Ben Stievater ‘22
Events Editor
On Thursday, October 15, the Immigration Law Society hosted a “Supreme Court Roundup,” wherein three cases from the Supreme Court’s 2020 docket pertaining to immigration were discussed and analyzed. Heading up the discussion was the Law School’s own Professor Kevin Cope, joined by the University of Alabama School of Law’s Professor Shalini Ray. Both specialize in immigration law and brought some insightful takes to the three latest cases.
Pictured: Professors Kevin Cope and Shalini Ray led the discussion concerning recent Supreme Court cases and their impact on immigration law. Photo Courtesy of law.virginia.edu and law.ua.edu.
First up was Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020), which concerned the legality of the DHS’s rescission of the Deferred Action for Childhood Arrivals (DACA) immigration program in 2017. The DACA program was established by President Obama in 2012 to allow non-citizens who were brought to the United States at a young age to defer deportation and receive a work permit to remain in the country. At the urging of President Trump, the DHS rescinded the program in 2017. The University of California and other school systems filed suit to protect their affected students, challenging the rescission on the grounds that it violated the Administrative Procedure Act (APA) and DACA recipients’ due process rights under the Fifth Amendment. The Supreme Court reversed the rescission of DACA on the first ground, finding that it met the “arbitrary and capricious” standard for invalidation under the APA, but it did not find the due process argument persuasive. Professor Ray noted that the Court’s reasoning for this was due to the fact that the rescission was based solely on the perceived illegality of the work authorization provision and did not address why the deferred deportation provision was also illegal. The Court also criticized the DHS for failing to consider the reliance many recipients have placed upon DACA’s legality and continuance, from attending school and buying houses to starting jobs and getting married. The fact that the DHS did not engage with this reliance at all furthered the opinion that the decision to rescind the program was arbitrary and capricious.
While a technical win for DACA, Professor Ray cautioned against viewing this case as a total victory. “This was much more of a partial victory,” she said, “as the Court was entirely unsympathetic to the constitutional due process rights argument, barring Justice Sotomayor.” Professor Ray continued to explain that upon remand and the writing of a less arbitrary and capricious order from DHS, DACA recipients could find themselves in a problematic catch-22. If the work authorization of DACA is found illegal in the future, recipients will be allowed to stay in the country but barred from working to support themselves. This situation is untenable and would naturally lead many to work illegally to survive and to risk deportation for breaking the provisions of DACA.
The next case discussed also involved the DHS as it faced a habeas corpus challenge. In Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020), Thuraissigiam, a Sri Lankan citizen, sought asylum in the United States. He crossed the southern border illegally and was apprehended twenty-five yards into the United States. Because he lacked travel documents, he was placed into expedited removal without a hearing. To successfully plead his case for asylum, Thuraissigiam needed to prove he had a credible fear of persecution to the immigration officer interviewing him. He did not do so and then filed a petition for a writ of habeas corpus in the final phase of review before his deportation. The district court rejected his writ for lack of jurisdiction, as the decisions of immigration officers are subject only to limited review under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Ninth Circuit then found this limited review unconstitutional under the Suspension Clause, but the Supreme Court reversed. Justice Alito’s opinion found the limiting nature of the act did not violate the Suspension Clause. Further, he opined that Thuraissigiam’s petition for habeas corpus also failed as it was beyond the scope of the Drafters’ intentions. Justice Alito reasoned that the Drafters intended the writ to be used to escape unlawful detention, while Thuraissigiam sought to use it to secure an additional administrative review of his asylum claim. Professor Ray noted that this reasoning is curious, as obviously it would be difficult to imagine the Drafters could have foreseen a claim like Thuraissigiam’s back in the eighteenth century. She, along with Justices Kagan and Sotomayor, finds it much more sensible to compare Thuraissigiam’s situation to the more recent habeas corpus jurisprudence from the ‘War on Terror.’ Again Professor Ray saw reason for proponents of immigration to be dismayed by the Court’s ruling. In responding to a mere footnote in the Ninth Circuit’s opinion, the majority went out of its way to hold that Thuraissigiam had no due process rights, as his connections in the country were not substantial enough.
The third and final case discussed was quite different than the former two, as Hernandez v. Mesa, 140 S. Ct. 735 (2020) dealt with the rights of a non-citizen in his own country. In 2010, Mexican teenager Hernandez played a game with friends that involved running up to the US–Mexican border, touching the US side of the fence, and running back to Mexico. During this game, a US Border Patrol agent shot and killed Hernandez, who was on the Mexican side of the border at the time of his death. Hernandez’s family brought Fourth and Fifth Amendment challenges, both of which were rejected in a 5–4 decision. The Court declined to extend its holding in Bivens v. Six Unknown Named Agents, 91 S. Ct. 1999 (1971), in which it ruled that an implied cause of action existed for individuals whose Fourth Amendment freedom from unreasonable searches and seizures had been violated by the Federal Bureau of Narcotics. The Court noted that innovation upon Bivens is generally discouraged and that it does not extend to cross-border shootings. The Court also addressed what it saw as potential foreign policy ramifications if it were to extend Bivens, stating both that it could disrupt the executive branch’s role in border security and that it was up to the legislative branch to create a remedy for claims of this type. Professor Cope agreed that extraterritoriality is dispositive in this case, noting that generally, courts are concerned about the slippery slope of regulating cross-border incursions by federal agents or military members. Professor Cope pointed out the far-reaching consequences of a remedy through which civilians from any country where US soldiers had killed or injured anyone could recover.
In closing, Professors Ray and Cope reminded listeners that it is of limited utility to try to extract a common theme from all these cases, as they were all quite different. What is clear, however, is that the Supreme Court is skeptical of the constitutional rights of non-citizens and that such claims are normally unsuccessful. The immigration jurisprudence from the highest court in the land is far from set in stone, however, even with its makeup likely to change with the addition of conservative-leaning judge Amy Coney Barrett. As part of his recent work, Professor Cope recently reviewed 1,700 Seventh Circuit cases, 400 of which Barrett decided. These cases were coded for outcomes, and the results showed that Barrett decided cases with liberal outcomes 13 percent of the time. While certainly not on the liberal side of the Seventh Circuit spectrum, this 13 percent placed Barrett closer to the middle than some of her conservative-leaning colleagues, a sign thatBarrett is at least willing to grant relief to non-citizens where it is due. Professor Cope noted, however, that it is a limited sample, so only future Supreme Court Roundups will tell.
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