The Supreme Court has granted a DOJ petition for writ of certiorari by agreeing to review an April opinion from the U.S. Court of Appeals for the Second Circuit in Rhoney v. Barbosa da Cunha, wherein a three-judge circuit panel affirmed a lower-court order holding that section 235(b)(2)(A) of the Immigration and Nationality Act (INA) does not deny release on bond to illegal migrants who evaded apprehension at the border and settled in the United States. In other words, after thousands of lower court decisions, the justices will finally decide whether the Trump II “mass detention” policy complies with the law as Congress wrote it more than 30 years ago — which it almost definitely does.
Congress Changes the Law in 1996
In 1996, Congress rewrote a key provision in the INA that governs how immigration officers are to inspect, expel, deport, and (most importantly for this matter) detain or release aliens who arrive in this country.
Specifically, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted that year, amended (among other provisions) the “inspection protocol” in section 235 of the INA, which governs the process by which aliens are inspected for admission to this country.
Prior to that amendment, an alien who entered illegally, “free from official restraint”, was placed into “deportation proceedings” in which the alien received “greater procedural and substantive rights” — including to ask for bond from an immigration judge (IJ) — than aliens stopped during illegal entry or at the ports, who were placed into “exclusion proceedings” and received only those rights Congress had expressly given them.
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