In the last Supreme Court session, the justices roundly disappointed immigrants and immigrant advocacy groups when the court refused to make a ruling on President Obama’s executive action that would have helped hundreds of thousands of foreign nationals obtain work authorization and a stay of their deportation proceedings. The coming months present the justices with multiple opportunities to safeguard the rights of foreign nationals in the United States.
The First Case: Use of Deadly Force at the Border
Just this week, the Supreme Court agreed to hear a case that questions whether an agent of the U.S. Border Patrol is subject to a lawsuit after shooting and killing a Mexican teenager who was in a concrete culvert that separates Juarez, Mexico from El Paso, Texas.
In 2010, 15-year-old Mexican national Sergio Hernandez and his friends were playing a game wherein each child ran across the concrete culvert separating the two countries. The officer who shot Sergio was on the U.S. side of the culvert, while Sergio was on the Mexican side. According to court documents, Sergio’s parents state that none of the boys was trying to sneak into the United States without authorization. The lower court dismissed the case, ruling that it did not have jurisdiction because the victim was a Mexican citizen who was killed on Mexican soil. However, the parents argue that the culvert is patrolled by U.S. Border Patrol agents and is effectively U.S. territory. The case will also examine whether the officer in question is protected from liability by virtue of the doctrine of qualified immunity.
The Second Case: Prolonged Immigration Detention and Bonds
The Supreme Court has also agreed to hear a case that asks whether a foreign national who has been in immigration detention for six months or longer while waiting for their immigration court date could be a beneficiary of an automatic triggering of the requirement of a bond review. This requirement could potentially be triggered even if the foreign national is being detained pursuant to the mandatory detention provisions that are outlined in the Immigration and Nationality Act (INA), such as persons who are accused of committing aggravated felonies, possessing firearms, or committing certain drug-related offenses. This same case will also decide whether the burden will be on the federal government to establish the ongoing need for mandatory detention by clear and convincing evidence. The alternative would be for the foreign national who is facing deportation to have the burden to establish their right to be released.
The Third Case: Definition of Aggravated Felony under the INA
This third case involves a Mexican foreign national and lawful permanent resident, Mr. Juan Esquivel-Quintana, and the fact that he had intercourse with a 16-year-old girl when he was 21 years old. Under the California statute prohibiting this behavior, if any person engages in sexual intercourse with a minor who is more than three years younger than the actor, the actor is guilty of a felony or a misdemeanor. Due to the age difference between Mr. Esquivel-Quintana and the girl, he may be deported pursuant to the INA if his behavior is deemed to be an aggravated felony.
The refusal to make a ruling on President Obama’s executive action due to the fear of a possible reversal of the decision is just another example of the lack of importance given to repair a broken immigration system. A favorable decision would have provided protection to more than 4 million undocumented parents whose children already have such protection, as well as a relief to millions of families who live in constant fear of being separated from their loved ones. We hope that the Supreme Court takes the opportunities presented in the upcoming months to protect the rights of immigrants in the United States.
Additional Blog Posts:
The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Obama Signs Immigration Policy Memo, ImmigRantings, June 15, 2012
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012