Migrant Detention Cases Close in on Expected Supreme Court Bid

Immigration advocates and the government must weigh strategic litigation decisions as a Trump administration policy underpinning its mass-deportation agenda moves closer to a seemingly inevitable trip to the US Supreme Court.

Nearly every federal appeals court has heard arguments on the move toward mandatory detention even for undocumented immigrants who have lived in the country for years. Those that have ruled are divided: the Fifth and Eighth circuits have upheld the policy, while the Second, Sixth, and Eleventh have ruled against it, and a Seventh Circuit panel split three ways.

“The court will probably be ready and will probably be really interested in reviewing this issue,” said Xiao Wang, director of the Supreme Court Litigation Clinic at University of Virginia School of Law. “Certainly there’s no world I can see where these advocates on both sides are not thinking really hard right now about how they’re going to play out their longer-term strategy.”

A decision from the justices would affect millions of noncitizens living in the US. The administration adopted a new reading of the Immigration and Nationality Act last year saying undocumented noncitizens apprehended inside the country aren’t entitled to bond hearings in immigration court which they could argue for their release. That interpretation goes against nearly three decades of practice.

Advocates say the policy has helped increase the number of people detained. As of early April there were more than 60,000 people in Immigration and Customs Enforcement custody, up from about 48,000 a year earlier, records show.

“The stakes couldn’t be higher,” said Denise Gilman, a visiting professor at Georgetown Law. “What is at issue is liberty—basic physical liberty—and longstanding constitutional interpretations which have said that once you’re inside the United States, that right to be free of arbitrary detention adheres.”

The Fifth Circuit rejected immigrant advocates’ request for a rehearing. Unless they get a deadline extension, they have until early July to ask for Supreme Court review. At the Eighth Circuit, advocates have until Tuesday to petition for a rehearing.

The decisions that went against the government are more recent; as a general rule, parties have 90 days after a decision to petition the Supreme Court. Last week, an unnamed Eleventh Circuit judge put a hold on issuing the court’s mandate on its decision against the policy, which could be a sign the full court might review the matter.

Litigation Strategy

The circuit split strongly suggests the high court will take up the matter—once somebody files a petition for certiorari, or review.

Still, either side could see a benefit from having more circuits endorse their position. That would let the issue develop further at the appellate level before asking the justices to step in.

There’s also a small chance the administration might choose not to challenge the decisions that went against them, attorneys said.

The government has the sole power to decide where immigration detainees are held. If federal officials think the Supreme Court would decide against them, they could transfer more detained immigrants to jurisdictions, like Texas, within the Fifth Circuit, which blessed the government’s new interpretation, said Nicole Hallett, director of the Immigrants’ Rights Clinic at University of Chicago Law School.

That would put the onus on advocates to seek a nationwide ruling.

The administration might look at recent immigration-related decisions from the high court and decide that justices would be “generally receptive” to their arguments, Wang said.

But, he said, appellate decisions that have gone against the government focused on close readings of the text and structure of the statutes—just the style of analysis the Supreme Court has been inclined toward.

Matt O’Brien of the Federation for American Immigration Reform, which advocates for “restoring border integrity,” said in a statement that “the only reasonable path forward” is for the administration to ask the the Supreme Court to resolve the circuit split.

Confusing Statute

Under the administration’s new interpretation, those who illegally entered the country years or decades ago are considered to be “seeking admission,” just like noncitizens at a port of entry, and can be held without the chance to argue for their release. The Department of Homeland Security adopted a policy reflecting that new interpretation last summer, and it was cemented in September in a precedential decision by the Board of Immigration Appeals.

Individuals locked up while their cases proceed are far less likely to win, and more likely to give up and agree to be removed from the country, attorneys have said. That makes the mandatory detention policy central to the administration’s goal of mass deportations, one it stuck with through hundreds of adverse district court rulings.

“I’ve never seen so many people give up their claims, even in detention, as I see now,” Gilman said.

While the appellate arguments have at times touched on broader matters like due process, the major questions doctrine, and the role of agency interpretation, Hallett and Wang said, the justices likely would primarily consider the policy on narrow grounds of statutory interpretation.

The mandatory detention litigation has forced judges to go deep in the weeds to define terms like “seeking,” and to closely analyze the specific placement of words in the law.

“The statute that Congress wrote is very confusing and was not well-crafted,” said Hallett. “And so it has allowed this confusion to proliferate.”

Paul Gowder, a professor at Northwestern Pritzker School of Law, called immigration law “inherently gnarly.”

“There are a lot of ambiguities that the courts and Congress have kind of left the executive to work out, under the assumption that they’d be worked out in good faith,” Gowder said. “And now we’re dealing with them not being worked out in good faith.”

Both sides present serious arguments, Gowder said. But the matter raises the “terrible specter of things like people being incarcerated for incredibly long times” without the kind of procedural protections they’d have in criminal cases, he said.