Justia Immigration Law Opinion Summaries

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

Dimaya, a lawful U.S. permanent resident has two convictions for first-degree burglary under California law. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under 18 U.S.C. 16(b), so that Dimaya was deportable under 8 U.S.C. 1229b. While Dimaya’s appeal was pending the Supreme Court held that a similar clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally “void for vagueness” (Johnson decision). Relying on Johnson, the Ninth Circuit held that section 16(b), as incorporated into the Immigration and Nationality Act, was also unconstitutionally vague. The Supreme Court affirmed. Section 16(b) has the same two features as ACCA’s residual clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” result in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” Three textual discrepancies between ACCA’s residual clause and section 16(b) do not relate to those features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate. View "Sessions v. Dimaya" on Justia Law

After a 2004 conviction, Rodriguez, a Mexican citizen and a lawful U.S. permanent resident, was detained under 8 U.S.C. 1226 while the government sought his removal. In 2007, Rodriguez sought habeas relief, claiming that he was entitled to a bond hearing to determine whether his continued detention was justified, alleging that 8 U.S.C. 1225(b), 1226(a), and 1226(c) do not authorize “prolonged” detention without an individualized bond hearing at which the government proves by clear and convincing evidence that detention remains justified. The Ninth Circuit affirmed the entry of an injunction. The Supreme Court reversed; the sections do not give detained aliens the right to periodic bond hearings. “Read most naturally,” sections 1225(b)(1) and (b)(2) mandate detention of applicants for admission until immigration officers have finished considering the asylum application or until removal proceedings have concluded, without imposing a time limit or reference to bond hearings. There is a specific provision authorizing temporary parole “for urgent humanitarian reasons or significant public benefit,” implying that there are no other circumstances under which section 1225(b) detainees may be released. Section 1226(c)’s language allows aliens to be released “only if ” the Attorney General decides that certain conditions are met. Nothing in the section supports the imposition of periodic bond hearings nor does it hint that the length of detention before the bond hearing must be considered in determining whether an alien should be released. On remand, the Ninth Circuit should consider the merits of Rodriguez’s constitutional arguments in the first instance. View "Jennings v. Rodriguez" on Justia Law

The Acting Secretary of the Department of Homeland Security (DHS) announced steps to rescind the Deferred Action for Childhood Arrivals (DACA) program by March 2018, concluding that DACA violates the Administrative Procedure Act and the Due Process Clause. The Ninth Circuit ruled in favor of challengers. The government then moved to stay the district court order requiring completion of the administrative record until after resolution of motions to dismiss and for a preliminary injunction. The court stayed its order for one month. The government petitioned the Supreme Court, which vacated. The district court’s order required the government to turn over all “emails, letters, memoranda, notes, media items, opinions and other materials ... actually seen or considered, however briefly, by Acting Secretary ... in connection with the ... decision … all DACA-related materials considered by persons (anywhere in the government) who thereafter provided … written advice or input … all DACA-related materials considered by persons (anywhere in the government) who thereafter provided … verbal input … all comments and questions propounded ... to advisors or subordinates … and their responses, and … all materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA. The court should have first resolved the government’s threshold arguments that the decision was unreviewable as “committed to agency discretion,” 5 U.S.C. 701(a)(2), and that the Immigration and Nationality Act deprives the court of jurisdiction. The court may not compel the government to disclose any document that the government believes is privileged without first providing an opportunity to argue the issue. The Court did not consider the merits of the claims or defenses. View "In Re United States" on Justia Law