Immigration and Nationality Act

United States v. Texas

Issues 

Do states have standing to challenge federal programs that grant temporary deportation protection to some undocumented immigrants, if the programs increase the states’ cost of providing voluntarily subsidized benefits? And is the deferred deportation program in this case lawful under the Administrative Procedure Act and Article II of the U.S. Constitution? 

 

In 2014, the Department of Homeland Security (“DHS”) issued a guidance policy granting temporary deportation protection to 4.3 million undocumented immigrants, called the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. In the same year, twenty-six states (the “states”) challenged the DAPA guidance. In this case, the Supreme Court will decide: (1) whether states have standing to challenge DAPA if it will increase the costs of state-subsidized benefits, such as driver’s licenses; and (2) whether DAPA is lawful under the Administrative Procedure Act and the Take Care Clause of the Constitution. The United States argues that the states do not have standing because the increased costs of state subsidized benefits are merely incidental effects of the guidance policy and are self-inflicted. Additionally, the United States argues that the Immigration and Nationality Act (“INA”) gives the executive branch power to choose which immigrants to deport—a power exercised through the DAPA guidance policy. But the states assert that the United States cannot defeat standing by claiming that the costs are self-inflicting. Moreover, the states claim that the INA does not explicitly give the executive power to provide temporary protection from deportation. The Court’s decision could affect the status of and benefits available to undocumented immigrants and the scope of the president’s discretion when executing immigration law. 

Questions as Framed for the Court by the Parties 

1. Does a State that voluntarily provides a subsidy to all aliens with deferred action have Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action?

2. Is the Guidance arbitrary and capricious or otherwise not in accordance with law?

3. Is the Guidance invalid because it did not go through the APA’s notice-and-comment rule-making procedures?

4. Does the Guidance violate the Take Care Clause of the Constitution, Art. II, § 3?

In 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals (“DACA”) program, which provides temporary protection from deportation (“deferred action”) for primarily young undocumented immigrantsTexas v.

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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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Negusie v. Mukasey

Issues 

Whether the bar against granting asylum in the United States to refugees who have participated in acts of persecution should automatically apply to those who have been forced into participation under threat of torture or death.

 

Daniel Negusie was forcibly conscripted into the Eritrean military but refused to fight. After two years’ imprisonment at an Eritrean military camp, he spent four years serving as a guard at the camp, without freedom to leave. His duties included keeping prisoners in the sun and denying them showers and fresh air, but he was verbally reprimanded for sometimes refusing to do so. Eventually, Negusie escaped to the U.S., where an immigration judge denied his application for protection from deportation.The judge held that, under the “persecutor bar” of the Immigration and Nationality Act (“INA”), Negusie’s role in the persecution of others made him ineligible for refugee status, notwithstanding his service as a guard and his probable torture if returned to Eritrea. The Board of Immigration Appeals (“BIA”) and the Fifth Circuit affirmed. On certiorari, Negusie argues that the INA’s persecutor bar is not meant to apply to individuals who involuntarily took part in the persecution of others. Attorney General Mukasey responds that the bar contains no voluntariness requirement, and that the Court should defer to the BIA’s interpretation of the INA. The Court’s decision could affect the international community’s approach to human rights; it will clarify whether the U.S. Attorney General has discretion to consider an individual’s degree of moral culpability before granting or denying him refuge, or deciding to deport him to a country where he faces danger, which is considered a violation of core human rights principles.

Questions as Framed for the Court by the Parties 

The Immigration and Nationality Act (“INA”) prohibits the Secretary of Homeland Security and the Attorney General from granting asylum to, or withholding removal of, a refugee who has “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 208(b)(2)(A), 8 U.S.C. § 1158(b)(2)(A). The question presented is:

Whether this “persecutor exception” prohibits granting asylum to, and withholding of removal of, a refugee who is compelled against his will by credible threats of death or torture to assist or participate in acts of persecution.

Eritrea, which lies between Ethiopia  and the Red Sea in northeastern Africa, gained independence from Ethiopia in 1993 after thirty years of war. See History of Eritrea and Ethiopia. Five years

Acknowledgments 

The authors would like to thank Professor Jens Ohlin from Cornell Law School for his insights into this case.

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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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Lopez v. Gonzales; Toledo-Flores v. United States

Issues 

If a permanent resident of the United States is convicted in state court of a drug offense that state law classifies as a felony but that federal law classifies as a misdemeanor, should the offense qualify as an “aggravated felony” for the purposes of federal immigration and sentencing law, resulting in deportation and harsher sentencing under federal law?

 

Both Jose Antonio Lopez and Reymundo Toledo-Flores are permanent residents of the United States who were convicted of drug crimes that are felonies at the state level but misdemeanors under federal law. The government argues that both Lopez’s and Toledo-Flores’s crimes qualify as “aggravated felonies.” If that is the case, Lopez will be barred from seeking a waiver of the deportation order issued against him while Toledo-Flores will be subject to a stricter sentence under the mandatory Federal Sentencing Guidelines. Lopez and Toledo-Flores argue that their drug crimes do not meet the definition of an aggravated felony because they are not felonies under federal law. Thus, the Court must decide whether drug offenses that are state felonies but federal misdemeanors satisfy the federal statutory definition of aggravated felony.

Questions as Framed for the Court by the Parties 

Lopez v. Gonzales

Whether an immigrant who is convicted in state court of a drug crime that is a felony under the state’s law but would only be a misdemeanor under federal law has committed an “aggravated felony” for purposes of the immigration laws.

Toledo-Flores v. United States

Has the Fifth Circuit erred in holding – in opposition to the Second, Third, Sixth, and Ninth Circuits – that a state felony conviction for simple possession of a controlled substance is a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) and hence an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), even though the same crime is a misdemeanor under federal law?

Lopez v. Gonzales, 417 F.3d 934 (8th Cir. 2005)

Jose Antonio Lopez is a permanent resident of the United States. A South Dakota state court convicted Lopez of aiding and abetting the possession of a controlled substance, a felony crime in South Dakota. Lopez v. Gonzales, 417 F.3d 934, 935 (8th Cir. 2005).

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Gonzales v. Duenas-Alvarez

Issues 

Does a conviction as an accomplice to a theft, rather than as the principal, constitute a “theft offense” that satisfies the “aggravated felony” standard of the Immigration and Nationality Act?

 

In 2002, Duenas-Alvarez, a Peruvian national, was found guilty of a violation of California Vehicle Code § 10851(a), which makes it illegal to take a vehicle without the owner’s consent or to aid or abet in such a taking. The Department of Homeland Security (DHS) sought Duenas-Alvarez’s deportation based on the Immigration and Nationality Act (INA), which allows the government to deport aliens convicted of an “aggravated felony.” “Theft offenses” are one type of crime included in the category of aggravated felonies. The Ninth Circuit Court of Appeals overturned the deportation order, reasoning that because the California statute allows for convictions based solely on aiding and abetting, conviction under the statute did not necessarily mean that Duenas-Alvarez had committed a “theft offense.” The DHS contends that simply because accomplice liability involves a lower level of involvement in an offense, that does not remove it from the category of “theft offenses.” The Supreme Court’s decision in this case will affect the immigration status of over 8,000 resident aliens who currently face deportation.

 

    Questions as Framed for the Court by the Parties 

    Whether a “theft offense,” which is an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)((G), includes aiding and abetting.

    In 2002, Luis Alexander Duenas-Alvarez, a Peruvian citizen and lawful permanent resident in the United States since 1998, pled guilty in the Superior Court of California to unlawfully driving or taking a vehicle. Petition for a Writ of Certiorari, at 5.

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    United States v. Texas (15-674)

    Issues 

    Do states have standing to challenge federal programs that grant temporary deportation protection to some undocumented immigrants, if the programs increase the states’ cost of providing voluntarily subsidized benefits? And is the deferred deportation program in this case lawful under the Administrative Procedure Act and Article II of the U.S. Constitution? 

    In 2014, the Department of Homeland Security (“DHS”) issued a guidance policy granting temporary deportation protection to 4.3 million undocumented immigrants, called the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. In the same year, twenty-six states (the “states”) challenged the DAPA guidance. In this case, the Supreme Court will decide: (1) whether states have standing to challenge DAPA if it will increase the costs of state-subsidized benefits, such as driver’s licenses; and (2) whether DAPA is lawful under the Administrative Procedure Act and the Take Care Clause of the Constitution. The United States argues that the states do not have standing because the increased costs of state subsidized benefits are merely incidental effects of the guidance policy and are self-inflicted. Additionally, the United States argues that the Immigration and Nationality Act (“INA”) gives the executive branch power to choose which immigrants to deport—a power exercised through the DAPA guidance policy. But the states assert that the United States cannot defeat standing by claiming that the costs are self-inflicting. Moreover, the states claim that the INA does not explicitly give the executive power to provide temporary protection from deportation. The Court’s decision could affect the status of and benefits available to undocumented immigrants and the scope of the president’s discretion when executing immigration law.  

    Questions as Framed for the Court by the Parties 

    1. Does a State that voluntarily provides a subsidy to all aliens with deferred action have Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action?

    2. Is the Guidance arbitrary and capricious or otherwise not in accordance with law?

    3. Is the Guidance invalid because it did not go through the APA’s notice-and-comment rule-making procedures?

    4. Does the Guidance violate the Take Care Clause of the Constitution, Art. II, § 3?

    In 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals (“DACA”) program, which provides temporary protection from deportation (“deferred action”) for primarily young undocumented immigrants. Texas v. United States, 809 F.3d 134, 147 (5th Cir.

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    Mata v. Holder

    Issues 

    Does a circuit court have jurisdiction to review a  Board of Immigration Appeals’ rejection of a petitioner’s request to equitably toll the 90-day deadline on his motion to reopen removal proceedings on the basis of ineffective assistance of counsel?

    The Supreme Court will determine whether the courts of appeals have jurisdiction to review a non-citizen’s request that the Board of Immigration Appeals (“BIA”) equitably toll the 90-day filing deadline on the non-citizen’s motion to reopen the non-citizen’s removal proceeding due to ineffective assistance of counsel. Peterson, arguing by Court appointment in support of the lower court’s judgment, argues that the Fifth Circuit properly characterized Mata’s request to reopen his removal proceeding as an invitation for the BIA to reopen the proceeding sua sponte, and that the Fifth Circuit lacks jurisdiction to review the BIA’s discretionary decision. However, Mata contends that the Fifth Circuit erred in construing his request for equitable tolling as a request for the BIA to reopen the proceeding sua sponte, and that Congress specifically grants courts of appeals the jurisdiction to review final orders of removal and BIA decisions on motions to reopen via statute. Holder agrees with Mata that the Fifth Circuit mischaracterized Mata’s request to reopen and that Congress provided courts of appeals a statutory basis upon which to review final orders of removal and BIA decisions on motions to reopen. Holder further contends that courts should apply a deferential abuse-of-discretion standard in reviewing agency determinations. The Supreme Court’s ruling implicates the due process rights of non-citizens and the fairness and substantive legality of the immigration system.

    Questions as Framed for the Court by the Parties 

    Whether the court of appeals has jurisdiction to review the Board of Immigration Appeals’ decision denying a request for equitable tolling of the ninety-day statutory period for filing a motion to reopen removal proceedings as a result of ineffective assistance of counsel.

    The United States ordered removal of Noel Reyes Mata, a native and citizen of Mexico, from the county in 2010. See Mata v. Holder, 558 F. App'x 366, 367 (5th Cir. 2014). Mata filed a timely petition for appeal of his order of removal with the Board of Immigration Appeals (“BIA”).

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    Kerry v. Din

    Issues 

    Does the refusal of a U.S. citizen’s alien spouse’s visa application bestow upon the citizen an enforceable constitutionally protected interest?

    The Supreme Court will decide whether refusing the visa application of a U.S. citizen’s alien-spouse triggers the citizen’s constitutionally protected interests, and whether the citizen may challenge this refusal. Secretary of State Kerry argues that a citizen’s liberty interests are not implicated because neither the Immigration and Nationality Act (“INA”) nor the Due Process Clause confer upon the citizen a legally cognizable interest in the consular officer’s determination, and consular officers’ determinations should not be challenged in court because judicial review would conflict with the consular nonreviewability doctrine and congressional intent in establishing the INA. In opposition, Din, a U.S. citizen, argues that the consular officer’s determination conflicts with the Court’s jurisprudence, which establishes a fundamental right to marry and to benefit from the associational interests in marriage, and that the consular officer’s determination should be subjected to judicial review in order to protect citizens’ liberty interests from arbitrary restrictions. The Court’s ruling in this case implicates the ability of the government to prevent disclosure of confidential information related to national security concerns and the ability of citizens to live with their alien spouse in the United States.

    Questions as Framed for the Court by the Parties 

    1. Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and
    2. Whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

    Fauzia Din, a U.S. citizen, married Kanishka Berashk, an Afghani national, in September 2006. See Din v. Kerry, 718 F.3d 856, 858 (9th Cir. 2013). Din shortly thereafter filed a visa petition in order for Berashk to be admitted into the United States.

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    • Lawrence Hurley: Supreme Court to Weigh Spouse Rights Over Denied Visa, Reuters (Oct. 2, 2014).
    • Ian R. Macdonald: SCOTUS Grants Certiorari to Two Immigration-Based Cases for 2015 Term: Will the Government Have to Explain its Exercise of “Discretion”?, The National Law Review (Oct. 15, 2014).

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    Scialabba v. Cuellar de Osorio

    Issues 

    Does the Child Status Protection Act grant relief to an alien who qualifies as a child derivative beneficiary at the time a visa petition is initially filed, but who reaches age 21 (“ages out”) when the visa becomes available to the principal beneficiary? 

    The Immigration and Nationality Act (INA) allows aliens to immigrate to the United States through a family-sponsored process. This process allows a U.S. citizen or lawful permanent resident to petition for certain family members, known as primary beneficiaries, to obtain visas to immigrate. If a qualifying relationship exists between the family members, then the primary beneficiary can legally immigrate once the priority date becomes current. Furthermore, the primary beneficiary’s “child”—an unmarried person under the age of twenty-one—receives the same priority date as the parent. However, if, while waiting for a visa, the child reaches the age of twenty-one, that child does not get the same priority date as the parent, and the child “ages out.” Petitioner Mayorkas argues that the Child Status Protection Act does not give aged-out children the same priority date as their parents.  Respondent Cuellar de Osorio counters that the Act seeks to keep families together, and therefore a child should retain the parent’s priority date.  The Supreme Court will decide whether the CSPA grants an original visa priority date to an alien who formerly qualified as a child beneficiary but now has aged out of this benefit. This case will have a significant impact on families and individuals seeking to immigrate to the U.S. through the INA’s family-sponsored immigration framework.The Immigration and Nationality Act (INA) permits United States citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the United States or to adjust their status in the United States to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary's "spouse or child" may be a derivative beneficiary of the petition, "entitled to the same status[] and the same order of consideration" as the primary beneficiary. 8 U.S.C. 1153(d). Section 203(h)(3) of the INA, 8 U.S.C. 1153(h)(3), grants relief to certain persons who reach age 21 ("age out"), and therefore lose "child" status, after the filing of visa petitions as to which they are beneficiaries.

    The questions presented are: 

    1. Whether Section 1153(h)(3) unambiguously grants relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary. 
    2. Whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).

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    Questions as Framed for the Court by the Parties 

    The Immigration and Nationality Act (INA) permits United States citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the United States or to adjust their status in the United States to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary's "spouse or child" may be a derivative beneficiary of the petition, "entitled to the same status[] and the same order of consideration" as the primary beneficiary. 8 U.S.C. 1153(d). Section 203(h)(3) of the INA, 8 U.S.C. 1153(h)(3), grants relief to certain persons who reach age 21 ("age out"), and therefore lose "child" status, after the filing of visa petitions as to which they are beneficiaries.

    The questions presented are: 

    1. Whether Section 1153(h)(3) unambiguously grants relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary. 
    2. Whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).

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    Facts

    The family-sponsored immigration process is one path a foreign national can take to obtain lawful residence in the United States.  See Cuellar de Osorio v. Mayorkas, 656 F.3d 954, 956 (9th Cir. 2011), rev’d en banc, 695 F.3d 1003 (9th Cir. 2012).

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