The case went to oral arguments in the final days of the Trump administration, with the court appearing critical of conflicting detention rules for immigrants who reenter the U.S. after they've been deported.
WASHINGTON (CN) — Asylum seekers who reenter the United States after a prior deportation are not entitled to a bond hearing, the U.S. Supreme Court ruled Tuesday.
The dispute stems from two provisions of the Immigration and Nationality Act that lay out different relief amid removal proceedings that can drag on for months or even years. While one provision requires mandatory detention for any immigrant who reenters the country after having already been deported, another allows for detainees to return to their families if they can prove they pose no danger to the community and are not a flight risk.
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.
After these asylum-seekers prevailed at the Fourth Circuit, the government petitioned for a reversal. “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," it wrote.
The Supreme Court took up the case almost a year ago exactly and heard arguments back in January.
Reversing along party lines Tuesday, the six-judge conservative majority settled which provision applies.
"If the answer is §1226, which applies 'pending a decision on whether the alien is to be removed from the United States,' then the alien may receive a bond hearing before an immigration judge," Justice Samuel Alito wrote for the court. "If the answer is §1231, which applies after the alien is 'ordered removed,' then the alien is not entitled to a bond hearing. We conclude that §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue withholding of removal."
Alito said immigrants who have not been ordered removed from the U.S. are not as likely to abscond because they could be admitted, but those who are already under removal orders are generally inadmissible.
“In addition, aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order,” he wrote. “Congress had obvious reasons to treat these two groups differently.”
But the court’s liberal justices pushed back on the majority’s reasoning in a dissenting opinion penned by Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan.
“I can find no good reason why Congress would have wanted categorically to deny bond hearings to those who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution or torture,” Breyer wrote. “And I do not agree with the majority’s reading of the statute’s language as denying them that opportunity.”
He also took issue with the majority’s interpretation of the term “administratively final” in regard to removal orders.
“The time when the majority says the reinstated removal order became ‘administratively final’ is the time at which the original order of removal became final. But to take the words ‘administratively final’ as referring only to that time would lead to a very peculiar statute,” Breyer wrote. “It means that most reinstated removal orders will have become administratively final many years before the proceedings during which they are reinstated.”
Guzman Chavez’s attorney Paul W. Hughes did not respond to a request for comment by press. Neither did the Department of Justice, which defended U.S. Immigration and Customs Enforcement in the case.
Immigration hardliners praised the high court’s decision. Christopher Hajec, director of litigation at the Immigration Reform Law Institute, said the majority read immigration law “as written” and refused to make final orders of removal “murky where the law does not make it so.”
“The court explained that the withholding of removal process is about whether an alien can be removed to a specific country where he may fear persecution, and does not change the final order of removal saying that he is to be removed from the United States,” Hajec said.
But Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, called Tuesday’s ruling “horrifying.” He compared it to the government grabbing a random citizen off the street, throwing them in jail and claiming they have no right to go before a judge to contest whether they’re a flight risk or danger to society.
“Well, the government can do that to thousands of immigrants,” he tweeted following the high court’s opinion. “And it does.”
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