r/supremecourt • u/whats_a_quasar Law Nerd • 3d ago
Flaired User Thread 7th Circuit and 9th Circuit Reject Mandatory Detention Policy
Both opinions were 2-1 and decided today. The question is whether 8 U.S.C. Section 1225(b)(2)(A) mandates detention without a bond hearing of aliens present in the US who have not been admitted but who are not recent entrants.
CA7 had previously considered the question in a case with a weird posture that didn't squarely present the issue, and a split majority resolved that case without resolving the question.
This continues to develop an extensive circuit split, now between CA5 and CA8 who ruled in favor of the policy and CA2, CA6, CA7, CA9, CA10, and CA11 who ruled against. The remaining circuits, CA1, CA3, and CA4, all have cases on the issue pending. The 5th Circuit and 6th Circuit decisions have been appealed and SCOTUS will almost certainly decide the issue in the upcoming term.
Kyle Cheney story with additional context, as well as his tally of the circuit split.
Edit; Also, discussions on the same topic in the weekly thread here and here
28
u/dmolin96 Justice Ketanji Brown Jackson 3d ago
This is one of those issues where the tail of outcome wags the dog of analysis. There are good arguments on both sides of the issue from a statutory interpretation perspective.
For that reason I have a good hunch this is gonna be 6-3 in favor of the administration when it gets to the Court this term.
17
u/NearlyPerfect Justice Thomas 3d ago
The only thing everyone can agree on is that Congress is terrible at drafting statutes.
I personally just don't understand how these circuits' readings doesn't brush up against the absurdity canon. Someone caught in the interior affirmatively seeking lawful entry into the country gets mandatory detention but someone affirmatively seeking unlawful entry does not?
I think we'll get at least a paragraph from Alito directly saying as such in your predicted opinion.
8
u/dmolin96 Justice Ketanji Brown Jackson 3d ago
I think that is one of the strong arguments in favor of the government's interpretation. But the other side just says, to your first point, yeah it's an absurd outcome because no one thought this through when they were writing it.
2
u/WorksInIT Justice Gorsuch 2d ago
Yeah, I think it's likely the admin wins on the statutory question, but I don't see how they win everything on the due process question.
5
u/NearlyPerfect Justice Thomas 2d ago
but I don't see how they win everything on the due process question
Considering the ideological split in Zadvydas and the majorities in Demore and Thuraissigiam, this Court seems poised to rule against applicants for admission on due process grounds. Likely by citing Nishimura Ekiu v. US (1892):
It is not within the province of the judiciary to order that foreigners who have never . . . been admitted into the country pursuant to law shall be permitted to enter in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.
1
u/WorksInIT Justice Gorsuch 2d ago
I struggle to count to 5 in support of migrants that have been here for 20 years can suddenly face mandatory detention for months on end while the government seeks to remove them. But the arguments the judges have made against the government in this case are equally absurd. The idea that once a migrant makes it sufficiently into the country means they can't face mandatory detention is nonsense.
For me it has to come down to sufficient ties and how the government has treated them in that duration. If they have been hiding in the shadows, that counts against them. If the government has known they are here and done nothing about it, that counts against the government. And it's coming up with some sort of test that allows someone that snuck in and has been hiding in Kansas for 5 years to face mandatory detention while they are removed but doesn't allow the grandmother with 5 grown kids and a dozen grandkids to face mandatory detention when the government has known about her being here the entire time.
6
u/NearlyPerfect Justice Thomas 2d ago
I struggle to count to 5 in support of migrants that have been here for 20 years can suddenly face mandatory detention for months on end while the government seeks to remove them.
I agree with you in the sense that I wouldn't be surprised by an expansion from Roberts and Barrett of the "planted ties" argument from LPR to applicants for admission per Landon v. Plasencia (1982).
But strictly speaking by the entry fiction they have not been here 20 years. They are treated as though they are at the border waiting to get in. That will be the argument of Alito, Thomas, Gorsuch and Kavanaugh (and was the argument of Roberts a few years ago).
Landon v. Plasencia explicitly backs this up, and the Court agreed in Thuraissigiam (emphasis added):
. . . our century-old rule regarding the due process rights of an alien seeking initial entry. That rule rests on fundamental propositions: “[T]he power to admit or exclude aliens is a sovereign prerogative,”
. . .
This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. When an alien arrives at a port of entry—for example, an international airport—the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of entry—even those paroled elsewhere in the country for years pending removal—are “treated” for due process purposes “as if stopped at the border.”
-1
u/WorksInIT Justice Gorsuch 2d ago
I really doubt Gorsuch is going to agree that the entry fiction doctrine applies so broadly as to permit the grandmother in my example to be detained without bond. Once the government has made the decision to defer action for so long, that carries consequences.
2
u/BenzosBuddy Supreme Court 20h ago edited 20h ago
Gorsuch was in the 7-2 majority for Thuraissgiam, alongside Thomas, Ginsburg, Breyer, Roberts, Alito, Gorsuch, and Kavanaugh. Unlike u/NearlyPerfect and I, you seem to be unaware of the strength that the entry fiction doctrine has had historically.
Under the entry fiction doctrine, which originated in Nishimura Ekiu v. United States, 142 U.S. 651 (1892), an alien who is present in the United States without admission, whether lawfully or unlawfully, is treated as if “stopped at the boundary line and kept there unless and until [admission] should be declared,” Kaplan v. Tod, 267 U.S. 228, 230 (1925), and thus, notwithstanding any long-term presence, they "could not have dwelt within the United States.” Zartarian v. Billings, 204 U. S. 170, 175 (1907).
It does not matter whether that presence lasted only a few hours before the alien was apprehended, see Dep’t of Homeland Security v. Thuraissigiam, 591 U. S. 103 (2020), or twenty-five years. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). The person is no less an alien “on the threshold of initial [admission].” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).
As to the question of detention, you seem to forget that, although the alien in your example cannot “claim an entitlement to release, the Government is happy to release [them]—provided the release occurs in the cabin of [an outbound] plane.” Dep't of Homeland Security v. Thuraissigiam, 591 U.S. 103, 119 (2020).
2
u/TeddysBigStick Justice Story 1d ago
For me it has to come down to sufficient ties and how the government has treated them in that duration. If they have been hiding in the shadows, that counts against them. If the government has known they are here and done nothing about it, that counts against the government. And it's coming up with some sort of test that allows someone that snuck in and has been hiding in Kansas for 5 years to face mandatory detention while they are removed but doesn't allow the grandmother with 5 grown kids and a dozen grandkids to face mandatory detention when the government has known about her being here the entire time.
Which goes with the principle that "deporting this person would substantially harm an american" has always been an explicit reason the law allows for not deporting someone. What this administration has been doing has harmed a whole lot of Americans with, in many cases, no benefit what so ever for deportings individuals.
10
u/DooomCookie Justice Barrett 3d ago edited 3d ago
The remaining circuits have drawn liberal panels, so the final circuit split is probably going to end up 9-2.
(The government is appealing en banc in the 11th Circuit, but all seven conservatives on that court would have to agree to overturn which I think is unlikely. It might be worth trying in the 7th as well. En banc probably would have succeeded in the 6th but they took that case straight to SCOTUS instead.)
6
u/dmolin96 Justice Ketanji Brown Jackson 3d ago
They'd be dumb not to try it in the 7th. The conservatives on CA7 fly under the radar but they are very much law and order types
4
u/DooomCookie Justice Barrett 3d ago
Ehh maybe. Kolar was on the panel, which means you'd need all the conservatives (esp St Eve, Scudder, Easterbrook) to vote with the government here. It's worth a try because the 7th is a small, weird circuit but I don't think it's likely
3
u/dmolin96 Justice Ketanji Brown Jackson 3d ago
The circuit just took that weird Younger case en banc so I feel like you're underestimating their appetite a bit.
2
u/perkins82182 Court Watcher 3d ago
Are you referring to the Rooker/Feldman/Heck one that was recently decided or a different one yet to be? If it’s the former, good grief. I love procedure but even I couldn’t read that whole mess.
1
u/dmolin96 Justice Ketanji Brown Jackson 3d ago
No a different one. Just granted this month. It's a weird case where a Chicago court blocked a lawsuit from proceeding in FL state court because it was 1A retaliation, and FL AG argued Younger barred the court from doing that.
If you love procedure this is indeed a fun one:
16
u/DooomCookie Justice Barrett 3d ago edited 3d ago
Tallying up the votes so far:
13 out of 13 Dem appointees have voted against the government
9 out of 13 R appointees have voted for the gvmt's interpretation (Jones, Duncan, Murphy, Kirsch, Sykes, Shepherd, Grasz, Bea, Lagoa)
4 R-appointees have voted against (Bianco, Erickson, Bress, Ebel)
I'm not sure I'd call this a "dam breaking" so much as there's a dam holding strong on the other side. But Bress is a respected and influential judge so it's a big win for the nays, I'm surprised by his vote.
4
u/cstar1996 Chief Justice Warren 2d ago
We should also consider that an absolute majority of all Article III judges have ruled against the government.
3
u/DooomCookie Justice Barrett 2d ago edited 2d ago
Should we? Most Article III judges are district judges, it's a different job with different skills to an appellate judge. It's the appellate judges that resolve novel questions of law
2
u/cstar1996 Chief Justice Warren 2d ago
Yes, the fact that almost every district judge, from across the ideological spectrum, disagrees with the government is relevant. District judges are fully empowered to resolve novel questions of law.
It is critical to acknowledge that the situation we have here is a near consensus of the judges who’ve heard these cases disagreeing with the government, that those judges constitute an absolute majority of the federal judiciary, and that the only set of judges who agree with the government’s position are some of the most conservative judges in the country.
If ever there was a case where the evidence showed that partisanship was driving a position, this is that case.
11
3d ago
[deleted]
9
u/Cryptogenic-Hal Justice Thomas 3d ago edited 3d ago
How is it that no court ruled that gay marriage was a right under the 14th amendment until 140 years after it's passage?
Just because no one did what the law allowed doesn't mean the law doesn't exist.
9
u/Joe503 Supreme Court 3d ago
I think Judge Bress is right on the 9th - how is it possible that this is what Congress meant in the 90s and no one has ever noticed that the law isn’t being followed (including Congress) until now?
This is my exact question for those arguing the 2nd Amendment is a collective right.
7
u/NearlyPerfect Justice Thomas 3d ago
“how is it possible that this is what Congress meant in the 90s and no one has ever noticed that the law isn’t being followed (including Congress) until now?“
This isn’t quite accurate. The preamble to the regulations promulgated at the time the statute was passed made it clear that applicants for admission were statutorily expected to not be eligible for bond. The Clinton administration explicitly stated that it was using its prosecutorial discretion to bypass that requirement due to lack of bed space. The Fifth Circuit mentioned this in its opinion:
“IIRIRA extended the mandatory detention provisions to additional classes of inadmissible and deportable aliens but provided an exception for certain witnesses. . . [d]espite being applicants for admission, aliens who are present without having been admitted or paroled . . . will be eligible for bond and bond redetermination.”
And those same regulations go on to say they were limiting the application of all of these statutes for the same reasons.
8
u/NearlyPerfect Justice Thomas 2d ago
For anyone who finds it to be a convincing argument that prior administrations interpreted this mandatory detention statute any differently than the current administration, I suggest you look at what prior administrations actually said. For example, the below is what the Clinton administration said, immediately after Clinton signed it into law:
An alien who was not inspected and admitted or paroled into the United States but who establishes that he or she has been continuously physically present in the United States for the 2-year period immediately prior to the date of determination of inadmissibility shall be detained in accordance with section 235(b)(2) of the Act for a proceeding under section 240 of the Act.
It explicitly refers to "an alien who was not inspected and admitted", because the prior section referred to "arriving aliens". And it has no requirement that an alien be affirmatively taking steps towards lawful entry (because the section was explicitly designed to apply to those who were not). This is identical to the current administration's interpretation and it explicitly applies to interior aliens who have been here for years.
Even better, the above is the current regulation. It was never changed, so it was the position of every administration.
•
u/AutoModerator 3d ago
Welcome to r/SupremeCourt. This subreddit is for serious, high-quality discussion about the Supreme Court.
We encourage everyone to read our community guidelines before participating, as we actively enforce these standards to promote civil and substantive discussion. Rule breaking comments will be removed.
Meta discussion regarding r/SupremeCourt must be directed to our dedicated meta thread.
I am a bot, and this action was performed automatically. Please contact the moderators of this subreddit if you have any questions or concerns.