American immigration law is famously schizophrenic, in ways that are unsatisfying to everyone.
American immigration law is famously schizophrenic, in ways that are unsatisfying to everyone. The laws themselves are written to be quite harsh but also insanely complex, with exceptions to rules and exceptions to those exceptions. Legal immigrants suffer unreasonable delays and red tape that make it harder to enter, harder to stay, and harder to plan their lives. Enforcement is sporadic, with many illegal aliens and people who illegally overstay their entry slipping through the cracks, or disappearing after they have been caught. For people who actually get caught and held in the legal system, the rules can be pitiless. The courts are sympathetic to immigrant appeals from bureaucratic decisions, but they are so overwhelmed with cases, and the rules are often so strictly written, that the overwhelming majority of cases that get into the system are won by the government. Once the wheels of enforcement are moving, however, the dynamics of delay are reversed from how they operate for legal immigrants: Immigrants who are trying to resist removal from the country have every incentive to drag things out. Litigants always have an influence on how long any proceeding lasts. But that incentive is reduced if they are locked up pending the final determination. More important, some people detained by the immigration authorities may be more likely than others to just vanish. So, the question of when to detain people while their cases proceed affects not only the lives of individual immigrants, but also how the system operates.
Today’s 6–3 Supreme Court decision in Johnson v. Guzman-Chavez involves a class of people who may have sympathetic humanitarian claims because they allege a reasonable fear of persecution upon being sent home. But they are also a uniquely unsympathetic class in the Whac-a-Mole game of enforcement: people who have already been deported once and re-entered the country illegally. A general statute, Section 1226, normally allows immigrants to apply to stay out on bond or parole while their cases are pending. But a different statute, Section 1231(a)(5), creates a much stricter rule for people who illegally re-entered the country:
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. (Emphasis added).
The question in Guzman-Chavez asked the Court to get into the weeds of the statute to decide whether 1231(a)(5) barred illegal re-entrants from using the Section 1226 process to get out on bond or parole while the re-removal proceeding was playing out. Justice Samuel Alito’s opinion concluded that it did; the Court’s three liberals disagreed. (Justices Clarence Thomas and Neil Gorsuch concurred in the result, but would have ruled that the Court did not have jurisdiction to hear the case.) Among other things, Alito found that it was logical to read the statute as expressing Congress’s particular concern that people who have already illegally re-entered the country present a particular flight risk:
Aliens who have not been ordered removed are less likely to abscond because they have a chance of being found admissible, but aliens who have already been ordered removed are generally inadmissible. . . . The only apparent relief they can hope to obtain is a grant of withholding-only relief [from being sent back to a particular country], and they would seem to still have a chance to get that relief if they absconded and were again apprehended. In addition, aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order. . . . Congress had obvious reasons to treat these two groups differently.
The Court’s liberals have sided with the government in a surprising number of immigration cases this term, including Justice Sonia Sotomayor writing a unanimous opinion in U.S. v. Palomar-Santiago holding that an illegal re-entrant could no longer challenge the legality of his original removal. But this time, they split with the conservatives. Their statutory arguments were strained, but Justice Stephen Breyer’s opinion stressed that “restriction on removal when an alien fears persecution or torture embodies an important international legal obligation that the United States has undertaken” and expressed concern that the system tends to move very slowly and rarely deports people to a third country if their home country is unsafe:
Studies have found that this procedure often takes over a year, with some proceedings lasting well over two years before eligibility for withholding-only relief is resolved. . . . Studies have also found that, once withholding-only relief is granted, the alien is ordinarily not sent to another, less dangerous country. Rather, the alien typically remains in the United States for the foreseeable future.
While such extended detention borders on the punitive, it should be borne in mind that Congress is dealing with people who have already serially broken the law, and by Breyer’s own description, if they win, the law’s objectives of removing them from the country are usually defeated. Breyer’s argument about their risk of absconding on bond reflects what can only be described as naïveté:
A bond hearing does not mean an alien will run away. . . . I can understand why Congress might not want to grant a bond hearing to an alien whose circumstances fall within the removal period. That period, after all, should normally be brief. The statute says “90 days.” . . . But why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years (while their withholding-only proceedings wend their way toward completion)? I can find no satisfactory answer to this question…In sum, I can find no good reason why Congress would have wanted categorically to deny bond hearings to those who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution or torture.
Breyer is free to weigh the pros and cons of extended detention of this sort differently, but it is not that hard to see detention as an option within the reasonable bounds of congressional choices.