Justia Immigration Law Opinion Summaries

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 In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA.Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious.As a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

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

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

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

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

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

Rehaif entered the United States on a nonimmigrant student visa to attend university but was dismissed for poor grades. He subsequently shot firearms at a firing range and was prosecuted under 18 U.S.C. 922(g), which makes it unlawful for certain persons, including aliens illegally in the country, to possess firearms, and section 924(a)(2), which provides that anyone who “knowingly violates” the first provision can be imprisoned for up to 10 years. The jury was instructed that the government was not required to prove that Rehalf knew that he was unlawfully in the country. The Eleventh Circuit affirmed his conviction. The Supreme Court reversed. In a prosecution under sections 922(g) and 924(a)(2), the government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. The Court noted a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding each statutory element that criminalizes otherwise innocent conduct. The statutory text supports the application of presumption requiring "scienter." The term “knowingly” is normally read as applying to all the subsequently listed elements of the crime and clearly applies to section 922(g)’s second element, possession. There is no basis for interpreting “knowingly” as applying to the second element but not the first (status). Possessing a gun can be an innocent act; it is the defendant’s status that makes a difference. Without knowledge of that status, a defendant may lack the intent needed to make his behavior wrongful. Rehaif’s status as an alien “illegally or unlawfully in the United States” is a “collateral” question of law and a mistake regarding that status negates an element of the offense. View "Rehaif v. United States" on Justia Law

Under 8 U.S.C. 1226(a), the Secretary of Homeland Security generally has the discretion to arrest and hold a deportable alien pending a removal decision or to release the alien on bond or parole. Section 1226(c), enacted out of “concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear,” sets out four categories of aliens who are inadmissible or deportable for bearing links to terrorism or for committing specified crimes; paragraph (1) directs the Secretary to arrest any such alien “when the alien is released” from jail, and paragraph (2) forbids the Secretary to release any “alien described in paragraph (1)” pending a removal determination. Aliens detained under 1226(c)(2), alleged that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though they fall into at least one of the four categories. The Supreme Court reversed the Ninth Circuit, holding that the statute’s text does not support the argument that because the aliens were not arrested immediately after their release, they are not “described in” 1226(c)(1). Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in context,” so the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)–(D). Paragraph (c)(2) does not limit mandatory detention to those arrested “pursuant to” or “under authority created by” (c)(1), but to anyone simply “described in” (c)(1). View "Nielsen v. Preap" on Justia Law

President Trump lawfully exercised the broad discretion granted to him under section 1182(f) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f), to issue Proclamation No. 9645, suspending the entry of aliens into the United States, and the Proclamation does not violate the Establishment Clause. The Proclamation sought to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat,and placed entry restrictions on the nationals of foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.The Supreme Court held that section 1182(f) entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions; Trump fulfilled section 1182(f)'s sole prerequisite that the President find that the entry of the covered aliens would be detrimental to the interests of the United States; even assuming that some form of inquiry into the persuasiveness of the President's findings was appropriate, plaintiffs' attacks on the sufficiency of the findings could not be sustained; the Proclamation comports with the remaining textual limits in section 1182(f); plaintiffs failed to identify any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation's vetting system; and plaintiffs' argument that the President's entry suspension violates section 1152(a)(1)(A) ignored the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.Finally, the Court applied rational basis review and held that plaintiffs, although they have standing to challenge the exclusion of their relatives, have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause where the Proclamation was expressly premised on legitimate purposes and said nothing about religion. The Court drew a distinction between whether it must consider not only the statements of a particular President, but also the authority of the Presidency itself. The Court concluded that the Government has set forth a sufficient national security justification to survive rational basis review. View "Trump v. Hawaii" on Justia Law

Under the Illegal Immigration Reform and Immigrant Responsibility Act, nonpermanent residents who are subject to removal may be eligible for cancellation of removal if they have “been physically present" in the U.S. for a continuous period of not less than 10 years, 8 U.S.C. 1229(b)(1)(A). Continuous presence is deemed to end when the alien is served notice under section 1229(a), which provides for written notice to appear, specifying the “time and place" of proceedings. The Department of Homeland Security often serves notices that fail to specify the time, place, or date of initial removal hearings. Pereira, a citizen of Brazil, came to the U.S. in 2000 and remained after his visa expired. Following a 2006 DUI arrest, DHS served Pereira with a “notice to appear” that ordered him to appear at a date to be set in the future. A year later, the Immigration Court mailed Pereira notice setting the date and time for his hearing. Sent to the wrong address, the notice was returned as undeliverable. Pereira failed to appear and was ordered removed in absentia. In 2013, Pereira was detained by DHS. In reopened removal proceedings, Pereira demonstrated that he never received the 2007 notice. Pereira applied for cancellation of removal, arguing that he had been continuously present for more than 10 years. The BIA affirmed a removal order; the First Circuit denied Pereira’s petition for review. The Supreme Court reversed. A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear” under section 1229(a) and does not trigger the stop-time rule. The unambiguous statutory text clarifies that the notice must specify “time and place” of the hearing. View "Pereira v. Sessions" on Justia Law