immigration

Nielsen v. Preap

Issues 

Does 8 U.S.C. 1226(c) require that the Government immediately transfer a criminal alien from criminal custody to immigration custody in order for the Government to subject the criminal alien to mandatory detention without a bond hearing?

This case asks the Supreme Court to interpret the statutory construction of 8 U.S.C. § 1226(c) and ultimately decide how easy it will be for the Government to begin deportation proceedings against criminal aliens. Section 1226(c)(1) provides for the mandatory detention of criminal aliens who commit certain offenses. Mony Preap, an alien with two drug convictions that triggered mandatory detention under § 1226(c), and two other similarly situated aliens contend that, under this statute, the Department of Homeland Security must immediately arrest criminal aliens upon their release from criminal custody in order for mandatory detention to apply. The Government counters that narrowly construing the statute, as Preap proposes, would contradict Congress’s intent to reduce the growing threat to public safety posed by dangerous criminal aliens and their high risk of flight. The outcome of this case has implications for the Government’s ability to detain aliens without a bond hearing under § 1226(c) following their release from criminal custody and affects the ease with which the Government can initiate deportation proceedings against aliens.

Questions as Framed for the Court by the Parties 

Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take the alien into immigration custody immediately.

This case involves three respondents, all who immigrated to the United States as children. Preap v. Johnson (9th Cir.) at 7–8. Respondent Mony Preap was born in a refugee camp after his family escaped the Khmer Rouge in Cambodia and has been living in the United States as a lawful permanent resident since 1981. Id. at 7.

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Vartelas v. Holder

Issues 

Whether 8 U.S.C. § 1101(a)(13)(c)(v), as amended in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act, applies to a lawful permanent resident whose commission of a crime prior to the amendment creates grounds for inadmissibility.

 

Petitioner Panagis Vartelas, a Greek citizen and lawful permanent resident of the United States, pleaded guilty to counterfeiting and was convicted in 1994. In 2003, following a brief trip to Greece, Vartelas received notice to appear for removal proceedings. The immigration judge ordered Vartelas’s deportation, after deeming Vartelas inadmissible under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Vartelas argues that application of this 1996 Act to his 1994 crime violates the presumption against retroactivity and the reasonable expectations he had when entering his guilty plea. Respondent Attorney General Eric Holder argues that Vartelas’s case does not have a retroactive effect because it penalizes acts conducted after the statute’s enactment: Vartelas’s decision to leave and re-enter the United States. This case affects lawful permanent residents who were convicted of crimes prior to the Act’s enactment. The Supreme Court’s decision could restrict their ability to travel internationally, which in turn could damage their ability to maintain family ties or fulfill religious obligations.

Questions as Framed for the Court by the Parties 

Prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 110 Stat. 3009 (1996), April 1, 1997, 8 U.S.C. § 1101 (a)(13), provided: The term "entry" means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary.

In Rosenberg v. Fleuti, 374 U.S. 449 (1963), this Court held that a lawful permanent resident ("LPR") who made an "innocent, casual, and brief" trip across an international border did not "intend" a "departure" within the meaning of 8 U.S.C. § 1101(a)(13).

However, effective April 1, 1997, 8 U.S.C. § 1101(a)(13)(C)(v) repealed 8 U.S.C. § 1101(a)(13). The amended 8 U.S.C. § 1101(a)(13)(C)(v) provides: (C) An alien lawfully admitted for permanent residence in the shall not be regarded as seeking an admission into the United States for the purpose of the immigration laws unless the alien, (v) has committed an offense identified in section 212(a)(2), unless since offense the alien has been granted relief under section 212(h) or 240A(a). (Emphasis added)

Two other Circuit Courts of Appeals have held that the amended 8 U.S.C. § 1101(a)(13)(C)(v) cannot be retroactively applied to an alien who pled guilty to a crime involving moral turpitude prior to the effective date of IIRIRA.

The question presented is:

Should 8 U.S.C. § 1101(a)(13)(C)(v), which removes LPR of his right, under Rosenberg v. Fleuti, 374 U.S. 449 (1963), to make "innocent, casual, and brief" trips abroad without fear that he will be denied reentry, be applied retroactively to a guilty plea taken prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 110 Stat. 3009 (1996)?

In 1994, Petitioner Panagis Vartelas, a lawful permanent resident (“LPR”) of the United States, was convicted of conspiring to make or possess a counterfeit security, following entry of his guilty plea. See Vartelas v.

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The Huffington Post: Supreme Court Agrees to Hear Eight New Cases (Sept. 28, 2011)

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United States v. Resendiz-Ponce

Issues 

If the government fails to include an element of a crime in its indictment, can the court consider the omission harmless error or does the omission require automatic reversal on appeal.

 

In 2002, an Immigration Naturalization Service agent discovered that Juan Resendiz-Ponce was in the United States illegally and had him deported. A year later border patrol agents detained Resendiz-Ponce after he presented false documentation and falsely stated his intended destination. The United States brought suit against Resendiz-Ponce for attempting to re-enter the country after having been previously deported, and he was convicted. While the indictment alleged that Resendiz-Ponce had attempted to re-enter the United States illegally, it did not allege that he presented false documents, made false statements, or performed any other act associated with his alleged attempt. Resendiz-Ponce appealed his conviction, claiming that the indictment’s failure to allege an act introduced a fatal flaw into his trial. The United States Court of Appeals for the Ninth Circuit agreed with this argument and reversed the conviction. In reviewing the case, the Supreme Court will determine whether the omission of an element from a federal indictment requires automatic reversal on appeal.

Questions as Framed for the Court by the Parties 

Whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error.

Maricopa County Superior Court in Arizona convicted Juan Resendiz-Ponce of kidnapping his common-law wife in August, 2002, and sentenced him to 45 days in county jail. United States v. Resendiz-Ponce, 425 F.3d 729, 729 (9th Cir. 2005).

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Torres v. Lynch

Issues 

In order for a state-law criminal offense to qualify as an aggravated felony because that offense is “described in” a federal criminal statute, must the state offense contain all of the elements of the corresponding federal offense—including the federal jurisdictional requirements?

 

The Supreme Court will consider whether a state offense that is “described in” a federal criminal statute must meet all elements of the statute, including jurisdictional requirements, to constitute an aggravated felony. See Brief for Petitioner, Jorge Luna Torres at 2. Petitioner Jorge Luna Torres argues that under the plain meaning of the aggravated felony definition, the New York offense of arson is not described in the federal arson offense because it does not satisfy the federal statute’s interstate commerce requirement. See id. But U.S. Attorney General Loretta Lynch contends that it is reasonable to interpret that a state offense may constitute an aggravated felony under the relevant federal offense, even if the conduct does not meet a jurisdictional element. See Brief for Respondent, Loretta E. Lynch at 17. The Court’s ruling will clarify the definition of “aggravated felony,” and impact the relationship between immigration law and criminal law, particularly with respect to immigrants facing deportation. See Brief of Amici Curiae National Association of Criminal Defense Lawyers et al. (“NACDL”), in Support of the Petitioner at 1.

Questions as Framed for the Court by the Parties 

Does a state offense constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks?

Jorge Luna Torres, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States, plead guilty to and was convicted of attempted third-degree arson in violation of New York State Penal Law §§ 110.00 and 150.10 in 1999. Torres v. Holder, 764 F.3d 152, 153 (2d Cir.

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Trump v. Hawaii

Issues 

Can the president lawfully prevent foreign nationals from certain Muslim-majority countries from entering the United States?

On January 27, 2017, President Donald Trump signed Executive Order 13769, which temporarily banned citizens of seven Muslim-majority nations from immigrating to the United States. Various states challenged the executive order on grounds of religious discrimination. In March of 2017, the president signed Executive Order 13780, and in September 2017 he issued a third iteration of the order via presidential proclamation. The proclamation affects the immigration and visa rights of nationals of eight different Muslim-majority countries. President Trump argues that the proclamation is a proper application of his executive authority, and that it accords with the Establishment Clause of the Constitution. Hawaii contends that the proclamation is motivated in part by religious discrimination and is therefore unconstitutional. The outcome of the case could significantly impact existing immigration policy, as well as determine the scope of the Executive’s power to implement and enforce such policy.

Questions as Framed for the Court by the Parties 

(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

On January 27, 2017, President Donald Trump issued Executive Order 13769 (“EO-1”), which placed significant immigration restrictions on foreign nationals from seven Muslim-majority countries. Hawaii v. Trump, 878 F.3d 662 (9th Cir.

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Pereira v. Sessions

Issues 

Whether a notice to appear in immigration removal proceedings must include all information listed in the statutory definition of a notice to appear, including the date and time of the proceedings, in order for the stop-time rule to be invoked.

 

The “stop-time rule” states that an alien’s period of continuous physical presence is interrupted after the government serves the alien with a notice to appear.  The Court will determine in this case whether a notice to appear must include the time and location of the immigration removal proceedings in order to invoke the stop-time rule. Pereira argues that the statutory text, structure, and legislative history indicate that a notice to appear must contain all of the information listed in its statutory definition and contends that the Court should not defer to the interpretation of the Board of Immigration Appeals (“BIA”) because the BIA’s interpretation is unreasonable. Sessions counters that the statutory text, legislative history, and purpose demonstrate that a valid notice to appear does not need to contain such information and asserts that the Court should defer to the BIA’s reasonable interpretation of the statute. From a policy perspective, this case is significant because it will impact the ability of certain immigrants to cancel their removal and may affect the practices of immigration courts nationwide.

Questions as Framed for the Court by the Parties 

Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

Wescley Fonseca Pereira (“Pereira”) came to the United States from Brazil in June 2000 on a non-immigrant visitor visa that allowed him to stay in the country until December 21, 2000. Pereira v. Sessions, 866 F.3d 1, 2 (1st Cir. 2017). Pereira overstayed his visa and received a notice to appear from the Department of Homeland Security (“DHS”) in May 2006, less than six years after he entered the United States.

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Nken v. Mukasey

Issues 

When a court reviews a petition for a stay of an alien's removal, should it use the standard found in 8 U.S.C. § 1252(f)(2), or the traditional four-factor test courts use for general preliminary injunctive relief?

 

When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996, it did so partly with the intention of making it more difficult for aliens to remain in United States when an agency had deemed they must be removed; the IIRIRA thus contained stricter standards for judicial courts to follow when overruling an agency and allowing such aliens to remain in the country. At issue is how far Congress went in creating stricter standards, and which traditional standards it maintained. Petitioner Jean Marc Nken, an alien who applied for asylum in the U.S., was ordered to leave the country, and filed a motion for a stay of removal pending appeal of his case. The Fourth Circuit, instead of applying a traditional, four-factored test to determine whether to grant the stay, applied Section 1252(f)(2) of IIRIRA, which bars judges from enjoining the removal of aliens unless the alien can clearly show that the removal is prohibited by law. Petitioner appealed, contending that Section 1252(f)(2) was not intended to apply to motions for stays, and instead was only meant to apply to motions for injunctions. How the Supreme Court rules will determine the proper way to interpret IIRIRA, determine how much power judicial courts have over federal agencies once they have made decisions in aliens' cases, and impact both national security concerns  and petitioners fighting the decision to deport them.

Questions as Framed for the Court by the Parties 

In addition, the application for stay is treated as a petition for a writ of certiorari, and the petition for a writ of certiorari is granted limited to the following question: "Whether the decision of a court of appeals to stay an alien's removal pending consideration of the alien's petition for review is governed by the standard set forth in section 242(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(f)(2), or instead by the traditional test for stays and preliminary injunctive relief."

In April 2001, Jean Marc Nken, a citizen of Cameroon, entered the United States on a transient visa, and remained in the U.S.

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Maslenjak v. United States

Issues 

Can a naturalized American citizen have her citizenship revoked for making an immaterial false statement in her naturalization application?

Divna Maslenjak and her family immigrated to the United States as refugees in the aftermath of the Bosnian War, claiming they feared persecution because Maslenjak’s husband had avoided military conscription during the war. Maslenjak became a United States citizen in 2009, indicating on her application that she had never lied to immigration officials. United States officials, however, discovered that Maslenjak’s husband served as an officer in the Serbian Bratunac Brigade at the time the unit committed war crimes in the Bosnian War. Maslenjak was convicted under 18 U.S.C. § 1425(a) with “knowingly procuring” her citizenship “contrary to law” due to her misrepresentations of her husband’s military service on her family’s refugee application. Maslenjak argues that materiality is a required element of § 1425(a), and therefore the government must prove that the false statement influenced the decision to approve the citizenship application. The United States argues that § 1425(a) only requires knowledge of the underlying offense, here making a false statement to a government official, and does not require proof of materiality. The Supreme Court’s decision will determine the circumstances under which naturalized citizens can be denaturalized and the government’s burden of proof in denaturalization proceedings.

Questions as Framed for the Court by the Parties 

Whether the Sixth Circuit erred by holding that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

In the 1990s Divna Maslenjak and her family lived in the former Yugoslavia, in what is today Bosnia and Herzegovina. See United States v. Maslenjak, 821 F.3d 675, 680 (6th Cir. 2016). Maslenjak and her family, who are ethnic Serbs, were displaced from their home during the Bosnian War.

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Kucana v. Holder

Issues 

Whether the decision by the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding is a decision that is “specified”  within  the Attorney General’s discretionary authority under 8 U.S.C. § 1252(a)(2)(B)(ii).

 

Agron Kucana, an Albanian immigrant, missed his immigration hearing and, in absentia, was ordered to be removedThe Board of Immigration Appeals (the “Board”) denied Kucana's motion to reopen his case. Kucana appealed the decision to the Seventh Circuit Court of Appeals, which ruled that the Board’s decision was not subject to judicial review. In relevant part, 8 U.S.C. § 1252(a)(2)(B)(ii) specifies that certain matters subject to the Attorney General’s discretion are not subject to judicial review. The dispute in this case centers on the scope and proper interpretation of the statute — in particular, on whether it allows judicial review of decisions not to reopen cases, or whether these decisions are outside the realm of judicial review, because they are the subject to the Attorney General’s discretion. The outcome of this case will determine the ability of immigrants to challenge denials of their motions to reopen through the regular judicial process.

Questions as Framed for the Court by the Parties 

Judicial review of immigrants’ legal claims is addressed 8 U.S.C. § 1252(a)(2)(B)(ii), which provides that no court shall have jurisdiction to review discretionary decisions of the Attorney General or the Secretary of Homeland Security. The question presented is whether the court of appeals has the jurisdiction to review an immigrant’s petition to reopen an immigration proceeding.

In this case, the Supreme Court will address the statutory interpretation of 8 U.S.C. § 1252(a)(2)(D), which determines the scope of judicial review on certain discretionary decisions.

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·  Wex: Law about Immigration

·  ImmigrationProf Blog: Supremes Grant Cert in Motion to Reopen Case

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Judulang v. Holder

Issues 

Whether a lawful permanent resident who pled guilty to deportable offenses, but did not leave the country and return before the government started deportation proceedings, is barred from applying for discretionary relief  where  similarly situated permanent residents in exclusion proceedings could seek such relief.

 

After Petitioner Joel Judulang, a lawful permanent resident of the United States, was convicted of a deportable offense, the Board of Immigration Appeals determined that he was not eligible for a discretionary waiver of deportability under Section 212(c) of the Immigration and Nationality Act. On its face, Section 212(c) applies only to lawful permanent residents who are excludable when they attempt to enter the country, rather than to residents convicted of deportable offenses while already in the country. However, the Board of Immigration Appeals has previously allowed some permanent residents convicted of deportable offenses to apply for the Section 212(c) discretionary waiver. Petitioner Judulang asserts that he should be allowed to take advantage of the waiver, since his deportable offenses would render him excludable if he tried to re-enter the country. Judulang further argues that the Board of Immigration Appeals' change in Section 212(c) policy regarding deportable and excludable offenses is impermissibly retroactive and facially unconstitutional. The Department of Justice argues that the Board of Immigration Appeals has good reason to require a close textual similarity between a charged ground of deportability and a waivable ground of excludability, and that its policy is not impermissibly retroactive because it does not reflect a change in previous law. The Supreme Court’s decision in this case will mean the difference between amnesty and deportation for many lawful permanent residents convicted of deportable offenses.

Questions as Framed for the Court by the Parties 

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under  form  Section 212(c) of the Immigration and Nationality Act.

Petitioner Joel Judulang, born in the Philippines in 1966, became a lawful permanent resident (“LPR”) of the United States at eight years of age. See Judulang v. Chertoff, 535 F. Supp. 2d 1129, 1130 (S.D. Cal.

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