Now or Never
Taylor Larson, CLS ’21
The Third Circuit ruled last month that the Immigration and Nationality Act (INA) does not bar district courts from hearing non-removal claims from detained immigrants, priming a Supreme Court showdown of judicial reviewability against INA limitations on courts.
In E.O.H.C. v. DHS Secretary, a detained Guatemalan father and daughter who traveled through Tijuana, Mexico to seek asylum in the United States challenged the government’s attempt to send them to Tijuana pending the appeal of their removal orders. Detainees usually remain in the U.S. throughout their removal proceedings, but the government argued the recently enacted Migrant Protection Protocols (MPP, or “Remain in Mexico” policy) allows it to send the two from holding in a Pennsylvania detention center to Tijuana before the Board of Immigration Appeals decides their removal appeal. The father and daughter argued in district court that, among other claims, sending them to Tijuana would endanger a minor (the daughter) in violation of the Flores settlement.
The district court ruled it had no subject-matter jurisdiction to hear their claims. It held § 1252(b)(9) of the INA blocks districts courts from hearing claims “arising from any action taken or proceeding brought to remove [aliens.]” Appellants must bring their claims through all levels of immigration administrative rulings, and only then can appeal to a circuit Court of Appeals; federal district courts rarely have any role in the process.
The Third Circuit Court of Appeals disagreed. It found the INA only bars district courts from claims on final removal orders, not those unrelated to final removal. The circuit used a “now or never” principle to distinguish removal claims from non-removal ones. Any claim asking for relief that cannot be granted at the time of a final removal decision—relief that can only come when a plaintiff seeks it (now) or never at all—amounts to a now-or-never claim. Such claims are not final removal claims, and therefore the INA does not block district courts from reviewing them.
The Third Circuit found most of the appellants’ claims constituted now-or-never claims. It held, for example, a court of appeals ruling that applying MPP to the appellants violated the Flores settlement, as it decides on their removal order, would provide no remedy: “[The appellants] allege that Tijuana is dangerous, so retuning them poses a grave danger. By the time there is a final order of removal to Guatemala . . . it will be too late to review or remedy their return to Mexico[.]”
The ruling begs a Supreme Court decision to settle how far the INA limits judicial review. The Third Circuit relied on three-Justice pluralities in Supreme Court decisions, admitting the Court has left open what constitutes a removal action under § 1252(b)(9) and inviting it to clarify. The Court has shown a recent willingness to address judicial review in immigration, such as deciding to hear Thuraissigiam v. DHS this month, showing a return to 1252(b)(9) is more likely to happen now than never.
The Third Circuit sought to limit bans on judicial review of immigration agency decisions, and if the Supreme Court rules in a similar spirit, it could open the door to other challenges against the INA blocks on judicial review.
 E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., No. 19-2927, 2020 U.S. App. LEXIS 4628 (3d Cir. Feb. 13, 2020).
 Id. at 3.
 Id. at 4.
 Id. at 7.
 Id. at 10.
 8 U.S.C. 1252(b)(9).
 No. 19-2927, 2020 U.S. App. LEXIS 4628, at 1.
 Id. at 40.
 Id. at 10.
 Id. at 13.
 Id. at 19-20.
 Id. at 19.
 No. 19-2927, 2020 U.S. App. LEXIS 4628, at 13-14, “[T]he Supreme Court has left open whether detention pending an asylum ruling counts as an ‘action taken . . . to remove an alien from the United States.’ See Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (plurality opinion). In any event, the removal proceedings are ‘proceedings brought to remove’ appellants from the United States to Guatemala.”; id. at 16, “The Justices largely reprised these positions in Nielsen v. Preap, 139 S. Ct. 954 (2019) . . . A three-Justice plurality repeated the Jennings plurality’s view that § 1252(b)(9) does not bar challenges to detention rather than removal.”
 Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 427 (2019) (cert. granted). The case involves an asylum seeker suing to appeal his deportation order, gained through an allegedly flawed credible fear interview, in a federal court, against an INA ban on judicial review.