Harvard Law Review’s Take on the Immigration Decisions from the Supreme Court’s 2021 Term

The Harvard law Review Supreme Court 2021 term issue is out.  The Review’s leading cases from thE Term include virtually all of the immigration cases from the Term.

Egbert v. Boule
By the Harvard Law Review
The Bivens remedy permits individuals to sue federal officials for money damages directly under the Constitution. But over four decades, the Supreme Court has cut back its remedy in every case to make it to the Court. Last term, in Egbert v. Boule, the Supreme Court extended that streak, holding that it would not extend the Bivens remedy to a seizure conducted by a CBP Officer near the border. Much of the commentary on the case has focused on its parsimonious reading of what counts as a “new context” for extending Bivens and on the majority’s restrictive redefinition of the Court’s prior precedent. This Comment argues that an alternative holding in the decision—that the CBP grievance process was an adequate “alternative remedy”—is likely to have severe ramifications. Because most, if not all, federal law enforcement agencies have comparable grievance processes, this holding could foreclose the expansion of Bivens to most any federal law enforcement officials.

Garland v. Aleman Gonzalez
By the Harvard Law Review
More than eighty percent of detained immigrants do not have lawyers. Class actions have long proven to be an effective way to challenge conditions of detention, which can stretch on indefinitely. In Garland v. Aleman Gonzalez, however, the Supreme Court held that a jurisdiction-stripping provision of the Immigration and Nationality Act forbids lower federal courts from enjoining the operation of certain immigration laws on a classwide basis — even when these laws are improperly interpreted by the executive branch. In the wake of this decision, alternative paths to large-scale relief for detained immigrants may still exist, including classwide declaratory relief, APA vacatur, and mass actions. In practice, all pale in comparison to the remedy of a classwide injunction, offering another example of how the Court has undermined substantive rights through jurisdictional rulings.

Patel v. Garland
By the Harvard Law Review
Can limits on judicial review exist within a “regime of law and . . . constitutional government?” Just ask noncitizens, millions of whom are deportable at the stroke of a bureaucrat’s pen. Last Term, in Patel v. Garland, the Supreme Court held that one such provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — which bars review of “any judgment” of an immigration official “regarding the granting” of discretionary relief — forecloses judicial review of even the threshold determination of whether a noncitizen is eligible to receive such relief. Although Patel holds that IIRIRA precludes judicial review of merely factual questions, it need not and should not be read to preclude review of fact-related judgments that are so egregiously mistaken as to violate the Due Process Clause.

Biden v. Texas
By the Harvard Law Review
When the Biden Administration attempted to end a Trump-era immigration program, a district court enjoined it using an aggressive form of arbitrariness review and the Supreme Court declined to stay the injunction. The Court’s shadow docket order indicated that after DHS v. Regents of the University of California, muscular arbitrary and capricious review is the new normal, a worrying development for advocates of administrative flexibility. The Biden Administration then withdraw its first attempt to cancel the Trump-era program and issued a new action. The Court then signed off, refusing to make it harder for an agency to take new action that reaches the same result as an enjoined prior action. In an era of muscular arbitrariness review, the ability of agencies to take such action without additional hurdles is an important, if small, consolation prize.

KJ