Immigration symposium: Prelude to a turning point

Charles Roth is the Director of Litigation at the National Immigrant Justice Center. NIJC filed or joined amicus briefs in seven of the cases discussed below.

Most deportation orders are entered in obscurity, without counsel, without even an immigration judge to do the honors. This term, immigration was on the front pages, and the Supreme Court coincidentally agreed to hear an unprecedented number of immigration cases. But it was mostly prelude: Themes were struck, hints were given, cases were decided involving fundamental questions of law that affect thousands of immigrants and their families … but the fundamental battles await next term.

The bread-and-butter of the immigration docket the past several terms has been the aggravated-felony definition. That definition, in its Rube Goldberg glory, combines great practical significance (barring nearly all discretionary relief), retroactive application and lack of guiding principles: Circuit splits abound. In Esquivel-Quintana v. Sessions, a unanimous opinion by Justice Clarence Thomas held that the term “sexual abuse of a minor” should be construed consistently with the vast majority of states (and the federal criminal code) to categorically exclude statutory rape offenses in those states that set an age of consent other than age 16. Juan Esquivel-Quintana’s California conviction didn’t match that definition, so he prevailed. Dimaya v. Sessions might have seemed simpler than Esquivel-Quintana. Dimaya asks whether the crime-of-violence definition is void for vagueness in the deportability context, as Johnson v. U.S. found two terms ago in the sentencing context. Most lower courts found that constitutional infirmity followed inexorably from Johnson, despite minor statutory differences, but the Supreme Court seems poised to disagree. It appears either that there are four votes against James Dimaya, or that the court is splintered; the court ordered reargument next term. If Dimaya permits what Johnson forbade, it will be a disappointment but not a total shock to those of us who care about fairness for noncitizens; immigrants have long been sent to the back of the constitutional bus.

Despite hearing 10 aggravated-felony cases since 2004, the Supreme Court has never addressed the one recurring legal question common to these cases: whether published decisions of the Board of Immigration Appeals obtain Chevron deference on that issue. The Supreme Court has applied Chevron deference to BIA interpretations of immigration law for almost 20 years, at least since INS v. Aguirre-Aguirre. The aggravated-felony definition appears in the Immigration and Nationality Act, and nowhere else. So what’s the catch? The aggravated-felony definition applies both to removability and to the crime of reentry after removal, the most commonly prosecuted federal felony. Because of the mixed agency/criminal application, some have concluded – most prominently, Judge Jeffrey Sutton’s dissent in Esquivel-Quintana – that Chevron has no applicability (for a good exposition, see the NACDL amicus brief in Esquivel-Quintana). The issue will have to wait at least until next term.

The defense-counsel obligation to advise clients about immigration consequences of crimes has also been a repeat visitor in recent terms, as the Supreme Court continues to clarify its path-breaking decision in Padilla v. Kentucky. In Chaidez v. United States (full disclosure — I was on the Chaidez team), the court found Padilla non-retroactive. This term, Lee v. U.S. asked whether a noncitizen had to have some plausible defense to the crime to be allowed to withdraw a guilty plea. Jae Lee was (said the court) caught dead-to-rights. Good defense counsel, often aided by immigration experts, can often craft a plea bargain that vindicates the prosecution’s interests (deterrence, punishment, rehabilitation), but doesn’t trigger automatic removal. But the practical question (whether a better plea bargain was possible) was not the question asked by the court in Lee. Rather, the court asked if there were a “reasonable probability that, but for counsel’s errors, [Lee] would not have pleaded guilty and would have insisted on going to trial.” That formulation avoided the need to assess the chances of a better plea deal, and seemed to hurt Lee, given the weight of the evidence against him. But Chief Justice John Roberts made short work of the government’s argument, holding that it would not be “irrational” for someone like Lee (focused primarily on avoiding removal) to prefer trial that would “[a]lmost certainly” lead to conviction and deportation over a plea bargain that would certainly lead to that result.

The citizenship question in Sessions v. Morales-Santana was a bring-back issue that deadlocked the court six terms ago in Flores-Villar v. U.S. The INA allows a citizen parent to convey American citizenship automatically, under technical rules that have shifted over the years. One consistent rule for the past 70 years is that it has been easier for an unmarried U.S.-citizen mother to convey automatic citizenship to her child than for an unmarried father or a married parent. The difference is the length of time that the parent must have been present in the U.S. before having the child. In Morales-Santana and Flores-Villar, children of U.S.-citizen fathers argued that the statute violated equal protection by discriminating on the basis of gender. In Flores-Villar, the court deadlocked 4-4, with Justice Elena Kagan recused. In Morales-Santana, the court provided the answer. The INA violated the equal protection rights of Luis Morales-Santana’s father; and Morales-Santana had standing to challenge the violation. Unfortunately for Morales-Santana, the court granted him no relief. The court reasoned that if unmarried fathers obtained the favorable treatment accorded unmarried mothers, there would be no reason not to similarly extend the law to married men and women; and this would turn the statute’s exception for unmarried mothers into the rule. So the court refused to adopt that remedy; rather, it eliminated discrimination by prospectively striking the favorable provision for unmarried mothers. Children born to unmarried mothers after issuance of Morales-Santana (some might argue after the date the mandate issues) will have to satisfy the general rules for automatic conveyance of citizenship, rather than benefiting from the more favorable provisions for unmarried women. For those like Morales-Santana, the court offered no remedy: Children of unmarried citizen mothers retain automatic citizenship, while children of unmarried men remain foreigners.

Although Morales-Santana is not a citizen, footnote 24 indicates that he may be immune from criminal prosecution if he reentered illegally, noting that the remedy for an unconstitutional criminal prosecution is to overturn the conviction, even if no civil remedy is available. Incidentally, this footnote likely explains why the court deadlocked in Flores-Villar six terms ago; it also implies some vote-shifting. There were four votes against Ruben Flores-Villar, but only two justices (Clarence Thomas and Samuel Alito) did not join Justice Ruth Bader Ginsburg’s opinion in full. Assuming that Justice Antonin Scalia was the third vote against Flores-Villar, it seems that at least one justice (presumably either John Roberts or Anthony Kennedy) voted against Flores-Villar but later became convinced either of the unconstitutionality of the statute or of the availability of a remedy in criminal cases.

Two immigration-related cases reached the Supreme Court as damages actions. In Ziglar v. Abbasi, writing for a six-justice court, Kennedy reversed a U.S. Court of Appeals for the 2nd Circuit decision that found high level governmental officials potentially liable for rights violations in the wake of 9/11. That opinion has major implications for Bivens generally, making a Bivens remedy even harder (but perhaps more predictably harder) to obtain. Seen through an immigration lens, Abbasi is another abdication of judicial oversight when agencies don’t follow the law. Abbasi presented a hard context, involving national security in the immediate aftermath of 9/11. But the supposition that detainees may seek “injunctive relief” or habeas to remedy illegality ignores the impracticality and unworkability of those remedies. It would have been extraordinary for federal courts in the months after 9/11 to have granted habeas or injunctive relief quickly enough to afford an actual remedy for detainees in those circumstances. Bivens is a Monday-morning quarterback approach to constitutional violations, not a real-time remedy. That’s not entirely satisfying to those of us who seek to protect rights, but one advantage to post-hoc review is that courts can look dispassionately at legal issues without fearing that they might be ordering release of a terrorist, revealing confidential information or undermining national security.

The post-hoc approach of Bivens counterintuitively helped the plaintiffs in Hernandez v. Mesa, in which a border patrol agent fired across the border into Mexico, killing a young, unarmed Mexican boy. The en banc U.S. Court of Appeals for the 5th Circuit ruled against the estate, finding that the Fourth Amendment rights were not clearly established, and that unadmitted noncitizens outside the country lacked Fifth Amendment rights. The Supreme Court reversed the latter holding: The border patrol agent didn’t know the citizenship of the victim when he fired, and later-learned facts do not support qualified immunity. The court remanded the Bivens question to the 5th Circuit for reanalysis in light of Abbasi.

The biggest immigration law case of the term undoubtedly would have been Jennings v. Rodriguez. In 2003, Demore v. Kim upheld mandatory immigration detention 5-4 (based in part on incorrect data provided by the U.S. solicitor general). Though Demore rejected the facial challenge to mandatory detention, case-specific challenges continued (effectively invited by Kennedy’s concurrence in Demore); the U.S. Court of Appeals for the 9th Circuit read the immigration statutes to include implied limits on extended detention, to avoid potential unconstitutionality. A circuit consensus formed, but courts disagreed about whether to apply a bright-line test or a case-by-case analysis. That divergence opened the door to reexamination of shared conclusions about constitutional avoidance. In the Jennings argument, the court seemed unpersuaded that the statute could be read to include implied limits on detention; the court ordered supplemental briefing on constitutional claims. The stakes in Jennings are very high: A win for the plaintiffs would impose nationwide limits on the reach of mandatory detention and confirm constitutional limits on detention. A win for the government would leave few or no protections against prolonged detention. It’s unclear if the court is splintered or tied, but either way, it seems Justice Neil Gorsuch will have a deciding vote.

With the travel ban cases, Jennings, and Sessions v. Dimaya on the Supreme Court’s plate, next term is shaping up to be a major turning point for immigration jurisprudence. The battle lines have been set. The court today rests in equipoise, but it must soon choose whether to apply due process and other constitutional rules to immigrants, or to relegate immigration to (essentially) a law-free zone. By this time next year, with immigration enforcement likely at fever pitch, the court will either have impliedly welcomed noncitizens into our constitutional community, or turned its back on them.