SCOTUS Blocks Class-Wide Injunctive Immigration Relief

Decision likely to have implications for ‘Remain in Mexico’ case

By Andrew R. Arthur on June 16, 2022

On June 13, the Supreme Court issued an opinion in Garland v. Aleman Gonzalez and Garland v. Flores Tejada, two cases that involved class action injunctive relief in federal district courts in California and Washington, respectively. At issue was whether those courts properly granted that relief, but that opinion will likely impact actions brought by state plaintiffs to block certain Biden administration immigration policies.

Reinstatement Proceedings. Aliens who are removed from the United States and reenter unlawfully are subject to “reinstatement” of their removal orders under section 241(a)(5) of the Immigration and Nationality Act (INA). That means that DHS does not have to repeatedly obtain removal orders against serial illegal reentrants, allowing the department to remove them more quickly.

Illegal reentrants who claim a fear of harm or torture if returned, however, are interviewed by asylum officers at USCIS to determine whether they have a “reasonable fear” of return.

If those aliens are found to have a reasonable fear, they are referred to immigration judges for “withholding-only” proceedings, at which the only issue is whether they are eligible for statutory withholding of removal (which is like asylum, only with a higher burden of proof and fewer benefits) and/or protection under the Convention Against Torture (CAT).

Release for Aliens in Reinstatement. Section 241 of the INA requires DHS to detain and remove aliens under final orders of removal within 90 days, but also gives DHS the authority, at section 241(a)(6) of the INA, to extend that 90-day detention period for various reasons, including that the alien “is a risk to the community or unlikely to comply with the order of removal”.

As explained above, aliens whose removal orders are reinstated are still under orders of removal, but are allowed to seek protection in withholding-only proceedings. When I was an immigration judge in a detained court, I could usually complete those hearings within about 40 days, but those aliens were also allowed to appeal a denial of protection order to the Board of Immigration Appeals (BIA), which would often extend the removal period for more than three months.

In its opinion in Johnson v. Arteaga-Martinez, also issued on June 13, the Supreme Court held that the Third Circuit had exceeded its authority in judicially crafting a process requiring DHS to provide bond hearings to aliens under orders of removal (including and in particular in withholding-only proceedings) who had been detained for more than six months, absent such authority in section 241 of the INA.

Aleman Gonzalez and Flores Tejada. The fact patterns in Aleman Gonzalez and in Flores Tejada were similar to the one in Arteaga-Martinez, with a slight twist.

Aleman Gonzalez involved aliens who had filed putative requests for class certification in the U.S. District Court for the Northern District of California, claiming that aliens who are detained under section 241(a)(6) of the INA are entitled to bond hearings within 180 days under precedent.

Flores Tejada — who was also detained under section 241(a)(6) of the INA — filed a suit with the U.S. District Court for the Western District of Washington in which he similarly requested a bond hearing. The district court certified a class and granted partial summary judgment against the federal government and entered class-wide injunctive relief requiring such bond hearings.

Arteaga-Martinez, by contrast, was not seeking release for anyone other than himself, and in granting his request for a bond hearing, the Third Circuit relied on its precedent decision in Guerrero-Sanchez, in which, again, no class was certified.

Rather, the circuit court there simply crafted a rule that such aliens facing detention under section 241(a)(6) of the INA were entitled to bond hearings to avoid constitutional issues under the Due Process Clause.

Section 242(f)(1) of the INA. At issue in Aleman Gonzalez and Flores Tejada was whether district courts had jurisdiction to grant class-wide injunctive relief given the restrictions contained in section 242(f)(1) of the INA, which states:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. [Emphasis added.]

“Part IV of this subchapter” in the excerpt above refers to sections 231 to 244A of the INA, governing the inspection, apprehension, examination, exclusion, and removal of aliens.

Justice Alito, writing for the majority, held that this provision prohibits injunctions that are intended to protect a class of aliens. Individuals can bring suit notwithstanding section 242(f)(1) of the INA; classes cannot.

Sweeping Decision — but How Far Does It Go? Significantly, Justice Alito gave a very broad reading to the phrase “enjoin or restrain the operation” of the referenced provisions in the INA, explaining:

Putting these terms together, [section 242(f)(1) of the INA] generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.

This is a sweeping finding, though its full parameters are not clear. Over the past five years-plus, and in particular under the Trump administration, various courts have issued numerous injunctions forcing DHS to “take or refrain from taking” actions relating to the inspection, apprehension, examination, exclusion, and removal of aliens. Such suits are likely precluded, at least to the extent that they involve classes of aliens.

Biden v. Texas. One case that this decision may directly affect is Biden v. Texas, a suit brought by various plaintiff states to block attempts by the Biden administration to terminate the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. A decision in the matter is currently pending before the Supreme Court.

DOJ only briefly referenced section 242(f)(1) of the INA in its petition for writ of certiorari there, stating in a footnote that “the lower courts lacked jurisdiction to grant injunctive relief under” that provision, and noting that the Court would be considering the scope of that provision in Aleman Gonzalez.

The plaintiffs in Texas were similarly curt in their response, contending, “In a footnote, the Government argues that the lower courts lacked jurisdiction to enter injunctive relief under [section 1242(f)(1) of the INA]. ... The Fifth Circuit and district court decisively refuted this argument.”

At oral argument in the matter on April 26, Justice Thomas asked U.S. Solicitor General Elizabeth Prelogar (arguing on behalf of the federal government) whether the administration had “abandoned” its section 242(f)(1) argument, prompting Prelogar to again note that the scope of the provision would be at issue in Aleman Gonzalez, and to respond that:

[W]e continue to adhere to the position that the district court in this case had no authority to enter the injunction that it did because that would enjoin or restrain the operation of the INA, and only this Court has jurisdiction to enter an injunction like that.

Similarly, Prelogar responded in the affirmative when asked by Justice Sotomayor whether “an injunction of any kind is improper” under section 242(f)(1) of the INA. Texas Solicitor General Judd Stone II, on behalf of the plaintiff states, contended that the provision “has ... no role to play here”.

The Court was not convinced. On May 2, it directed the parties to file supplemental briefs addressing whether section 242(f)(1) of the INA “imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under” the Administrative Procedure Act, 5 U.S.C. § 706; whether those limitations can be forfeited; and whether the Court even has jurisdiction to hear the case.

Where Do We Go from Here? The decision in Texas will be issued in the next few weeks and at that point we will know more about the full implications of Aleman Gonzalez. One thing that is clear, though, is that it will limit the ability of immigrants’ advocates to block efforts to enforce the immigration laws in a future administration — assuming Congress does not expand the jurisdiction of the lower courts over such issues in the interim.

Note, however, that section 242(f)(1) of the INA expressly allows the Supreme Court to issue injunctive relief. It is questionable how much appetite the High Court has for hearing such matters. They could always take a pass.

Further, the injunctions that have been issued by the lower courts thus far of Biden administration immigration policies have been largely premised on APA violations. It is questionable whether the justices have the bandwidth to engage in the sorts of detailed factual analysis such claims require as an initial matter.

Of course, the Court would be suited to handle “Take Care Clause” claims under article II, section 3 of the U.S. Constitution, alleging that the executive is failing to enforce the immigration laws. Such claims are almost always avoided under the principle that courts sidestep constitutional challenges when they can be disposed of on other grounds (such as the APA). There is not a lot of caselaw in this area; perhaps that will change.

The effects of Supreme Court opinions aren’t always obvious in real time. Advocates who cheered the Court’s opinion in DHS v. Regents blocking the Trump administration’s “wind-down” of DACA were likely not pleased when it was cited to block Biden administration immigration efforts. The full impact of Aleman Gonzalez may take years to be felt. Or it may spell the end of “Remain in Mexico”. Stay tuned.