Supreme Court Ruling Means Thousands Of Deportation Cases May Be Tossed Out

Sep 18, 2018
Originally published on September 17, 2018 8:12 pm

The Trump administration's push to deport more immigrants in the country illegally has hit a legal speed bump.

For years, immigration authorities have been skipping one simple step in the process: When they served notices to appear in court, they routinely left the court date blank. Now, because of that omission and a recent Supreme Court decision, tens of thousands of deportation cases could be delayed, or tossed out altogether.

"I'm not sure if the Supreme Court knew what they were doing," said Marshall Whitehead, an immigration lawyer in Phoenix. "But the end result of this is a major impact."

The Supreme Court's decision in the case known as Pereira v. Sessions didn't get much attention when it was announced in June, partly because it seemed so technical. The court ruled 8 to 1 that immigration authorities did not follow the law when they filled out the paperwork in that case. They served an immigrant with a notice to appear in court but didn't say when and where the hearing would be held.

"Basically the Supreme Court decision said look, you're not following the statute," Whitehead said. "So this notice to appear was ruled as being invalid."

That seemingly minor technicality has big implications.

Consider the case of Whitehead's client, Jose Silva Reyes, an undocumented immigrant from Mexico. He was living in Arizona, under law enforcement's radar, for years — until 2010, when he ran a red light and got into a car accident.

Since then, Silva Reyes has been fighting in immigration court to stay in the country with his wife, a green card holder, and two kids who are citizens. He was due in court for his final deportation hearing last month, when the case against him was suddenly thrown out.

"When they told me that my case was terminated, I felt good," Silva Reyes said, speaking through an interpreter.

Like many undocumented immigrants caught up in President Trump's recent crackdown, Silva Reyes has been in the U.S. for more than 10 years. If you've lived in the U.S. for a decade without getting into trouble, and without ever getting a notice to appear in immigration court, you could be eligible to stay. Now, thanks to the Supreme Court, these immigrants can argue they never got a valid notice to appear in that 10-year time frame.

But the Supreme Court ruling could have an even wider impact.

Immigration lawyers are arguing that if any immigrant received a defective notice to appear, the whole deportation case is invalid. Silva Reyes' lawyer, Marshall Whitehead, says he has already gotten dozens of cases tossed out using this line of reasoning.

"I'm only one attorney, and I've got 200 cases I'm looking at," Whitehead said. "So you can see the massive numbers that we're talking about across the United States."

But the federal government is fighting back. Government lawyers are appealing, arguing that immigration authorities did eventually notify immigrants about the time and place of their hearings, just not right away. And, in August, they won an important case before the Board of Immigration Appeals, which oversees the nation's immigration judges, that could limit the impact of the Pereira ruling.

Still, all of this is straining an already overburdened court system.

"The Supreme Court throws a monkey wrench into what was already a not very smoothly functioning system, and things just get worse," says former immigration judge Andrew Arthur, who is now a fellow at the Center for Immigration Studies, which favors lower levels of immigration.

The backlog in immigration courts has reached a record of nearly 750,000 cases, according to TRAC, an immigration research project at Syracuse University. And it's still climbing — thanks in part to this technicality.

The Department of Justice declined to comment on the Supreme Court ruling and its impact. Attorney General Jeff Sessions hasn't addressed it publicly. But he has criticized immigration lawyers for scouring the nation's immigration laws, looking for loopholes.

"Good lawyers, using all of their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and Nationality Act] to advance their clients' interests," Sessions said earlier this month.

In this case, though, the Supreme Court found that it's immigration authorities who have been ignoring the "plain language" of the law. Does immigration lawyer Marshall Whitehead feel bad about winning on a technicality?

"Well, technicalities is how we win and lose cases," Whitehead said. "I've lost a lot of cases on technicalities."

If it allows his clients to stay in the U.S. with their families, Whitehead says, you can call it whatever you want.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

ARI SHAPIRO, HOST:

A recent ruling by the Supreme Court is going to slow down the Trump administration's efforts to deport people in the U.S. illegally. In fact, tens of thousands of deportation cases could get tossed out. Here's what happened. For years, immigration authorities have been skipping one simple step when they serve notices to immigrants to appear in court. The court date and location were routinely left blank. NPR's Joel Rose explains why that omission matters now.

JOEL ROSE, BYLINE: Jose Silva Reyes was an undocumented immigrant from Mexico living in Arizona under law enforcement's radar for years until 2010 when he ran a red light and got into a car accident.

JOSE SILVA REYES: (Speaking Spanish).

ROSE: "Police asked me for documents," he said. "I didn't have any." Since then, Silva Reyes has been fighting in immigration court to stay in the country with his wife, a green card holder, and two kids, who are citizens. He was due in court for his final deportation hearing last month when the case against him was suddenly thrown out.

SILVA REYES: (Speaking Spanish).

ROSE: Silva Reyes says he was surprised and happy when his lawyer told him the case was closed. He caught a lucky break because of a Supreme Court decision in a different case back in June, and he's not the only one. That ruling means that thousands or even tens of thousands of deportation cases could be delayed or tossed out altogether.

MARSHALL WHITEHEAD: I'm not sure if the Supreme Court knew what they were doing, but the end result of this is a major impact.

ROSE: Marshall Whitehead is Silva Reyes' lawyer. He's talking about a case known as Pereira v. Sessions, as in Attorney General Jeff Sessions. The ruling didn't get much attention at the time partly because it seemed so technical. The Supreme Court ruled that immigration authorities did not follow the law when they filled out the paperwork in that case. That's because they served an immigrant with a notice to appear in court that didn't say when and where the hearing would be held.

WHITEHEAD: Basically the Supreme Court decision said, look; you're not following the statute. So this notice to appear was ruled as being invalid.

ROSE: And that seemingly minor technicality has big implications. Here's one reason why. Many immigrants like Jose Silva Reyes and lots of people caught up in President Trump's recent crackdown have been here for more than 10 years. And if you've lived in the U.S. for a decade without getting into trouble and without getting a notice to appear in immigration court, you could be eligible to stay.

Now, thanks to the Supreme Court, these immigrants can argue they never got a valid notice to appear in that 10-year timeframe. But the Supreme Court ruling could have an even wider impact. That's because immigration lawyers are arguing if anyone got a blank notice to appear, their whole deportation case is invalid. Whitehead says he's already gotten dozens of cases tossed out.

WHITEHEAD: I'm only one attorney, and I have about 200 cases, you know, that I'm looking at. So you can see the massive numbers that we're talking about throughout the United States.

ROSE: But the federal government is fighting back. Government lawyers are appealing and arguing immigration authorities eventually did notify immigrants about the time and place of their hearings, just not right away.

All of this is straining an already overburdened court system says former immigration judge Andrew Arthur.

ANDREW ARTHUR: The Supreme Court throws a monkey wrench into what was already a not very smoothly functioning system, and things just get worse.

ROSE: Arthur is now a fellow at the Center for Immigration Studies, which favors lower levels of immigration. The backlog in immigration courts has reached a record of nearly 750,000 cases, and it's still climbing thanks in part to this technicality. Attorney General Jeff Sessions hasn't addressed the recent Supreme Court ruling, but he has criticized immigration lawyers for scouring the and Nationality Act, the backbone of the nation's immigration laws, looking for loopholes.

(SOUNDBITE OF ARCHIVED RECORDING)

JEFF SESSIONS: Good lawyers using all their talents and skills work every day like water seeping through an earthen dam to get around the plain words and intent of the INA to advance their clients' interests.

ROSE: In this case, though, the Supreme Court found that it's immigration authorities who've been ignoring the, quote, "plain language" of the law. I asked immigration lawyer Marshall Whitehead if he feels bad about winning on a technicality.

WHITEHEAD: Well, technicalities is how we win and lose cases (laughter). I've lost a lot of cases on technicalities.

ROSE: If it allows his clients to stay in the U.S. with their families, Whitehead says you can call it whatever you want. Joel Rose, NPR News. Transcript provided by NPR, Copyright NPR.