Recent decisions by the Supreme Court have roiled the immigrant rights community. Though many decisions weren’t surprising given the conservative majority on the Court, the decisions touch on a wide range of issues—from federal court review of detention to agency accountability for misconduct at the border.

Some of the Court’s decisions addressed immigration law directly, while the Supreme Court’s decision overturning Roe v. Wade, for example, signaled a warning that other rights currently protected under the Constitution may be threatened in the future. One bright spot was the Court’s recent decision upholding the Biden administration’s right to end the Migrant Protection Protocols, or the “Remain in Mexico” program.

Decisions Regarding Immigration Detention and a Court’s Ability to Grant Relief

Both the Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez cases decided this term involved noncitizens who had been ordered removed from the United States. Each sought withholding of that removal because they feared persecution in their home country.

The Court decided in both cases to overturn lower court rulings that required bond hearings if a person in removal proceedings had been detained for longer than six months. The Court found that the immigration statute did not require these bond hearings. As counsel in Aleman Gonzalez stated, however, the ruling does allow for a challenge to the federal policy on constitutional grounds.

In addition, in a blow to class action litigation, the Court ruled in Garland v. Aleman Gonzalez that granting class-wide relief on behalf of individuals challenging their detention was prohibited. The Court ruled that lower courts may not enter an injunction that instructs federal immigration officials to act in a specific way with respect to decisions to enforce provisions of the law governing “inspection, apprehension, examination, and removal . . .” of immigrants. Despite the absence of injunctive relief, other types of relief—such as declaratory relief—may continue to be available.

Decision Limiting Review of Factual Error

Patel v. Garland centers around Pankajkumar Patel, a native of India, who erroneously checked a box on a Georgia drivers’ license application labeled “U.S. citizen.” When the immigration court found Patel ineligible for relief, his attorneys asked for review of that decision by a federal court. They argued immigration statute permits review of eligibility for relief and only prohibits review of the ultimate discretionary decision to grant relief.

The Court disagreed. It found that federal courts could not review factual findings related to certain discretionary relief, even when the facts are tied to eligibility and not the ultimate exercise of discretion.

With a case backlog of nearly 1.8 million cases and an over-stressed and under-staffed court system, we expect immigration judges to sometimes make mistakes about individuals’ eligibility for relief from removal. With Patel, those mistakes will now be more difficult to review.

The decision also leaves open questions about the scope of the decision. Following the majority’s logic, federal courts may no longer be able to review denial of adjustment of status applications issued by U.S. Citizenship and Immigration Services, in which the immigration agency also makes factual determinations about eligibility for relief. This may be the next wave of litigation on this judicial review provision.

Decision in Favor of Ending “Remain in Mexico” Program

In Biden v. Texas, the Supreme Court gave a decisive win to the Biden administration, rejecting arguments that the Biden administration could not end the Migrant Protection Protocols (MPP).  The Court ruled that immigration law does not require the Biden administration to send people to Mexico to wait for their asylum hearings in the United States; the ability to return asylum seekers to Mexico is discretionary.

Under the portions of the ruling addressing judicial review, questions now remain about whether a court now can “vacate” a policy under the Administrative Procedure Act and what it means for a court to hear a lawsuit in a case where it does not have the authority to issue a binding ruling. And though MPP now will end, many asylum seekers will remain outside of the United States because Title 42—the primary obstacle to seeking protection in the United States—remains intact.

Decision Finding Monetary Remedies Not Available to Hold Border Patrol Agent Accountable for Assault

The Supreme Court decision in Egbert v. Boule  barred a civil rights lawsuit against a U.S. Border Patrol agent for reportedly entering the property of a U.S. citizen without a warrant and assaulting him.

Mr. Boule was the owner of a bed and breakfast near the U.S.-Canada border. In 2014, Border Patrol Agent Egbert entered the property to question one of Mr. Boule’s international guests. When Mr. Boule asked Agent Egbert to leave, Agent Egbert threw Mr. Boule to the ground.

After Mr. Boule filed a complaint with Border Patrol about his excessive use of force, Agent Egbert allegedly retaliated by initiating investigations into Mr. Boule’s business.

Mr. Boule filed a lawsuit relying on a 1971 Supreme Court case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Congress has never passed a law that allows people to sue federal agents for money for violating the Constitution. However, a successful lawsuit based on the Bivens case allows an individual to hold a federal government official accountable for violating their constitutional rights and collect monetary damages for the harm they suffered.

In its opinion, the Supreme Court held that Mr. Boule could not bring Bivens claims because a lawsuit against a Border Patrol agent necessarily implicates national security concerns. Because of that, only Congress could allow such a lawsuit.

The Court also found a Bivens remedy inappropriate because U.S. Border Patrol has a grievance process. The Court said it did not matter that this process did not award Mr. Boule monetary damages, that it could not be appealed, or, as the dissent points out, that it offers “no meaningful protection of the constitutional interests at stake.”

The Supreme Court’s decision likely makes it virtually impossible to bring a Bivens action against Border Patrol agents in the future. This removes an important tool for holding that agency—one known for abuse and misconduct—accountable. And Border Patrol has proven unwilling to police itself. According to a study, over 95% of disciplinary actions resulting from complaints result in no consequences against the agent. By ruling against a Bivens action, the Court leaves individuals like Mr. Boule without any options to seek damages for the violations against them.

Decision Overturning Roe v. Wade

Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health overturning Roe v. Wade was based on a legal concept known as “originalism,” which looks to the original text of the Constitution to discern fundamental rights. The Court determined Roe was wrongly decided because the right to an abortion is not mentioned in the Constitution and so, in the view of the majority, not protected as a “fundamental right.”

Other long-standing Supreme Court decisions implicating immigrants’ rights may now be at risk. An immigrant’s right to an education under Plyler v. Doe is one example. Plyler originated from an attempt by the state of Texas to prohibit the use of state funding to educate any students that were not “lawfully admitted” into the country. In a 5-4 decision, the Supreme Court held in Plyer that the right of these students to a public education was covered by the 14th Amendment Equal Protection Clause. An immigrant’s right to an education, for example—a right not explicitly spelled out in the Constitution but protected under the 1982 Supreme Court case Plyer v. Doe—might be in danger.