Categories: Practice of Law

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Today, but a Few More Unusual Alliances."

The following is an excerpt:

Three decisions were released today, each showing a greater division of opinion than we’ve seen over the last several weeks. While one of the three, an immigration case, was decided across strict conservative/liberal reputational lines, the other two, yet again, were the result of unusual alliances of Justices expressing independent views of the law and jurisprudential process.

In Johnson v. Guzman Chavez, there at least was no conflict between the conservative majority (Alito, J., joined by Roberts, C.J., and Kavanaugh, J., with Thomas and Gorsuch, J.J., concurring) and the liberal dissenters (Breyer, Sotomayor, and Kagan, J.J.) concerning the facts and the issue to be decided. The case concerns several non-citizens who had been ordered removed from the United States, who then returned illegally. The government then reinstated their removal orders and detained them. They argued that they could not be removed because they reasonably feared torture in the countries to which the government wanted to send them, and that they were entitled to bond during the expected lengthy time of proceedings to resolve the matter. The Court had to determine which of two provisions of immigration law governed the question of detention: 8 U. S. C. §1226 or 8 U. S. C. §1231. If it was §1226, which applies “pending a decision on whether the alien is to be removed from the United States,” then the aliens may receive a bond hearing before an immigration judge. If the answer is §1231, which applies after an alien is “ordered removed,” then the alien is not entitled to a bond hearing. The Court’s majority concluded that it is §1231, not §1226, that governs the detention of aliens subject to reinstated orders of removal. They, therefore, are denied a bond hearing. One would think, as the majority has, that the literal language of Section 1331 indeed should control, given the fact that the aliens in question clearly had been “ordered removed.” However, it takes 23 pages for Justice Alito to justify that simple application. The reason for that lies in the addressing the attempt of the dissenters to focus on the law’s 90-day removal period and its potential application to “withholding-only” proceedings—a limitation that it generally is impracticable to meet—and also what, to the dissenters, is the overriding significance of protecting aliens who have a legitimate fear of persecution. At the outset of the Biden administration, the country is experiencing a wave of illegal immigration. The Johnson case is likely going to have effect concerning the processing of many new detainees.

Click here to read the full post and more on SCOTUS Today.

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