What’s Happening With Immigration Supreme Court Cases?

New York Attorney Explains How They Could Affect the Undocumented

Video Transcript:

Cory Forman: 

You have people in immigration custody being held for years and years and years without a proceeding. Frankly, it's quite draconian.

Rob Rosenthal: 

So how could some cases currently in front of the US Supreme Court affect undocumented immigrants? We're gonna find out right now on this episode of "Ask the Lawyer." My guest is New York City Attorney Cory Forman. I'll remind you off the top, if you wanna ask Cory questions about your situation, just go to askthelawyers.com. Click the button at the top of the page that says "Ask A Lawyer," it'll walk you right through the process, or you can simply call the phone number that you'll see on the screen during our conversation. Cory. It's good to see you again, thank you for making some time to answer our questions.

Cory Forman: 

Great to be back, Rob, thanks so much.

Rob Rosenthal: 

So, I know we don't wanna get too deep in the woods, I know Supreme Court cases can be complicated, but from my understanding they just heard some oral arguments of a couple of cases that could affect immigrants and one concerns those who are in federal lock-up. Can you tell me a little bit about it?

Cory Forman: 

Yeah. There's two cases now they build on a case called Zadvydas v Davis, that goes back to 2001. Basically, you don't have the same protections in immigration that you do in criminal, so the government, they detain immigration defendants, they keep them detained. In this 2001 case, the Supreme Court said, "Wait a minute, you can't really lock somebody up unless it's reasonably foreseeable that you're gonna be able to deport them after they're ordered deported." And they gave the six months rule. Time goes on, and the review process has been... ICE is actually making the determination whether or not they're gonna be able to deport them, and also if the person is a danger. So, in that situation, you have both the agency arresting the person, and then doing an internal review of how long they're gonna hold on to them.

Cory Forman: 

Now, in these two cases, the two individuals are seeking withholding of removal, and that could take a long time, that could take years and years to adjudicate. So, it comes down to, "Could ICE really hold on to somebody that's asserting their claim, even though they were previously ordered removed, if they're now saying that their life is in danger, and if the case goes on years, is that really ever gonna be reasonably foreseeable for them to be deported?" So the case is coming down to whether or not these people are allowed bond hearings, and the government is saying, "Well, if anything, ICE could continue to review their circumstances and make the decision of whether or not the person should be released from custody." Where the defendants here are saying, "No, we should have the right to have our cases heard before an immigration judge," like in a criminal process, where a criminal judge is able to assess whether or not someone should be released on bail, the same should happen in an immigration court where an immigration judge makes that determination. So the issue now is, "Are people in this situation eligible to be released? And if so, is it a bail hearing before a judge that's gonna dictate that?"

Rob Rosenthal: 

Tell me a little bit, Cory, so what's the difference that there are people that are being held in, say, in a criminal case, versus somebody that's held in immigration courts? What are some of the differences of those they would see?

Cory Forman: 

Sure. What people don't remember is, there were certain constitutional protections that someone is afforded when they're charged with a crime: Burden of proof, proof beyond a reasonable doubt, that you have the right to remain silent. That's not the case with the immigration law and policy, which is embedded strictly in statute and policy and regulations. So, individuals are really... They're not afforded the same constitutional protections unless the Supreme Court makes constitutional decisions in their favor. So, really, the process is mostly statutory and regulatory. If a lot of people with for what would be minor crimes that aren't even eligible for bail, that must remain in custody. And then if there's any kind of custody determination done, it's done by ICE. Now, there are exceptions to this, bail hearings do happen, but not automatically like they do in the criminal. And it's significant. You have people in immigration custody being held for years and years and years without a proceeding. Frankly, it's quite draconian.

Rob Rosenthal: 

Is the problem just that there's such a huge backlog of cases? How big is the backlog that we're talking about?

Cory Forman: 

Well, hardly the back... The backlog, when it comes to cases like the two that are before the Supreme Court now, one is called Garland v Gonzalez, the other one is Johnson v Arteaga-Martinez. Those are individuals that are asserting a right and they want a hearing to say that it's too dangerous for them to go back, sort of like asylum. Now, those cases could take years to get before a judge, or for a judge to make a decision, and that's because of the backlog. So, yes, in that sense, the backlog does matter, because they're waiting and if they're not entitled to bail hearings, and depending what the Supreme Court decides, they could literally be sitting in jail for years and years before they even get their day in court. But some of it, it has nothing to do with the backlog, it's just the way the immigration law has been written, and interpreted, in terms of who is and who is not entitled to a hearing. And frankly, people are quite surprised when they learn that people that have been here for 20, 30 years, paying taxes, who have a relatively minor crime from 20 years ago, or detained, they are not eligible to have their case heard before a judge. And when I say a case heard, I mean a bail hearing.

Rob Rosenthal: 

Right. Do you... I know the Supreme Court works at their own speed. Can you make an educated guess on when we might hear something about how these are ruled?

Cory Forman: 

There's no... Like you said, Rob, they do work at their own speed, but generally, we just had oral arguments. I would anticipate June, you tend to see a flurry of Supreme Court decisions and significant ones come out right towards the end of the summer. I would expect then, if not beforehand.

Rob Rosenthal: 

And depending on how they rule, will this be something you'll see an immediate change or will this take over... Take over time to further to be a change?

Cory Forman: 

Oh, I think there'll definitely be an immediate change, because you're gonna have thousands upon thousands of people held in detention that right now are not being given bond hearings. And if the Supreme Court decides in their favor, they're gonna be eligible for it. There's also, and I'm not gonna get into the weeds on this, on one of the cases, there's an even narrower issue about whether or not people could challenge this as a group or if they individually have to ask for bond hearings. But then, I don't wanna get into that now, but that could also be a significant change. So, yeah, the inverse, if the Supreme Court rules against these individuals, it's gonna lead to an even more backlog system of people remaining and being in detention while they're awaiting their cases to be heard.

Rob Rosenthal: 

Lots of helpful information, Cory, and I'm sure you'll keep us up to date and let us know when things change. Thank you so much for making some time to answer our questions.

Cory Forman: 

Of course. Thanks so much, Rob, I appreciate it.

Rob Rosenthal: 

And that's gonna do it for this episode of Ask the Lawyer. My guest has been New York City Attorney Cory Forman. I wanna remind you, if you wanna ask Cory questions about your situation, go to askthelawyers.com, click the button at the top that says "Ask A Lawyer," very simple form to fill out right there. Thanks for watching, everybody. I'm Rob Rosenthal with Ask the Lawyers.

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