Experts Comment in Advance of Supreme Court Oral Argument

Jan. 11, 2022 - Today the Supreme Court will hold oral arguments in two immigration cases.  Two expert comment:

Prof. Shalini Ray - "The Supreme Court will hear oral arguments on Tuesday in two related immigration cases, Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez. In both cases, noncitizens who are under deportation orders are challenging their prolonged detention – sometimes many months or even years — without the safeguard of a bond hearing before an immigration judge. At such a hearing, an immigration judge determines whether a noncitizen is entitled to release from custody in exchange for payment of a bond, and if so, how much. Being granted bond does not necessarily mean the noncitizen can avoid deportation; it simply allows the person to be released under federal supervision pending resolution of his or her underlying immigration case. Gonzalez raises the additional question of whether, in a class action brought by noncitizens in detention, a district court has the authority to issue classwide injunctive relief."

Prof. Steve Yale-Loehr - "Two lower courts held that, in certain cases, immigrants have that right," says Stephen Yale-Loehr, professor of immigration practice at Cornell University School of Law, New York. "But the conservative majority of the Supreme Court may disagree with those rulings," he warns. The arguments, presented by immigration defense attorneys and the Justice Department, will decide whether foreigners who have been detained for more than six months "have the right to a bail hearing to be released," he said. In one of the cases, the immigrant Antonio Arteaga-Martínez argues that to avoid a violation of due process, "he and some other immigrants should have the right to a bond hearing after six months in detention," explained Yale-Loehr. "However, last year, the Supreme Court ruled 6-3 that immigrants who return illegally to the United States after being deported must be held without bond while they await a second deportation hearing," he noted. Yale-Loehr further said that “the cases are important, in part due to the large backlog of cases in immigration court. More than 1.5 million immigrants have cases pending with the Office of Immigration Review. It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense," he pointed out."