On June 8, 2022, in Egbert v. Boule, the U.S. Supreme Court held that Bivens v. Six Unknown Named Agents did not extend to create causes of action for Boule’s First Amendment and Fourth Amendment claims. In the post-Bivens years, the Court has been more focused on the separation of powers and therefore, more inclined to exercise judicial restraint where the legislative and/or the executive branches have created alternative means of addressing and redressing claims against government officials (in this case, border enforcement agents). Without reversing Bivens, the Court reviewed its two-tiered analysis for pursuing a Bivens claim. First, is the claim substantially different from the three cases in which the Court has recognized a damages action? Second, if so, are there special factors which indicate that Congress is better placed than the judiciary to conduct a costs-benefits analysis to determine whether a claim for damages ought to proceed or not? Applying this analysis, the Court considered the risk of impacting border policy and national security adversely. Furthermore, the Court clarified that the threshold question is not whether Bivens relief might be “harmful” or “inappropriate,” but whether judicial intervention in a certain field might be harmful or inappropriate.
On one hand, this decision is likely to advance the ability of border patrol officers to carry out their duties without fear of facing Bivens claims. On the other hand, many citizens and immigrants are likely to experience an increase in the violation of their constitutional and/or fundamental human rights by obtaining inadequate or no relief.
On June 13, 2022, in Garland v. Aleman Gonzalez, the U.S. Supreme Court held that INA Section 1252(f)(1) strips district courts of jurisdiction to consider the respondents’ requests for class-wide injunctive relief. The Court clarified that district courts have jurisdiction to entertain, on a case-by-case basis, individual immigrant’s requests for bond hearing after having spent 180 days or more in immigration detention facilities and that the Government’s need to maintain national security trumps immigrants’ need to seek class-wide injunctive relief. This decision will likely have the unintended effect of increasing the number of immigrants who will remain in immigration detention facilities beyond 180 days without bond hearings.
On June 15, 2022, in Arizona v. City and County of San Francisco, the U.S. Supreme Court dismissed the previously granted writ of certiorari on the grounds that it was granted “improvidently.” In other words, by its own admission, the Court lacked jurisdiction to entertain the question based on which the writ of certiorari was granted, not for its merits, but to answer the question whether the petitioners—thirteen states which support the 2019 Public Charge Rule — should have been allowed to participate in the litigation to defend the legality of the Rule in the Court of Appeals. The dismissal, though not based on the merits, leaves untouched the Public Charge Rule as it existed in the years before the Trump administration, thereby preserving the status quo ante and ensuring that immigrant recipients of certain public benefits no longer face the risk of being deemed ineligible to adjust their immigration status solely based on having received those public benefits.
On June 30, 2022, in Biden v. Texas, the U.S. Supreme Court held that the U.S. Government’s rescission of the Migrant Protection Protocol (MPP), also known as “Remain in Mexico Policy” did not violate INA Section 1225, and that the October 29 Memoranda constituted final agency action. The Court based its decision on the plain language of the law and stated that the district court’s injunction against the U.S. Government violated 8 U.S.C. § 1252(f)(1) because it lacked jurisdiction to entertain the question, in the first place. Furthermore, the Court clarified that both the district court and the court of appeals misinterpreted Section 1225 of the INA when both courts interpreted paragraphs INA Section 1225(b)(B) and INA Section 1225(b)(2)(C), both of which contain the word, “may” as being mandatory and governed by the word, “shall” in Section 1225(b)(2)(A). In other words, the Court further clarified that only INA Section 1225(b)(2)(A) is mandatory while INA Section 1225(b)(2)(B) and INA Section 1225(b)(2)(C) are discretionary. This determination allowed each administration to decide whether to implement INA Section 1225(b)(2)(B) or INA Section 1225(b)(2)(C) in the face of Congress’ perennial inability or unwillingness to adequately fund the implementation of INA Section 1225(b)(2)(A)—the mandatory detention of immigrants who enter the United States illegally through contiguous territories such as Canada and Mexico). This decision will likely enable the Government to prioritize and direct its limited resources towards achieving “other regional and domestic goals, foreign policy objectives, and domestic policy objectives that better align with the Administration’s objectives” such as engaging in diplomatic relations with Mexico, fighting transnational criminal and smuggling networks and addressing the root causes of migration. But it will likely increase the influx of foreign nationals entering the United States by land through contiguous territories such as Canada and Mexico.
On July 31, 2022, in United States v. Texas, the U.S. Supreme Court denied the application for stay presented to Justice Alito and referred to the Court by him and granted the Solicitor General’s request for certiorari (as an application for certiorari before judgment). Notably, Justice Sotomayor, Justice Kagan, Justice Barrett, and Justice Jackson indicated that they would grant the application for stay.
The Court directed the parties to brief and argue three questions:
(1) Whether the State plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law;
(2) Whether the Guidelines are contrary to 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a), or otherwise violate the Administrative Procedure Act; and,
(3) Whether 8 U.S.C. § 1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. § 706(2).
The case was scheduled for argument in the first week of the December 2022 session and was argued on Tuesday, November 29, 2022.
Overall, the Court’s decisions in the 2021-2022 term have restored the United States immigration landscape to its status quo ante—the way things were before the Trump administration took the reins of power or almost. In other words, there have not been seismic changes in the United States immigration landscape, despite the Biden administration having pledged to make significant changes and having been in office for the past two years. It is questionable or unlikely that the new Congress will prioritize or support the implementation of the Biden administration’s immigration agenda.
