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Recently in Immigration Law Category

In the recently argued Nielsen v. Preap case, the High Court was asked to weigh in on whether the federal government waived their right to detain individuals for removal proceedings after being released from state custody if the individual was not detained immediately, or within a reasonable amount of time.

Unfortunately for the Court, and a likely reason as to how the case even landed there, the parties seemed hung up what Congress meant in using the word "when" in the statute. Essentially, the statute in question requires the feds to detain certain individuals "when the alien is released." And like the debates over the word "is" from the 90s, this arguments seemed equally unimpressive.

In what seems to be one of those times where the High Court majority would have been better off not saying anything at all, Justice Roberts writing for the majority in Trump v. Hawaii, stated: "Korematsu has nothing to do with this case."

Naturally, given the controversial subject matter of the travel ban case, that statement was not likely to go un-responded to in the media and by legal scholars. And though the mention of Korematsu was borne out of the dissent's criticism of the majority's opinion, as many pundits (and the dissent) point out, Justice Roberts' statements on Korematsu belied conventional logic.

In two highly contested and controversial cases, SCOTUS has ruled 5 to 4 along strict partisan lines, which perhaps explains the delays this term.

In short, the High Court struck down the preliminary injunction issued against the president's Executive Order travel ban. Also, the Court reversed and remanded a decision upholding a California law requiring anti-abortion "crisis pregnancy centers" to not intentionally mislead women about the nature of their services.

Below are highlights on both the Trump v. Hawaii and the NIFLA v. Becerra decisions.

In an 8 to 1 decision issued late last week, SCOTUS held that a defective notice to appear for a removal proceeding cannot be used to justify stopping time from accruing toward a non-citizen satisfying the physical presence requirement.

The case involves a Brazilian born, now Martha's Vineyard man, Wescley Pereira, who has been in the United States for nearly two decades on a six month visa, and now has two children that are both U.S. citizens. Though he entered in 2000, in 2006, he was served with a Notice to Appear for a removal hearing. However, that notice did not provide the time and date of the appearance. Unfortunately, until he reached the Supreme Court, no one else seemed to care that the notice he received was no notice at all.

Though commentators were just starting to posit that the Azar v. Garza matter was doomed in SCOTUS conference limbo, this week, the Justices issued a unanimous decision. And if you feel like this decision was unexpected, well, you're not alone, as the High Court never heard an oral argument.

The case involved an undocumented teen who needed a court order in order to be allowed to get an abortion. And since the abortion actually happened promptly after the D.C. Circuit Court of Appeals ruled that it could, SCOTUS ruled that the case was now moot. As to the sanctions the government sought against the lawyer who they claimed misled the government as to the date of the abortion procedure, SCOTUS was not convinced.

While it has long been a practice of the United States to deport non-citizens who commit a violent felony, what qualifies as a crime of "violence" has been a moving target. As the High Court's opinion in Session v. Dimaya explained, the federal statute requiring deportation defines violent crime in a way that is unconstitutionally vague.

The defendant in the deportation action, James Garcia Dimaya, was convicted of burglary in California. As the majority notes, in some courts, this is considered a violent crime, while in others it is not. Dimaya argued successfully to a lower court that the law was unconstitutionally broad, as his crime resulted in no injuries to his victims. And while Justice Kagan penned the ruling, interestingly, it was Justice Gorsuch's concurring opinion that swung the decision in Dimaya's favor.

Detained Immigrants Not Entitled to Periodic Bond Hearings

It's not easy to write a short headline for a legal decision that takes judges 91 pages to explain.

So it's understandable when major news agencies miss the point, like reports of the U.S. Supreme Court's decision in Jennings v. Rodriguez. The New York Times said "No Bail Hearings for Detained Immigrants," but the High Court technically said they do not have a right to periodic bond hearings.

A poet might say, "What's in a word?" In this case, the judges had a problem defining the word "detained."

The message from the SCOTUS to the POTUS was direct and clear in the short rejection issued Monday morning: No shortcuts.

The administration, not pleased by the federal district court injunction, had attempted to bypass the Ninth Circuit Court of Appeals by appealing directly to the High Court. However, SCOTUS did not find the appeal to be worth taking up before the Ninth Circuit had a chance to render a decision. Interestingly, the Court did make a peculiar comment after the rejection: "It is assumed that the Court of Appeals will proceed expeditiously to decide this case."

In what may come as a surprise to many, the third travel ban issued via executive order has been temporarily cleared by SCOTUS in a pair of unexpected Monday morning orders. And, if your head is spinning at this point, wondering how in the world that happened, don't worry, you weren't meant to see this one coming.

In an emergency appeal filed by the DOJ days before Thanksgiving, it asked the High Court to stay the preliminary injunctions issued by the district courts in Hawaii and Maryland. While opponents of the ban did their best to fight it, SCOTUS ruled that the preliminary injunctions should be lifted pending the resolution of the Fourth and Ninth Circuit appeals. Also, as you might have expected, Justices Ginsberg and Sotomayor dissented and would have denied the requested stay.

Second Travel Ban Challenge Dismissed

Donald Trump got out of thousands of lawsuits as a businessman, and as president he has escaped another one.

The U.S. Supreme Court dismissed as moot a second travel ban case, which had challenged the President's first revision of his executive order against mostly Muslim nations. That ban has expired and been replaced by another version.

The decision capped an earlier battle with a federal judge, but the same judge has issued an injunction against the President's third ban. Sooner or later, either President Trump or Judge Derrick Watson will be out of options.