On Monday, the U.S. Supreme Court ruled that two important immigration enforcement cases—both of which were argued last year—must be reargued next term, when the Court will also consider the constitutionality of Trump’s Refugee and Visa Order, also known as the Muslim ban.
The cases, Sessions v. Dimaya and Jennings v. Rodriguez, both involve constitutional challenges to immigration enforcement laws that ultimately ask the Court to help define the scope of any due process rights—fair treatment by the judicial system—that immigrants are entitled to. The immigration cases, along with the Muslim ban case, will hopefully clarify the extent of due process rights for immigrants—which, in turn, gives the courts a more direct avenue to critique legislative or executive action on these issues.
In Dimaya, plaintiff James Garcia Dimaya brought a lawsuit challenging his deportation on due process grounds. He challenged a provision in the Immigration and Nationality Act (INA) that calls for the immediate removal of any undocumented person who has been convicted of an “aggravated felony” as unconstitutionally vague and therefore a violation of his due process rights.
In Rodriguez, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of a class of plaintiffs challenging the government’s practice of detaining immigrants facing deportation proceedings without a bond hearing. New York has a time limit on how long immigrants can be held without bond—as does California, due to the Rodriguez case—but no other jurisdiction does. Those detained include “many long-term green-card holders and asylum seekers,” according to the ACLU. The civil liberties organization has argued that denying immigrant detainees a bond hearing violates their due process rights.
Get the facts, direct to your inbox.
Subscribe to our daily or weekly digest.
The Supreme Court has already heard oral arguments in both cases. It’s not clear why it asked for a second round of them.
In Dimaya, the Supreme Court heard arguments in January of this year on the question of what crimes count as an aggravated felony for immigration law purposes. Dimaya, a lawful Filipino immigrant, faced deportation as a result of two residential burglary convictions which did not include violence. He challenged his deportation order and argued that the INA refers to a statutory definition of crimes of violence, and that this statute should therefore inform the INA definition of “aggravated felony.”
The statutory definition of “crime of violence” can be found in 18 U.S.C. section 16(b): It is defined as any offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Dimaya compared the language regarding aggravated felonies in the INA with language regarding “violent felonies” in another statute, the Armed Career Criminal Act (ACCA). This law provides harsher sentences for felons who commit crimes with firearms and who have been convicted of certain crimes three or more times.
In 2015, the Supreme Court said in Johnson v. United States that the definition of “violent felony” in the ACCA was unconstitutionally vague and a violation of due process.
Because his crimes were nonviolent, Dimaya argued, they should not have been the basis for deportation.
The Ninth Circuit Court of Appeals agreed with him, and SCOTUS granted certiorari in September 2016. On Monday, though, the Roberts Court decided it needed a second look at the case next term.
In Rodriguez, the Court took a similar approach. During oral arguments in November of last year, the ACLU argued that immigrant detainees have a right to a bond hearing—just as U.S. citizens do. It pointed out that subjecting immigrants to prolonged detention and denying them bond hearings is a violation of immigration laws and the U.S. Constitution.
At the time, the Obama administration argued that immigration law granted the government the authority to detain “criminal and terrorist aliens” and “arriving aliens” as their cases are processed. As Rewire’s Tina Vasquez wrote, the administration was pushing “a narrative of good immigrants versus bad immigrants by going after ‘felons not families.’” Immigration advocates told Rewire at the time that it “feels like another scapegoating of a population of folks who are in our communities who really deserve every bit of the due process clause in the Constitution as everyone else, but they’re not getting it in the name of being tough on immigration.”
Obama’s “catch, release, and detain” policy—which, conservatives argued, amounted to a “2.0” version of the “catch and release” program ended under the George W. Bush administration—led to the expansion of detention centers in order to hold the large numbers of newly detained persons whose immigration status was in question.
Trump took an already terrible deportation policy and made it worse: On January 25, Trump issued an executive order making detention without bond official immigration enforcement policy.
In response, ICE essentially stopped granting bonds or parole to immigrant detainees, instead keeping them incarcerated throughout the course of their case unless the detainees managed to successfully appeal to an immigration judge, according to a report by Rolling Stone. This shift in policy led to a greater focus on immigrants without criminal records than during the Obama administration.
The district court in Rodriguez issued an injunction requiring bond hearings every six months for immigrant detainees, and the Ninth Circuit Court of Appeals upheld that injunction. Now it is up to the Supreme Court to determine whether immigrant detainees are entitled to the same due process rights as the rest of us.
This shouldn’t be a difficult call. The Fifth Amendment forbids the government from depriving “any person” of liberty without due process of law, and considering the Court’s 2001 ruling in Zadvydas v. Davis that the government cannot indefinitely detain under order of deportation immigrants that no other country will accept, it stands to reason that immigrant detainees can’t be held for years without a bond hearing.
Furthermore, it’s unclear whether the Court will agree with Dimaya that “aggravated felony” is unconstitutionally vague when it comes to immigration policy, relying on its ruling in Johnson.
But this is a new Court with a new, extremely regressive right-wing associate justice—Neil Gorsuch—so anything is possible.
Which brings the Muslim ban back into the conversation.
In an article for SCOTUSBlog, Kevin Johnson, immigration expert and professor at University of California, Davis School of Law, points out that immigration laws have been, for the most part, immune from judicial review. That is due to the Supreme Court’s historical “hands off” approach when it comes to reviewing the legislative and executive branch’s laws and policies on immigration. The Supreme Court has traditionally permitted Congress and the president to have plenary power over immigration policy.
But Johnson notes that the Supreme Court has been inching towards “applying ordinary constitutional norms to the immigration laws.”
“Earlier this term, for example, the court in Sessions v. Santana-Morales held that gender distinctions favoring women over men in the derivative-citizenship provisions of the immigration laws violated the Constitution’s equal protection guarantee,” Johnson writes.
The fact that the Supreme Court seems to be applying constitutional norms to immigration cases bodes well for plaintiffs. If a majority of justices see constitutional infirmities in the Muslim ban, their willingness to review immigration policies through a constitutional lens makes it more likely that they will examine Trump and his advisers’ stated and tweeted religious biases, and block the ban in its entirety.
Of course, that doesn’t guarantee a win for immigrants and their families before a conservative Supreme Court next term in either the Muslim ban or the immigration cases. But with so much on the line for many people, Monday’s decisions offer at least a glimpse into a possible positive direction those cases could be headed. And let’s face it: We could use all the good news we can get when it comes to the Supreme Court right now.