Sleeper Immigration Case With Echoes of Guantanamo

a professor at the University of Texas Law School. So Steve tell us about the main issues in the case. June in a term full of of big immigration cases, I actually think this is the sleeper. So there's a whole category of non citizens who are placed in something called expedited removal. And the idea is when the government picks up someone right after they surreptitiously enter the country and when they haven't been here for that long, the law ought to treat them as if they were stopped

at the border. That you know, we shouldn't necessarily reward folks who cross illegal just for the fact that they weren't captured right on site. In this context, as the term suggests, f tite removal means a much more streamlined process before they are removed from the country, and it also dramatically circumscribes the kinds of claims that folks in

this status are allowed to make. So with regard to asylum seekers, for example, there's nowhere near the amount of review of a claim that you know, someone who fled persecution in another country actually credibly did so, or that if they were returned to their home country they face a meaningful risk of violence for you know. A long time, the Supreme Court has operated to the presumption that individuals who are physically present on US soil, whatever their immigration status,

are protected by the Constitution. But this case is actually raising whether that's still true and whether the Court still believes that in the context of perhaps the most important

constitutional protection, the right of habeas corpus. Basically, the long term of this case is Congress in nine took away from the federal courts the power to hear habeas petitions, basically collateral attacks on the underlying government detention from non sitisen immigrants who are in so called expedited removal proceedings. And the argument in these cases is that by not allowing for habeas. There's no meaningful opportunity for someone with a valid asylum claim whose claim is denied in this

expedited context to then challenge that denial in court. When the Third Circuit heard this issue four years ago, it said, note the suspension clause of the Constitution, which protects the right of habeas corpus, does not apply to undocumented immigrants who are in excited removal. And late last year the Ninth Circuit, the Federal Pell's Court in San Francisco, disagreed, creating a circuit split. Tell us a little bit about the plaintiff who says he fears persecution in his country.

The Rostertam is a Sri Lankan and he's a Tamil, which basically means that he is in a minority group that has been the subject of significant person acution from the Sri Lankan government. Of course, there's been some violence on the part of this group as well. He entered

the United States surreptitiously in California. He was picked up shortly after he entered, and he basically is trying to challenge the government's denial of his asylum claim on the ground that he incredibly fears persecution or other forms of

inappropriate treatment if he is returned to Sri Lanka. The District Court concluded that it lacked the ability to hear his habeas petition because of the statute Congress past, and the Ninth Circuit reversed, disagreeing with the Third Circan in holding that the suspension clause applies to anyone on US soil, that whether or not your attention is lawful, which is what the courts will ultimately decide. Congress can't cut the courts out of the loop entirely when it comes to

reviewing these kinds of immigration cases. And June. One of the points the Ninth Circuit Majors, I think is a pretty good one is the most important Supreme Court case interpreting the suspension clause and discussing the right of habeas corpus is the boom Median case from two thousand and eight, where the Supreme Court and the context of the non citizen enemy combatants detain the guantanamo held that even they are protected by the suspension clause and are entitled to

judicial review of their detention. And then I took it basically said, listen, if that's true, for non citizen enemy combatants at Guantanamo who have never had any connection to the United States. It should be true for undocumented immigrants who, whatever their legal status, are physically present on US soil at the time of their apprehension. So since is the Ninth Circuit the only court to say that that provision

of the law is unconstitutional? June the Ninth Circuits the only court to hold that that provisions unconstitutional has applied in this context. But I mean, the reality is there are dozens and dozens of cases in which the district chords have reached the merits in this context. It's only really I think in response to the Third Circuit decision from twenty sixteen, that there's been this renewed focus on

the constitutional question. So I don't think that there's a clear weight of authority on this question that necessarily tips in the government's favor. I think what it really is is this case is a referendum on the Guantanamo decision, the bu Media decision from two thousand eight that was five to four. You know, Justice Kavanaugh, who replaced Justice Kennedy. Kennedy had was the swing vote in that decision. Kennedy

wrote the majority opinion. I think Justice Kavanaugh is arguably not as sympathetic toward habeas in this context of Justice Kennedy was. So it's another one of these cases where the Kennedy to Kavanaugh shift could have real consequences for the doctrine, and where, in contrast to Guantanamo, where we're only talking about forty detainees who are still there, now, we're talking about tens of thousands of individuals in the

United States who would be covered by this ruling. I've been talking to Professor Stephen Vladdock of the University of Texas Law School about a high stakes immigration case at the Supreme Court involving expedited removal. So Steve, explain why that two thousand eight Guantanamo case still seems to be getting so much attention and criticism. The Supreme Court decision in the Median case with regard toble on time with

detainees really has been something of the lightning rod. You know, Attorney General Bill Barr in his I think widely noticed speech to the Federal Society back in November, went out of his way to go after that decision, even though it's hard to see how those cases are really at the center of the government's agenda these days, as an example of what he called judicial activism, as an example of you know, progressive justices running amuck, and bars argument

was that it was wrong for the courts to insert themselves into the middle of military operations by basically saying, yes, there's a role for the federal courts in reviewing the detention of enemy combatants. But you know, June, whatever folks think about that debate, what's so fascinated to me about the case the Supreme Court set to here at the end of February, the tha GM case, is that you know,

these are not enemy combatants. These are not individuals who have any kind of criminal record or any special collection in terry or some you know, these are folks who, at least if their allegations are true, are simply looking for a better life in our fleeing persecution in other countries. And so long as we have a law on the books that says, you know, you're entitled to asylument, certain

things are true. The question is who's going to be the ultimate arbiter of these individuals asylum claims, the individual immigration hearing officer for whom all the incentives are increasingly pointed towards denying claims or an independent Article three court, And that's really the stakes of this case and June, just to sort of add one more piece of context to it, All of this is happening while the Trump administration is actually trying to expand the category of non

citizens who can be subjected to expedited removal, where the consequences of this case could become even bigger. What is the federal government's argument to the Supreme Court justices to get them to overturn the Ninth Circuits decision. So the government actually makes a series of arguments, and I think the principal argument the government makes is that immigration cases were never meant to be within the ambit of the suspension clause. That in contrast to executive detention like the

Guantanamo cases. You know, in this context, individuals like thrasy Gum, they're not really objecting to their detention. They're trying to use habeas as a way of objecting to their removal, where you know, they won't necessarily be detained in their home countries, they just won't be able to stay in the United States. So a big part of the government's argument is that in general, the suspension clause just doesn't apply when non citizens are trying to collaterally attack removal proceedings.

But the government also says that in any event, the suspension clause is satisfied, at least in this context, by the limited but not zero review that these kinds of non citizens receive of their claims, as I said, through

this immigration hearing officer, through this asylum officer. But I think, you know, a lot's gonna rise and fall in the first part of that argument on whether there's a majority of the justices who agree that removal of non citizens deportation proceedings were not what Habeas was meant to protect at the founding, and it's not what Habeas is meant

to protect today. So the justices don't have to overrule precedents, they don't have to overrule Median, they don't have to overrule Median, although I do think, you know, b Median

really does lurk over these cases, you know, duns. I think the respondents argued at the certain stage and in the Ninth Circuit, there are a lot of older Supreme Court cases that are ruling the government saver here wouldn't require overruling, but would create some tension where the Supreme Court historically has basically sort of assumed that habeas applied in this context, and the Court has repeatedly suggested that undocumented immigrants, you know, because they're physically on US soil,

are protected by at least some of the Constitution. So I think there is a way for the justices to rule for the government without overruling any of their precedents. I do think they would have to give at least some of those precedents a haircut. And you know, I think that's part of what the rout of GM's lawyers are likely to argue in their you know, merits brief, which I think is going to be filed shortly um

and at the or argument next month. Do we know what this court's record in immigration is or is it too soon to tell? Well, I mean, I think, you know, June, this case does cont as part of a much larger uptick in the courts immigration docta. I mean, this is the same term the Court is hearing the DOCCA case, which is one of the most important immigration cases that's heard in a long time. You know, we're just coming

off of the travel band case. The Court has had applications for emergency relief from the government in two different asylum cases. There's the border wall. So you know, immigration I think is definitely a dominant theme um of this term and of the last couple of terms in the

Roberts Court. I guess my hesitation is just that I think this is a different kind of immigration case because unlike all of those other cases, where the fight is over the substance of immigration policy um and whether, for example, the President is acting consistently or inconsistently with the statutes Congress has passed and with the other potentially applicable constitutional provisions, this is a case that's really about the role of the courts in immigration cases in general, in a way

that the other cases are not. And so, you know, especially with the Trump administration proposing to expand the number of immigrants who would fall into this expedited removal category, you know, I think this is really a case that's much more front and center about judicial review, where immigration is simply the foil um, whereas I think the other cases are more about the substance of our immigration policies. And that's why I think it's really a sleeper case

for the Supreme Court's current term. I mean, obviously folks are fixated on, you know, the abortion case, the Second Amendment case, the you know, Trump tax subpoena cases. But you know, there aren't that many cases the Supreme Court. Here's where it's asked a fundamental question about whether the

Constitution requires some role for the courts at all. Um. And so that's why I think, you know, how the court handles this case could have broader, longer term ramifications than any rule that hands down on any of these substantive immigration cases. So after Bumti in many many Guantanamo detainees brought habeas corpus petitions, but some people thought, O the floodgates were open. Is that likely to be an argument here from the federal government that this would open

the floodgates to more litigation? So I think, you know, the federal government and it's brief at leastince opening brief.

Um doesn't sort of talk so much about those floodgates June, but it does suggest that, you know, a requirement of the kind of judicial review for which the respondent is arguing UM would basically sort of take the expedited out of expediting removal that you know, Congress and the President should be allowed to streamline these proceedings without tradicial interference that requiring courts to actually review at least some of

these cases. UM, would you know, do exactly what the statute was meant to prevent, which is, you know, slow down the process in these cases, give these individuals a longer period of time in the United States before they

might ultimately be removed. UM. I guess you know, I'm not sure that that's going to be necessarily the the clincher, even if the government wins that I think, you know, from the court's perspective, Um, the resource problem is not really that big of a concern in contrast to the I think the broader concern about whether this decision, if they rule for the government, that's a broader precedent with

regard to the rights of undocumented immigrants more generally. UM. And I think you know, it's not hard to see June, how a broader constitutional debate over what kinds of constitutional protections undocumented immigrants might have UM is not only you know in the often, but it's one that's going to be very fraught given the current political climate. While we're on this case, let's revisit for a moment the Guantanamo cases. They're not very many prisoners there, and it's hard to

believe that those cases are still going on. Yeah, I mean, June, this this all comes, you know, shortly after what was the eighteenth dan aniversary on January UM eleventh of the opening of Guantanamo UM. And you know, I mean it's it's in one sense, I think it's it's revealing that Guantanamo is no longer part of almost any news story because you know, those cases, those issues really have largely faded from public view. But it's not because anything that's ended.

I mean, there are still forty detainees to Quantanamo. There are still you know, ongoing Military Commission pre trial proceedings UM in three major cases, including the nine eleven trial, including you know, the trial of the alleged um USS

coal bombing mastermind. And you know, I think one of the things that's interesting about this immigration case is it, you know, it provides an excuse to sort of reflect on the implications of what the Supreme Court held in two thousand and eight, UM, you know, Justice Scalia had written I think quite provocatively in his descent in the media in two thousand and eight that more Americans will be killed as a result of that decision. I'm not sure that's come to fruition. I mean, I think the

the ultimate consequences of the Median um we're pretty mixed. Um. So you know, there were in the years after Bumedian. I think June sixty one Guantanamo detainees whose habeas petitions were litigated all the way to a final judgment. Um. Of those, sixty one, thirty prevailed um and twenty nine lost. Uh starry in thirty one lost. It would help if I could do math um right, which is, you know, I mean the definition of a pretty of a pretty

mixed verdict. And of the ones who prevailed, you know, the Obama administration found ways to transfer them either to their home countries or the third countries that would take them. So, you know, I'm not sure we've seen the dire consequences that dissenters weren't about. On the flip side, you know, one could also look at the fact that there are still forty detainees at Guantanamo, that only thirty of the sixty one prevailed and say you know, all of that,

so that there could be thirty habeas victories. Um, that seems like a lot of work for a very sort of modest outcome. So I think the you know, the where I sort of end up is, I think the Verton guantanamo is very much still a mixed one. But the more important point for present purposes is it hasn't

gone away. And so, you know, as the Supreme Court sits to hear argument in this major but different case about habeas and the role of courts in reviewing exactly the branch conduct, you know, I do think it's important not to lose sight of the ongoing implications of the last time the Court did that. Thanks so much, Steve. That's Stephen Vladick, professor at the University of Texas School of Law. And that's it for this edition of Bloomberg Law.

Remember you can listen to all the latest legal topics in the news anytime on our Bloomberg Law podcast. You can find them on iTunes, SoundCloud, or at Bloomberg dot com slash podcast Slash Law. I'm June Grosso. Thanks so much for listening, and remember to tuning to the Bloomberg Lawn Show. Tomorrow night at ten pm Eastern Time, right here on Bloomberg Radio