From Admission to Appearance My 40-Year Journey to the U.S. Supreme Court

By Marcia Binder Ibrahim, Esq.

As a young attorney starting a practice in Montgomery County in 1981, I never considered that an opportunity to have a case before the Supreme Court of the United States would come my way. However, I have always been fascinated with the Supreme Court, and took the first opportunity to become admitted to that august body when the MBA sponsored a trip there in 1982. I jumped at the chance, never thinking that such a possibility in which I would use that admittance would ever occur. I remember travelling down to Washington on the MBA chartered bus with such distinguished companions as Mark Kearney, Raymond Pearlstine and others. I was in awe of everyone else on the bus.

Fast forward forty years, and in January 2020, I was sitting on a beach in Hawaii with my grandchildren. I was shocked to learn that the Supreme Court had actually accepted a case in which I had represented the Petitioner before the Third Circuit, and won on a voluntary dismissal. The government filed a writ of certiorari to the Supreme Court in a case that they had not even bothered to file a brief on when it was before the Third Circuit. It involved an important area of law in the immigration landscape called “expedited removal.” Expedited removal is the authority given to immigration officials of even low rank to remove a non-U.S. citizen from the United States. Unlike other forms of removal (formerly known as deportation), non-citizens who are subject to expedited removal are only conferred a minimum of due process protections. For example, such non-citizens are not usually entitled to a hearing before an immigration judge or the right to an attorney unless they are able to show that they have a credible fear of returning to their country of origin. The Illegal Immigration and Immigrant Responsibility Act (IIRAIRA) of 1996 created expedited removal, and the federal government subsequently expanded it.

My client had been removed from the United States through the expedited removal process in 2012. A few months later, as a result of problems with a gang in Mexico, he came back into the United States without inspection. Thereafter, in 2018, my client was encountered by Immigration and Customs Enforcement in Pennsylvania. Because he had been removed from the United States through expedited removal procedures in 2012, ICE decided to reinstate the 2012 removal order. If my client had been put in regular removal proceedings, he would have an automatic right to a hearing before an immigration judge and the right to an attorney in those proceedings. Reinstating a prior expedited removal order allows ICE to bypass most due process protections allowing the non-US citizen to be detained indefinitely. To cure such prolonged detention, many immigration lawyers were filing petitions for a writ of habeas corpus with the Federal District Court for the Middle District of Pennsylvania. The majority of non-citizen detainees in PA were being held at the York County and Pike County Correctional Facilities. Up until 2021, an immigration court handling just a detained docket was located at the York County Correctional Facility.

In 2018, the Third Circuit issued a precedential decision that held that anyone who had been detained subject to a reinstated removal order had to be afforded a bond hearing after six months of immigration detention. Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (2018). Moreover, at such a bond hearing, ICE would bear the burden of proving by clear and

convincing evidence that the non-citizen poses a risk of flight

or a danger to the community. Id. 224. However, this case only governed cases arising in the Third Circuit.

Through the Third Circuit’s holding in Guerrero-Sanchez, the Federal Magistrate Judge ordered a bond hearing for my client. The bond hearing was held at the York Immigration Court. Because my client was not a flight risk and because he was not a threat to the community, the immigration judge ordered him released upon payment of a substantial bond.

However, the Office of Immigration Litigation (OIL) thereafter decided to file a writ of certiorari with SCOTUS. The issue the Court is grappling with is whether a non-citizen who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing. Even if the Court finds that the statute does not permit the reading that the Third Circuit has rendered, it is worth noting that the Constitution may require such protections for non-citizens in civil immigration detention. Oral argument on this case was held on January 11, 2022. We expect the decision from the Supreme Court at any moment. Whatever the decision, it was a wonderful experience giving me access to a Court and process which I never expected to have. All thanks to the MBA by getting me started on that path and letting me mingle with the Montgomery County leaders in the field for at least one day.