President Donald Trump has made immigration enforcement a top priority. Two immigration-enforcement cases looked likely to have a big impact on the Trump administration’s plans. Both were argued before the confirmation of Justice Neil Gorsuch. Today, the Supreme Court, apparently deadlocked, ordered reargument of the cases.
One of the cases, Jennings v. Rodriguez, involved immigration detention. Detained immigrants ordinarily have been eligible to post bond and be allowed release from custody. In a January 25, 2017, executive order, among numerous immigration-enforcement initiatives, Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond thus became official immigration-enforcement policy.
Generally speaking, criminal and civil detention of U.S. citizens is subject to basic constitutional safeguards. Such a rights-based system, however, fits uncomfortably into the much more limited constitutional protections historically offered to noncitizens. Reflecting this tension, the Supreme Court’s immigration-detention decisions are not altogether consistent.
In a class-action challenge to immigrant detention, Jennings v. Rodriguez raised the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing. The U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction requiring bond hearings every six months for immigrant detainees.
Indefinite detention without a hearing and possible release is difficult to justify as a matter of constitutional law. At the same time, however, some justices at oral argument expressed concern that the 9th Circuit had acted more like a legislature than a court in mandating a bond hearing every six months. In the end, the court apparently needed a tiebreaking vote and will address immigration detention next term.
Another case that the court did not decide involved criminal removal. In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s stated emphasis on the removal of “criminal aliens,” we will likely see more criminal removal cases in the future. Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions decided earlier this term, have raised ordinary issues of statutory interpretation and administrative deference.
Sessions v. Dimaya instead was a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been largely immune from judicial review. The court appears to be moving toward applying ordinary constitutional norms to the immigration laws. Earlier this term, for example, the court in Sessions v. Santana-Morales held that gender distinctions favoring women over men in the derivative-citizenship provisions of the immigration laws violated the Constitution’s equal protection guarantee.
A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. The Immigration and Nationality Act defines “aggravated felonies” expansively. That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
James Garcia Dimaya, who immigrated lawfully from the Philippines in 1992, has two residential burglary convictions; neither involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit found that Section 16(b) was unconstitutionally vague and vacated the order. To reach that conclusion, the 9th Circuit relied on the Supreme Court’s 2015 opinion in Johnson v. United States, in which court found the Armed Career Criminal Act’s similarly worded definition of “violent felony” was so vague as to violate due process.
The application of the void-for-vagueness doctrine to the immigration laws apparently divided the court. At oral argument, the justices seemed to agree that the court should review immigration-removal provisions under the standard due process test for vagueness. However, they appeared to be divided as to whether the case at hand was distinguishable from Johnson and thus whether Section 16(b) is unconstitutionally vague.
For the last decade, immigration cases have been a bread-and-butter part of the Supreme Court’s docket. The Supreme Court has slowly but surely moved immigration law toward the constitutional mainstream. We will have to wait until the next term to see if the court continues that trend with respect to immigrant detention and criminal removal.