Supreme Court Hears Challenge to Biden's Immigration Enforcement Priorities

The Supreme Court is set to hear the first major immigration case of this term, U.S. v. Texas, focused on whether the President of the United States has the power to prioritize the deportation of certain immigrants in the United States over others. The court is revisiting the issue after it issued a ruling four months ago temporarily blocking President Biden’s authority to prioritize immigration enforcement against individuals deemed a threat to public safety or national security.  A ruling in the case could have sweeping implications for the issue of immigration enforcement generally, as well as the ability for states to present legal challenges to immigration policies put forth by Presidential administrations. The case may set an important legal precedent as to just how much power a President has to enact specific immigration policies without the express direction of Congress. The outcome of the court’s decision will impact both Democrats and Republicans, as any limitations placed on the Biden administration could potentially limit aggressive actions of future Republican presidents that are seemingly outside the mandate of Congress.    

The case will center on arguments put forth by the conservative states that claim that federal law requires agencies such as Immigration Customs and Enforcement (ICE) to arrest and deport individuals who are in the United States unlawfully without room for discretion. The Biden administration has countered this argument by citing the lack of resources available to arrest and deport millions of individuals unlawfully in the United States and arguing for the need to set priorities as a natural consequence of this limitation.  Texas and Louisiana filed suit against the Biden administration to challenge a policy announced by the President in September of 2021 that sought to dedicate enforcement resources against a select class of immigrants, as opposed to the policy of mass enforcement that took place during the Trump era. The legal challenge presented by the states was before U.S. District Judge Drew Tipton, who ruled in favor of the conservative states and vacated President Biden’s policy. The U.S. Court of Appeals for the 5th Circuit declined to put the ruling on hold during appeals, leading the Biden administration to file an emergency request with the Supreme Court in July of 2022 to review the court's decision. The court ruled in a 5-4 vote that they would not grant Biden emergency relief and kept Judge Tipton’s ruling in place but agreed to hear the case in its emergency docket. Conservative critics of the current Biden policy, including Texas and Louisiana, claim that limiting immigration enforcement has resulted in economic burdens on their states, with more money being spent on law enforcement, education, and health care programs. They argue that the federal government's actions result in a drain on resources to states located near the border. Immigrant advocates challenge this argument.

"Just because you say it's a drain on resources doesn't actually mean that that is real," Sirine Shebaya, executive director of the National Immigration Project, whose group co-authored a brief in the case supporting Biden's position, told USA Today. "They are actively targeting this group and breaking it apart from the rest of the population, even though federal and state law requires that all residents of a state be treated similarly."Advocates have also pointed to a federal statute stating that the Homeland Security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities.” That statute had previously served as the basis for legal memos issued by the Obama administration to direct federal agencies to concentrate their resources on specific targeted groups. Legal analysts have been quick to point out that the Biden administration has faced numerous challenges from increasingly partisan judges, some of whom have relied on legally dubious reasoning. The legal challenges are bolstered by the decisions of many Trump-appointed judges, who many believe are keen on presenting judicial roadblocks to the Biden administration's major policies. In fact, many believe that states like Texas have intentionally filed cases in a manner to avoid liberal judges.

In an amicus brief filed with the court, University of Texas law professor Stephen Vladeck pointed out that the state of Texas has filed 20 suits against the Biden administration in Texas. Vladeck notes that of the 20 suits, 19 were heard by Republican-appointed judges. “Texas has intentionally filed its cases in a manner designed to all but foreclose having to appear before judges appointed during Democratic presidencies,” he argues. The Supreme Court has previously held that executive branch officials have broad discretion to exercise prosecutorial discretion, especially in the context of immigration laws. The court wrote in Arizona v. United States (2012), “A principal feature of the removal system is the broad discretion exercised by immigration officials.” As far back as 1985, the court held in Heckler v. Chaney (1985) that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”

The court went on to state that the principle “is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”Despite the past precedent, there is reason to believe that the conservative composition of the Supreme Court may be willing to reverse course, as it did in overturning Roe v. Wade and issue a ruling that undermines a democratic administration. A decision against the Biden administration and in favor of states could have serious consequences. The Department of Justice argued in legal filings that such a ruling “would inject the federal courts into all manner of policy controversies at the behest of States seeking to secure by court order what they could not obtain through the political process.” While the Biden administration has faced significant challenges in the Supreme Court based on its judges' composition, it succeeded in a recent legal battle to end the so-called “Remain in Mexico” program, with a 5-4 decision in its favor. While the outcome of this case regarding immigration enforcement remains to be seen, what is clear are the high stakes for the executive branch, states, and the immigrant community. 

9th Circuit Rules Against California's Ban on Private Immigration Detention

The United States Ninth Circuit Court of Appeals has issued a new ruling on AB 32, a California law that banned the use of for-profit prisons, jails, and immigration detention facilities. The ruling by an 11-judge en banc panel of the court affirmed a three-judge panel’s ruling that the provision of AB 32 that banned the use of private detention facilities by U.S. Immigration and Customs Enforcement (ICE) violates the Constitution. The ruling is a setback for legislators who had supported the ban on private facilities as part of a broader campaign to protect the health and safety of California residents.

 The ruling is the latest decision in a legal battle that has gone on since 2020, which started after the private prison company Geo Group, Inc. (GEO) and the federal government sued California to stop enforcement of the legislation. GEO and the federal government had specifically asked for an injunction against the state of California from enforcing AB 32 against private facilities used by ICE. Immigrant Legal Defense, along with Immigrant Defense Advocates, the California Collaborative for Immigrant Justice, and the Center for Gender and Refugee Studies, filed an amicus brief in the case, asking the court to consider the bad faith conduct of private prisons in California. In 2020, a lower district court ruled that California had not violated the constitution in passing AB 32 and denied GEO the injunction it had sought, reasoning that the ban was focused on ensuring the health and safety of residents as opposed to interfering with the enforcement of immigration laws.

The ruling was appealed to the 9th circuit, with the panel of judges overruling the lower court's decision and sending the case back to be reconsidered by the district court. The ruling by the Ninth Circuit specifically found that AB 32 violated the “Supremacy Clause” of the Constitution, which prevents states from interfering with the federal government's activities. In an opinion written by Judge Jacqueline H. Nguyen, the court held that AB 32 “would override the federal government’s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities.”The majority held that California was interfering with the enforcement of federal laws by denying ICE the ability to use private facilities to house immigrants detained by the agency for deportation. Arguing that AB 32 “...would give California a “virtual power of review” over ICE’s detention decisions… and allow the “discretion of the federal officers [to] be exercised . . . only if the [state] approves.”

The court believes that the state went too far in effectuating this ban. “California cannot exert this level of control.” Advocates commenting on the decision disagreed with the majority, pointing out that the court’s decision focused almost exclusively on issues related to constitutional law and state interference but ignored the state’s interest in protecting health and safety by banning private facilities.  Hamid Yazdan Panah, with Immigrant Defense Advocates, told the L.A. Times, “What I think is really missing from this decision is any sort of recognition of the harm inflicted on people and families by these facilities.

”The ruling does not mean the fight for AB 32 is over. Instead, the Ninth Circuit is sending the case back to a district court to consider the request based on its ruling with respect to the constitutionality and to consider other factors in deciding whether to grant an injunction against the state of California. These factors include the public interest. Jackie Gonzalez, Immigrant Defense Advocates’ policy director, said any such analysis, if done correctly, should weigh in favor of the state’s ban. “There’s no doubt that a law that puts the lives and humanity of people over profits ... is in the public interest,” she said. Gonzalez also disagreed with the majority's decision, arguing that the enforcement of immigration laws does not necessarily mean the creation of private detention centers, citing the broad discretion ICE has to refer people to court without placing them in a detention facility.  In a statement to the San Francisco Chronicle, she noted, “Immigration laws in this country can be enforced without locking people up for profit.” A dissenting opinion, written by Chief Judge Mary H. Murguia and two other judges, disagreed with the majority and argued that the law did not directly regulate the federal government and, thus, should have been deemed constitutional.

The dissent argued the bill had originally been written to exercise the state’s police powers to protect health and safety. “The court took judicial notice of AB 32’s legislative history, which supports the conclusion that the state law responds to concerns about the health and welfare of detainees within the state’s borders. This legislative history included committee analysis referring to a 2016 Department of Justice report documenting higher rates of inmate-on-inmate and inmate-on-staff violence, as well as higher rates of use of force by staff, at private prisons.”It further noted that the bill was not intended to interfere with immigration enforcement.  “AB 32 may have an impact on federal immigration operations, but it is not an immigration law or a law regulating the federal government. Indeed, the law mentions neither immigration nor the federal government.”

The dissent closed by arguing that they did not believe the law was unconstitutional based on recent decisions by the Supreme Court. California Attorney General Rob Bonta wrote the bill during his time in the state legislature, told the L.A. Times that he was “deeply disappointed” with the ruling, and provided the following statement. “Assembly Bill 32 was enacted to protect the health and welfare of Californians and recognized the federal government’s own documented concerns with for-profit, private prisons and detention facilities. At the California Department of Justice, we’ll continue to do our part to stand up for the dignity and rights of everyone in our state.” Read more about AB 32 in prior ILD blogs below:

• AB 32 Ruling May Change Immigrant Detention Forever

• AB 32 and the Future of Immigration Detention in California

• 9th Circuit Rules Against AB 32, Advocates Vow to Fight On

Despite Tens of Thousands of Applications, Afghans Have No Clear Path to the United States

The U.S. Citizenship and Immigration Services (USCIS) is facing renewed criticism over the treatment of Afghans seeking refuge after reports that the agency approved fewer than 2% of Afghans who applied for humanitarian parole. Advocates have pointed not only to the abysmal grant rate but also to the disparate treatment afforded to Ukrainians by the same agency.

The new scrutiny comes at a time when USCIS announced that it would be ending the use of humanitarian parole for Afghans and instead shift its focus to “permanent resettlement.” Beginning on October 1, 2022, the United States plans to discontinue the use of parole for Afghans entering the United States. The use of parole allows individuals to enter the United States and bypass visa requirements or other processes that can often take years before entry is allowed. The Biden administration has claimed that the shift is an attempt to move away from emergency evacuations and develop long-term resettlement capabilities. 

"Moving forward, Afghan arrivals will enter the United States with a durable, long-term immigration status that will facilitate their ability to settle and integrate into their new communities more quickly, and they will also travel directly to their new destination community without the need for a stop-over at a safe haven in the U.S.," an administration official told CBS news. However, the move has been met with skepticism by advocates, many of whom believe that the United States has failed to address the humanitarian crisis left in the wake of its withdrawal from Afghanistan in 2021. One of the primary concerns centers on the fact that nearly 50,000 Afghans applied for humanitarian parole through USCIS, but most applications remain unadjudicated, and the majority have been rejected. In particular, advocates are outraged that USCIS collected tens of millions of dollars in fees for the applications, has denied the majority of cases, and has done little to set up an alternative path for Afghans who remain in the country.  “The sheer magnitude of some of the failures, such as (nearly) $20 million in fees collected only to approve 123 applications, paints a more dire picture than perhaps we even realized,” Sunil Varghese, policy director at the International Refugee Assistance Project, said in an email with Reveal News.

“The U.S. military and diplomatic presence in Afghanistan may have ended last August, but the U.S. government’s obligations to at-risk Afghans did not. These shockingly low processing numbers should serve as a reminder that the U.S. can and should do more.”Criticism of USCIS reached a peak during a talk at UCLA by the agency’s Director, Ur Jaddou. Students staged a walkout during her discussion of the topic, holding signs critiquing the failure of USCIS to adjudicate Afghan parole requests fairly. During the discussion, Jaddou was asked specific questions on the development of special programs for Ukrainians seeking entry to the United States when no such program was set up for Afghans. Students were not the only ones who have taken notice of the disparate treatment between Afghans and Ukrainians. U.S. Senator Jeanne Shaheen (D-NH), a senior member of the Senate Foreign Relations and Armed Services Committees, joined Senator Ed Markey (D-MA) in a letter to the Biden administration raising concerns over the inconsistent treatment of the two populations and calling for “an approach to Afghan parole applications that mirrors the new treatment of Ukrainian applications, including accelerating the processing of Afghan parole applications, waiving (or refunding) application fees, and not requiring a showing of targeted violence.

”The letter emphasized that applications by Ukrainians have been processed in an expedited manner and were received with no associated fees, while applications from Afghans have remained unadjudicated for months and have experienced higher denial rates. The letter also noted the requirements for Afghans to attend in-person consular interviews and fact-specific documentation attesting to their need for humanitarian parole, while Ukrainians face no such requirements. While the announcement by the Biden administration that it would be focused on permanent resettlement options for Afghans has been welcomed by some, advocates remain concerned about the fate of thousands of Afghans who have yet to receive a response to their pending humanitarian parole applications.

The administration has also touted the fact that it has successfully evacuated 80,000 Afghans to the United States. But advocates have noted that this does not take into account tens of thousands of Afghans who have filed applications with USCIS, asking for humanitarian parole. Many of whom have limited alternative options for resettlement. Speaking to Reveal News, Wogai Mohmand, co-founder of Project ANAR, a non-profit launched to assist thousands of Afghans applying for humanitarian parole, expressed skepticism of the announcement and noted that the policy shift “doesn’t help any of the Afghans that filed for parole or that remain in Afghanistan.” 

Despite Supreme Court Ruling, Biden Administration Slow to End "Remain in Mexico" Policy

The Biden administration is facing renewed criticism for failing to terminate the notorious Migrant Protection Protocols (MPP), despite a Supreme Court decision authorizing the administration to end the program. The MPP, also known as the “Remain in Mexico” policy, is a program enacted by the Trump administration designed to prevent migrants from crossing into the United States. At the same time, they apply for asylum, effectively forcing them to remain in Mexico while their claims are adjudicated in the United States. More than one month has passed since the Supreme Court issued its ruling, yet the administration has been slow to cease the policy. The policy has been slammed by advocates who note that requiring migrants to remain in Mexico forces them to remain in unhealthy camps and shelters, often becoming the target of violence or exploitation in dangerous cities along the border. 

The Biden administration had previously attempted to end the program in the summer of 2021. Still, it was prevented from doing so by Texas and Missouri, who sued to keep the program in place, claiming increased costs would burden them. A federal district judge ruled in favor of the states and ordered the administration to keep the program in place. A circuit court upheld the ruling despite attempts by the administration to issue a new legal memo to end the program. However, on June 30, 2022, the Supreme Court decided in a 5-4 ruling that the administration did have the right to end the program and that lower courts were incorrect in their rejection of the memorandum issued by the Biden administration to justify the termination of the MPP. The MPP stands as one of the most notorious border policies by the Trump administration and has been decried as not only racist but illegal.

Advocates argue that the program is a dangerous departure from international norms that require nations to provide safety to those seeking asylum. The program stands as a frightening example of policies that Western governments may adopt to deter migrants, forcing third countries to host migrants in dangerous and unhealthy conditions. For many, it is no surprise that these policies target people of color and those from the global south. The U.S. Homeland Security Secretary Alejandro Mayorkas commented, welcoming the ruling but noted it may take time to implement. "We need to wait until the Supreme Court's decision is actually communicated to the lower court, to the federal district court and the Northern District of Texas ... So, we have to wait several weeks for that procedural step to be taken," he said. However, critics of the administration remain unconvinced. “Their hands aren’t tied,” said Blaine Bookey, legal director of the Center for Gender and Refugee Studies at the University of California, Hastings, in an interview with Times.

“Every single day [MPP is] in place, it’s causing harm, it’s endangering lives, and it’s frankly allowing the Trump Administration to rule from the grave.”Immigration, in general, and the border continue to be a touchstone of controversy and conflict under Biden, just as they were under Trump. While the Trump administration made good on threats to enact anti-immigrant policies and build a divisive wall, the Biden administration has built a track record of breaking promises made on the issue of immigration and continuing Trump-era policies at the border. Despite stating during his campaign that he would not build “another foot” of the Trump border wall, Biden has continued construction on the wall and sought to preserve much of the administrative capacity to detain and deport migrants at the southern border.

His administration promised to end the Title 42 program, which provides border authorities broad discretion to deport individuals under the pretense of protecting public health. Notwithstanding this promise, Biden has continued to use the program to prevent more than 1.8 million people from entering the United States. Biden even went so far as to promise to end the use of for-profit immigration detention facilities. Still, his administration has worked to expand their use and sued states like California that sought to ban their operations. These broken promises are particularly disappointing for advocates that point to Biden’s reluctance to exercise the power that Trump wielded so broadly to terrorize and intimidate immigrant communities.

What may be most disappointing for critics is not only Biden’s broken promises or disorganized strategy but his inability to imagine immigration policies beyond the status quo of exclusions, walls, and deportation. In an interview with Time, Felicia Rangel-Samponaro, the co-director of The Sidewalk School, an organization in Mexico dedicated to helping migrant children, slammed the Biden administration’s continued policies of deportation, which she believes will continue even if the MPP is terminated. “MPP could end right now as we speak, and that would make no difference and Reynosa or Matamoros,” she says. “People will still be stuck [in Mexico]. The expulsions will continue to Reynosa seven days a week.”

Supreme Court Rules Immigrants Can Be Held Indefinitely Without Bond

Immigrants in detention remain one of the most vulnerable groups in American society. Unlike individuals charged with a crime, immigrants in detention are not entitled to an attorney and are often held in facilities far from their families and community. Those who choose to fight their cases are often detained for months or even years while navigating a labyrinth of complex laws in order to obtain relief from deportation. 

A critical fight for immigrant rights advocates in the last decade has been ensuring that immigrants who face prolonged detention are provided bond hearings as an opportunity to be released back to their communities while they fight their cases. Release from detention can be critical to mounting a successful defense against deportation. It can greatly influence whether an individual pursues viable legal claims that can take years to resolve. 

Unfortunately, the fight to preserve the right to a bond hearing was dealt a critical blow by recent rulings handed down from the Supreme Court. In just one of several decisions that have undermined civil rights and constitutional protections in recent weeks, the Supreme Court has ruled that the federal government can detain immigrants for months or even years without a bond hearing.

The case, Garland v. Gonzalez, was decided on June 13, 2022, with a 6-3 decision in favor of the federal government. The decision reviewed rulings by the Third and Ninth Federal Circuit Courts, holding that bond hearings were required for immigrants detained longer than six months while in immigration proceedings. 

The case consolidated two class action lawsuits involving immigrants facing prolonged detention and seeking bond hearings.  Class action lawsuits are a means by which a civil lawsuit is brought by a group of people who have suffered a common injury or harm and allows relief issued by a court to cover everyone in that class. 

The court's ruling focused on whether federal immigration laws under the Immigration and Nationality Act barred legal injunctions for a class of individuals bringing a legal claim. Specifically, the court focused on a provision in the Immigration and Nationality Act, 8 U.S.C. § 1252(f)(1), with Justice Samuel Alito stating that the statute “generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” See Garland v. Gonzalez, 596 U.S. ___  at 5 (2022). 

The court found that the statute bars injunctive relief for an entire class but ruled that individuals may still be entitled to it on their own on constitutional grounds. While individual remedies may be available, the ruling by the Court is a setback for immigrants fighting prolonged detention. 

Justice Sotomayor noted in her dissent that the decision “risks depriving many vulnerable noncitizens of any meaningful opportunity to protect their rights.” 

Advocates who have worked with their clients for years to argue the case were disappointed by the ruling but vowed to fight on and pursue claims under the constitutional grounds left open by the decision. 

Matt Adams, who argued the case on behalf of the Northwest Immigrant Rights Project, reacted to the ruling by stating: “The Supreme Court has turned its back on its prior interpretation of the statute, which required a custody determination after six months. To now find that the statute allows for indefinite detention is contrary to a fundamental principle upon which our system was founded — that government officials may not lock up a person without at least providing them their day in court to contest whether their confinement is justified. But we are not done and will return to court to address the constitutional claim that must now be resolved.”

“While the ruling is a setback, we are pleased the court recognized that our clients could proceed with a constitutional challenge to their prolonged incarceration,” said Michael Kaufman, a senior staff attorney with the ACLU of Southern California.

The case was one of two critical rulings by the Supreme Court on the issue of prolonged detention. The second case was Johnson v. Arteaga-Martinez, which involved Antonio Arteaga-Martinez, a Mexican citizen who entered the United States without authorization and was subsequently ordered removed. 

Arteaga-Martinez was detained by the federal government, and during this time, he filed a claim for withholding of removal to stop his deportation. 

In this case, the central issue examined by the Supreme Court was whether a post-removal statute, 8 U.S.C. § 1231, authorized his prolonged detention, and if so, whether he was entitled to a bond hearing in front of an immigration judge after six months of detention. 

In an 8-1 ruling, the court held that the relevant statute does not require the government to provide a bond hearing after six months. “There is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings with the procedures mandated by the Third Circuit. The statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required,” the court stated in its opinion. 

Similar to the Aleman case, the court left open the possibility of constitutional challenges to prolonged detention and left that question for lower courts to revisit. 

The rulings in Aleman and Arteaga-Martinez effectively closed the door on prior legal victories and lower court rulings that had provided immigrants in detention a lifeline for freedom while they pursued their immigration claims. The rulings force advocates and those they represent to pursue other paths toward freedom and due process.