In a 5-4 ruling in Immigration and Naturalization Service v. St. Cyr, the Court rejected the government’s argument that it could automatically deport lawfully admitted immigrants who had pleaded guilty to certain crimes before strict new provisions of federal immigration laws took effect in 1997. These provisions, enacted in 1996, made legal aliens who have been convicted of certain crimes ineligible to seek a discretionary waiver of deportation. In St. Cyr, the narrow Court majority held that these new rules could not be applied retroactively. An important part of the Court’s opinion also rejected the government’s claim that the new immigration laws had stripped the federal courts of jurisdiction to decide whether legal immigrants were eligible for discretionary relief from deportation in these circumstances. Justice Scalia dissented in an opinion joined by Thomas and Rehnquist, and in part by O’Connor. All of the dissenters would have held that the new laws deprived the courts of the jurisdiction to hear the case, and lamented what Scalia called the “opportunities for delay-inducing judicial review” being afforded to “criminal aliens.” Just one additional vote in accord with Scalia and Thomas would make it much more difficult for immigrants to challenge in court other deportation policies adopted by the government.
In another 5-4 ruling, the Court held in Zadvydas v. Davis that federal immigration law does not permit the government to keep an alien who is under a final order of removal from this country in jail indefinitely, even though no other country will accept that person. Justice Kennedy dissented in an opinion joined by Scalia, Thomas, and Rehnquist, claiming that federal law places no limit on the length of time for which the government can incarcerate removable aliens. Scalia and Thomas, however, would go even further, disagreeing with Kennedy and Rehnquist that the Constitution might require the release of removable aliens from custody in certain circumstances (e.g., because the person is not a flight risk or presents no danger to the community). Scalia and Thomas issued a separate dissent, maintaining that an incarcerated alien subject to a final order of removal has no constitutional right to be released from custody under any circumstance, and that there are no situations in which a court could order that person’s release from custody. Another justice on the Court like Scalia and Thomas would authorize the government to incarcerate deportable aliens forever if no other country would agree to admit them.