The Washington PostDemocracy Dies in Darkness

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

Security personnel outside the Supreme Court in Washington on Tuesday. (J. Scott Applewhite/AP)
Placeholder while article actions load

The Supreme Court neared the end of its decision-making for the term on Tuesday, ruling against immigrants who say they face persecution or torture in their home countries if they are deported and for the builders of a proposed natural gas pipeline spanning Pennsylvania and New Jersey.

The court will release its final decisions Thursday, including a closely watched election-law case from Arizona that will provide guidance on protections afforded by the Voting Rights Act.

In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.

At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.

One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.

Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.

The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.

The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.

Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”

The case is Johnson v. Guzman Chavez.

PennEast pipeline

In the pipeline case, the court handed a victory to those seeking to build the planned PennEast pipeline, a 116-mile natural-gas line that would run through Pennsylvania and New Jersey.

Roberts wrote the 5-to-4 opinion, which says the federal government can designate its eminent domain powers to secure land needed for the pipeline, even if it means suing states such as New Jersey.

“When the Framers met in Philadelphia in the summer of 1787, they sought to create a cohesive national sovereign,” Roberts wrote. “Over the course of the Nation’s history, the Federal Government and its delegatees have exercised the eminent domain power to give effect to that vision, connecting our country through turnpikes, bridges, and railroads — and more recently pipelines, telecommunications infrastructure, and electric transmission facilities.”

In this case, the 1938 Natural Gas Act allows pipeline companies to use eminent domain if the project has been approved by the Federal Energy Regulatory Commission.

The U.S. Court of Appeals for the 3rd Circuit ruled, however, that the companies do not have the constitutional authority to sue states.

Roberts said that was wrong because states had “consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegatees.”

His unusual majority consisted of liberals Breyer and Sotomayor and conservatives Alito and Kavanaugh.

Barrett dissented, joined by fellow conservatives Thomas and Gorsuch and the liberal Kagan.

The question, Barrett said, is not whether the federal government can convey its eminent domain power to a private party. “The question is whether Congress can authorize a private party to bring a condemnation suit against a state,” she wrote.

The majority “cannot muster even a single decision involving a private condemnation suit against a State, let alone any decision holding that the States lack immunity from such suits,” she wrote.

Despite the victory, the proposed pipeline faces other hurdles and lawsuits.

The case is PennEast Pipeline Co. v. New Jersey.