Two SCOTUS decisions shift law enforcement and immigration landscape—07-01-22

Immigration news, in context

This is the 127th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch. If you find what we do useful, you can help us keep it going and keep improving by becoming a backer.

You may have noticed we took a longer-than-expected hiatus this time around, which was the function of converging obligations. BORDER/LINES is ultimately the passion project of just two people who also have various other professional commitments, but we want to thank you all for your continued readership and support. We are committed to continuing to put out these analyses, bolstered by the kind words of encouragement we often get from readers.

Today, we’re dedicating our entire newsletter to two consequential Supreme Court decisions that, though they did not get the level of widespread attention that Dobbs v. Jackson Women's Health Organization rightly received, are very consequential.

Egbert v. Boule

Issued 06/08/22, 6-3 against plaintiff Boule

To understand the impact of this decision, it’s necessary to first understand the concept of civil liability as it pertains to agents of the state. If a non-government entity or employee breaks a contract or otherwise harms another person or entity through negligence or ill intent, they can be sued in a state or federal court, depending on the nature of the claims. The purpose of this action can be two-fold: to punish the perpetrator and dissuade them from further illegal activity; and to provide remuneration to the victim, including via monetary damages.

Government entities and personnel have an additional layer of responsibilities, bound as they are not just by contractual relationships and statutory constraints, but also the Constitution. They are, however, also generally more protected from both civil and criminal penalties given the assumption that they have to, to some degree, operate free of the constant threat of litigation and investigations that would arise if they could be held fully liable for each action undertaken as part of their official duties. This is a bit different from suing over perceived unconstitutional or unlawful policies, where officials are implementing orders and the courts can then determine whether such policies don’t comply with constitutional or statutory obligations and throw them out.

Any regular BORDER/LINES reader will be familiar with this process. Practically every significant immigration policy of the last several years, whether restrictive or nonrestrictive, has been subject to litigation alleging its unlawfulness either under the Administrative Procedure Act, the Immigration and Nationality Act, the Constitution, or some combination thereof. It is much rarer, though still possible, for plaintiffs to sue officials acting in supervisory and policymaking positions as well as the United States itself seeking actual damages from the government as restitution and punishment for unlawful policies; one notable recent example is the effort by families separated under 2018’s infamous Zero Tolerance policy to obtain compensation.

In cases devoid of such top-down orders, where federal government personnel are accused of acting unlawfully under color of federal authority but without a specific policy to challenge, the options are pretty limited. In general, federal agents who are in the process of performing their duties are insulated from civil legal action in the courts unless Congress specifically creates some process or remedy for this to occur, with the prime example being 1946’s Federal Tort Claims Act (FTCA), which opened up federal agents to liability specifically under state tort law, such as if they cause harm via negligence. As far as a generalized federal cause of action, one didn’t really exist until 1971, when the Supreme Court ruled in the landmark Bivens v. Unknown Named Agents that a man who was unlawfully arrested by agents of the Federal Bureau of Narcotics had the right to sue them for Fourth Amendment violations even without a congressionally-stipulated cause of action.

Bivens was always a pretty narrow standard and subsequent rulings have narrowed it further. In Egbert, Robert Boule, the owner of a bed-and-breakfast known as the Smuggler’s Inn in Blaine, Washington, alleged that Border Patrol Agent Erik Egbert had violated his Fourth Amendment rights in a 2014 incident by questioning one of his guests and refusing to leave his property when asked, then throwing Boule to the ground. Boule further alleges a First Amendment violation when, after he reported Egbert to his superiors and tried to launch an FTCA claim, Egbert supposedly retaliated by reporting his vehicle to the Washington Department for Licensing and his business to the IRS, prompting an audit. The court doesn’t really dispute the version of events, but rules that Boule cannot sue Egbert for having violated his rights.

The ruling gets close to killing Bivens outright, though doesn’t quite do so, by determining that courts must essentially judge whether Congress might have a reason to prefer a statutory remedy to litigation, and this must be done in each new circumstance regardless of whether a substantially similar cause of action had been accepted before. Courts must broadly consider whether intervening in whole areas of federal executive action would be inappropriate, and alternative remedies—which can ostensibly dissuade illegal conduct even in the absence of a lawsuit—can include internal disciplinary processes where the victim has no particular say nor will receive restitution. SCOTUS went as far as to rule explicitly that individuals cannot sue federal agents over alleged First Amendment violations under Bivens.

Effectively, the court here is obviously not contradicting the existence of Constitutional rights or an individual’s expectation that such rights will be observed by federal personnel; what it is saying is that, unless Congress specifically creates a cause of action against a particular set of agents under certain circumstances, then it is almost impossible for an individual to actually take action in the courts, which are practically the only venue for recourse if and when the government does violate Constitutional rights. The decision doesn’t completely overrule Bivens, but it does set out a rather insurmountable standard for its application.

The trouble with this, of course, is that rights are only worth anything if they can be effectively enforced and if those who would be in a position to violate them believe that there might be consequences. The First Amendment finding here is particularly chilling in that the court is straight up saying that individuals cannot sue federal agents for unconstitutionally suppressing their speech (and there is no state tort equivalent to the First Amendment) regardless of the facts or the merits of the claim. It’s hard not to take this as license for the thousands of agents across the vast array of federal law enforcement agencies to wantonly violate free speech rights. For anyone remotely familiar with Customs and Border Protection culture and systems of oversight, the idea that some sort of internal disciplinary process might be a dissuasive enough force to prevent misconduct when they’ve basically gotten the green light to trample the Constitution is laughable.

While the ruling is ultimately rather broad and sets a standard for federal agents writ large, it’s not lost on us that this case specifically involved Border Patrol, an agency that already enjoys a jaw-droppingly expansive set of powers up to 100 air miles inland of any land or sea border, an area area that includes most of the U.S. population. This is a region advocates derisively term the “Constitution-free zone” given the level of authority afforded to CBP agents, who are legally permitted to set up indiscriminate, inland checkpoints—a power not granted to any other federal agency—and board and search vehicles without a warrant. Within 25 miles, they can enter private property without a warrant. (A bit of immigration trivia that regular readers might already know: this 100-air-mile standard doesn’t appear anywhere in the statutory framework; it was promulgated directly by the agency itself in a throwaway line in the Federal Register and has existed in regulation ever since.)

This ruling also came just days before another ruling sharing the theme of limiting individuals’ right to hold government personnel accountable for rights violations. In Vega v. Tekoh, the court ruled that a man who had been interrogated by LA County Sheriff’s deputies without having been read his so-called Miranda rights—the series of declarations, including a right to remain silent, that have been popularized in countless cop procedurals—could not sue the officers for having violated his Fifth Amendment rights against self-incrimination when they attempted to use this statements in court. The ruling did not involve federal agents, but decided that Miranda itself wasn’t a constitutional right so much as a measure intended to protect the Fifth Amendment, which is, and an individual could not sue a law enforcement officer for violating the standard.

These decisions ultimately won’t have the immediate, seismic impact that something like Dobbs v. Jackson Women's Health Organization, the decision overturning Roe, had and will continue to have, which to some extent just increases their danger. There haven’t been protests or fundraising emails about Egbert or Vega, even though they are also a substantial curbing of what are supposed to be inalienable rights. The upshot for both seems likely to be empowered federal and local officials with fewer concerns about being held accountable for violating constitutional rights.

Biden v. Texas

Issued 06/30/22, 5-4 against plaintiff Texas

The Supreme Court ruled that the Biden administration’s attempt to end the Migrant Protection Protocols—a Trump-era program in which certain asylum seekers from Spanish-speaking countries were returned to Mexico while their cases made their way through the U.S. immigration courts—was lawful. Crucially, this decision doesn’t end the program; it just allows the administration to finally do so, though the termination is effective immediately given that Homeland Security Secretary Alejandro Mayorkas signed a second termination memo in October to go into practice once the district injunction was lifted. 

The court ruled against Texas and Missouri, which sued the administration in April 2021, claiming that its effort to end MPP violated both the Immigration and Nationality Act and the Administrative Procedure Act. At that point, the administration had not formally terminated MPP but had taken several steps to wind the program down. The Department of Homeland Security stopped enrolling asylum seekers on the MPP docket on Biden’s first day in office. It canceled arguments in a separate MPP case—a holdover from the Trump administration, in which advocates were suing to get the policy revoked. It began paroling migrants who still had pending MPP cases into the U.S. DHS secretary Alejandro Mayorkas did not issue a first memorandum ending MPP until June.

Despite the administration’s phased attempt to wind down MPP rather than ending it outright, the plaintiffs claimed that Biden’s effort to end MPP violated the Administrative Procedure Act, a law prohibiting capricious rule making. (That’s where the phrase “arbitrary and capricious,” commonly seen in lawsuits of this nature, comes in.) They also claimed that ending MPP would force “both states to expend more taxpayer resources on healthcare, education, social services, and similar services for … migrants” and that letting asylum seekers into the country would enrich smugglers and drug cartels. In reality, bipartisan migration restrictions implemented over the past three decades—not attempts to limit asylum—have made migrants increasingly reliant on smugglers. With regards to MPP specifically, asylum seekers who were forced to wait in Mexico were often targeted by gangs and cartels, whose members kidnapped, extorted, tortured, and in some cases even killed migrants in several border cities.

To reiterate, the case before the court was not about whether MPP was legal or a violation of migrants’ rights, but rather about whether the Biden administration could end the policy and, if so, whether its attempt to end it was lawful under the Administrative Procedure Act. A federal judge in Texas ruled that the administration violated both the APA and the Immigration and Nationality Act. Specifically, the district court ruled that section 1225 of the INA “provides the government with two options” for unauthorized migrants at the border: mandatory detention or removal to the contiguous country from which they came.

The law, however, does not say that—something Roberts made clear in the majority opinion. 8 U.S.C. § 1225(b)(2)(C) reads:

In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.

As Roberts wrote, the statute “plainly confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings. This court has ‘repeatedly observed’ that ‘the word ‘may’ clearly connotes discretion’ … The use of the word ‘may’ in section 1225(b)(2)(C) thus makes clear that contiguous-territory return is a tool that the Secretary ‘has the authority, but not the duty’ to use.” 

In other words, the initial judicial ruling and related injunction requiring the Biden administration to reinstate MPP was based on a misreading of the law. The Fifth Circuit court upheld the ruling based on the same misinterpretation. As Roberts wrote, if Congress had intended migrants to be removed to Mexico unless they could be detained in the U.S., “it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term ‘may.’” 

The majority opinion notes that the section allowing the executive branch to remove migrants to Mexico was added to the statute more than 90 years after the language in 1225(b)(2)(A), which dictates that migrants who are “not clearly and beyond a doubt entitled to be admitted … shall be detained for a proceeding.” If the statute really did mean that migrants must be either detained or returned to Mexico pending their hearings, then every president prior to (and including) Trump had violated it, since MPP was implemented in January 2019. No administration has had the funds or the capacity (or, in most cases, the political will) to detain every single migrant who arrives at the border, a reality the opinion notes. The opinion states that the justices “need not and do not resolve the parties’ arguments regarding whether” the Biden administration and its predecessors had violated 1225(b)(2)(A), the mandatory detention clause. The ruling ultimately comes down to the clearly discretionary meaning of the word “may.”

Roberts also notes that, despite the mandatory detention statute, the INA “expressly authorizes DHS to process applicants for admission under a third option: parole.” That option, codified in 8 U.S.C. § 1182(d)(5)(A), has been used by “[e]very administration, including the Trump and Biden administrations … to some extent.” He notes that parole—like the ability to return certain migrants to Mexico—is discretionary. Per the law, it can only be used “on a case-by-case basis for urgent humanitarian reasons for significant public benefit.” Given that migrants returned to Mexico under MPP (as well as those metered at ports of entry and those expelled there under Title 42) have often faced significant, well-documented harms, the argument for parole due to “urgent humanitarian reasons” is fairly straightforward. Moreover, a significant percentage of the migrants arriving at the border are asylum seekers who have fled their countries due to “urgent humanitarian reasons.” (However, it’s notable that in his concurring opinion, Kavanaugh chastised “the political branches” for a “multi-decade inability … to provide DHS with sufficient facilities to detain noncitizens.” In plain English, he called for Congress to give DHS more money to detain migrants in ICE facilities.)

While this all seems like a victory for immigration advocates—who refused to participate in the Biden administration’s attempts to create a supposedly more humane MPP—one section of the opinion suggests that suing any presidential administration over certain immigration policies may become more difficult in the long term. The opinion notes that the district court that issued the initial injunction barring the Biden administration from ending MPP did so in violation of 8 U.S.C. § 1252(f)(1), which states that only the Supreme Court has the “jurisdiction or authority to enjoin or restrain the operation of the provisions” of  Part IV of Title 8, Chapter 12, Subchapter II of the U.S. Code, which deals with inspection, apprehension, examination, exclusion, and removal of non-citizens. In this particular instance, it means that the district court did not have the authority to order Biden to reinstate MPP. Going forward, this may set a precedent making it far more difficult—if not entirely impossible—to obtain an injunction or temporary restraining order against the executive branch over subsequent immigration policies, though this doesn’t preclude lower courts from issuing merits decisions.

As we’ve noted in previous editions, Congress has not passed any meaningful immigration legislation in decades. Since the Obama administration, immigration policy has been primarily dictated by the executive and then challenged by either the left or the right in the courts. Take, for example, the creation of Deferred Action for Childhood Arrivals (DACA) and a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) under Obama. Conservative states sued the administration, seeking to block the implementation of both DACA and DAPA, and were partially successful; DACA was allowed to go forward, but DAPA was not. The Trump administration also faced a flurry of immigration-related lawsuits; nearly every Trump-era policy, from the so-called Muslim ban to the family separation policy, was challenged in the courts. 

To be clear, 1252(f)(1) won’t categorically prohibit any immigration policy-related lawsuits; it only applies to lower-court injunctions against policies in a certain chapter of the INA. That said, it’s a pretty expansive chapter—and given advocates’ reliance on the courts, this ruling will certainly limit legal challenges in the future.