Average Joe SCOTUS: Garland v. Gonzalez

This case is basically the same as the previous case I covered, AVERAGE JOE SCOTUS: JOHNSON V. ARTEAGA-MARTINEZ. So I will try not to repeat myself too much. You have a couple Mexican citizens who decided they don’t believe in borders—we’re all just one planet, man.

Unlike Arteaga-Martinez, Esteban Aleman Gonzalez and Gutierrez Sanchez are not out on bail, but are still being detained.

So they’re like, “Mother fucker, we’ve been here for six months, and haven’t gotten a bond hearing. Know the law, man!”

Part of the reason they’re being held, like the previous case, is due to them claiming that we shouldn’t send them back, because they’ve got enemies in Mexico who’ll light ’em up if they’re sent back. Deporting someone is called a “removal” order. But as I mentioned in the other case, an illegal immigrant can apply for a “withholding of removal,” which is where the US will not deport them if they think the person will be persecuted or tortured by doing so. We’re kinda nice like that, as opposed to some shitholes.

Here’s the thing about “withholding of removal” claims; they take time to investigate and process. Apparently, much longer than the six months SCOTUS determined is a constitutional right such people have to have some decision made, so they can go on about their lives. Since it takes government way longer apparently to figure that shit out, the idea is that they should get a bond hearing within six months, so they can potentially be released into the wild, under supervision, while government determines if they can stay indefinitely, or if their claim is bullshit and they gotta go home.

The government isn’t keen on the idea of letting them go, which will potentially make it hard to find them once they are ready to process their “withholding of removal” claim—especially if they decide to give them a one-way ticket to their home country. So government is arguing that if congress had wanted such folks to be eligible for a bond hearing within a particular time, they’d have written as much into the law. They’ve written similar provisions before, so it’s not like those dumb fucks in congress don’t know how.

They refer to a particular segment of law that seems to be in dispute.

8 U.S.C. § 1252 (f) Limit on injunctive relief (1) In general

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

The relevance of the above is this, as I understand it. The lower courts were the ones who ordered the detainees to get bond hearings. But this statute clearly states that only SCOTUS has jurisdiction to make any orders regarding this, meaning the lower courts were out of line.

Justice Elena Kagan

Justice Elena Kagan, apparently in an attempt to set a record for the longest exchange in SCOTUS history, was REALLY latching on to what the fuck “enjoin” means. I thought about copying and pasting the whole here, but was certain it would break the internet.

But here’s the opening snippet if her exchange with counsel Curtis Gannon for the government:

Elena Kagan


So I’m just going to — I mean, of course, you’re right that if you look up the word “enjoin” in the dictionary, you can find something that suggests not “stop” but something like “order” or “require” or something like that. But I’m just looking at this phrase, “enjoin or restrain the operation of certain statutory provisions,” and let me — let me give you some examples about what the word “enjoin” would mean in similar phrases. The plaintiff seeks to enjoin enforcement of the law.

Does that mean stop?

Curtis E. Gannon

I — I think it’s hard to tell from that context whether it means that they seek to have the law —

Elena Kagan


In the statute above, you see the phrase “enjoin or restrain.” Well to her, it made sense that both were basically synonymous. So when he tried to argue otherwise, she comes back like an offended kindergartner with “Really?”

Counsel Curtis Gannon

If Kagan’s theory is true, then the statute is saying only SCOTUS can prevent them from doing their job, but lower courts can certainly still tell them to do their job. In her mind, it’s the only way to read that. But, apparently, Justice Kagan is woefully lacking an ounce of imagination.

In her mind, she can only imagine that congress was redundant in what they wrote?

Let’s look at Merriam Webster’s definition. There are two.

1-To direct or impose by authoritative order or with urgent admonition.
2-Forbid, Prohibit: to prohibit by a judicial order : put an injunction on

So, if you take the first definition, Justice Kagan is wrong. And also, it removes the redundancy of the two words being used that mean the same thing.

While I don’t doubt that Justice Kagan’s interpretation could be correct, her idea that the idiots in congress couldn’t have possibly meant the first meaning for “enjoin” is pretty fucking short-sighted. She’s lucky if congress even knows one fucking definition of enjoin.

Justice Breyer, ever the historian, decided to press counsel Gannon on what they fuck they’re thinking as to the idea that they don’t have to offer someone a bail hearing. As if somehow, this is the one time and one place, that a bail hearing isn’t required.

Justice Stephen Breyer

Well, I — I just wonder if you’re on the merits there.

This seemed to me to be simpler than you have been suggesting and was suggested.

It’s not really a statutory case, say, Zadvydas.

I mean, we’re talking about bail.

And the reason it becomes a statutory case is because the words of the statute are “may detain.” So you can read that word “may” to read in certain conditions that long have been constitutionally required in other cases. And the reason Demore is different and the reason Rodriguez is different is it didn’t use those words, which is just what the Court says.

“Shall be detained” are the words there. “Shall be taken into custody.” And so, of course, the majorities thought that made a difference, shall or may. So, here, we deal with “may.” Now that’s the statutory issue.

As far as the underlying issue, I mean, you know it as well as I do, everybody gets bail hearings that you’re going to detain for a significant amount of time, every criminal case. Debtors used to in debtor prison. Mental people being confined in hospitals have the equivalent.

Extradition people get the hearing.

I looked at every case we could find. I didn’t find any that said you don’t get eventually a bail hearing when you’re detained for a reasonably long length of time.

And that’s why Blackstone in 1771 said that the king’s bench or its judges may bail in any case whatsoever. Okay.

Now you think that’s not in the Constitution, the Eighth Amendment, liberty.

I mean, please.


So the question is, can you read that in? And the really basic thing is, why in heaven’s name shouldn’t you read that in here where it goes the detention is too long? Now you can say, well, we don’t want to take six months precisely or we don’t have precisely this proceeding or that proceeding.

Fine, that’s a reasonable argument. But given the history of this nation and Britain, where you’re going to detain a person, not even a criminal, you know, for months and months and months, why aren’t they at least entitled to a bail hearing? That’s all that’s at issue.

Justice Neil Gorsuch

Justice Gorsuch expressed concern that immigration judges are agents for the Department of Justice, and thus aren’t real fucking judges. As such, the detainees aren’t really getting adjudicated by the judicial branch in any way, but instead, the executive branch, who are biased to prosecute instead of adjudicate, are making the decisions for these poor bastards.

Counsel Matthew Adams for Gonzalez and company made his best effort to succinctly lay out how his argument is the same as SCOTUS held in a similar case:

As is often the case in habeas challenges, a federal court will grant the writ and instruct an immigration judge to conduct the bail hearing that’s required if a bail hearing is required. But what’s clear from this statute, as this Court held in Zadvydas, is that in order to ensure that detention remains tethered to its lawful purpose and, as all agreed in Zadvydas, the lawful purpose was either to guard against risk to the community or a failure to appear for removal, so what is required to guard against that risk? At the point detention becomes prolonged, there must be a determination as to removability or to flight risk. And that’s precisely what the lower courts have ordered, a determination for each one of these individuals at the point their detention becomes prolonged, which this Court held in Zadvydas is at six months.

His argument being, that even if we’re debating whether the lower courts had jurisdiction or not, the fact is, they just ordered to be done, what SCOTUS has already said should be done previously in Zadvydas—make your case, or give them bail and let them go on their merry way, once you’ve held them for six months.

He went on to address Justice Gorsuch’s argument above:

Importantly, the agency’s procedures themselves as — and the regulations with — that — that provide the government’s interpretation fail miserably to ensure that the statute remains tethered to its lawful purpose.

They do not provide for an independent decisionmaker. Time and again, this Court has confirmed that when making a custody determination, because physical liberty goes to the core of the Due Process Clause, it requires an independent decisionmaker, and that can’t be a law enforcement officer. Now the court didn’t question the integrity of the sheriff or prosecutor, no more than we’re questioning the integrity of the ICE officials.

Counsel Matt Adams

But the point was that their law enforcement responsibilities in arresting, charging, and prosecuting the removal of these individuals necessarily color the lens through which they make their own custody determination.

When Justice Alito asked Counsel Adams if the government has the burden of proving their clients are a flight risk, if they desire to keep holding them, Counsel Adams laid it all out, with a pretty eloquent argument:

Where that person has already been found by a DHS official to have a bona fide claim for protection under — and is entitled under statute to seek relief because of their fear of persecution or torture and is, therefore, transferred before the immigration court, every single one of these individuals have those proceedings because they passed that initial screening because they have bona fide claims, and where they’re facing prolonged detention, then — then, yes, I would confirm that the Constitution requires the government to bear that burden, as this Court made clear in Addington, because civil liberty — physical liberty is at the heart of the Due Process Clause.

And civil detention requires the government to shoulder that responsibility when dealing with this fundamental right. But, again, that is a separate finding that does not go to the Ninth Circuit’s statutory interpretation of this statute. And I would go back to the agency’s regulations.

Not — not only do they not provide an independent decisionmaker, they do not provide an adversarial hearing, Earlier, the Petitioners’ counsel asserted that there’s an entitlement to counsel at — at these interviews. Well, that — that is wrong.

Even their own regulations say that the individual may be accompanied at the discretion of both ICE and the detaining institution, so only if ICE affords you that right. And in my experience, that never happens.

You’re never notified that ICE is going to drop by the cell at 2:30 tomorrow afternoon to show up.

That simply does not occur.

There’s no right to confront the evidence. If the agency has decided that you are to remain detained because you present a risk because of a burglary charge against you, you don’t have the opportunity to even learn of that charge or that basis for the agency’s reasoning. You don’t have the opportunity to present the documents to show that that charge was subsequently dismissed, or, if they’re relying on the fact that your case is on appeal, you don’t have the opportunity to then confront that evidence and point out that you actually prevailed before the lower court, but now the government has appealed your case, dragging it out for another year. All of these are clear interpretations from the government that demonstrate the statute is no longer tethered to its lawful purpose. If you look at Mr. Aleman, he was denied release on custody after six months based solely on the fact that he continued to be in withholding-only proceedings.

There was no individualized analysis of risk of — or — or of danger to the community, risk of flight or danger to the community.

All it was was a rubber stamp by the same agency affirming its prior decision to keep him in custody. And, indeed, the regulations themself assert — under 241.4(d)(1), under the custody determination, states that even though an individual must demonstrate they are not a flight risk or a danger to the community in order to be released, that the agency retains the discretion to continue their detention, illustrating amply that their detention is no longer tethered to its lawful purpose. In Zadvydas, both the majority and the dissent clearly agreed that the purpose of the statute was to prevent risk of flight or danger. And just as this Court found that it is arbitrary to detain someone who may no longer be removed, it is equally arbitrary and unlawful to detain someone who does not present a flight risk or a danger to the community. And because of this, it is clear that the government’s interpretation fails to satisfy basic constitutional concerns. And because it raises those constitutional concerns and because the text of the statute, this Court’s construction in Zadvydas, and the agency’s own implementing regulations demonstrate that the court of appeals’ construction is more than fairly possible, that construction should be affirmed. The lower courts had the authority and the responsibility under Zadvydas to make those independent determinations at the point the individuals before them, the class members’ detention became prolonged. And that does not mean they’re going to get out at six months.

It only indicates that they will have a neutral decisionmaker deciding whether, in fact, their detention remains tethered to its lawful purpose.

So with all that being said, it should be understood what question SCOTUS is answering. The question is whether lower courts had jurisdiction to order the bond hearings, based on the statute above.

In a 6:3 partisan decision, after Counsel Adams had made a pretty convincing case, the Republican-appointed justices didn’t give a fuck if he made a whole lot of sense, they sided with the government. That the provision above absolutely bars lower courts from ordering detainees to get a bond hearing in a limited period of time. Even if those lower courts were interpreting a previous SCOTUS precedent, since SCOTUS does have jurisdiction.

The justices determined that the Department of Justice needs the time it needs to process the claims. Since these people came here illegally, they don’t get to force the government to make a hasty, and potentially wrong decision. They’re stuck waiting it out, until government figures out what the fuck to do with them.

I’m guessing that the question about whether these people get a bond hearing or not within six months, may end up in a future case, since they apparently only cared about the lower court’s jurisdiction here.

The three Democrat-appointed justices think the Republican six are far too enamored with dictionary definitions of words written into such statutes, and lack the creativity and intellect to piece together what was meant from such statutes. That clearly, congress intended for detainees to get processed in a reasonable amount of time, which is written in other parts of immigration law, and as per usual, the courts have jurisdiction to clarify any situation which the law makes somewhat ambiguous. This stupid provision doesn’t all of a sudden render all lower courts with no power to ever do anything on this front.

Sucks to be in the minority, I guess.


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