U.S. Supreme Court Immigration Rulings and Reproductive Justice Implications
by Shea Roodberg
Reproductive justice is about deciding if and when to have children, having access to quality healthcare and childcare services, parenting with dignity, and being able to exist in safe and supportive communities. Fleeing from one’s home and living as a noncitizen in the United States can cause circumstances that involve several reproductive justice obstacles.
It can be extremely difficult to parent with dignity if a parent or child is detained in an immigration facility. Children who are detained often wait several weeks to be permitted to call to their parents.[1] Family separation can inflict long-term trauma and negatively impact people’s health and livelihoods. It can also be difficult to safely seek critical prenatal care or abortion care in the wake of residing somewhere unlawfully.[2] Noncitizens often sacrifice their health out of fear of being deported if they were to seek professional care, and similarly will not report a crime committed against them out of fear of being detained themselves. The stress of navigating the immigration system with the looming potential of being detained or deported places an unimaginable toll on noncitizens. Since U.S. immigration policies are ever-changing, noncitizens seeking a legal remedy will have to navigate a moving target on top of everything else.
The U.S. Supreme Court issued five major rulings about immigration this term. Some of the rulings have greater reproductive justice implications than others. Here is an overview of the cases and their potential implications for reproductive justice:
Garland v. Dai, 141 S. Ct. 1669 (2021).
The consolidated cases of Garland v. Dai and Garland v. Alcaraz-Enriquez involve the process of determining credibility. In both cases, petitioners made conflicting statements about alleged persecution they faced at home and prior convictions but were determined to be credible by the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit had been following a judge-imposed rule which required them to treat a petitioner’s testimony as credible in the absence of an adverse credibility finding by an immigration judge or Board of Immigration Appeals (BIA). The Supreme Court found that the rule could not be reconciled with the Immigration and Nationality Act (INA), which is the governing law for asylum cases. The Court held that federal courts shall accept the immigration courts’ factual determinations unless the record contemplates a different conclusion or a reasonable adjudicator would be compelled to conclude the contrary. In the present case, the record reflected additional unfavorable facts that contradicted petitioners’ testimony.
Why does this matter? This ruling will make it more difficult for petitioners in the Ninth Circuit to receive a favorable credibility determination. There are many reasons why a petitioner might withhold information from an immigration judge, the BIA, or their lawyer. Among the reasons are cultural barriers, language barriers, confusion, and desperation. An article published in The New Yorker illustrated the story of a young woman who was abused in her home country and would be tortured if she returned.[3] The woman lied to the immigration judge about her background because she thought a different story would give her a better shot at reaching asylum. In terms of reproductive justice, the ruling is unfavorable because fewer individuals will be able to obtain a favorable credibility determination, which means that fewer people will be able to obtain asylum and more people will be deported to dangerous conditions in their home countries.
Johnson v. Guzman Chavez, №19–897, 2021 U.S. LEXIS 3562 (June 29, 2021).
This case is about the availability of bond hearings for individuals who are detained because they reentered the United States upon a removal order and are pursuing withholding of removal. The petitioners in this case were deported from the U.S., reentered without authorization, and were detained in a U.S. Immigration and Customs Enforcement (ICE) facility. Normally, people who were deported and are found in the U.S. again are immediately removed without a hearing. However, the petitioners claimed to be fearful of returning to their home countries and were determined by an asylum officer to have a reasonable fear of persecution. They were referred to an immigration judge for a withholding-only proceeding, which is a protective option that would prevent their deportation to a particular country where they might be tortured or persecuted.[4]
The petitioners sought a bond hearing, raising the central question of whether individuals in this circumstance should be categorized as “to be removed,” or “pending decision of removal.” Section 1226 of the relevant statute applies to individuals with pending decisions of removal (like people awaiting a withholding-only proceeding) and allows for bond hearings. Section 1231 applies to individuals who have been ordered to be removed (like people with reinstated orders of removal) and does not allow for bond hearings.
In a 6–3 opinion, the Supreme Court declared that petitioners in this circumstance should be placed in the “to be removed” category under Section 1231 and ineligible for a bond hearing. The three liberal justices dissented claiming that Section 1231 only applies to administratively final removal orders, and that a removal order is not administratively final until the withholding claim is resolved. The dissent clarified that a bond hearing is an opportunity to be eligible for bond — not a free pass. The immigration judge will only deem that someone is eligible for bond if they are sure the individual is not a trouble-maker and will show up for their next court date. The dissent also raised policy concerns about detaining individuals who, as a result of reasonably fearing torture or persecution in their country of origin, are awaiting a withholding of removal proceeding, which often takes more than a year to resolve.
What will be the impact? This ruling will keep traumatized individuals isolated in ICE detention facilities longer than necessary. ICE detention facilities have received an abundance of criticism for being unsanitary, not providing basic hygiene products, not providing basic nutrition, not keeping track of unaccompanied children, not protecting individuals from abuse, exposing individuals to COVID-19 and other illnesses[5], and coercing individuals into having hysterectomies.[6] It is relatively easy to imagine the injustices that are to come in light of this decision.
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
This case involves the specific requirements of a “notice to appear” in a removal hearing. A noncitizen who has been ordered to be removed from the United States can be eligible for discretionary relief if they establish their continuous presence in the country for at least ten years. Discretionary relief means that an immigration judge has the option to allow a noncitizen to stay in the country despite circumstances that might otherwise warrant their removal, so this is a highly favorable form of relief for noncitizens. The “stop-time rule” applies to the ten-year countdown to establish continuous presence in the country. The rule requires the countdown of continuous presence to halt as soon as a noncitizen is served a notice to appear in a removal hearing. If the stop-time rule commences and a noncitizen has not established continuous presence in the country for ten years, they are barred from being eligible for discretionary relief.
A “notice to appear” has to contain all sorts of important information like the reason why the government has ordered to remove someone, and the time and place of their removal hearing. The government had a streak of sending this information in multiple documents over a period of time, which poses an issue of when the stop-time rule should commence. In the present case, the nonpermanent resident received a document with the charges filed against them and two months later received a second document with details about their removal hearing.
The Supreme Court found that for the “stop-time” rule to apply, a notice to appear for a removal proceeding must consist of one single document containing all of the required information.
Does this actually help anyone? Yes! This ruling is a win for noncitizens because the government is likely to end up taking more time to compile their notices if they have to send everything in one single document. This will increase the chances for noncitizens to reach their ten-year mark and be eligible for discretionary relief, increasing their chances of staying in the United States.
United States v. Palomar-Santiago, 141 S. Ct. 1367 (2021).
Refugio Palomar-Santiago became a green card holder in 1990 and received a DUI in California several years after. An immigration judge deemed the conviction to be an aggravated felony and Palomar-Santiago was soon deported. Following his deportation, the Supreme Court issued a ruling declaring that DUI convictions are not to be characterized as aggravated felonies.
In 2018, Palomar-Santiago was found living in the United States and indicted for illegally reentering. He sought to dismiss the indictment because he should have never been removed in the first place considering that DUIs are not aggravated felonies.
In order to dismiss the indictment for illegal reentry, an individual must show that they have exhausted the administrative remedies, they were deprived of the opportunity for judicial review, and that the removal order was fundamentally unfair. A lower court ruled that Palomar-Santiago’s circumstance lacked a legal basis and therefore did not necessitate establishing the first two requirements.
The Supreme Court found that the administrative exhaustion and deprivation of judicial review requirements are not inherently satisfied in instances where an individual was removed for an offense that is not actually a removeable-offense. The Court held that all three of the requirements must be met in order to dismiss an indictment for illegal reentry.
How can this be harmful? This ruling will make it more difficult for noncitizens who were deported on illegitimate grounds to challenge indictments for illegal reentry. The ruling is particularly troubling because ICE has a history of pursuing removal orders based on illegitimate charges.[7]
Sanchez v. Mayorkas, 141 S. Ct. 1460 (2021).
This case involves Jose Santos Sanchez, an individual from El Salvador who has been in the United States since 1997 and was granted Temporary Protective Status in 2001. The Temporary Protective Status program allows individuals who come from particularly dangerous conditions to live and work in the United States while the dangerous conditions last. In 2014, Sanchez applied to change their status to Lawful Permanent Resident (a.k.a. green card holder). A green card would mean that Sanchez could lawfully reside in the United States permanently. The U.S. Citizenship and Immigration Services declared Sanchez to be ineligible for a green card because he initially entered this country illegally, but Sanchez contends that his Temporary Protective Status should enable him to obtain a green card despite his unlawful entry.
How will this affect others? The Supreme Court held that in order to be eligible for Lawful Permanent Resident status, an individual must have been admitted into the country by entering lawfully. This ruling significantly narrows the pool of people who will be eligible to obtain the advantageous green card.
To see a list of the federal cases winding their way through the appellate courts, and with a select few having a high probability of reaching the U.S. Supreme Court, visit SCOTUS Watch 2021.
[1] Miriam Jordan, ‘I Have No Idea Where My Daughter Is’: Migrant Parents Are Desperate for News, The New York Times (April 9, 2021) https://www.nytimes.com/2021/04/09/us/migrant-children-border-parents.html.
[2] Caitlin Dickerson, Undocumented and Pregnant: Why Women Are Afraid to Get Prenatal Care, The New York Times (Nov. 22, 2020) https://www.nytimes.com/2020/11/22/us/undocumented-immigrants-pregnant-prenatal.html.
[3] Suketu Mehta, The Asylum Seeker, The New Yorker (Aug. 1, 2011), https://www.newyorker.com/magazine/2011/08/01/the-asylum-seeker.
[4] Jack Chin, Bond Eligibility for Certain Noncitizens Divides Court Along Ideological Lines, SCOTUSblog (Jun. 29, 2021), https://www.scotusblog.com/2021/06/bond-eligibility-for-certain-noncitizens-divides-court-along-ideological-lines/.
[5] Immigrant Women in ICE Custody File Civil Rights Complaint Requesting Investigation into COVID-19 Conditions at Indiana Jail, National Immigrant Justice Center (May 28, 2021) https://immigrantjustice.org/press-releases/immigrant-women-ice-custody-file-civil-rights-complaint-requesting-investigation.
[6] Rachel Treisman, Whistleblower Alleges Medical Neglect, Questionable Hysterectomies of ICE Detainees, NPR (Sept. 16, 2020) https://www.npr.org/2020/09/16/913398383/whistleblower-alleges-medical-neglect-questionable-hysterectomies-of-ice-detaine.
[7] Jennifer Koh, Court Rejects Non-citizen’s Challenge to Criminal Re-entry Charge, SCOTUSblog (May. 24, 2021, 7:21 PM), https://www.scotusblog.com/2021/05/court-rejects-non-citizens-challenge-to-criminal-re-entry-charge/.
