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The Supreme Court yesterday released two opinions of major consequence: One related to campaign finance and another related to immigration law. We covered the campaign finance case, Cruz v. FEC, a couple of months ago. While it is important, I’m going to spend today’s post on the immigration case because it has not gotten much national attention.

Here are some resources for the FEC case:

• Supreme Court opinion
• “The Supreme Court just made it much easier to bribe a member of Congress,” Vox
• “Supreme Court sides with Sen. Ted Cruz in campaign finance case,” Roll Call

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Immigration courts

The Supreme Court yesterday ruled 5-4 that federal courts cannot review factual findings by immigration judges in certain deportation cases, even when the immigration judges make a blatant error that costs an individual their right to stay in the country (pdf).

Pankajkumar Patel is an Indian national who has lived in the U.S. for almost 30 years. He and his wife have three sons—one a U.S. citizen and two lawful permanent residents. Patel accidentally marked the wrong box on a Georgia driver’s license application question about his citizenship status; he marked “yes” he was a citizen by mistake. The government then denied his immigrant visa application, finding that he had falsely represented himself to be a U.S. citizen for the purpose of obtaining a Georgia driver’s license, and placed him in deportation proceedings.

The state did not bring charges against Patel because it had no evidence he willfully misled the government. Patel testified to an immigration judge that he did not intend to deceive the state and Georgia law did not require a person to be a citizen to obtain a driver’s license, anyway.

None of this moved the immigration judge. Relevant here, the immigration judge rested his decision on a factual finding. He said he did not believe Mr. Patel’s testimony that he checked the wrong box mistakenly. Instead, the immigration judge found, Mr. Patel intentionally represented himself falsely to obtain a benefit under state law. According to the immigration judge, Mr. Patel had a strong incentive to deceive state officials because he could not have obtained a Georgia driver’s license if he had disclosed he was “neither a citizen [n]or a lawful permanent resident.” And because intentionally deceiving state officials to obtain a benefit is enough to render an applicant statutorily ineligible for relief at step one…

In his appeal, Mr. Patel argued that the immigration judge’s finding that he had an incentive to deceive state officials was simply wrong— under Georgia law he was entitled to a driver’s license without being a citizen or a lawful permanent resident given his pending application for adjustment of status and permission to work. Mr. Patel submitted, too, that all the record evidence pointed to the conclusion he simply checked the wrong box by mistake; even state officials agreed they had no case to bring against him for deception.

The Board of Immigration Appeals (BIA) voted 2-1 to reject Patel’s appeal. The 11th Circuit Court of Appeals held that “it lacked jurisdiction to review the BIA’s factual findings no matter how wrong they might be.” The Justice Department then brought the case to the Supreme Court, seeking an answer to the question: Does a federal court have statutory authority to review and correct a BIA decision holding an individual ineligible for relief when that decision rests on a glaring factual error?

Justice Amy Coney Barrett wrote the court’s opinion, joined by Chief Justice John Roberts and Justices Alito, Thomas, and Kavanaugh. The opinion is complex, hinging on the meanings of various words in 8 U.S. Code § 1252, but the result is that the majority interpret the law to preclude review of any judgment made during the process of deciding an immigrant’s fate in this country.

Justice Neil Gorsuch wrote the dissent, joined by Justices Kagan, Breyer, and Sotomayor. “Today’s majority acts on its own to shield the government from the embarrassment of having to correct even its most obvious errors,” Gorsuch wrote.

It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes. Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case. An immigrant to this country applied for legal residency. The government rejected his application. Allegedly, the government did so based on a glaring factual error. In circumstances like that, our law has long permitted individuals to petition a court to consider the question and correct any mistake.

Not anymore. Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the Executive Branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of having to correct even its most obvious errors. Respectfully, I dissent.

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Burden of proof

Two Trump judges on the 4th Circuit Court of Appeals reversed a lower court decision that had shifted the burden to justify the detention of immigrants to the government.

The plaintiffs

Three noncitizens—Marvin Amilcar Dubon Miranda, Ajibade Thompson Adegoke, and Jose de la Cruz Espinoza—brought a class action complaint and petition for habeas corpus against the Justice Department, Department of Homeland Security officials, ICE officials, and jail officials for violating their 5th Amendment right to due process (pdf).

The three men were all detained by ICE after contact with the court system and all saw the same Baltimore immigration judge, Elizabeth Kessler. Each experienced a lack of legal support and translation services. Judge Kessler expected them to explain why they are not a flight risk or danger to the community, sometimes without prompting them to explain. All three were ordered held on a high bond due to their failure to prove they weren’t a flight risk or a danger.

Furthermore, all three are in the process of seeking protection and/or asylum due to the dangerous situations in their home countries. They all have stable and consistent work in America and two of the three have established families in the Maryland area.

The IJ [Immigration Judge] did not ask him to tell the court why he was neither a danger or a flight risk, and he had no idea what was expected of him during the hearing. The IJ did not ask him what his financial situation was and ultimately set his bond at $15,000, which he is unable to pay. Mr. Thompson remains detained because of a flawed bond hearing, where he was required, without counsel, to prove he is neither a danger nor a flight risk, and where the IJ did not consider his ability to pay in setting his bond.

District Court

For U.S. citizens, the government must prove that an individual is a flight risk or a danger to the community in order to justify keeping that person in jail before trial. This right, enshrined in the 5th Amendment (“No person shall be…deprived of life, liberty, or property, without due process of law”) was not extended to immigration courts in Maryland. Instead, the courts put the burden of proof on noncitizens.

The district court found that Miranda, Adegoke, and Espinoza’s liberty interests outweighed the government’s interest in enforcing immigration laws and ordered the government to prove with “clear and convincing evidence” that an individual is a flight risk or danger before detention (pdf).

While the court acknowledges that requiring the government to bear the burden of proof at § 1226(a) hearings would impose additional costs on the government, those costs are likely outweighed by the noncitizen’s significant interest in freedom from restraint, and the fact that erroneous deprivations of liberty are less likely when the government, rather than the noncitizen, bears the burden of proof.

The district court also ruled that the bond was set unreasonably high in some noncitizens’ cases, amounting to being detained without bond due to inability to pay. “In the pretrial detention context, multiple Courts of Appeals have held that deprivation of the accused’s rights ‘to a greater extent than necessary to assure appearance at trial and security of the jail . . . would be inherently punitive and run afoul of due process requirements.’”

In sum, the district court held that the 5th Amendment applies to noncitizens and citizens equally.

Appeals Court

The Biden administration appealed the district court’s ruling to the 4th Circuit, where Trump Judges Julius Richardson and Marvin Quattlebaum ruled that the government does not have to extend Due Process to noncitizens in immigration courts (pdf).

Importantly, during the deportation process, that government interest includes detention. Over one hundred years ago, the Court stated deportation proceedings “would be vain if those accused could not be held in custody pending the inquiry into their true character.” Wong Wing v. United States, 163 U.S. 228, 235 (1896). As evident from Flores and Demore, this principle runs through Supreme Court immigration cases since that time. The district court erred by not identifying, and thus not considering, the government’s significant interest in detaining aliens pending their removal hearings.

“We recognize that our decision conflicts with decisions from two of our sister circuits,” the majority writes, mentioning that both the Fifth Circuit and Ninth Circuit placed the burden of proof on the government in immigration cases. “[W]e decline to follow the First and Ninth Circuits on these issues,” Richardson and Quattlebaum conclude.

Michael F. Urbanski, Chief Judge of the United States District Court for the Western District of Virginia, dissented:

The Supreme Court has issued a series of decisions addressing due process challenges to various aspects of detention pending removal proceedings. But each of these cases are distinguishable and collectively they fail to provide constitutional support for the executive branch’s decision to place the burden on the noncitizen at an immigration detention hearing…

There are several reasons why placing the burden of proof on the noncitizen increases the likelihood of erroneous deprivation. First, those facing removal have no right to counsel “and very often cannot obtain counsel on their own, particularly if they are detained.” Second, “detained individuals will likely experience difficulty in gathering evidence on their own behalf.” Third, noncitizens facing removal often face a language barrier. Fourth, by definition, immigration authorities have a better grasp on immigration law and procedures than detained noncitizens. Fifth, proving the negative as to danger and risk of flight can be difficult…

Requiring the government to bear the burden of proof at initial detention and bond hearings does not impede the government’s legitimate interest. In fact, it is in the government’s interest to limit the unnecessary detention of aliens deemed not to be a danger or flight risk, which would aid the government.