//  1/23/19  //  Commentary

Mother Jones broke the story that a recently leaked document--(specifically, the document that revealed the administration had internally proposed separating families as a way of deterring immigration)--also suggested that the administration intentionally attempted to mislead the Supreme Court about some facts relevant to the Court’s decision in Jennings v. Rodriguez.

Jennings v. Rodriguez concerned the proper construction and constitutionality of some statutes regarding immigration-related detentions.  The relevant provisions authorized immigration-related detentions for two groups of people--those arriving at the border or apprehended near it, and those living in the United States, but deemed potentially removable.  The individuals who were detained argued that the statutes required the government to afford them bond hearings once the detentions exceeded six months--that is, that the government had to provide individualized bond hearings at which it could continue to detain the individuals provided that the government demonstrated the individuals were either a flight risk or a risk to public safety.  The individuals argued that the relevant statutes were best read to authorize those bond hearings. Alternatively, they argued that even if the best reading of the statutes did not allow for bond hearings, the Court should interpret the statutes to authorize the bond hearings in order to avoid the serious constitutional questions that would arise if the government could conduct lengthy detentions without any individualized determinations.  Finally, the individuals argued (pursuant to the Court’s request for supplemental briefing), that if the statutes could not be read to authorize bond hearings, they were unconstitutional, because they deprived individuals of liberty without due process of law. (If you are interested in the case, read Britany Riley & my earlier and lengthier post here.)

The Supreme Court only addressed the first two arguments--it determined that the relevant statutes did not authorize bond hearings for the affected individuals, and thus that the government could detain them after six months (and in some cases for several years) without any individualized hearings.  It did not address whether the statutes, as the Court interpreted them, violated the Due Process Clause.

The memo from the Mother Jones story surveys the administration’s many immigration-related proposals.  The proposal relevant to Rodriguez reads:

DHS would detain arriving aliens in a manner consistent with statute such that they are detained  for the duration of the adjudication of their asylum claims. This would require rescission of the 2009 Morton memo which allows for parole of all such aliens contrary to the statute. Rescission must occur following a decision in the Jennings v. Rodriguez case as DOJ relied on the Morton memo in its argument before this SCOTUS in October.  A decision by SCOTUS should be issued this summer. DHS could rescind the memo thereafter.

How did the memo factor into the government’s argument in Rodriguez?  It did so as follows:  The government’s argument in Rodriguez was that there was no reason for the Court to read the statute to require bond hearings--or to invalidate the statute as unconstitutional if it did not interpret the statute to require bond hearings--because the government provided an alternative avenue for individuals with meritorious defenses to removal, who are not flight risks or threats to public safety, to be released--parole.  Parole is not a bond hearing that is reviewable; it is instead an individualized and unreviewable determination by the Secretary of Homeland Security to release an individual while an adjudication is ongoing.

The existence of parole might matter in two respects.  One, recognizing that individuals have an opportunity for release other than bond hearings might make the Court less nervous about not requiring bond hearings.  More importantly, the existence of parole also strengthens the government’s argument on the due process claim, since the due process analysis considers the risk of erroneous deprivation, and the costs and benefits of additional procedures.   In other words, the existing procedures matter a good deal to the analysis.

And here is what the government said in its opening brief about existing procedures:

[T]he Secretary has discretion to parole inadmissible aliens into the United States. For aliens detained under Section 1225(b), including those lacking proper documentation who have established a credible fear, regulations provide that DHS may grant parole if [certain conditions are met]. Under agency guidance, such aliens who establish a credible fear are automatically considered for parole, and are ordinarily released if they provide sufficient evidence of their identity and show they will not be a flight risk or danger.

In plain English: DOJ is arguing that a wide class of individuals potentially affected by Rodriguez don’t need bond hearings because the Secretary can parole them.  Note also that the brief is representing that the Secretary has legal authority to parole arriving individuals, whereas the Trump administration appears to believe he or she does not.  (The case was initially argued during the Obama administration, and reargued and decided during the Trump administration--more on that later.)

DOJ also specifically invoked the existence of parole as a reason not to impose any additional safeguards:

[A]ny such detention under Section 1225(b) has a definite end point, because it ends when removal proceedings end; and parole exists as a safeguard against undue detention.

It continued:

And an isolated case in which a potential constitutional problem might conceivably arise could be resolved by releasing the alien on parole or through an as applied constitutional challenge in an individual habeas proceeding.

And from the government’s supplemental brief on why the statute was constitutional:

In addition, procedures suitably tailored to each subclass of aliens in this case are available for review of detention: Parole consideration for aliens seeking admission detained under Section 1225(b);


This constellation of measures—including the removal hearing itself, the credible-fear screening process, the possibility of parole, and expedited treatment for those who remain in custody—affords meaningful protection for aliens arriving at our borders and seeking to enter for the first time.

From oral argument (the redux) in 2017:

JUSTICE GINSBURG: There is -- there is a possibility of parole, is it?

MR. STEWART: There is a possibility of parole.

Three quick points about this discovery related to Rodriguez.

The first is about the nature of the government’s misrepresentation (if any).  The government’s argument, at bottom, was that existing policy and existing regulations allowed individuals to be paroled.  As everyone--including Supreme Court Justices--surely knows, policies and regulations are subject to change, including when there is a new administration.  So the mere fact that the administration might change a regulation or policy that happens to factor into a Supreme Court decision is not, by itself, significant. The Court can decide whether to take those regulations and policies into account in its analysis, knowing they might change.

What seems a little bit less on the up and up iis the administration’s recognition that its legal position in Rodriguez would be significantly weaker if it rescinded the memo authorizing parole, even though it (apparently?) planned to rescind the memo anyways.  Under those circumstances, waiting until a decision in Rodriguez came out to rescind the memo seems a little less than forthright--the government got the Court to issue a decision premised on the existence of parole, and then planned to immediately eliminate parole once the decision came out.  (As the Mother Jones story makes clear, it’s not immediately clear that they actually did so.)

In the government’s defense, they did make clear at argument that they did not feel that parole was necessary to make their policy constitutional:

MR. STEWART: Now, Congress -- I think, Congress, consistent with the Constitution, could have abolished parole altogether and could have said, as a categorical matter, no newly arriving alien will be allowed to enter the country until he or she has persuaded the decision-maker that the right answer ultimately is to let that person in. I think that would be a constitutional scheme under this Court's decisions, but Congress has historically offered parole as a form of process …

But if the administration believed--as the memo suggests it does--that it *did not actually have authority to grant parole to the affected individuals* it should have informed the Court of that for two reasons. Its briefs were premised on such authority existing; and if no such authority existed, it would no longer be a matter of an administration choosing to continue with a policy or not.  The administration’s belief was that it could not do so--so it definitely should not have continued with what it believed to be an unlawful policy just until it was most convenient for them.

This is hardly the first time that the government has misled the Court in an immigration-related matter, and it’s not something that’s unique to the Trump administration.  Indeed, in Rodriguez, the litigants noted that the government was previously forced to correct the numbers it had provided to the Court in a previous case--Demore v. Kim.  And in another case, Nken v. Holder, the government provided inaccurate and misleading information to the Court about what the government’s policy was about returning wrongfully deported individuals to their pre-removal status.  (You can read a long article about the litigation exposing the error in Nken here.)  

The second point is about immigration sins of the past and the excesses of our immigration system.  As I wrote about Rodriguez last spring:

The overlap between Rodriguez and the administration’s forced separation of children is striking. But it also underscores ... how prior administrations, in arguing for expansive authority over immigration and immigration detentions, created environments that were ripe for abuse, and have enabled some of this administration’s abuses. Take Rodriguez, which sought to impose bond hearings for immigration-detentions that lasted more than six months. (Many detentions during the Obama administration lasted that long, with some lasting several years.)...

[T]he Trump administration, under then-DHS Secretary John Kelly, promulgated several executive orders announcing its intention to detain many more people for immigration-related reasons. And, in doing so, it was going to prolong detentions even further.

As Britany Riley and I noted:

The administration’s position on the “solution” to lengthy immigration detentions—go home— offers another way to think about the separation of powers issues in the case. Their position illustrates how the structure of immigration law allows an aggressive executive branch to render meaningless the few protections that immigration law affords, simply by overwhelming the immigration system and making it too painful and difficult for noncitizens to avail themselves of the protections contained in immigration law.

It would be nice if government lawyers in subsequent administrations realized the dangers of arguing for expansive and largely unreviewable authority over areas like immigration that are subject to such abuse by men like Donald Trump or Stephen Miller.

The third and final point is about government lawyers in the Trump administration.  When the Trump administration began, there were many reasonable debates about whether honorable lawyers with integrity should serve in the Trump administration, including in ostensibly non-political positions in the Department of Justice.  At this point, based on all that has happened over the last two plus years, government lawyers should know that the government is being led by a bunch of fraudsters and bigots who will lie and gaslight and kick and scream until they get what they want (and what they want are apparently a bunch of grifts and xenophobic policies). My guess is that lawyers in the Office of the Solicitor General didn’t know--and reall had no idea--that the administration was planning on rescinding a guidance authorizing parole while Rodriguez.  But the point is that you have to expect that the liars and bigots in the administration will not be honest or forthcoming with you.  And you have to expect the worst from them, too. Because they’ve proven time and time again that it’s always going to be so much worse than you expect.


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