Legal Docket - The state of the judiciary

NICK EICHER, HOST: It’s Monday morning and we’re back at it for The World and Everything in It. Today is the 25th of January, 2021. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Before we leave the month of January, I want to call your attention to the chief justice’s end-of-year report on the federal judiciary. And I’ll say, it’s a surprisingly entertaining read.

EICHER: And not just for Supreme Court nerds such as yourself. It’s accessible to the layperson such as myself!

You’ll find a link to it in today’s transcript. 

As he often does in these annual reports, Chief Justice John Roberts begins with a history lesson from the year 1789:

Back then, the court had no cases to hear. So the nation’s first Chief Justice, John Jay, saddled up his horse and galloped his way to preside over trials in the lower courts.

Earlier, two justices failed to show for the planning meeting to assign territories. That’s why they got to cover 1,800 miles, on horseback.

As Chief Justice Roberts noted, that’s “another lesson in what happens when you miss a meeting.”

REICHARD: So true. Mainly, the Chief Justice paid homage to his colleagues in the judiciary. They kept up with their work load despite the pandemic, made changes and stayed flexible.

Just as the Supreme Court began hearing oral arguments by telephone, lower courts changed, too. In fact, the first fully virtual jury trial in a criminal case took place on August 11th in Austin, Texas. And naturalization ceremonies for new citizens took place outside or by using drive-through windows.

The chief was pleased that citizens reported for jury duty throughout, made possible by reconfigured jury boxes and careful distancing.

EICHER: Now onto the single oral argument we have for you today. (Pham, et al v Chavez, et al)

It’s a complex dispute about which of two conflicting laws ought to apply to the facts of the case.

Here’s a bit of background. 

U.S. officials deported to their nations of origin respondents Maria Guzman Chavez and several others. But they would later return, illegally. Each one now cites fear of persecution at home, and asylum officers found their claims reasonable.

The question is, should these individuals be kept in detention without a bond hearing while an immigration court sorts out their current claims? They can’t be sent back to their home countries until those are resolved. 

The federal government says because the first deportation order is reinstated, these individuals should be held in detention and the law does not entitle them to a bond hearing that may free them in the meantime. 

Arguing the case for the government is Assistant to the Solicitor General Vivek Suri.

SURI: Our point is simply because these particular aliens have come back into the country illegally and been caught, there’s a particularly strong basis for concluding that those aliens are a flight risk.

REICHARD: Lawyer for the aliens, Paul Hughes, shifted the focus to other language in that federal law: One he argues better deals with the changed facts his clients now face. You’ll hear him say INA. When he does, he’s referring to the Immigration and Nationality Act.

HUGHES: This case addresses narrow circumstances: individuals who, after removal, face persecution, returned here to escape, and have already been found to have a reasonable fear of persecution. During withholding proceedings, the INA does not authorize removal. When the government lacks authority to remove, the decision on whether the alien is to be removed from the United States remains pending.

Let me take a moment here to define terms.

The respondents here aren’t asking for asylum. That’s for aliens who meet the legal definition of refugee. The individuals in this case don’t meet that definition in part because they’ve already been deported. Plus, they didn’t apply for asylum within a year, as required by law.

So for this narrow group of people, an alternate path to allow them to remain in the United States is to apply for something called “withholding of removal.” 

They’d still have a deportation order against them. It’s just that the government wouldn’t enforce it. 

At least for the time being.

In this case, lawyer Hughes emphasized the phrase in the law about when an order of removal “becomes final.” Here’s why that’s important: these removal orders don’t become final until after authorities resolve the withholding claim.

Hughes argued nothing’s final with his clients at the moment. 

Justice Stephen Breyer seemed to agree.

BREYER: And now you could also say: By the way, I don’t want to go to country X because they’re going to murder me, et cetera. And what supports that is the date the order of removal “becomes”—it doesn’t say the date it was reinstated. It doesn’t say “became final.” It says “becomes final.” And so something must have the possibility of happening between the time you entered the order saying — an old order — go, Smith, and the beginning of the removal period. Now is that correct?

HUGHES: Yes, Your Honor. We absolutely make and embrace that argument  throughout.

The problem with the government’s argument, Hughes highlighted, is the clause it relies upon says the “Attorney General shall remove the alien from the United States within 90 days from when the removal order is “administratively final.” 

Like any good lawyer, Hughes puts his finger on the timeline most advantageous to his clients and argues that “administratively final” hasn’t happened yet. 

Still other parts of the law use similar words for a different purpose.

For example, only when a case is “final” at the appeals court level can the case then be heard at the Supreme Court. So it’s final at the lower court, but not final yet at the Supreme Court. 

Justice Clarence Thomas asked government lawyer Suri about that idea in this case.

THOMAS: Could you tell me what the difference is between “administratively final” and – an “administratively final order” and a “final order of removal,” if there is one?

SURI: Yes. The term “final order of removal” is ambiguous.

And that ambiguous designation allows him to make the best argument on behalf of his client, the government. 

But it seemed to me that several justices were looking for a way to let the respondents here stay in the United States and get other protections. Listen to this exchange between Suri and Justice Elena Kagan:

KAGAN: Suppose you had a third country that, for whatever reason, was willing to accept an alien. If that alien was currently in withholding proceedings, you couldn’t put him on a plane to that third country, could you?

SURI: We could after we provide the alien notice that we were going to do that.

KAGAN: Right.

SURI: But, without notice —

KAGAN: So that’s what it would depend on, right? That — that you would have to provide him notice, and if he had a fear of persecution or torture in that country, he would be given an opportunity to contest his removal to that country, isn’t that right?

SURI: Yes, that’s right.

Justices and lawyers explored other clauses that seemed a better fit in some ways, and even other laws, like the Convention Against Torture. But it still came down to these facts, this law, and which clause fits.  

Both sides agree that people here illegally can’t be deported while withholding claims are pending. The only question is whether they must be detained without a bond hearing. 

I counted six justices who didn’t see how a deportation order that can’t be executed right now can be truly “final.” So the opinion may turn—as so many cases do—on the meaning of that one word. 

And that’s this week’s Legal Docket.

(AP Photo/Susan Walsh, Pool) A view of the Supreme Court in Washington, Tuesday, Jan. 19, 2021, ahead of the 59th Presidential Inauguration on Wednesday. 

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