Justia Immigration Law Opinion Summaries

Articles Posted in US Supreme Court
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Nonpermanent resident aliens ordered removed from the U.S. may obtain discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years, 8 U.S.C. 1229b(b)(1). The “stop-time rule” included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in removal proceedings; “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges and the time and place at which the removal proceedings will be held. A notice that omits any required information does not trigger the stop-time rule.The government ordered the removal of Niz-Chavez and sent him a document containing the charges against him. Weeks later, it sent another document, providing the time and place of his hearing. The government argued that because the documents collectively specified all statutorily required information for “a notice to appear,” Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.The Supreme Court held that a notice to appear sufficient to trigger the stop-time rule is a single document containing all the information about an individual’s removal hearing specified in section 1229(a)(1). In addition to the statute’s use of the article, “a” and the singular noun, “notice,” its structure and history support requiring the government to issue a single notice containing all the required information. Administrative inconvenience never justifies departing from a statute’s clear text. View "Niz-Chavez v. Garland" on Justia Law

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In removal proceedings for entering and remaining in the country unlawfully, Pereida sought to establish his eligibility for cancellation of removal under 8 U.S.C. 1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove that they have not been convicted of specified criminal offenses. While his proceedings were pending, Pereida was convicted of a crime under Nebraska law. Analyzing whether Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, the IJ found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—conducting business without a required license—which did not. Because Nebraska had charged Pereida with using a fraudulent social security card to obtain employment, the IJ concluded that Pereida’s conviction likely constituted a crime involving moral turpitude. The BIA and the Eighth Circuit upheld the denial of relief.The Supreme Court affirmed. An alien seeking to cancel a lawful removal order bears the burden of showing he has not been convicted of a disqualifying offense. The alien has not carried that burden when the record shows he was convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. The Nebraska statute is divisible, listing multiple crimes, some of which are crimes of moral turpitude. In cases involving divisible statutes, judges determine which of the offenses an individual committed by employing a “modified” categorical approach, reviewing the record to discover which of the enumerated alternatives played a part in the defendant’s conviction. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, they work against the alien seeking relief from a lawful removal order. View "Pereida v. Wilkinson" on Justia Law

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Every 10 years, the U.S. undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law direct.” The Secretary of Commerce must “take a decennial census of population . . . in such form and content as he may determine,” 13 U.S.C. 141(a), and report to the President, who must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census, 2 U.S.C. 2a(a), applying the “method of equal proportions” formula to the population counts to calculate the number of House seats for each state.In July 2020, the President issued a memorandum to the Secretary, announcing a policy of excluding from the apportionment base aliens who are not in lawful immigration status. The President ordered the Secretary “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.”The Supreme Court vacated an injunction, prohibiting the Secretary from including the information needed to implement the President’s memorandum and directed dismissal of the lawsuits for lack of jurisdiction. The threatened impact of an unlawful apportionment on congressional representation and federal funding does not establish a “legally cognizable injury.” Any chilling effect from the memorandum dissipated upon the conclusion of the census. The Secretary has not altered census operations in a concrete manner that will predictably change the count. Any prediction of how the Executive Branch might eventually implement the general statement of policy is conjecture. It is unclear how many aliens have administrative records that would allow the Secretary to avoid impermissible estimation; whether the Census Bureau can timely match its records to census data; and to what extent the President might direct the Secretary to “reform the census” to implement his general policy. The plaintiffs suffer no concrete harm from the challenged policy, which does not require them “to do anything or to refrain from doing anything.” View "Trump v. New York" on Justia Law

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The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the U.S., 8 U.S.C. 1225(a)(1). An applicant may avoid expedited removal by demonstrating a “credible fear of persecution,” meaning “a significant possibility . . . that the alien could establish eligibility for asylum.” An applicant who makes this showing is entitled to a standard removal hearing. An asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may then be appealed to an immigration judge. IIRIRA limits habeas corpus review; courts may not review “the determination” that an applicant lacks a credible fear of persecution.Thuraissigiam, a Sri Lankan national, was stopped immediately after crossing the southern border without inspection or an entry document. He was detained for expedited removal. An asylum officer's rejection of his credible-fear claim was affirmed. Thuraissigiam filed a federal habeas petition, requesting a new opportunity to apply for asylum. The Supreme Court reversed the Ninth Circuit’s ruling in Thuraissigiam’s favor.As applied here, Section 1252(e)(2) does not violate the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, section 9, cl. 2. At a minimum, the Clause “protects the writ as it existed in 1789.” Habeas has traditionally provided a means to seek release from unlawful detention. Thuraissigiam does not seek release from custody, but an additional opportunity to obtain asylum. His claims fall outside the scope of the writ as it existed when the Constitution was adopted.As applied here, Section 1252(e)(2) does not violate the Due Process Clause. For aliens seeking initial entry, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” An alien in Thuraissigiam’s position has only those rights regarding admission that are provided by statute. View "Department of Homeland Security v. Thuraissigiam" on Justia Law

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In 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program, which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal to become eligible for work authorization and various federal benefits. Two years later, a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), proposed to make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance, work eligibility, and other benefits. States obtained a nationwide preliminary injunction barring implementation of both. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act, which defines eligibility for benefits. The Supreme Court affirmed. In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA.Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious.As a preliminary matter, the Court held that the decision is reviewable under the APA, rejecting an argument that DACA is a general non-enforcement policy. The DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. The parties did not challenge any removal proceedings so that judicial review would be barred by 8 U.S.C. 1252.The Court declined to consider additional justifications for the decision that were offered nine months later. Judicial review of agency action is limited to the grounds that the agency invoked when it took the action. The later justifications bore little relationship to those offered originally and constitute “post hoc rationalization.” Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the issue, such as eliminating benefits eligibility while continuing forbearance. In failing to consider that option, Duke failed to supply the “reasoned analysis” required by the APA. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. DHS has flexibility in addressing reliance interests and could have considered various accommodations. View "Department of Homeland Security v. Regents of University of California" on Justia Law

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Nasrallah pled guilty to receiving stolen property. In removal proceedings, Nasrallah sought relief under the international Convention Against Torture (CAT) to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed but granted CAT relief. The Board of Immigration Appeals ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because circuit precedent precluded review in cases involving commission of a crime specified in 8 U.S.C. 1252(a)(2)(C).The Supreme Court reversed. Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order but preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” nor does a CAT order merge into a final order of removal. A CAT order does not affect the validity of a final order of removal.The Illegal Immigration Reform and Immigrant Responsibility Act authorizes direct “review of a final order of removal” in a court of appeals and requires that all challenges arising from the removal proceeding be consolidated for review,. The Foreign Affairs Reform and Restructuring Act implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” The REAL ID Act clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. View "Nasrallah v. Barr" on Justia Law

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Sineneng-Smith operated a California immigration consulting firm, assisting clients to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline but nonetheless charged each client over $6,000, netting more than $3.3 million. Sineneng-Smith was indicted under 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), which make it a felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” An enhanced penalty applies if the crime is “for the purpose of commercial advantage or private financial gain,” Appealing her convictions to the Ninth Circuit, Sineneng-Smith asserted a First Amendment right to file administrative applications on her clients’ behalf. The court invited amici to brief issues framed by the panel, then held that section 1324(a)(1)(A)(iv) is unconstitutionally overbroad under the First Amendment.A unanimous Supreme Court vacated. “The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.” No extraordinary circumstances justified the court's takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments concerning her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that section 1324(a)(1)(A)(iv) might cover protected speech, including abstract advocacy and legal advice. A court is not "hidebound" by counsel’s precise arguments, but the Ninth Circuit’s "radical transformation of this case" went too far. View "United States v. Sineneng-Smith" on Justia Law

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Over 12 years, Barton a lawful permanent resident, was convicted of state crimes, including a firearms offense, drug offenses, and aggravated assault offenses. An Immigration Judge found him removable under 8 U.S.C. 1229a, based on his firearms and drug offenses. Barton applied for cancellation of removal, for which a lawful permanent resident must have “resided in the United States continuously for 7 years after having been admitted in any status.” The "stop-time rule" provides that a continuous period of residence “shall be deemed to end” when the lawful permanent resident commits “an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible." Because Barton’s aggravated assaults were committed within his first seven years of admission and were covered by section 1182(a)(2), the Immigration Judge concluded that Barton was not eligible for cancellation of removal. The BIA and the Eleventh Circuit agreed.The Supreme Court affirmed. For purposes of cancellation-of-removal eligibility, a section 1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal. The cancellation-of-removal statute functions like a traditional recidivist sentencing statute, making a noncitizen’s prior crimes relevant to eligibility for cancellation of removal. Whether the offense that precludes cancellation of removal was charged or could have been charged as one of the offenses of removal is irrelevant.Barton’s aggravated assault offenses were crimes involving moral turpitude and therefore “referred to in section 1182(a)(2).” He committed the offenses during his initial seven years of residence and was later convicted of the offenses, thereby rendering him “inadmissible.” Barton was, therefore, ineligible for cancellation of removal. View "Barton v. Barr" on Justia Law

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Aliens who lived in the U.S. committed drug crimes and were ordered removed. Neither moved to reopen his removal proceedings within 90 days, 8 U.S.C. 1229a(c)(7)(C)(i). Each later unsuccessfully asked the Board of Immigration Appeals to reopen their removal proceedings, arguing equitable tolling. Both had become eligible for discretionary relief based on judicial and Board decisions years after their removal. The Fifth Circuit denied their requests for review, holding that under the Limited Review Provision, 8 U.S.C. 1252(a)(2)(D), it could consider only only “constitutional claims or questions of law.”The Supreme Court vacated. The Provision’s phrase “questions of law” includes the application of a legal standard to undisputed or established facts. The Fifth Circuit had jurisdiction to consider claims of due diligence for equitable tolling purposes. A strong presumption favors judicial review of administrative action and a contrary interpretation of “questions of law” would result in a barrier to meaningful judicial review. The Provision’s statutory context, history, and precedent contradict the government’s claim that “questions of law” excludes the application of the law to settled facts. Congress has consolidated virtually all review of removal orders in one proceeding in the courts of appeals; the statutory history suggests it sought an “adequate substitute” for habeas review. If “questions of law” in the Provision does not include the misapplication of a legal standard to undisputed facts, then review would not include an element that was traditionally reviewable in habeas proceedings. View "Guerrero-Lasprilla v. Barr" on Justia Law

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The Immigration Reform and Control Act (IRCA) makes it unlawful to hire an alien knowing that he is unauthorized to work in the U.S., 8 U.S.C. 1324a(a)(1), (h)(3). Employers must use an I-9 form to “attest” that they have “verified” that any new employee “is not an unauthorized alien” by examining approved documents. IRCA requires all employees to complete an I–9, attest that they are authorized to work, and provide specific personal information. It is a federal crime for an employee to provide false information on an I–9 or to use fraudulent documents to show work authorization, 18 U.S.C. 1028, 1546; it is not a federal crime for an alien to work without authorization. State laws criminalizing such conduct are preempted. The I–9 forms and appended documentation and the employment verification system may only be used for enforcement of specified federal laws.Kansas makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. Unauthorized aliens were convicted for fraudulently using another person’s Social Security number on tax withholding forms that they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. The Kansas Supreme Court reversed, concluding that IRCA prohibits a state from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9.The U.S. Supreme Court reversed, rejecting the theory that no information placed on an I–9 could ever be used by any entity or person for any reason, other than the listed federal statutes. The sole function of the federal employment verification system is to establish that an employee is not barred from working in this country. The tax-withholding documents play no part in that process. Submitting withholding documents helped the defendants get jobs, but did not assist them in showing that they were authorized to work. The Kansas laws do not fall into a field that is implicitly reserved exclusively for federal regulation. Federal law does not create a unified, comprehensive system regarding the information that a state may require employees to provide. It is possible to comply with both IRCA and the Kansas statutes; the Kansas prosecutions did not frustrate any federal interests. View "Kansas v. Garcia" on Justia Law