“[T]he court seems to churn along as usual, and I see my friends’ rights trampled in the process,” observed an immigrant detained at the Hudson County Correctional Facility.1 Without lawyers,2 those friends belonged to the more than eighty percent of detained immigrants who lack legal representation in deportation proceedings.3 Immigrants and their advocates have long relied on class actions to win systemic reforms of mass detention, on behalf of similarly situated immigrants with and without counsel.4 Last Term, in Garland v. Aleman Gonzalez,5 the Supreme Court held that a provision of the Immigration and Nationality Act6 (INA), 8 U.S.C. § 1252(f)(1), forbids lower federal courts from granting classwide injunctive relief.7 The Court’s jurisdictional ruling leaves the rights of detained immigrants hanging in the balance.
Esteban Aleman Gonzalez entered the United States and was removed to Mexico on the same day in the year 2000.8 Shortly afterwards, he reentered the United States, where he has since resided and started a family, including two daughters who are U.S. citizens.9 In 2017, immigration officers arrested Aleman Gonzalez at his home in California, reinstated his prior order of removal, and placed him in detention,10 under 8 U.S.C. § 1231(a)(6).11 Two weeks later, an asylum officer found that Aleman Gonzalez had “a reasonable fear of persecution or torture in Mexico” by drug cartel members.12 After six months in detention, Aleman Gonzalez requested and was denied a bond hearing before an immigration judge.13
On March 27, 2018,14 his 221st day in detention, Aleman Gonzalez15 — along with Jose Eduardo Gutierrez Sanchez, who was marking his 183rd day in detention16 — filed a class action in the U.S. District Court for the Northern District of California.17 A year prior, on January 31, 2017, Edwin Flores Tejada,18 then marking his 407th day in detention, had joined a similar class action in the U.S. District Court for the Western District of Washington.19 Both suits alleged that immigrants detained under § 1231(a)(6) are entitled to bond hearings after six months of detention.20 Both district courts concluded that the Ninth Circuit’s interpretation of § 1231(a)(6) in Diouf v. Napolitano21 (Diouf II) as requiring bond hearings after six months22 remained good law, despite the Supreme Court’s decision in Jennings v. Rodriguez23 earlier that year.24 Jennings held that the Ninth Circuit had been wrong to find that three other provisions of the INA25 entitled detained immigrants to bond hearings after six months by resorting to the canon of constitutional avoidance.26 The district courts determined that Diouf II was not “clearly irreconcilable”27 with Jennings and still governed.28 Each district court certified a class of similarly situated plaintiffs and granted classwide injunctive relief,29 enjoining the government from detaining class members under § 1231(a)(6) for more than 180 days without a bond hearing.30
The Ninth Circuit affirmed in relevant part.31 Writing for both panels, Judge Milan Smith32 agreed that the Ninth Circuit’s reading of § 1231(a)(6) in Diouf II survived Jennings.33 Thus, the Ninth Circuit upheld the injunctive relief in each case, to the extent that it compelled the government to provide bond hearings to class members after six months of detention.34
The Supreme Court reversed.35 Writing for the Court, Justice Alito36 held that another provision of the INA, § 1252(f)(1), stripped district courts of jurisdiction to hear and grant requests for classwide injunctive relief.37 He started with the text of the statute, which provides:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§ 1221–1232] . . . , other than with respect to the application of such provisions to an individual alien against whom proceedings under such [provisions] have been initiated.38
Justice Alito concluded that the ordinary meaning of “to enjoin or restrain the operation of” bars lower courts from issuing injunctions “that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out [those statutes].”39 He then turned to the exception that § 1252(f)(1) carves out from its “general prohibition.”40 According to Justice Alito, on prior occasions, the Court had interpreted this exception to bar “federal courts from granting classwide injunctive relief,” without “extend[ing] to individual cases.”41
Next, Justice Alito addressed the detained immigrants’ arguments.42 First, he dismissed their contention that “the operation”43 of immigration law means its operation “as properly interpreted.”44 In his view, such a definition would lead to procedural oddities that Congress would not have intended.45 If courts have referenced the “unlawful” or “improper” operation of “cars, trucks, railroads, water utilities, drainage ditches, auto dealerships, planes, radios, video poker machines, [and] cable TV systems,” then, he reasoned, “it is not apparent why the same cannot be said of a statute.”46 Second, Justice Alito returned to the statutory text and the Court’s prior interpretations of § 1252(f)(1) to reject the possibility that a class member could be “an individual” within the meaning of the provision, which uses the singular instead of the plural.47
Justice Sotomayor48 concurred in the judgment in part and dissented in part.49 In her view, the majority “elevate[d] piecemeal dictionary definitions and policy concerns over plain meaning and context.”50 She read § 1252(f)(1) as barring lower courts from using classwide injunctions to prevent the “operation” of the specified statutes — but not “from commanding compliance with the statutes or enjoining unauthorized agency action.”51 Based on plain meaning and uses of “implementation” elsewhere in § 1252, she determined that a statute’s unlawful implementation cannot constitute its “operation.”52 She found unhelpful Justice Alito’s “string cite . . . of ‘things [that] can be unlawfully or improperly operated’”: “Unlike all of those examples, a statute is the law.”53 Separately, Justice Sotomayor interpreted the carve-out for individual noncitizens as covering class actions, or “collection[s] of individual claims.”54 Given statutory context55 and historical precedent,56 she explained that Congress would not have intended “individual” in § 1252(f)(1) to preclude classwide relief.57 And her narrower interpretation would not result in the procedural difficulties that Justice Alito identified, which she deemed “a problem of the Court’s own making.”58
Justice Sotomayor concluded with a warning. She cautioned that “the Court’s blinkered analysis . . . will leave many vulnerable noncitizens unable to protect their rights” from the executive branch.59 Immigrants in detention face many barriers to justice: little familiarity with the U.S. legal system, limited English proficiency, no right to counsel, significant distances from community members and lawyers, and regular transfers between facilities.60 To Justice Sotomayor, the majority’s holding “place[s] upon each of them the added burden of contesting systemic violations of their rights through discrete, collateral, federal-court proceedings.”61 She noted that the holding did not touch courts’ authority to issue classwide declaratory relief and to “hold unlawful and set aside agency action, findings, and conclusions” under the Administrative Procedure Act62 (APA).63 But even with these limits, she warned, the majority’s decision would have “grave” consequences,64 especially for “those least able to vindicate their rights.”65
Aleman Gonzalez left more questions than answers in its wake. In her opinion, Justice Sotomayor attempted to define the boundaries of the ruling, and a few weeks later, the majority and dissenters in Biden v. Texas66 gave it their own go, with little success.67 What is clear is that Aleman Gonzalez’s reading of § 1252(f)(1) as barring classwide injunctions by lower federal courts eliminated a major remedy for immigrants challenging mass detention. Alternative paths to large-scale relief may still exist — including injunctions issued by the Court itself, classwide declaratory relief, APA vacatur, and mass actions. But none appear as effective at vindicating rights as classwide injunctive relief at the district court level, illustrating how jurisdictional rulings can undermine substantive rights.
By forbidding lower courts from granting injunctive relief, Aleman Gonzalez undermined the potential of the class action as a rights-enforcing mechanism for immigrants. As a form of collective litigation, class actions allow plaintiffs to challenge government misconduct on a systemic level, which is particularly crucial in the realm of immigration enforcement. The barriers to justice identified by Justice Sotomayor mean that many immigrants may not know their rights and, of those that do, many lack the resources to assert them.68 In addition, as the Supreme Court has acknowledged, an individual hearing does not provide a viable setting for challenging an immigration pattern or practice by the government.69 Thus, impact litigation on behalf of immigrants often takes the form of class actions seeking equitable relief.70 However, throughout the last decade, the judiciary has curtailed the ability of plaintiffs to proceed, let alone to prevail, as a class.71 The plenary power of Congress over immigration72 gives the legislature a greater role on the “immigration front in the broad war against the class action.”73 Congress has taken up this role with enthusiasm by conditioning immigration benefits on waivers of rights to judicial review and enacting jurisdiction-stripping statutes like § 1252(f)(1).74 Aleman Gonzalez’s broad interpretation of § 1252(f)(1)’s restrictions removes a powerful remedy for rights violations — and the fact that it does so through a jurisdictional ruling is nothing new. Because “[i]t is much more difficult to interest the public, and therefore Congress, in laws about aspects of jurisdiction and court procedure,” undermining rights through these channels has proven effective throughout history.75
Though § 1252(f)(1) exempts the Supreme Court from its bar on injunctive relief, it is not apparent how the Court could exercise this power. The provision carves out an exception for “the Supreme Court” in a parenthetical,76 which “does not appear to have an analogue elsewhere in the United States Code.”77 Well before Aleman Gonzalez, Professor Gerald Neuman questioned “whether the Supreme Court action that [§ 1252(f)(1)] contemplates could be viewed as a legitimate exercise of appellate jurisdiction, or would instead amount to an improper exercise of original jurisdiction.”78 If, for instance, § 1252(f)(1) does not bar lower courts from issuing classwide declaratory relief, a declaratory judgment in favor of a class of detained immigrants could reach the Supreme Court79 — as Justice Sotomayor contended in Aleman Gonzalez80 Aleman Gonzalez, 142 S. Ct. at 2077 n.9 (Sotomayor, J., concurring in the judgment in part and dissenting in part). and Justice Barrett contemplated in Biden v. Texas.81 However, any grant of additional injunctive relief by the Court in that case would not appear to be an exercise of its appellate jurisdiction, especially when the Court “[i]n other contexts . . . has regarded Article III jurisdiction over a case as a matter to be decided separately with regard to each requested remedy.”82
The fate of classwide declaratory relief also remains unclear after Aleman Gonzalez, but even if such relief is available, it offers a weaker remedy for rights violations compared to an injunction. At oral argument, the government contended that § 1252(f)(1) bars not only classwide injunctive relief but also other remedies “practically similar to an injunction,” including classwide declaratory relief.83 The majority noted the government’s position but acknowledged that Aleman Gonzalez, which involved only an injunction, did not present the issue.84 Justice Sotomayor concluded the same85 but pointed out § 1252(f)(1)’s narrow title, “[l]imit on injunctive relief,” and silence on declaratory relief.86 She added that the government’s position would make class actions futile to bring, thereby reducing to a “nullity” § 1252(f)(1)’s reservation of the Court’s jurisdiction.87 Writing for the majority in Biden v. Texas, Chief Justice Roberts noted that the Court had asked the parties to brief — but ultimately did not rule on — additional § 1252(f)(1) questions, including its effect on declaratory relief.88 Still, two points in his analysis of subject matter jurisdiction under § 1252(f)(1) seem to bear on the availability of classwide declaratory relief: (1) Congress’s intentionally narrow title,89 and (2) the Court’s conclusion in a recent immigration class action that the district court had jurisdiction over declaratory relief.90 However, the Court has characterized declaratory judgments as “a much milder form of relief than an injunction” — one that “may be persuasive, [but] is not ultimately coercive” and “noncompliance with [which] may be inappropriate, but is not contempt.”91 Less than a month after Aleman Gonzalez, a district court finding in favor of a class of asylum seekers lamented that declaratory relief was “no substitute for a permanent injunction,” characterizing the Court’s ruling as allowing the government to “immunize itself from the federal judiciary’s oversight” and “render[ing] uneconomical vindication of [the] Plaintiff class members’ statutorily- and constitutionally-protected right[s].”92
Aleman Gonzalez likewise did not consider whether § 1252(f)(1) forbids lower courts from vacating agency action under the APA, though even if this remedy remains available, its robustness can vary depending on the basis of vacatur. The majority made no mention of vacatur under § 706 of the APA, and Justice Sotomayor emphasized the Court’s silence on the matter.93 The preservation of APA claims would protect an avenue to widespread relief if the agency action at issue were a rule or policy decision. Vacatur of an action as unconstitutional94 would be the most enduring form of relief. Vacatur of an action “in excess of statutory jurisdiction”95 must be cured by Congress. But vacatur of an action as arbitrary and capricious96 or as procedurally defective97 could be overcome by a determined agency, as long as it better adhered to the procedural requirements of the APA the second time around.98 Moreover, even in the already deferential arena of judicial review of agency action, immigration law has long proven immune to “fundamental norms of . . . administrative procedure.”99
Finally, the majority questioned the viability of injunctive relief in suits involving more than one named plaintiff, casting doubt on the possibility of “mass actions” as an alternative form of collective litigation to class actions. Most familiar in the tort context, mass actions can involve hundreds of named plaintiffs who have been harmed in a similar way.100 Given § 1252(f)(1)’s use of “individual,”101 Justice Alito observed that “[a] literal reading” could preclude any attempt to secure injunctive relief for multiple named plaintiffs.102 However, because the government did not endorse this interpretation and the case did not present the issue, the majority refrained from ruling on it.103 Still, the Court’s musing in dicta may signal a future willingness to go so far as to interpret § 1252(f)(1) as barring injunctive relief in any case brought by more than one plaintiff, let alone by many in the form of mass actions. Such a restrictive reading would place all forms of collective litigation out of the reach of detained immigrants.
Based on what the Court left unsaid, however, other paths to relief for detained immigrants may well remain after Aleman Gonzalez. But even in a Term marked by the rollback of substantive rights and their enforcement,104 there is something perverse about the Court’s interpretation of a jurisdiction-stripping statute as sanctioning the law’s continued unlawful operation in Aleman Gonzalez. Since immigration law falls exclusively within federal jurisdiction, statutes limiting federal courts’ jurisdiction over remedies can “ha[ve] the effect of extinguishing the underlying right altogether” and “mak[ing] the government immune from the constraints of the Constitution.”105 To immigrants in indefinite detention, who feel the fullest weight of U.S. immigration law, the words inscribed above the Court’s entrance — “Equal Justice Under Law” — may ring hollow. Perhaps more compelling would be those carved by an immigrant into the walls of the Angel Island detention center a century ago: “America has power, but not justice.”106