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Notes -
How about some more immigration news? Just today the Supreme Court of the United States issued a per curiam opinion in Trump v. J. G. G., et al. This is the case about the two planes of individuals deported under the Alien Enemies Act. The ruling is something of a mixed bag. On the one hand, the court rules that the Plaintiffs can't sue under the Administrative Procedure Act and instead must file habeas petitions to get relief. On the other hand the court also rules that determinations of whether the AEA applies to an individual are subject to judicial review and individuals have to be given an opportunity to seek that review:
The decision is technically 5-4 because Kagan, Sotomayor, Jackson, and Barrett would have left the TRO in place and allowed Plaintiffs to proceed under the APA rather than requiring habeas. All 9 agree that judicial review is available and that prospective deportees under the AEA must have the opportunity to seek it, the disagreement is about how. Whether detainees will be able to practically use that opportunity remains to be seen. Steve Vladeck, as always, has a good write up.
On thing missing in the court's ruling, though, is any mention of the ~270 individuals already deported under the act. Certainly without the kind of review the court orders today. The courts decision implies this was a violation of their Fifth Amendment rights but does not actually say anything directly about them. Can they file habeas petitions in the United States to be returned? If the government can get you out of the country is that it? There is some precedent (arising from the Guantanamo Bay detainees) that people held in a foreign country on behalf of the United States can still pursue relief in US courts. Maybe that will end up being the remedy.
We can also return to Abrego Garcia v. Noem. I made a post about it last week and quite a lot has happened since then, including today. Last Friday the judge in that case ordered:
The judge issued her opinion supporting the order on Sunday. The government appealed and a unanimous panel of the Fourth Circuit Court of Appeals denied the government's request for a stay. The circuit court's opinion pretty directly raises some of the concerns I mentioned in my post:
The government then appealed to the Supreme Court and Chief Justice Roberts granted an administrative stay.
The cases are not exactly the same. The Venezuelans in the J.G.G. case were at least arguably deported pursuant to a lawful authority. Even the government concedes Abrego Garcia's deportation was entirely unlawful. Still, it would be a surprise for there to be relief for the Venezuelan's deported (arguably) in violation of their Fifth Amendment rights but not for Abrego Garcia who certainly was.
These proceedings do little to assuage my concerns with the system. If you are a US citizen and get kidnapped to a prison in El Salvador and the remedy is "hire a US lawyer to file a habeas petition for you" that seems not great! Pretty bad!
If the US government actually abides by SCOTUS' order that means mass deportation via the AEA is likely dead. You're talking about individual cases in front of an Article 3 judge with all the appeals that entails for every individual you want to deport.
Do they? AIUI, there was a hold on deporting him to El Salvador specifically, and for specific reasons, and that the law granting that authority had a clause allowing it to be waived for a significant change in circumstances. And his specific pitch was "You can't send me back there because this specific gang will torture me to apply pressure to my mother's business", and his mother no longer owns the business and Bukele deleted the gang.
It seemed more like "There was a paperwork mixup, but we can justify it if we have to".
At minimum, the previous order was not dissolved. It's fine to say that the facts underlying it had changed significantly and it could have been relitigated, but it clearly wasn't. The Court has reiterated rather often that those orders remains in effect until removed, regardless of changes in the underlying merits.
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