Feds Get High Court Grill Marks on Conflicting Deportation Rules

Immigrants who have re-entered the U.S. after a prior deportation can secure asylum with proof of persecution, but federal law has conflicting rules on detaining these individuals.

Immigrants seeking asylum walk at the ICE South Texas Family Residential Center, in Dilley, Texas, in 2019. (AP Photo/Eric Gay, File)

WASHINGTON (CN) — Immigration attorneys voiced cautious optimism Monday after the Trump administration’s deportation procedures drew sharp questioning at Supreme Court oral arguments.

“A number of the justices seemed concerned with adopting an interpretation of the statutes that would predictably leave thousands of people per year in detention for lengthy periods of time without any possibility of review, where such an interpretation is not necessary,” Simon Sandoval-Moshenberg, director of the Immigrant Advocacy Program, said in an email.

The Clinton-appointed Justice Stephen Breyer raised some of these issues, saying that the government’s reading of the law could lead to months if not years of illegal imprisonment. 

“We have a Constitution, we don’t keep people in prison for years without any chance of getting bail,” Breyer said. 

Downplaying such concerns, however, Vivek Suri, assistant to the solicitor general, said noted that other court precedent addresses such long-detainment issues. 

“The question of detainment for years doesn’t rise in the vast majority of these,” Suri replied. 

At issue before the court is a circuit conflict that erupted over a pair of overlapping Immigration and Nationality Act provisions for immigrants who illegally reentered the United States after a prior deportation. For such cases, one provision of the INA 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. But a more stringent rule requires mandatory detention. 

As the government wrote in its petition: “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.”

With co-counsel at McDermott Will & Emery, the Legal Aid Justice Center is fighting the case on behalf of noncitizens who were removed from the U.S. to countries that subsequently either persecuted, tortured or threatened to torture them. Maria Angelica Guzman Chavez is the lead plaintiff.

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. 

“There’s no dispute these aliens have been removed,” Suri argued Monday. He said the two codes, if laid next to each other, open the path for removal the government seeks. 

“In the eyes of the law, the decision pending for the (one code) to apply has already been made,” he said. 

Justice Sonya Sotomayor, an Obama appointee, noted that the case started with a habeas.

She asked one of the lawyers for the immigrants why couldn’t those facing similar concerns follow suit and file their own habeas claims. 

“Congress chose a statutory structure that was not going to lead to predictable constitutional violations in at least some places,” replied Paul Hughes, who is with McDermott Will. “If there’s any predictable range of cases that leads to unconstitutional outcomes that’s pretty good evidence that’s not the proper constriction of the statute.” 

Representatives for the Department of Justice did not return a request for comment.

The justices did not signal when they intended to issue a ruling.

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