Challenge to Deportation Procedures Headed to High Court

Guatemalans deported from the U.S. wave from a bus last month after arriving at La Aurora airport in Guatemala City. (AP Photo/Moises Castillo, File)

WASHINGTON (CN) — The Supreme Court agreed Monday to decide whether immigrants fighting deportation orders are eligible to seek temporary freedom while they await their day in court. 

The case Albence v. Chavez is one of two granted certiorari in this morning’s order list. The second case, Henry Schein Inc. v. Archer and White Sales Inc., concerns the proper interpretation of arbitration agreements.

The immigration case now teed up for oral arguments will determine the fate of noncitizens facing “reinstated removal orders” and waiting to argue their case before an immigration judge. 

The petition to hear the case rises from the Fourth Circuit, where the Richmond, Virginia-based appeals court wrestled with which of two Immigration and Nationality Act provisions apply to the specific group of detainees.

The first provision allows for detained immigrants to return to their families if they can prove they pose no danger to the community and are not a flight risk, while the more stringent rule requires mandatory detention. 

The Trump administration looked to the Supreme Court to hear the case after both the district and circuit courts ruled that the law entitles those individuals facing reinstated removal orders, who have a credible claim of persecution and torture, to petition for temporary release.

Removal proceedings can drag on for months or even years, meaning the Supreme Court decision on the case could temporarily reunite families caught in the immigration system, or leave them separated by the slow roll of bureaucracy as cases are pending.  

The government argued that the decision warrants review because various circuit courts have adopted opposing positions on which immigration statute applies to individuals removed from the country who returned and were again apprehended by law enforcement. 

“The court’s decision also deepens a circuit conflict: The Second and now the Fourth Circuits have held that Section 1226 governs the detention of an alien in withholding-only proceedings, while the Third and Ninth Circuits have held that Section 1231 does so,” the petition filed by Solicitor General Noel Francisco states. 

The Justice Department and McDermott Will attorney Paul Hughes, representing Maria Angelica Guzman Chavez, did not respond to requests for comment on the Supreme Court’s decision Monday to hear Albence v. Chavez

The second case granted review, Henry Schein Inc. v. Archer and White Sales Inc., will bring a legal battle to the high court over whether an arbitrator or the court is the appropriate party to allow a nonsignatory to an arbitration agreement to enforce the agreement through equitable estoppel. 

The parties will also argue whether arbitration agreements that include a set of rules, applying if there is arbitration “clearly and unmistakably,” delegates to the arbitrator disputes over whether the parties ever agreed to arbitrate from the outset. 

Under Supreme Court precedent, the petitioner argues, courts can order arbitration only when there are no disputes over the case in the first place. 

“When the parties have no agreement between them at all, it is hard to imagine any ‘clear and unmistakable’ agreement to arbitrate—much less one addressing the obscure topic of arbitrating arbitrability,” the petition filed by Archer and White Sales Inc. states. 

Attorney Lewis LeClair for Archer and White Sales Inc. and attorney Kannon Shanmugam for Henry Schein Inc. declined to comment Monday on the high court agreeing to hear the case.

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