Sarah Paoletti, Practice Professor of Law at the University of Pennsylvania Carey Law School and Director of the Transnational Legal Clinic, has released the following statement on the Supreme Court’s recent decisions in two immigration cases that limit federal court review in immigration cases:
The Supreme Court’s two decisions denying challenges to prolonged detention of non-citizens in the United States taken together will have a devastating impact on non-citizens and their family members, while avoiding the ultimate question of whether the U.S. can continue to subject individuals subject to removal proceedings and/or orders of removal to prolonged and arbitrary detention without meaningful judicial review.
In Johnson v. Arteaga-Martinez, the Court builds on its precedent in Jennings v. Rodriguez and has effectively foreclosed the ability of individuals to challenge their prolonged detention in hearings whereby the government must justify its ongoing detention, teeing the subject up for a full constitutional challenge.
The Court was given the opportunity to address both statutory and constitutional challenges to detention provisions applied to non-citizens that were introduced through the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) were raised in the petition for cert. filed in Garland v. Aleman Gonzalez: instead, the Court chose to limit its review and ruling to whether the federal court was authorized to grant class-wide relief in light of court stripping provisions set forth in IIRIRA.
In its decision, the Court has further restricted the already exceptionally limited avenues for judicial review and habeas relief available to non-citizens held in situations of prolonged, and arguably arbitrary, detention by holding that Congress through IIRIRA foreclosed class-wide review and relief on challenges to deportation, and instead such review was only available in limited circumstances in “individual” challenges.
As Justice Sotomayor clearly explains in her dissent, the Court’s denial of judicial review on a class-wide basis to persons deemed to be “inadmissible,” have committed certain crimes, or are deemed to be a flight-risk or a “risk to the community (8 USC Sec. 1231(a)(6)), through its expansive and problematic reading of the court-stripping provisions introduced by IIRIRA, leaves individuals whose challenges may have merit without the opportunity for relief.
Justice Sotomayor’s dissent clearly explains and puts into focus the impact of the Court’s decision: “Today’s holding risks many vulnerable noncitizens of any meaningful opportunity to protect their rights,” and then she elaborates upon the “practical realities of the removal and detention system,” including: lack of English language proficiency and lack of training in the U.S. legal system; geographic isolation in remote jurisdictions without access to legal services and other support systems; logistical impediments that create barriers to meaningful representation and access to counsel for those fortunate to have been able to obtain counsel; and the transfer of non-citizens between and among facilities, often multiple times and often across states and even regions of the country.
As Justice Sotomayor wrote: “It is one matter to expect noncitizens facing these obstacles to defend against their removal in immigration court. It is another entirely to place upon each of them the added burden of contesting systemic violations of their rights through discrete, collateral, federal-court proceedings.”
Through the Law School’s Transnational Legal Clinic, we are representing an individual who has been in detention for over four years while he seeks relief from deportation (initiated following criminal convictions, for which the aggregate sentences issued amounted to less than a quarter of the time he has spent in immigration detention). His habeas petition in federal court has been pending for two years. We will continue to challenge his detention as we await an outcome in his case in a battle that has been further complicated by the Court’s decision in Johnson v. Arteaga-Martinez.
In the meantime, I am pained to think of the thousands of other individuals sitting behind barbed wire fences, locked up in prisons across the country, removed from their family members and loved ones, who do not have attorneys on the outside fighting the time-consuming, labor-intensive battles that will now be required on a one-on-one basis, clogging up the already backlogged habeas docket in federal district courts.
The Supreme Court’s refusal to step in and preserve due process for non-citizens subject to detention is akin to authorizing arbitrary and prolonged detention in clear contravention of international human rights norms to which the United States has acceded through its ratification of the International Covenant on Civil and Political Rights, the UN Convention against Torture, as well as the UN Convention on the Elimination of All Forms of Racial Discrimination.