The Supreme Court agreed on October 1 to decide whether the government can keep people who entered the country without inspection in no-bond immigration detention. The justices granted the Trump administration’s petition in Rhoney v. Barbosa da Cunha in an order list from their September 28 conference. The order gave no reasons, and SCOTUSblog reported that arguments are expected early next year.
The question before the justices
The government’s petition, filed July 23, asks whether 8 U.S.C. 1225(b)(2)(A) requires detention during Removal proceedingsThe formal court process, formerly called deportation, in which the government seeks to remove a noncitizen from the United States.See it in the glossary of people who are in the United States without having been admitted.
The respondent is Ricardo Aparecido Barbosa da Cunha. The case comes from the Second Circuit, which ruled against the administration, according to SCOTUSblog’s case page.
How the no-bond detention policy changed
Until last year, the government had not applied that provision to people who had already lived in the United States for years or decades, SCOTUSblog reported. They were held under a separate provision that lets the attorney general release them on a bond of at least $1,500 or on conditional ParoleDiscretionary, temporary permission for a person who may be inadmissible to enter or remain in the United States for urgent humanitarian reasons or significant public benefit, set out in INA 212(d)(5). Parole is not an admission, and a paroled person is still treated as an applicant for admission.See it in the glossary while their cases proceed.
Under guidelines the administration issued last year, it reads the first provision to require detention. That means no Bond hearingA hearing in which an immigration judge decides whether a noncitizen detained by DHS may be released from custody and, if so, under what bond. Eligibility depends on which detention law applies to the person, and immigration judges have no authority over bond for some groups, such as those subject to mandatory detention.See it in the glossary for people arrested inside the country, not only at the border.
Why the court took this case
Federal appeals courts have divided over the policy, which is a key factor the Supreme Court weighs when deciding whether to take a case, SCOTUSblog reported. The Second Circuit is among the courts that sided against the administration.
The government asked the justices to take a different case on the same issue, Putra v. Lopez-Campos, which it described as a better vehicle. The court took up Barbosa da Cunha’s case instead.
What the order does and does not do
Granting review is not a ruling on the merits. The court has not decided whether the detention provision covers people who entered without inspection, and the order does not set an argument date. Because appeals courts have divided, outcomes can differ by circuit until the court rules.
The case involves a different part of the law than the Ninth Circuit ruling decided September 21, which concerned AsylumProtection granted to a person already in the United States or at a port of entry who meets the definition of a refugee and cannot safely return to their country.See it in the glossary seekers who had passed a credible fear screening. For how the court handles these cases, see our explainer on Supreme Court review.