High court asked to better define immigration laws

Two cases argued before the Supreme Court in January touched on the ongoing debate over people who are in the United States illegally.

The first case has roots in the 9/11 attacks. It deals with the grievances of those held in detention after the attacks, including Pakistani native Ahmer Iqbal Abbasi. He came to the United States illegally and managed to get a job driving a New York City taxi.

Abbasi sought political asylum here, but authorities denied him. Still, he remained in the United States. In the aftermath and confusion of the 9/11 attacks, the FBI rounded up nearly 800 men in the country illegally. Most of them were of Middle Eastern descent.

Quickly issued policies instructed detention facility wardens to hold people until they were cleared of any terror connections. Abbasi, five other Muslim men, as well as a Hindu and a Buddhist man, said their jailers physically abused them. They are seeking monetary damages from the government officials involved by seeking to sue them personally.

During oral arguments, Justice Stephen Breyer recalled the context of the detention, appealing to the human factor in times of peril: “I can understand that the first reaction of the law enforcement authorities is pick up anybody you might think is connected, and we’ll worry about the rest of it later.”

And yet, Breyer later pointed out, there are limits on people on the ground and limits on the branches of government.

“At the same time, the law of this court correctly, I think is … there’s no blank check, even for the president,” Breyer said. “And if there’s no blank check, that means sometimes they can go too far. And if they have gone too far, it is our job to say that.”

The detainees said they were denied lawyers and had no notice of charges against them. They were told they were detained for immigration violations, but they were deprived of sleep in cells lighted 23 hours a day, strip searched, and not allowed to conduct Muslim rites of faith until cleared of terror suspicions.

Ordinarily, government officials are immune from personal liability for job-related decisions and policy, except under specific circumstances. Acting Solicitor General Ian Gershengorn argued those specific circumstances don’t exist in this case.

“You couldn’t tell who did and who did not have a potential link to terrorism. And in that situation, a decision to hold everyone until cleared, to apply the hold-until-cleared policy is best explained, not by invidious intent, but by the desire to avoid the premature and inadvertent release of a dangerous terrorist,” he said, adding that the men gained their freedom within three to eight months.

The detainees’ layer, Rachel Meeropol, appealed to the court to curb government tyranny.

“This court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion and in deterring future federal officials from creating government policy to do the same,” she said.

This case draws on the tensions over immigrants from nations inculcating terror and has obvious implications for the power of the executive branch. Justices Sonia Sotomayor and Elena Kagan recused themselves due to earlier career entanglements, so only six justices will decide it.

All eight justices will consider a separate case also dealing with immigration. James Garcia Dimaya came from the Philippines and became a legal permanent U.S. resident in 1992. Fifteen years later, he got into trouble with the law: two burglary convictions with prison time. The law says any alien convicted of an “aggravated felony” is automatically subject to deportation. But another part of that same law says the aggravated felony must be a “crime of violence.” Dimaya didn’t use any violence to commit his burglaries, lawyer Jeffrey Rosenkranz argued.

U.S. Deputy Solicitor General Edwin Kneedle countered the law’s text is clear enough.

“What’s at stake is the fact that the immigration laws are vital to the nation’s national security and foreign relations and the safety and welfare of the country,” he said.

But Kagan cited a 2015 Supreme Court ruling that threw out another law for vagueness over the phrase “violent felony.” If the court rules the immigration law is too vague and Dimaya wins, more litigation could flood the courts, and aliens convicted of crimes would be subject to mandatory deportation.

Listen to “Legal Docket” on the Feb. 13 edition of The World and Everything in It.