This Supreme Court term kicks off (tomorrow) with a re-argument in Jennings v. Rodriguez.  When the case was argued and briefed last term before the 8-member Court, the briefing and argument primarily focused on a statutory question – whether the relevant immigration statutes require immigration officials to conduct bond hearings to determine whether someone who’s been detained for at least six months should continue to be detained.  After argument, the Justices requested supplemental briefing on whether the Due Process Clause requires those bond hearings (presumably because the Justices did not think the statutes require them).

At the end of the term, the Justices scheduled the case to be argued again, this time before a full Court.  The decision to re-argue the case suggests the 8-member Court couldn’t arrive at a disposition of the case that garnered a majority.  Less ominously, the re-argument order might suggest the Court wants to hear argument on the constitutional question, rather than just deciding that question on the briefs.

Kevin Johnson previewed the case for SCOTUSblog here.  In this post, we wanted to reiterate a point Leah made back in March – that the Trump administration’s policies are likely to increase the length of already lengthy immigration detentions, including of persons who are entitled, by law, to be in the United States.  That raises the stakes of Rodriguez several times over.

But we also wanted to highlight one of the more notable arguments the government made in its supplemental brief, which is that the detainees in Rodriguez could simply go home instead of languishing in detention.  The argument is striking because many of the detainees in Rodriguez are legally entitled to be in the United States.  Some of the detainees may successfully contest whether they’ve been convicted of deportable offenses, and ultimately establish that they are not even eligible for removal in the first places.  Detainees who have committed a deportable offense retain their lawful status while they seek relief from removal (such as cancellation of removal) because people with lawful status retain their lawful status until a final order of removal has been entered against them. And other detainees may be legally entitled to be in the United States because they are eligible for asylum in the United States, given that they would be tortured or persecuted in their home countries. And international law would prohibit the government from returning some of those refugees against their will to countries where they would be tortured or persecuted.  

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.

Some Pertinent Facts & Background

Rodriguez will address whether individuals who are detained under three immigration statutes must be afforded a bond hearing to determine whether they should be detained after their initial, six-month detention, or paroled into the country while they wait for their case to be adjudicated.  

The first statute is section 1226(c), which directs the Attorney General to detain non-citizens convicted of certain criminal offenses once the non-citizens are released from criminal custody.  The offenses that make a non-citizen subject to detention include misdemeanor drug offenses.

The second statute is section 1225, specifically sections 1225(b)(1)(B)(ii) or 1225(b)(2)(A), which provide for the detention of:

(1)    noncitizens who would be subject to expedited removal but establish a “credible fear of persecution” during an initial interview with an immigration officer (section 1225(b)(1)(B)(ii)); and

(2)    individuals who arrive at an entry point with documents that would allow them to be

admitted, but an immigration official has determined they are “not clearly and beyond a doubt entitled to be admitted” (section 1225(b)(2)(A)).

The third statute is section 1226(a), which provides for the detention of a noncitizen “pending a decision on whether the alien is to be removed from the United States.”

The lower federal court decisions in Rodriguez relied on some statistics about the length of these immigration-related detentions.  The Rodriguez class members—those detained for longer than six months under one of the three aforementioned statutes—have an average length of detention of over 13 months, and a median length of detention of almost a year.  Over 20% of them were detained for more than 18 months, and almost 10% for more than two years.

Why are the immigration-related detentions so lengthy?  The answer is, in part, the sheer breadth of immigration law (which makes an astonishingly large number of people eligible for removal or denials of entry, and thus for detention), coupled with the resources and staffing of the agencies charged with enforcing immigration laws (such as the Department of Homeland Security and Immigration and Customs Enforcement).

As Adam Cox and Cristina Rodriguez have explained, “Congress’s radical expansion of the grounds of deportation has rendered a large fraction of legal immigrants deportable…. today one-third of all resident noncitizens are deportable,” either because they entered the country illegally or overstayed their visas.  And many other noncitizens are potentially deportable under other provisions that have “further enlarge[d] the number of immigrants technically subject to removal” based on criminal convictions.

Writing on Jennings v. Rodriguez back in March, Leah highlighted several other pertinent statistics, including that:

ICE … currently detain[s] more than 400,000 people each year.  That is many more people, and many more cases, than the 250 immigration judges in the 58 immigration courts in 29 states can handle. Estimates from June 2016 are that 496,704 immigration cases awaited resolution.

The backlog of immigration cases, and the number and duration of detentions that result as people wait for their cases to be adjudicated may well get worse, not better, over the next few years.  As Leah noted back in March, the Trump administration has announced several policies that will likely result in increased detentions.  Those policies include detaining all persons arriving in the United States who might be inadmissible until there is a final determination on whether to remove them (as opposed to making case by case determinations on who should be detained), and designating almost all removable persons as priorities for removal (a decision which feels like a fundamental misunderstanding of the word “priority”).  Both policies will increase the number of people who are detained and the number of cases in the immigration system, which will result in additional delays.

There is already some evidence of a growing backlog in immigration courts, as well as evidence of the administration’s expectation that there will be more immigration-related detentions.  Both California and New York had larger backlogs as of August 2017 than they did a year ago.  And the administration has requested a substantial increase in funding for immigration detentions next year, and greenlighted the construction of new immigration detention facilities.

On top of that, the Trump administration has failed to cobble together any kind of policies to address the resulting backlog.  The executive orders announcing the administration’s detention and removal policies called for several thousand more immigration agents and customs and border patrol officers to be hired.  But like so many of Trump’s plans, this one has yet to be implemented.  DHS’s inspector general concluded that the administration failed to provide the data or strategies to justify the addition of so many new employees.  DHS also admitted they don’t yet have an account of how many new employees they need (or where they need them), and DHS has already started back tracking on the plan to hire more agents.  To be clear, we’re certainly not advocating hiring more officers who will go around conducting immigration arrests.  But if the administration doesn’t hire more immigration judges, its detention and removal policies will result in increasingly lengthy detentions, and the detentions are already really long.

Moreover, it currently takes two years to vet and hire a new immigration judge.  The administration’s delays in staffing crucial positions are thus likely to hamstring any progress for years to come.  And while the administration has made few efforts at hiring additional immigration judges, it has approved the construction of new detention facilities with haste.

The Trump administration’s missteps and ineptitude have also worsened the immigration backlog.  The administration sent several immigration judges to the border in order to address what Trump and Sessions called a purported “crisis” of illegal border crossings.  But like so many of Trump’s made up crises, there was no “there” there.  Many of the immigration judges sat around with nothing to do, instead of adjudicating the many backlogged cases waiting for them in the immigration courts back where they typically worked.  Thus, Trump’s solution only exacerbated the problem he was purporting to solve. (If this calls to mind Trump’s sabotage of the Affordable Care Act, it should.)

The Government’s Argument: We’re Going Big, So Go Home

The government’s general position is that many of the plaintiffs in Rodriguez simply have no due process rights at all, such that the Due Process Clause would allow the government to detain them for several years (and potentially forever) without ever conducting a bond hearing.  Indeed that’s what happened to the lead plaintiff in the case, Mr. Rodriguez, who was detained for over three years as he (ultimately successfully) challenged whether his joyriding conviction made him removable.  It took Mr. Rodriguez a total of seven years to ultimately obtain a determination that he was legally entitled to stay in the United States.

The government’s claim that it is perfectly constitutional to detain people like Mr. Rodriguez for years as they press ultimately successful defenses to removal is certainly jarring.  But the government’s supplemental brief contained an even more astonishing argument when it sought to allay the fear that detainees like Mr. Rodriguez would languish in ICE custody for years as they waited for their claims to be adjudicated.

Detainees such as Mr. Rodriguez need not languish in ICE custody, the government maintained, because:

[T]he government allows aliens in immigration detention  pending  removal  proceedings  to  end  those proceedings, at any time, by accepting a  final  order of  removal,  qualifying  for  voluntary  departure, or, in some circumstances, by simply returning home…. [A]n  alien  who  files  a  petition  for  review in  a  court  of  appeals after  the  BIA  has  entered  a  final  order  of  removal  has  an  additional  option:    He  can  forgo  seeking  a  stay  of  removal,  depart  or  be  removed,  and  continue to challenge the removal order from abroad.

In plain English: The plaintiffs in Rodriguez could simply give up and go home.  For many of these plaintiffs, “going home” is a pretty crude—and cruel—misnomer.  Mr. Rodriguez was brought to the United States at the age of 1.  The United States is his home.  And that’s true of many other members of the plaintiff class in Rodriguez, over half of whom came to the United States before the age of 21.

The government’s argument is also striking because if a detainee has a meritorious defense to removal, the detainee is entitled by law to remain in the United States.  The government would have detainees give up their rights to remain in the United States simply because it takes too long to vindicate them.

Beyond that, the government’s argument is just ice cold.  As we explained, the idea that the Rodriguez class members—many of whom were brought to the United States as young children—could “go home” is a blithe mischaracterization of what would be a true hardship for many of the plaintiffs.  On top of that, the plaintiffs in Rodriguez include detainees who have established a “credible fear of persecution” in their home countries.  If the detainees ultimately establish they would be persecuted or tortured in their home countries, they are eligible for asylum in the United States.  Yet these are the people the government would have “simply return[] home,” or “challenge the[ir] removal from abroad”—people who can establish they would be persecuted or tortured in their home countries, and people who have already credibly established to an immigration officer that they may be persecuted or tortured in their home countries. These are countries from which it would be functionally impossible for the detainees to continue litigating their case.

Stepping back, the government’s position also raises some broader separation of powers questions.  For the reasons that Adam and Cristina detailed—namely, the sheer number of people who Congress has made eligible for removal—the executive branch has substantial amounts of discretion to determine who will be deported, and thus who will be detained as part of those deportation proceedings.  Adam and Cristina thus reasoned that Congress had delegated de facto authority to the executive to decide who should not be removed from the United States, as well as some authority to afford assurances and benefits to the persons the executive had decided not to remove (as the Obama administration did in the Deferred Action for Childhood Arrivals program, for example).

As Adam and Cristina explained:

To see why [the breadth of immigration law] effectively delegates so much regulatory authority to the President, imagine a criminal statute that rendered thirty percent of all the people living in the country subject to criminal conviction. In this world, prosecutors could not possibly initiate proceedings against all persons violating the law and therefore would have tremendous authority to make regulatory policy by deciding whom to prosecute. In other words, extremely broad criminal liability, coupled with the existence of prosecutorial discretion and inevitable underenforcement of the law, results in the delegation of great authority to the officials who decide whether to initiate a criminal prosecution. In his important work concerning the structure of modern criminal law, William Stuntz has made precisely this point. Surprisingly, it has gone unnoticed that immigration law has a startlingly similar structure. First, a significant fraction of the noncitizen population is deportable as a technical legal matter. Second, though vast numbers of noncitizens are deportable, only a tiny fraction will ever be placed in removal proceedings. Third, the immigration agencies wield the same power as criminal prosecutors to make selective charging decisions. In this way, the structure of the immigration system delegates tremendous power to the executive branch.

Adam and Cristina thus focused on how immigration law delegated authority to the executive to make policy through non-enforcement of immigration law.  And they considered various costs and benefits of that arrangement.

However, the vast amount of authority delegated to the executive also allows the executive to make a different kind of policy through enforcement of immigration law.  To be sure, the executive branch certainly does not have the capacity to initiate proceedings against “all” persons who might be potentially eligible for removal.

But what if the executive branch initiated enforcement proceedings to the fullest extent that it could?  Immigration statutes make a huge number of people potentially deportable (and detainable)—more than one third of the noncitizens who are in the United States, as Adam and Cristina noted.  And the executive’s authority to detain such a vast number of people gives the executive branch the authority to effectively bypass some of the rare limitations that Congress has purported to impose on who should not be removed from the United States.

The executive branch can skirt those limitations on its removal authority simply by making those limitations too difficult to enforce.  For example, Congress has offered asylum protections to people who would be persecuted or tortured in their home countries.  Congress has also limited the kinds of criminal convictions that make noncitizens eligible for removal, or eligible for various forms of relief for removal.

The executive’s position is that to enforce the limitations on who can be removed, individuals must either remain in ICE custody for lengthy periods—years—without any individualized determinations about whether they are flight risks or dangerous, or go home to their country of citizenship.  That’s the administration’s position on people who are lawfully entitled to be in the United States, and people who would be tortured or persecuted if they went back to their home countries—go home.  That is, because the administration has decided to “go big” on immigration enforcement, immigration detainees can simply go home.

The President’s ability to overwhelm the capacity of the immigration system (specifically immigration judges and the Board of Immigration Appeals) also increases the risk that the immigration system would err in determining who is eligible for removal and who is not.  The Rodriguez case involves several examples of basic errors, including two instances where Ethiopian detainees were mistakenly designated by DHS officers as Somalis who the officers accordingly thought were untrustworthy (Somalis, that is).  And of course, it is not difficult to imagine nightmare scenarios such as if the administration (mistakenly) arrests and detains a DACA beneficiary based on a mistaken belief about the beneficiary’s criminal history. The point is that if the executive arrests and detains a large number of persons, it will exacerbate the already large backlog in the immigration system, and substantially increase the risk of errors in the initial determination of who is removable and detainable and who’s not.  And if there’s no bond hearing every six months to correct for those errors, the costs of the inevitable errors increase substantially.

That is hardly a functional system of separated powers—where the executive’s substantial enforcement discretion allows it to make the costs of enforcing the few limits on its authority almost prohibitively high.  Immigration cases are often framed in highly over-simplified separation of powers terms, such as “the case involves immigration, therefore the President and Congress can do whatever they want.”  But as is often the case, the reality is much more complicated than that.

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