On Monday, the Supreme Court decided one of the remaining important cases of this term—Cooper v. Harris—which struck down as racially discriminatory two of North Carolina’s congressional districts. Some important criminal procedure cases remain, and one possibly important church and state case, Trinity Lutheran Church v. Comer.
Many of the remaining cases, however, pose questions like “[w]hether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members” or “[w]hether a plaintiff's claims arise out of or relate to a defendant's forum activities when there is no causal link between the defendant's forum contacts and the plaintiff's claims.”
On the whole, it’s been a low-key term, with a Court hobbled by a missing justice and political uncertainty.
But history may record this term as a blockbuster in one area that has become eerily relevant to America in 2017: how much due process is owed to immigrants, undocumented aliens, aliens outside the United States—and even naturalized citizens. In this area, no fewer than eight cases remain to be announced. The Court granted review in most of them before the election, when they seemed legally important but not overwhelmingly so. But in the surreal post-election era of Donald Trump—the era of the deportation force, mass immigrant roundups, expanding detention of allegedly unlawful immigrants, and hypertrophy of the Department of Homeland Security’s already overgrown enforcement apparatus--they may, together, become literal matters of life and death. Here’s a rundown.
Sessions v. Morales-Santana challenges a ruling denying citizenship to the foreign-born son of an American citizen. Current immigration law discriminates between citizen fathers and citizen mothers when they have children abroad. Mothers who have lived in the U.S. for a year can pass citizenship to their children; fathers must have lived in the U.S. for ten, including five years before the father is fourteen. This raw sex discrimination is a legacy of the period in which Congress and the courts regarded federal power to confer or withhold citizenship as almost unreviewable. (This case was argued in the November session; Justice Ruth Bader Ginsburg is the sole justice who has not written an opinion from that sitting—possibly a bad sign for the government, which is defending the law.)
Sessions v. Dimaya concerns an immigration statute that makes an alien deportable if he or she has committed an “aggravated felony,” a category that includes “a crime of violence,” but provides no definition. The alien in the case committed two burglaries (there was no actual violence), but an immigration judge ruled that the “violence” provision applied to burglary. The Ninth Circuit reversed, holding that the term is “impermissibly vague.” Vagueness is a big no-no in criminal statutes, as the Supreme Court had reaffor,ed in a non-immigration case in 2015. The government argues that criminal law doctrines apply with lesser force in deportation cases, where the “Executive Branch has long been given broad authority.”
Esquivel-Quintana v. Sessions also tests the “aggravated felony” statute. The question is whether an alien who commits a crime in one state—in which the federal courts have held that crime not to be an “aggravated felony”—can be deported for moving to another state—one in which the “crime” is in fact not a crime at all, but a different federal circuit has held that if it were a crime it would be an “aggravated felony.” The alien (a lawful permanent resident) had sex with his 16-year-old girlfriend while he was 20 and 21. Under California law (but in few other states), that is felony “unlawful sexual intercourse.” The Ninth Circuit held that this crime is not an “aggravated felony” for deportation purposes. The alien, later moved to Michigan—where his act would have been completely lawful. Under Sixth Circuit precedent, however, the California “crime” is an “aggravated felony.” Immigration authorities want to send him to Mexico, a country he left when he was 12. This case asks whether such a bootstrap can really subject him to deportation.
In Lee v. United States, a lawful resident pleaded guilty to possession of ecstasy—forgoing trial because his lawyer advised him he would not be deported if he did. In fact, he was subject to immediate deportation to Korea, leaving his wife and six children behind in Tennessee. He seeks to vacate his plea, arguing that he would have chosen a U.S. prison sentence had he known he would be deported—because it would have given him additional years near his family. Thus, he says, he did not have “effective assistance” from his lawyer. The government argues that risking almost certain prison time would be “irrational,” meaning the lawyer’s advice was by definition “effective assistance.”
Those are the warm-up acts. Here are the big boys:
In Maslenjak v. United States, a lower court held that a naturalized citizen could be stripped of her citizenship years later for lying on her application form—even if the lie was “immaterial” to the application. Asked at argument whether that meant, for example, not disclosing having once exceeded the speed limit, the government’s lawyer cheerfully said it would.
Jennings v. Rodriguez tests whether aliens awaiting deportation can be held indefinitely without a hearing. Many of those being held, even though undocumented, may be eligible for statutory reasons to stay; and they aren’t being held on criminal charges. Nonetheless, the government argues that immigration statutes permit them to be held, possibly for years without bail, while the matter is resolved. The Ninth Circuit and the Second Circuit have both said that, under the Constitution, bond hearings are a requirement.
Hernandez v. Mesa is a federal lawsuit against a Border Patrol officer who, annoyed Mexican teenagers on the other side of the border, pulled out his pistol and killed one of them. The officer was in the U.S. and the boy was in Mexico. The government argues that constitutional protections against unlawful killing by law enforcement simply do not apply to aliens not on American soil—no matter how close they may be to the border.
Finally, Ziglar v. Abbasi is a lawsuit against top officials of the Bush-era Justice Department, who ordered a group of immigrants arrested and jailed in the wake of the September 11th attacks. They weren’t charged with crimes, and was no evidence of any connection to terrorism. Nonetheless, Attorney General John Ashcroft, Federal Bureau of Investigation Director Robert Mueller, and other top officials ordered a policy of “hold until cleared”—which is a direct violation of the Fourth Amendment. The officials also specifically ordered that these prisoners, not charged with crime, be held under conditions so brutal that one of them had a nervous breakdown. Now the ex-prisoners are seeking damages in federal court not just against the jailers who made their lives hell, but against the high officials who ordered them to.
In all the major cases, the justices seemed to lean toward the government. No surprise there. The words “immigration” and “national security” exercise huge power over many judges’ imaginations.
But they might consider what’s happening in the country. The Border Patrol—already larger than the FBI, twice as big as the LAPD—has been instructed to hire 5,000 more sworn officers. Immigration and Customs Enforcement is contracting with local jails and private prison companies for more cells—and has announced it will no longer enforce its regulations on humane conditions of confinement. ICE agents are haunting courthouses and hospitals searching for non-criminal aliens to ship off to detention. Attorney General Jeff Sessions is ordering U.S. attorneys to expand prosecution of aliens who have entered unlawfully, even if they have not committed any other crime.
Step back from the details, and a winning streak for the government will paint a very ugly picture. Can citizenship be revoked any time the government decides a citizen has left parking tickets off a form? Can a lawful immigrant be deported for a “crime” that isn’t a crime, because the rules of criminal law don’t apply to them? Can aliens can be held indefinitely, without bail or a right to counsel—and held, if high officials so choose, under conditions so harsh that they violate the Eighth Amendment?
Do we really want to declare the border a law-free zone, where teenagers can be shot down at an agent’s whim?
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