Guest Post Nancy Morawetz: The Solicitor General’s Extraordinary Push to Place Even More Immigration Cases on the Supreme Court Docket

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The Solicitor General’s Extraordinary Push to Place Even More Immigration Cases on the Supreme Court Docket by Nancy Morawetz

The last four years have seen an unprecedented push by the Solicitor General’s (SG) office to place immigration issues on the Supreme Court’s docket.  While some of these cases involved defense of Trump Administration initiatives that were struck down by circuit courts, the SG has also increasingly pushed the Court to review even basic immigration issues, in sharp contrast to past administrations of both parties. On its way out the door, the SG is asking the Supreme Court to add to its docket cases that would benefit from greater development in the lower courts and review by a new administration.

Consider this Friday’s conference. There are four immigration related cases set to be considered, with three being petitions by the government (more SG petitions on distinct immigration issues than one would usually expect in the course of an entire year), and the other involving a case in which the SG is agreeing that certiorari is appropriate (also a rare position for the SG).  The SG’s position in each of these cases shows an unusual aggressiveness towards the role of the Supreme Court. 

1. Rosen v. Aleman-Gonzalez, No. 20-322, is one more SG certiorari petition considering the proper procedure for a bond hearing under 8 U.S.C. § 1231.  The named petitioners in these cases, like the individual petitioner in Arteaga Martinez v. Barr, No. 19-896 (a case I blogged about last September) have reinstatement orders and are seeking protection from persecution and torture.  The Court is hearing a case this Term (Pham v. Guzman Chavez, No. 19-897) about whether the detention of people in this category should be governed by 8 U.S.C. § 1226 or 8 U.S.C. § 1231.  But rather than wait for that decision, which will decide the governing statute, the SG is arguing that the Court should take this derivative issue about procedures under one of the two statutes first—one that the Court may, in Guzman Chavez, determine is not even the governing statute!  The SG’s eagerness is underscored by its decision to waive the waiting period for distribution of the case so that it could be considered by the Court in its conference of January 8th.  It is hard to understand the hurry either on the timing of the conference or the need for the Court to take the case.  Aleman Gonzalez is a class action in which all of the named plaintiffs will be subject to the Court’s decision in Guzman-Chavez, a case being argued next week.  What possible hurry exists other than the desire of this SG’s office to make an imprint on the docket for the next Administration?
2. U.S. v. Palomar-Santiago, No. 20-437, is also an unusual petition for the SG.  This case concerns the requirements for collateral attack on a prior deportation order when that order is the basis of greatly enhanced punishment.  Mr. Palomar-Santiago was deported despite his lawful permanent resident status due to a 1991 conviction that the government deemed an “aggravated felony.” That classification turned out to be wrong.  In 2004, the Supreme Court, in an opinion written by the late Chief Justice Rehnquist, ruled unanimously that Mr. Palomar-Santiago’s type of conviction could not be deemed an “aggravated felony.”  Leocal v. Ashcroft, 543 U.S. 1 (2004).  Under years of settled caselaw, to which the Justice Department (even under this administration) has acquiesced, the clear legal error in Mr.  Palomar-Santiago’s deportation order should be sufficient to spare Mr. Palomar-Santiago the additional penalties for persons previously deported for an aggravated felony.   One would expect the Justice Department to either stick with its prior positions or do more to develop its new theories in the lower courts. But instead, there is a rush to Supreme Court intervention to impose harsh penalties on an immigrant who was wrongfully deported. 
3. ICE v. Padilla, No. 20-234, seeks the Court’s intervention at the preliminary injunction stage, of an order that preserves the longstanding status quo of allowing bond hearings for persons apprehended after entry into the United States.  This case comes at a time of drastic changes on the ground that have resulted in immigrants being subject to apprehension under the relevant statute years after entry into the United States.  These changes on the ground (many of which could be affected by policies of the incoming administration) have broad implications for the ultimate legal issues in the case.  It also comes at a time of significant Supreme Court developments that have not yet been vetted below. Both are more than sufficient reason to await further deliberation below and make it difficult to understand the rush for Supreme Court intervention. Surely, if the shoe were on the other foot, the SG would be strenuously arguing that intervention was premature.
4. Sanchez v. Wolf, No. 20-315, is not an SG petition, but by acquiescing in the petition, the SG’s office is trying to add still another immigration case to the Court’s docket.  Sanchez involves a technical issue about whether those with Temporary Protected Status who have lived in the United States lawfully (often for decades) are barred from adjusting their status to permanent residency when, for example, they are married to a United States citizen.  Sanchez involves a mix of statutory interpretation issues and application of deference principles.  Notably, the Board of Immigration Appeals in a related circumstance concluded that the relevant statute is ambiguous, but the SG is choosing not to argue that view.  One might expect the SG to urge the Court to await the position of the incoming administration on this particular issue. But rather than wait, the SG has expressed eagerness for the Court to take the case now and place the issue on the Court’s agenda and out of the reach of the policy branches.

It is also noteworthy that these petitions come on the heels of what is already a heavy October Term 2020 caseload of immigration-related cases.  The Court has already taken Rosen v. Dai, No. 19-1155 (treatment of IJ decisions with no adverse credibility findings); Niz-Chavez v. Rosen, No. 19-863 (whether a Notice to Appear can be issued over two separate documents); Pereida v. Rosen, No. 19-199 (whether government bears burden of proof when the record of conviction is ambiguous); Pham v. Guzman Chavez, No. 19-897 (whether 8 U.S.C. § 1226 or 8 U.S.C. § 1231 governs detention of people with reinstated removal orders seeking protection from persecution or torture);  Wolf v. Innovation Law Lab, No. 19-1212 (lawfulness of the Migration Protection Protocols); and Trump v. Sierra Club, No. 20-138 (diversion of Defense Department funds for the border wall).

It is hard to know for sure what the SG’s office is thinking, but much reason to fear that a political objective is at work. For the last four years the SG has pushed more and more immigration cases onto the Supreme Court’s docket.  Now that the administration is changing, it would be appropriate for the SG to allow the next SG to determine whether to continue to push aggressively for the Supreme Court to take on immigration cases.  The SG could also help the Court avoid cases that are only truly controversies with an administration that is on its way out. But instead, it is barreling ahead on an approach that makes little sense given the changing administration.  Observers of immigration law are well aware that, as it leaves office, the current administration is rushing to issue regulations and policies in an effort to cement its policy approaches. But the conventional wisdom is that there is a greater level of political distance in the Solicitor General’s office.  As with so many conventions that have been broken, that convention unfortunately appears to have lost its hold. 

KJ