Recent Immigration-Related Supreme Court Cases
July 6, 2023
The Supreme Court recently issued two decisions relating to immigration law. The first addresses states’ standing to sue the federal government based on enforcement guidelines in immigration removals. The second addresses whether a statute prohibiting “encouraging” or “inducing” illegal immigration violated the first amendment freedom of speech.
As the branch of the U.S. government that enforces laws, the Executive branch can make decisions regarding arrests and prosecutions. Specifically, the Executive branch of the federal government can set enforcement priorities for the Department of Homeland Security, which includes ICE, as to arrests and deportations of immigrants. In 2021, under the direction of President Biden, the Secretary of Homeland Security promulgated guidelines for DHS to prioritize the arrest and removal of noncitizens who are a threat to national security, a threat to public safety, or a threat to border security. See Mayorkas Memo. The States of Texas and Louisiana filed suit claiming that the guidelines contravene two federal statutes which they claimed required the arrest of certain noncitizens upon their release from prison or entry of a final order of removal, citing that the states would incur costs due to the Executive’s failure to comply with the requirements of 8 U.S.C. §1226(c) and 8 U.S.C. §1231(a)(2).
On June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating the Mayorkas Memorandum and its enforcement guidelines. This decision had a great effect on immigration advocates who practice removal defense on behalf of their clients, as this memo and enforcement guidelines re-introduced the “prosecutorial discretion” option for removal cases. In removal cases prior to the previous presidential administration, ICE attorneys agreed to terms of “prosecutorial discretion” (PD) in removal cases where the noncitizen was not an enforcement priority of DHS. This allowed many immigration advocates to have ICE and the immigration court placed the removal case temporarily “on hold” because the noncitizen was not a current enforcement priority. This would allow those noncitizens to continue to live their lives and contribute to society while their removal case was on hold.
The Mayorkas Memo re-introduced the department’s willingness to offer PD in removal cases where the noncitizen was not an enforcement priority, but the federal suit by Texas and Louisiana vacated the Mayorkas Memo and left many immigration advocates without this option for their clients who were not enforcement priorities. Subsequently, the Fifth Circuit court declined to stay the U.S. District Court’s final judgment, and the Supreme Court granted cert to hear the case.
The Supreme Court issued its decision (8-1) finding that the States of Texas and Louisiana do not have standing to maintain the lawsuit. In order for a federal court to hear a case, both parties must have standing to sue. In its opinion, the Supreme Court noted that as part of having standing, a party must show that the injury caused by the defendant is redressable, or can be resolved, by a court order. However, the states did not cite any laws or precedents of federal courts redressing injuries of this type of case.
Further, the opinion discussed that the Executive Branch may elect not to arrest or prosecute and that lawsuits such as these run up against the Executive Branch’s Article II authority to decide how to prioritize and to what extent they wish to pursue legal action against persons who violate the law. The Executive’s power over enforcement priorities extends to the immigration context, and the Supreme Court found that the federal courts are not the proper forum for resolving claims that the Executive should be making more arrests or bring more prosecutions.
The question before the court was whether the statute prohibiting encouraging or inducing illegal immigration violated the first amendment. The Ninth Circuit held that it did. The Supreme Court found that was an error, and that the statute forbids the intentional solicitation or facilitation of certain unlawful acts – and does not prohibit a substantial amount of protected speech.
Haleman Hansen ran a fraudulent “adult adoption” program where immigrants seeking U.S. citizenship would pay him to arrange an “adult adoption”, and as a result of the adult adoption, the immigrant could inherit U.S. citizenship from the new parent. No such path to citizenship exists through “adult adoption”, but many immigrants believed Hansen’s advice and claim that they would be safe from immigration enforcement by paying him for this program. The U.S. charged Hansen with violations of U.S.C. § 1324(a)(1)(A)(iv) that forbid “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”
After unsuccessfully affirming that this same clause of the statute was overbroad and violated first amendment protected speech in United States v. Sineneng-Smith, the Ninth Circuit issued its similar finding in Hansen’s case, and the Supreme Court issued cert to hear the case.
In its opinion, the Court analyzed the meaning of the words “encourage” and “induce” in the language of the statute and determined that these terms should be interpreted in the criminal law context. In its opinion, the court reviewed the history of the statute and how the words “encourage” and “induce” came to be in the current version. It further concluded that the statute does not broadly violate protected speech under the first amendment, but merely prohibits the purposeful solicitation and facilitation of specific acts known to violate federal law.
Please contact us at Landau, Hess, Simon, Choi & Doebley if you have any questions about how these decisions may affect your immigration case. To schedule a consultation with one of our attorneys, please proceed to our Consultation Request Form.
Written by: Marisabel Alonso
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