Immigration symposium: Lessons for the Jennings reargument from the Supreme Court’s unanimous rejection of the government’s position in Esquivel-Quintana

Nancy Morawetz is Professor of Clinical Law at NYU Law School.

Unanimous decisions might seem less noteworthy than holdings that divide the Supreme Court. But unanimous and otherwise lopsided rulings about substantive immigration law are significant for more than the issues they resolve. They also have important implications for how we think about the people who are the litigants in these cases and what kind of treatment they receive while they pursue their claims. And those issues will be front and center next term when the Supreme Court hears reargument in Jennings v. Rodriguez. Jennings concerns the prolonged detention of immigrants who are challenging their deportation. Unanimous decisions rejecting the government’s interpretation of immigration law show that immigrants facing prolonged detention may have extremely strong legal claims.

In one of its unanimous rulings this year, the Supreme Court resolved 20 years of litigation over one small part of the “aggravated felony” definition enacted in 1996. The “aggravated felony” label is a term of art in the immigration law that has dramatic implications for lawful permanent residents. It leads to mandatory deportation (other than for those with some persecution claims) and mandatory detention. People with convictions labeled as “aggravated felonies” may have never served a day in jail in their lives. But once the label attaches, they are arrested, shackled and held in jails. They face years of litigation to prove that the label should not be applied to their cases and that they should be able to access the kind of immigration hearing where the real facts of their lives – such as employment, rehabilitation, family ties and military service – can be factored into the decision whether they should be deported. And they face wrenching choices about whether they should give up their battle so that they can get out of detention, even if that means a deportation order and permanent separation from their families. Despite this pressure, some immigrants persevere and take their legal claims to court. Juan Esquivel-Quintana, the petitioner in Esquivel-Quintana v. Sessions, was one of those people. And after enduring 19 months of detention and years in temporary exile, Esquivel-Quintana prevailed: A unanimous Supreme Court decision written by Justice Clarence Thomas concluded that Esquivel-Quintana’s conviction was not an “aggravated felony” in the first place.

The opinion in Esquivel-Quintana is hardly an outlier. Immigrants who have taken their cases to the Supreme Court have prevailed in unanimous or lopsided decisions in many other cases involving the aggravated–felony category. These cases include Leocal v. Ashcroft (9-0 decision rejecting expansive application of the aggravated felony definition to cover driving under the influence); Lopez v. Gonzales (8-1 decision rejecting broad application of the drug-aggravated-felony category to any state drug felony); Carachuri-Rosendo v. Holder (9-0 decision rejecting government’s argument that two simple drug-possession convictions can be combined and treated as a drug-trafficking aggravated felony); and Moncrieffe v. Holder (7-2 decision rejecting government’s argument that a state law prohibiting both the sale and social sharing of marijuana is automatically an aggravated felony).

Indeed, two other immigration-related cases this term also led to strong wins for immigrants, in part because of the extreme positions taken by the government. In Maslenjak v. United States, the government sought an incredibly harsh rule in which new citizens could be jailed and stripped of their status for the most minor misstatements on their citizenship applications, including a failure to admit to driving over the speed limit. The government did not get a single vote for its position. In Lee v. United States, the Supreme Court rejected the government’s effort to create a per se rule that would have denied post-conviction relief to immigrants who plead guilty after receiving palpably false and misleading advice from their lawyers. The Supreme Court ruled 6-2 for Jae Lee.

Of course, the Supreme Court issues unanimous and lopsided rulings in many areas of law. But the clear track record of such results in cases related to immigration underscores the essential role of the judiciary as a check on governmental overreach, and as the ultimate arbiter of the correct interpretation of the law. If the judiciary is the ultimate arbiter, then the executive branch, which makes the initial decisions to arrest and detain immigrants, is not. And immigrants caught up in a deportation system that detains first and sorts out legal issues later will impose a serious loss of liberty on people who have strong claims – including claims that can win before a unanimous Supreme Court.

The judiciary’s role in resolving immigration issues will remain important because there continue to be many questions that are unresolved. Indeed, the decision in Esquivel-Quintana illustrates how the judiciary will have to resolve essential questions about the proper scope of the aggravated-felony category. Esquivel-Quintana expressly leaves to another day the resolution of several issues about the one aggravated-felony category it addressed. And even more significantly, the Esquivel-Quintana decision chose not to address a fundamental interpretive issue that was before the Supreme Court – namely whether a label that has both criminal and immigration consequences should be interpreted in light of the rule of lenity. The outcome of that question could have significant implications for the proper scope of the draconian aggravated-felony label, which will have to be sorted out in later cases.

Esquivel-Quintana shows how the executive branch’s positions can be dead wrong and that immigrants challenging their deportation can have viable claims and indeed may ultimately be vindicated by a unanimous Supreme Court. One can only hope that the Supreme Court will take that lesson to heart when it rehears Jennings v. Rodriguez in the fall. At issue in Jennings is whether an immigrant such as Mr. Esquivel-Quintana should be subjected to prolonged detention without any chance of release while pursuing a challenge to his deportation. The very fact that the Supreme Court has issued so many favorable rulings for immigrants makes clear that immigrants being detained are hardly destined to be deported simply because the government chooses to charge them as deportable. Understanding that basic fact is essential in achieving a fair result in Jennings.