The Republican-majority Supreme Court displayed its anti-immigrant bias last week in two separate decisions on the same day that operate to block noncitizens detained in ICE custody from seeking bond hearings for possible release while they seek relief from removal orders and to block noncitizens from seeking classwide relief to enforce immigration law provisions.
Both decisions went against the federal circuit court rulings under review, thus emphasizing that the current Supreme Court is far outside the mainstream of American jurisprudence. In the first of the June 13 decisions, Johnson v. Arteaga-Martinez, the Court reversed, in an 8-1 decision by Sotomayor, the Ninth Circuit’s ruling to require bond hearings for noncitizens detained in immigration custody within six months of the detention.
In his lone dissent, Breyer argued that the outcome of the case should have been controlled by his opinion for a 5-4 Court twenty years earlier, Zadvydas v. Davis (2001). In that case, Breyer led a liberal majority to read immigration law to “implicitly limit an alien’s detention to a period reasonably necessary to bring about the alien’s removal from the United States and to prohibit ‘indefinite detention.’”
Writing for the 8-1 majority in the new case, Sotomayor led the conservative-dominated Court in narrowly construing immigration law to include no requirement for periodic bond hearings because the applicable provision had “no express statutory reference to bond.” Without access to the justices’ conference on the case, one must assume that the conservative textualists argued long and hard for overturning the Ninth Circuit’s decision, the Court’s own precedent from 2001 notwithstanding.
The immigrant in the case, a Mexican national Antonio Arteaga-Martinez, had lived gainfully and quietly in the United States since 2012 after fleeing with his family because of threats from street gangs in his native country. An asylum officer who interviewed Arteaga-Martinez determined that he had a reasonable fear of persecution if returned to Mexico. U.S. Immigration and Customs Enforcement (ICE) issued a warrant for his arrest in May 2018 and detained him in an ICE facility.
Arteaga-Martinez responded four months later by filing a habeas corpus petition in federal court in Harrisburg, Pennsylvania, seeking either a bond hearing or his release. Within that very month, September 2018, the U.S. Court of Appeals for the Third Circuit issued a precedential decision holding that the government must afford a noncitizen a bond hearing within six months of decision. Applying that decision to Arteaga-Martinez’s case, the appeals court granted him a bond hearing and later his release on bond.
The government appealed that decision to the Supreme Court, which agreed in July 2021 to add the case to the docket for the 2021 term. And one month later the justices added another immigration law case to the docket for the coming term. In the second case, Garland v. Gonzalez, the government was appealing a Ninth Circuit decision that upheld decisions by district court judges in Seattle and San Francisco to similarly require bond hearings for noncitizens within six months of detention.
In agreeing to hear the second case, the justices added a new issue: specifically, whether the district courts had any jurisdiction whatever under immigration law to grant classwide relief – that is to say, whether the district courts could grant injunctive relief to require the government to allow bond hearings for any and all noncitizens detained for more than six months.
The new issue amounted to an ominous sign that the Trump-heavy conservative bloc at One First Street was eager to rein in federal judges. The eventual 6-3 decision, written by Alito and divided along conservative-liberal lines, confirmed that fear by holding that immigration law generally precludes district courts from granting classwide relief in immigration cases.
Alito led the conservative bloc in narrowly reading federal courts’ authority under an immigration law provision, 8 U. S. C. § 1252(f)(1). That provision generally strips district courts of “jurisdiction or authority” to “enjoin or restrain the operation of” certain provisions of the Immigration and Nationality Act, “other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.”
In dissenting from the legal holding on behalf of her liberal colleagues Breyer and Kagan, Sotomayor argued that the decision was “absurd” and judicially inefficient to boot. The decision, she explained, would require separate remedial orders and lawsuits for family members asserting legally and factually identical claims based on joint immigration applications or proceedings. She added that there was no conceivable benefit in requiring identical claims to be raised in separate duplicative actions and argued that what she called this “bizarre outcome” was further evidence of the Court's error.
In effect, the decision would require each and every noncitizen to file their own legal action to try to enforce the recognized right to a bond hearing within six months of detention and to wait for the months or years to secure a published appellate ruling on their claims. Sotomayor called the result “absurd,” but she might also have called it “Kafkaesque” in its mindless idiocy. The decision, she added, would prevent many vulnerable noncitizens of any meaningful opportunity to protect their rights and would have “grave repercussions.”
Sotomayor closed her dissenting opinion by noting in a footnote that four circuit courts had reached a contrary conclusion over the previous decade by holding that §1252(f )(1) poses no bar to the issuance of declaratory relief. She listed those decisions with detailed citations: Brito v. Garland, 22 F. 4th 240, 250–252 (CA1 2021); Make The Road New York v. Wolf, 962 F. 3d 612, 635 (CADC 2020); Alli v. Decker, 650 F. 3d 1007, 1010–1013 (CA3 2011); Rodriguez v. Hayes, 591 F. 3d 1105, 1119–1120 (CA9 2010).
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