A High-Stakes Immigration Case Hits the Supreme Court

“What is chicken?” asked the great Judge Henry Friendly in Frigaliment Importing Co. v. B.N.S. International Sales Corp., a case read by every first-year law student. Is it “a young chicken, suitable for broiling and frying” or rather “any bird of that genus that meets contract specifications on weight and quality”? And do you care? Law students do not, but the clients did—at stake was a tidy sum of money.

The stakes are higher in a Supreme Court case to be heard next Wednesday. Nielsen v. Preap may determine whether thousands of longtime residents of the U.S. face indefinite detention without a hearing. And as in Frigaliment, the heart of the dispute is an everyday word: when. Does it mean “any time the government decides after a stated event, whether days, weeks, or years later” or “immediately upon the happening of the event”?

Nielsen is a class action brought by a group of immigrants in the Ninth Circuit who have been or are being detained under 8 U.S.C. § 1226, a provision of the Immigration and Nationality Act. That section authorizes federal authorities to detain any alien who may be subject to “removal”—the technical term for deportation. That term covers a lot of immigrants—border-crossers arrested after entering the U.S. illegally, tourists or students who have overstayed their visas, and lawful permanent residents who have committed certain crimes.

The statute creates two classes of “removable” aliens—first, ordinary detainees who haven’t committed crimes but are facing removal on other grounds and, second, “criminal aliens” facing removal because of criminal convictions.

Once ordinary aliens are detained for removal, they face three different legal tests: First will be a “bond hearing,” at which they can try to convince an immigration judge that they can be safely released, and will show up for their deportation hearing. They can put on evidence of their community, and family members can attend to give their support. If they get bond, they can go back to their lives until their next hearing.

By Garrett Epps for THE ATLANTIC
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