The Supreme Court’s decision in United States v. Texas partly resolves an immeasurably important question in American immigration law. Can the Executive Branch use prosecutorial discretion to deport some immigrants, but not others? The practical answer is: Yes. Prosecutorial discretion lives. Specifically: States do not have standing to block the Biden Administration from prioritizing the arrest and […]
The Supreme Court issued its decision in Nielsen v. Preap today. The words “Chevron” and “defer” do not appear anywhere in any of the opinions. Not in the majority opinion by Justice Alito. Nor in the dissent by Justice Breyer. Nowhere. Nielsen v. Preap (SCOTUSblog page here) is about the interpretation of the mandatory detention […]
Because he sat on the D.C. Circuit, Supreme Court nominee Brett Kavanaugh did not decide many immigration cases. There are no immigration courts in the District of Columbia. As a result, petitions for review of orders of removal — the most common type of immigration appeal in the federal courts — do not reach his […]
There has been much alarmism from immigrant rights advocates about the Supreme Court’s decision in Jennings v. Rodriguez. In a very practical way, this alarm is entirely justified. The Court has, for now, eliminated the possibility of bond hearings for immigrants subject to “mandatory detention” while they fight their deportations. Personally, I find that practical […]
At the end of its term, a shorthanded and evidently evenly divided Supreme Court scheduled two immigration cases for re-argument next term when nine justices can hear the cases. Of the two, Sessions v. Dimaya stands out because the ninth and newest justice has very recently issued opinions that seem to bear directly on key […]
Like many immigration law professors, I have long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority. But as I re-read the Fifth Circuit opinion and the briefs in US v. Texas, I am becoming persuaded that the states challenging DAPA may have a valid point about one aspect […]