissenting opinion. Justice Alito also filed a dissenting opinion, which Chief Justice Roberts and Justice Thomas, joined.

A practice advisory addresses the Supreme Court’s holding and rationale in Wilkinson v. Garland, implications for petitions for review in other contexts, and steps available for noncitizens whose cases are impacted by the decision. The decisions allows judicial review of a critical question in cancellation of removal cases. 

Winner: Noncitizen

2. Campos-Chaves v. Garland

The question presented in consolidated cases was whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by a document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen's request to rescind that order. The case implicated issues addressed by the Court's decisions in Pereira v. Sessions (2018) and Niz-Chavez v. Garland (2021), on the validity of Notices to Appear at removal hearings that lacked basic information required by the statute.

In Campos-Chaves v. Garland, Chief Justice Roberts and Justices Thomas, Kavanaugh, and Barrett joined a majority opinion by Justice Alito. Justices Sotomayor, Kagan, and Gorsuch joining a dissent by Justice Jackson. Kit Johnson summarized the opinions here.

The opening paragraph of the majority opinion lays out the underlying dispute before the Court: 

When the Government seeks to remove an alien, it is required to notify [in a Notice to Appear (NTA)] the alien of the time and place of the removal hearings. Title 8 U. S. C. §1229(a) describes two types of notice—an initial notice to appear under paragraph (1), and, “in the case of any change or postponement in the time and place of ” the removal proceedings, a notice of hearing under paragraph (2). When an alien fails to appear at his removal hearing despite receiving such notice, he “shall be ordered removed in absentia” if the Government can make certain showings. §1229a(b)(5)(A). The alien can seek to have that order rescinded, however, if the alien can demonstrate that he “did not receive notice in accordance with paragraph (1) or (2) of [§1229(a)].”

The Court's holding:

Each of the aliens in these cases argues that he may seek rescission because he did not receive a notice to appear that complies with paragraph (1). We hold that, to rescind an in absentia removal order on the ground that the alien “did not receive notice in accordance with paragraph (1) or (2),” the alien must show that he did not receive notice under either paragraph for the hearing at which the alien was absent and ordered removed. Because each of the aliens in these cases received a proper paragraph (2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii).

Justice Jackson's dissent focuses on the plain meaning of the statutory language at issue and the Court's decisions in Pereira and Niz-Chavez:

Today’s cases arise because the Government persisted with its practice of issuing facially defective NTAs in the wake of our two prior pronouncements. But, apparently, the third time is the charm, for the majority now finally blesses the Government’s abject noncompliance with the statute’s unequivocal command. The Court concludes that a noncitizen whose NTA does not contain the time-and-date information that §1229(a)(1) requires has no recourse from an in absentia removal order if the Government subsequently provides some followup notice identifying the time and date of the proceeding he missed. . . . But that holding defies the plain text and context of the statute, sidesteps our precedents, and upends the careful in absentia removal framework Congress has crafted. So, I respectfully dissent.

Winner: United States

3, Department of State v. Muñoz

In Department of State v/ Munoz, the threshold issue was whether a consular officer's denial of a visa application of a U.S. citizen's noncitizen spouse -- the most common immigrant visa -- impinges upon a constitutionally protected interest of the citizen. Such an interest would trigger judicial review of the visa denial. The Supreme Court held that a U.S. citizen does not have a liberty interest in her noncitizen spouse being admitted into the United States. The Court reversed the Ninth Circuit and denied review of a consular officer denial of a visa application to a Salvadoran husband of a U.S. citizen. His tattoos, including one of the Virgin of Guadalupe, led the consular officer to conclude that he was a MS-13 gang member.

Justice Amy Coney Barrett delivered the opinion of the Court, which Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh joined. Justice Gorsuch concurred in the judgment. Justice Sotomayor filed a dissent, in which Justices Kagan and Jackson joined.

Below is a telling summary of a key component of the legal analysis from the syllabus of the Court's opinion:

"From this Nation’s beginnings, the admission of noncitizens into the country was characterized as `of favor [and] not of right.' J. Madison, Report of 1800. And when Congress began to restrict immigration in the late 19th century, the laws it enacted provided no exceptions for citizens’ spouses. See, e.g., Page Act of 1875, 18 Stat. 477–478; Immigration Act of 1882, 22 Stat. 214; Immigration Act of 1891, 26 Stat. 1084. And while Congress has, on occasion, extended special immigration treatment to marriage, see, e.g., War Brides Act of 1945, 59 Stat. 659, it has never made spousal immigration a matter of right. This Court has not interfered with such policy choices, despite their interference with the spousal relationship. Thus in United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, the Court reaffirmed, in the case of a noncitizen spouse who was denied admission for confidential security reasons, the longstanding principle `that the United States can, as a matter of public policy . . . forbid aliens or classes of aliens from coming within [its] borders,' and `[n]o limits can be put by the courts upon' that power. Wong Wing v. United States, 163 U. S. 228, 237. [1896]" (bold added).

Ilya Somin on the Volokh Conspiracy is critical of Justice Barrett's use of history: "In . . . Munoz, the Supreme Court ruled there are virtually no constitutional limits on the federal government's power to bar non-citizen spouses of American citizens from entering the country. In the process, Justice Amy Coney Barrett's majority opinion (written on behalf of herself and the five other conservative justices) commits serious errors in historical analysis, and violates Justice Barrett's own well-taken strictures about the appropriate use of history in constitutional analysis."

Justice Sotomayor's dissent, among other matters, considers the evidence about the visa applicant's tattoos:

"After the consulate denied reconsideration, Muñoz and her husband wrote to the State Department again requesting a factual basis for the inadmissibility decision. Asencio-Cordero has no criminal record, but he does have several tattoos from his teenage years. . . . They depict a range of subjects, including `Our Lady of Guadalupe, Sigmund Freud, a ‘tribal’ pattern with a paw print, and theatrical masks with dice and cards.' . . . . Some of these images have deep significance in Latin American culture. . . . Some also happen to appear on gang members. . . . Muñoz and her husband included additional evidence from a court-approved gang expert in their letter to the State Department. The expert reviewed Asencio-Cordero’s tattoos and concluded that none were `related to any gang or criminal organization in the United States or elsewhere.' . . ." 

In Munoz, the Supreme Court gave new life to the doctrine of consular nonreiewability, a close cousin of the plenary power doctrine At least in cases involving marriage to a U.S. citizen, the most common consular officer decision, visa denials will not be subject to minimal rationality review as has been the rule in recent years. As suggested to its citation to discriminatory decisions during the Chinese exclusion era, the Court seems to be returning to the approach from the 1800s of no judicial review of immigration decisions. In a similar vein, Justice Alito for a majority of the Court in Department of Homeland Security v. Thuraissigiam (2020) revived the plenary power doctrine born in the era of Chinese exclusion -- and, as in Munoz, invoked the infamous decisions of Knauff denying judicial review of immigration decisions based on secret evidence -- in allowing expedited removal without due process of an asylum seeker apprehended on U.S. soil near the U.S./Mexico border. In so doing, the Court departed from modern cases requiring a hearing comporting with Due Process for any noncitizen apprehended on U.S. soil (rather than denied entry at the border). 

The American Civil Liberties Union filed an amicus brief in the Munoz case.Daniel Galindo, senior staff attorney with the ACLU’s Immigrants’ Rights Project, commented that “[t]he Supreme Court says a U.S. citizen has no protected interest in living with her noncitizen spouse in her own country. We strongly disagree. At a minimum, she should be entitled to a fair process.”

Winner: United States


The End of Chevron Deference

The demise of a leading administrative law decision will have a big impact on the review of immigration decisions. The Court overruled its 1984 decision in Chevron v. Natural Resources Defense Council (1984), which held that courts should defer to an agency’s reasonable interpretation of an ambiguous statute. Chevron dominated courts' approach to the review of agency action for forty years. As Matthew Daley for the Associated Press put it, "The 40-year-old decision has been the basis for upholding thousands of regulations by dozens of federal agencies, but has long been a target of conservatives and business groups who argue that it grants too much power to the executive branch, or what some critics call the administrative state."

At various times, courts, including the Supreme Court, relied on Chevron to defer to the Board of Immigration Appeal's interpretation of the immigration statute. See, e.g., INS v. Aguirre-Aguirre (1999). However, the Supreme Court refused to defer to the Board of Immigration Appeals when the statute was clear on the pertinent question. See, e.g., Pereira v. Sessions (2018); INS v. Cardoza-Fonseca ((987). In Pereira v. Sessions, Justice Kennedy in a concurring opinion suggested that the time was right for the revisiting of Chevron

In Loper Bright Enterprises v. Raimondo (and here), the Court in a 6-3 split overruled Chevron and held that courts cannot defer to an agency interpretation of an ambiguous statute. Finding that Chevron deference conflicted with Marbury v. Madison (1803), which declared the central role of the courts in declaring what the law is, and the Administrative Procedure Act, Chief Justice John Roberts delivered the opinion of the Court. Justice Thomas and Gorsuch filed concurring opinions. Justice Kagan, filed a dissenting opinion, joined by Justice Sotomayor and in part by Justice Jackson. Amy Howe for SCOTUSBlog analyzes the various opinions here.

In light of the doubt over Chevron's vitality, the Court had not been relying much on Chevron deference in immigration matters the last few years. In the future, courts likely will resort to the usual modes of statutory interpretation and no deference to agency interpretation of statutes. For commentary by Nancy Morawetz on the future for immigration law after Chevron, click here.


The 2024 Term

In the 2024 Term, the Court is set to consider Bouarfa v. Mayorkas. It raises the issue whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria. The Court likely will add some immigration cases to its docket.

This post originally appeared on Immigration Prof 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.