immigration

Arizona v. City and County of San Francisco, California

Issues

May an interested state permissibly intervene to defend an immigration rule in court after the United States ceases to defend it and announces that a court ruling vacating the immigration rule will become effective nationwide?

 

This case asks the Supreme Court to consider whether states should be permitted to intervene to defend a rule when the United States ceases to defend it. Petitioner Arizona argues that the States fulfilled all the requirements for intervention of right and permissive intervention, and, therefore, should be permitted to intervene. Respondent San Francisco counters that the circumstances in this case do not justify intervention of right, and that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. The outcome of this case will impact government rulemaking as well as governmental and judicial resources.

Questions as Framed for the Court by the Parties

Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.

Under federal immigration law, 8 U.S.C.

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Barton v. Barr, Att’y Gen.

Issues

Can a lawful permanent resident seeking cancellation of removal be deemed “inadmissible” under the stop-time rule if the alien has already been admitted into the United States?

This case asks the U.S. Supreme Court to resolve the circuit split regarding the interpretation of the stop-time rule in the context of removal proceedings and to determine what it means to be considered “inadmissible” under the rule. The stop-time rule is a limitation on the Attorney General’s power to cancel the removal of an alien and applies, in part, when the alien commits an offense listed under 8 U.S.C. § 1182(a)(2) that renders the alien “inadmissible.” Andre Martello Barton (“Barton”) argues that he cannot be deemed “inadmissible” under the stop-time rule because he was not seeking admission into the United States and, as a result, was never adjudicated as inadmissible. Alternatively, Barton asserts that it is a legal impossibility for him to be rendered “inadmissible” because he is an already-admitted lawful permanent resident of the United States. U.S. Attorney General William Barr counters that, for stop-time purposes, an alien is “inadmissible” if the alien is convicted of or admits to committing an offense listed under 8 U.S.C. § 1182(a)(2), regardless of whether the alien is seeking admission or already admitted. The outcome of this case has important implications for the removability of lawful permanent residents who have prior criminal convictions.

Questions as Framed for the Court by the Parties

Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1).

On May 27, 1989, Petitioner Andre Martello Barton was admitted into the United States on a tourism visa. Barton v. U.S. Att’y Gen. at 3. Barton was born in Jamaica and has citizenship there. Id. After three years in the U.S., Barton became a lawful permanent resident. Id.

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Biden v. Texas

Issues

Is the Department of Homeland Security required by law to continue returning certain undocumented aliens to Mexico, consistent with the Migrant Protection Protocols; and, was the Fifth Circuit correct in holding DHS erred in terminating MPP?

This case asks the Supreme Court to consider whether the Department of Homeland Security (“DHS”) must continue enforcing the Migrant Protection Protocols (“MPP”). On October 29, 2021, DHS issued a decision terminating MPP, a Trump administration policy where Border Patrol returns certain undocumented aliens arriving at the southern border to Mexico during their immigration proceedings. The Biden Administration (“President Biden”) argues that DHS permissibly rescinded MPP via agency memoranda because the amended Immigration and Nationality Act (“INA”) gives DHS discretion over whether to remove, detain, or parole noncitizens. Texas and Missouri respond that DHS’s rescission of MPP has no legal effect because if DHS lacks capacity to detain undocumented aliens, the INA obligates DHS to remove such persons by continuing to enforce MPP. The outcome of this case has significant implications for undocumented aliens seeking asylum in the United States and immigrant communities within the United States, as well as the role of the executive in determining immigration policy.

Questions as Framed for the Court by the Parties

(1) Whether 8 U.S.C. § 1225 requires the Department of Homeland Security to continue implementing the Migrant Protection Protocols, a former policy under which certain noncitizens arriving at the southwest border were returned to Mexico during their immigration and proceedings; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred by concluding that the secretary of homeland security’s new decision terminating MPP had no legal effect.

In December 2018, the Department of Homeland Security (“DHS”) initiated the Migrant Protection Protocols (“MPP”). Texas v.

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Bouarfa v. Mayorkas

Issues

Can a visa petitioner challenge an immigration visa revocation decision in court if the revocation is based on the incorrect application of non-discretionary criteria?

The questions for the Supreme Court to consider are: first, whether USCIS can revoke a visa petition on discretionary grounds based on non-discretionary reasoning; second, whether courts can examine this decision to revoke a visa petition; and third, whether an applicant can order a review of a court’s petition denial. Petitioner Amina Bouarfa argues that courts should be able to review discretionary USCIS decisions where the premise for the decision is non-discretionary, and that an applicant is entitled to a court review these decisions. Respondents Alejandro Mayorkas and the Department of Homeland Security counter that the plain statutory language of immigration law prohibits Article III court review of these discretionary decisions; and, instead, USCIS has control over reviewing and reversing immigration decisions. The outcome of this case will influence the balance of power between the executive and judicial branches.

Questions as Framed for the Court by the Parties

Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of non-discretionary criteria.

In 2014, Petitioner Amina Bouarfa, a U.S. citizen, filed an I-130 immediate relative visa petition with U.S. Citizenship and Immigration Services (“USCIS”), a division of the Department of Homeland Security (“the agency”), on behalf of her husband, Ala’a Hamayel, a noncitizen from Palestine. Bouarfa v. Mayorkas at 2–3. Upon approval from USCIS, an I-130 petition allows a U.S.

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Campos-Chaves v. Garland

Issues

When providing notice to an immigrant in deportation proceedings, does the government comply with its obligations under 8 U.S.C. § 1229(a) by providing a Notice to Appear with no date and location and a subsequent, updated Notice of Hearing including that information?

This case asks the Supreme Court to determine whether the government complies with the Immigration and Nationality Act (8 U.S.C. § 1229(a)) (“INA”) when it provides notice of deportation proceedings in a separate document from their date and time. Under 8 U.S.C. § 1229(a), the government must provide “written notice” to undocumented immigrants who are subject to deportation. This “written notice” is provided in a document called a “notice to appear” (“NTA”) and must include the “time and place” of the proceedings under 8 U.S.C. § 1229(a)(1)(G)(i). However, the government routinely sends two documents: one NTA to alert the immigrant about the removal proceedings, and another Notice of Hearing (“NOH”) to communicate the time and place of the hearing. Campos-Chaves argues that this scheme violates the INA because the statute requires this information to be provided in one document. The United States argues that it complies with the INA because its disjunctive language permits dual-document notice and because a curative NOH overcomes a defective NTA. This case touches on important questions regarding fair notice to immigrants in deportation proceedings and judicial economy.

Questions as Framed for the Court by the Parties

Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen's request to rescind that order.

Moris Campos-Chaves (“Campos-Chaves”) is a citizen of El Salvador who entered the United States without authorization on January 24, 2005. Campos-Chaves v. Garland at 1-2. On February 10, 2005, the Department of Homeland Security (“DHS” or “government”) served Campos-Chaves with a Notice to Appear (“NTA”), initiating deportation proceedings against him. Id. at 2. This NTA did not contain the time and place of his deportation hearing.

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Carachuri-Rosendo v. Holder

Issues

Whether a deportable alien is ineligible to challenge his removal proceedings because he could have been prosecuted for recidivist narcotics possession, an “aggravated felony” for the purposes of federal immigration law, even though the alien was not prosecuted for recidivist possession in state court?

 

Under the Immigration and Nationality Act, a deportable lawful permanent resident is ineligible to petition the Attorney General for cancellation of removal proceedings if he has a conviction for an “aggravated felony.” Congress defines “aggravated felony” as including any felony under the Controlled Substances Act. Under that Act, simple possession of most narcotics is a misdemeanor. However, possession of a controlled substance by an individual who has a prior conviction for possession is a felony. This case will resolve a circuit split in deciding whether a deportable alien who has been twice convicted in state court for non-felony simple possession is ineligible to seek cancellation of removal proceedings on the theory that the alien has been, for the purposes of federal immigration law, convicted of an “aggravated felony” because he could have been prosecuted for felony recidivist-possession under federal law.

Questions as Framed for the Court by the Parties

Under the Immigration and Nationality Act, a lawful permanent resident who has been "convicted" of an "aggravated felony" is ineligible to seek cancellation of removal. 8 U.S.C. § 1229b(a)(3). The courts of appeals have divided 4-2 on the following question presented by this case:

Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been "convicted" of an "aggravated felony" on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

Petitioner Jose Angel Carachuri-Rosendo (“Carachuri-Rosendo”) came to the United States in 1993 and thereafter became a lawful permanent resident. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 264 (5th Cir.

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Chaidez v. United States

Issues

Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla? 

 

In 2003, Roselva Chaidez pleaded guilty to an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), but her lawyer failed to inform her that her plea made her eligible for deportation. Subsequently, the Supreme Court held in Padilla v. Kentucky that the right to effective assistance of counsel includes a duty to inform defendants of deportation consequences of a plea deal if the consequences are clear. Nevertheless, the Seventh Circuit Court of Appeals held that Padilla did not apply retroactively to Chaidez’s conviction. Chaidez argues that the Supreme Court should hold that Padilla was dictated by precedent (and therefore not a new rule) and is retroactively applicable to her case. The United States counters that Padilla was not dictated by precedent (and therefore was a new rule) and is not retroactively applicable to Chaidez’s conviction. Chaidez argues that Padilla should be retroactively applied because to hold otherwise would undermine the obligation of prosecutors to “seek justice,” which requires using their knowledge of immigration consequences when considering to alter convictions. In response, the United States counters that retroactively applying Padilla would allow defendants to avoid the consequences of their convictions based on a minor error by a lawyer. 

Questions as Framed for the Court by the Parties

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.

The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

Roselva Chaidez was born in Mexico and has been a lawful, permanent resident of the United States since 1977. See Chaidez v. United States, 655 F.3d 684, 686 (7th Cir.

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Dada v. Mukasey

Issues

Whether the time allotted for departure under a voluntary departure order is suspended when an alien files a motion to reopen removal proceedings.

 

Samson Taiwo Dada, a citizen of Nigeria, overstayed a temporary visitor's visa. After removal proceedings, Dada was granted voluntary departure. Dada failed to leave the United States within the voluntary departure period and instead moved before the Board of Immigration Appeals to reopen his removal proceedings. Dada argued that the voluntary departure period should be tolled pending the outcome of his motion. Dada contended that otherwise, he and similarly situated aliens would be forced either to abandon their motions to reopen or illegally remain in the United States beyond the voluntary departure period. The Board denied Dada's motion and the Fifth Circuit affirmed. The outcome of this case will settle a circuit split concerning the legal effect of motions to reopen and will influence aliens' decisions to seek to reopen removal proceedings.

Questions as Framed for the Court by the Parties

Whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure.

Samson Taiwo Dada, a citizen of Nigeria, was legally admitted into the United States on a nonimmigrant visa in 1998. Brief for Petitioner at 9. After Dada's visa expired, he married an American citizen who filed a Petition for Alien Relative, Form I-130, on Dada's behalf in 1999. Id. The I-130 petition was subsequently denied for failure to present documents requested by the Bureau of Citizenship and Immigration Services.

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Department of Homeland Security v. Regents of the University of California

Issues

Is the Department of Homeland Security’s (“DHS”) rescission of the Deferred Action for Childhood Arrivals policy judicially reviewable, and did DHS violate the Administrative Procedure Act’s requirements in rescinding this policy?

This case consolidates three lawsuits, together claiming that the Department of Homeland Security’s (“DHS”) decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) policy is unlawful. Before the Supreme Court, DHS argues that the DACA rescission is unreviewable agency action, that it complied with the Administrative Procedure Act’s (“APA”) requirements, and that DACA is unlawful. In response, various states, individual DACA recipients, and organizations argue that DHS did not consider all data, failed to offer a sufficient justification for its decision, and improperly relied on the conclusion that DACA was unlawful. The case’s outcome will have important implications for the hundreds of thousands of current DACA recipients and their communities, immigration enforcement policies, and the economy.

Questions as Framed for the Court by the Parties

(1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.

In 2012, the Department of Homeland Security (“DHS”) introduced the Deferred Action for Childhood Arrivals (“DACA”) program. See Regents of the Univ. of Cal. v. DHS at 21.

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Department of Homeland Security v. Thuraissigiam

Issues

Under the Suspension Clause, is 8 U.S.C. § 1252(e)(2) constitutional as applied to noncitizens who have secretly entered the United States?

This case asks the Supreme Court to decide whether, under the Suspension Clause, 8 U.S.C. § 1252(e)(2) is constitutional as applied to noncitizens who have secretly entered the United States. Petitioner Department of Homeland Security argues that noncitizens entering clandestinely, treated properly as seeking initial admission to the United States, are entitled to no due process protections; that such noncitizens are not entitled to habeas corpus under the Suspension Clause; and that even if the Suspension Clause does apply, the statute’s provision of administrative review and limited judicial review are sufficient. Respondent Thuraissigiam counters that notwithstanding the Government’s misreading of applicable law, clandestinely entering noncitizens within the United States are entitled to due process under the Fifth Amendment; that the Suspension Clause does apply to individuals in immigration proceedings; and that the statute provides an inadequate substitute for habeas corpus. This case has implications for states’ resource spending, revenue collection, and citizen welfare. Additionally, this case’s outcome could impact federal courts’ work load, depending on whether federal courts must open up to a new class of alien-petitioners.

Questions as Framed for the Court by the Parties

Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.

Vijayakumar Thuraissigiam, a Sri Lanka native, is of the Tamil ethnic minority and backed a Tamil political candidate. Thuraissigiam v. USDHS at 11–12. In June 2016, Thuraissigiam fled Sri Lanka to Mexico. Id. at 11. In February 2017, he entered the United States through the Mexico-California border and was arrested by U.S.

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