immigration law

Arizona v. United States

Issues

Can Arizona engage in cooperative enforcement of federal immigration laws and create state offenses for violations of federal immigration regulations?

 

In 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act, which creates state immigration offenses and expands local police officers’ immigration law enforcement authority. The United States sued Arizona in federal district court, arguing the state law was preempted by federal law, and sought a preliminary injunction to prevent the state law from taking effect. The district court granted a preliminary injunction with respect to four provisions of the Arizona law and the Ninth Circuit affirmed. Petitioners, the State of Arizona and the Governor of Arizona, Janice K. Brewer, argue that federal law does not preempt its statute because Arizona’s statute merely creates a formal cooperative relationship between federal and state officers to implement federal laws. Respondent, the United States, asserts that implementation of the statute would infringe upon the Executive Branch’s exclusive authority to regulate immigration, and is therefore invalid.

Questions as Framed for the Court by the Parties

Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.

The question presented is whether the federal immigration laws preclude Arizona's efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.

The state of Arizona maintains that it faced rampant illegal immigration, which increased crime and harmed Arizona’s economy. See Brief for Petitioners, State of Arizona and Janice K.

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Additional Resources

Robert Barnes, The Washington Post: Supreme Court to Hear Challenge to Arizona’s Immigration Law (Dec. 12, 2011)

Adam Liptak, N.Y. Times: Court to Weigh Arizona Statute on Immigration (Dec. 12, 2011)

Constitutional Law Prof Blog: Supreme Court to Hear Arizona S.B. 1070 on Preemption Issue (Dec. 12, 2011)

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Illegal Immigration Reform and Immigrant Responsibility Act

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) strengthened U.S. immigration laws, increasing penalties for undocumented immigrants who commit crimes while in the United States or who stay in the U.S. for statutorily defined periods of time. 

Jennings v. Rodriguez (updated)

Issues

Did the Ninth Circuit err in deciding that non-citizens who are subject to mandatory detention while seeking admission to the United States must be granted bond hearings at six month intervals throughout their detention and are entitled to release unless the government meets its burden by demonstrating that the alien is a flight risk or a danger to the community? 

[UPDATE] The Supreme Court heard oral argument for this case and requested additional briefing. The Court received the requested briefing and re-set the case for additional argument during the 2017-2018 term.

In this case, the Supreme Court will determine whether immigrants to the United States, who are being detained under civil immigration detention statutes, must be brought before an immigration judge for a bond hearing at six month intervals throughout their detention and whether the immigration judge must consider alternatives to a detained immigrant’s prolonged detention if the government fails to show through clear and convincing evidence that the immigrant is a flight risk or danger to the community. David Jennings et al. argue that statutory language and congressional intent prohibit immigration judges from releasing non-citizens detained under the civil immigration detention statutes on bond. Meanwhile, Alejandro Rodriguez et al. argue that Congress did not authorize prolonged detention through the immigration statutes and that without periodic bond hearings or the government’s justification of continued detention, individuals would be needlessly deprived of their liberty. The Supreme Court’s decision in this case will impact detained non-citizen’s constitutional rights and their ability to exercise their legal rights during removal proceedings.

Questions as Framed for the Court by the Parties

Under 8 U.S.C. 1225(b), inadmissible aliens who arrive at our Nation’s borders must be detained, without a bond hearing, during proceedings to remove them from the country. Under 8 U.S.C. 1226(c), certain criminal and terrorist aliens must be detained, without a bond hearing, during removal proceedings. Under 8 U.S.C. 1226(a), other aliens may be released on bond during their removal proceedings, if the alien demonstrates that he is not a flight risk or a danger to the community. 8 C.F.R. 236.1(c)(8). Aliens detained under Section 1226(a) may receive additional bond hearings if circumstances have changed materially. 8 C.F.R. 1003.19(e).

  1. Whether aliens seeking admission to the United States who are subject to mandatory detention under Section 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months
  2. Whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months.
  3. Whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community; whether the length of the alien’s detention must be weighed in favor of release; and whether new bond hearings must be afforded automatically every six months.

Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren Orozco are all non-citizens who sued in a class action challenging their prolonged detentions without individualized bond hearings or re-evaluations of the reasons for their continued detention under civil immigration detention statutes. See Rodriguez v. Robbins, No.

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Acknowledgments

Original Preview by Reymond Yamine and Natalie San Juan.

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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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Additional Resources

  • 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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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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Nijhawan v. Holder

Issues

Whether the petitioner's conviction for fraud where he stipulated that his fraud caused a loss of more than $100 million but where the jury did not find the amount of the loss for which the petitioner was individually responsible qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i) of the Immigration and Nationality Act.

 

Manoj Nijhawan was convicted of conspiracy to commit bank, mail, and wire fraud, and for conspiracy to commit money laundering. Upon his conviction, Immigration Court proceedings were brought against him and he was found to be subject to deportation under 8 U.S.C. § 1101(a)(43)(M)(i) ("Subsection (M)(i)"). Subsection (M)(i) provides that an "aggravated felony," for purposes of deportation, includes a conviction for "an offense that (i) involves fraud or deceit in which the loss to the victim exceeds $10,000." On appeal, the Third Circuit Court of Appeals held that the loss determination used for sentencing was sufficient to meet the loss requirement under Subsection (M)(i), even though it was not a necessary element of his conviction. Nijhawan challenges this ruling arguing that both the "fraud or deceit" and "loss" elements must be found by a jury in order for Subsection (M)(i) to apply. Accordingly, he argues that he cannot be deported because the elements of the criminal statute under which he was convicted do not match those required for deportation under Subsection (M)(i). The United States argues that the loss element follows a "qualifier" and therefore need not be an element of the conviction for Subsection (M)(i) to apply.

Questions as Framed for the Court by the Parties

Whether petitioner's conviction for conspiracy to commit bank fraud, mail fraud, and wire fraud qualifies as a conviction for conspiracy to commit an ‘offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,' 8 U.S.C. 1101(a)(43)(M)(i) and (U), where petitioner stipulated for sentencing purposes that the victim loss associated with his fraud offense exceeded $100 million, and the judgment of conviction and restitution order calculated total victim loss as more than $680 million.

Manoj Nijhawan, an Indian citizen, lawfully entered the United States in July, 1985 and became a permanent resident. See Nijhawan v. Att'y Gen. of the U.S., 523 F.3d 387 (3d Cir. 2008); On the Docket: Supreme Court News: Nijhawan v.

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Ziglar v. Abbasi

Issues

Did the Second Circuit err in deciding that non-citizens’ Fifth Amendment claims did not require Bivens “new context” analysis, that the relevant government officials were not entitled to qualified immunity, and that those non-citizens’ claims met Ashcroft v. Iqbal pleading requirements?

This case first asks the Supreme Court to determine whether non-citizens’ claims against government officials who arrested them in connection with the September 11, 2001 attacks and subjected them to harsh conditions during their detention arose in a “new context” under Bivens. Second, it asks whether the government officials were erroneously denied qualified immunity, which would preclude the government officials’ liability for their involvement in the non-citizens’ arrest and detention. Third, this case asks whether the pleading requirements of Ashcroft v. Iqbal are satisfied where the pleading relies on hypothetical scenarios and assumed discriminatory intent. James W. Ziglar, the petitioner, argues that a Bivens remedy is not applicable in this case because Bivens applies to individual government officials’ behavior, not policy concerns such as national security and immigration. Ziglar also argues that the government officials’ actions were reasonable within the context, given the national security concerns, and that the government officials should, therefore, be precluded from liability for their actions. Lastly, Ziglar argues that the respondent Ahmer Iqbal Abbasi failed to demonstrate sufficient evidence to support his claim against the government officials. Meanwhile, Abbasi argues that harsh treatment in federal detention is not a new context under Bivens, that government officials are aware that the Equal Protection Clause categorically prohibits race-based government action, and that Abbasi’s claim satisfied Iqbal’s facial plausibility standard. The Supreme Court’s decision in this case will impact the balance between government officials’ qualified immunity and detained non-citizens’ constitutional rights.

Questions as Framed for the Court by the Parties

  1. Did the United States Court of Appeals for the Second Circuit, in finding that respondents' Fifth Amendment claims did not arise in a "new context" for purposes of implying a remedy under Bivens v. Six Unknown Named Agents Of The Federal Bureau Of Narcotics, 403 U.S. 388 (1971), err by defining "context" at too high a level of generality where respondents challenge the policy decisions taken in the immediate aftermath of the attacks of September 11, 2001, by petitioner James W. Ziglar, then the Commissioner of the United States Immigration And Naturalization Service, the then-Attorney General of the United States, and the then-Director of the Federal Bureau of Investigation regarding the conditions of confinement of persons illegally in the United States whom the FBI had lawfully arrested and detained in connection with its investigation of the September 11 attacks, each of whom came from the same part of the world as, and shared ethnic and religious affiliations with, the September 11 attackers (many of whom themselves were illegally in the United States), thereby implicating concerns regarding national security, immigration, and the separation of powers that strongly counsel against judicial creation of such a remedy?
  2. Did the court of appeals, in denying qualified immunity to petitioner Ziglar for his official actions in the immediate aftermath of the attacks of September 11, 2001, err: (A) by defining "established law" at too high a level of generality, thereby failing to recognize that clearly-established law did not make it apparent to all but the plainly incompetent or those who knowingly violate the law that Mr. Ziglar's specific conduct violated the rights of those detainees in the specific context of this case; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like petitioner Ziglar was not clearly established at the time in question, respondents nevertheless could maintain a§ 1985(3) claim against Mr. Ziglar so long as his conduct violated some other clearly established law?
  3. Did the court of appeals err in finding that respondents' Fourth Amended Complaint meets the pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), because that complaint relies on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with petitioner Ziglar's liability, but which are also consistent with the conclusion that Mr. Ziglar acted with a non-punitive and nondiscriminatory intent to detain in restrictive confinement aliens who were illegally in the United States and who had potential connections to those who had committed terrorist acts, thereby rendering respondents' claims implausible under Iqbal?

This case began over thirteen years ago when eight Arab and Muslim non-citizens brought a claim against high-ranking federal officials who were involved in the government’s investigation into the events of September 11, 2001, when al Qaeda’s attack on American soil caused the death of nearly 3,000 people. See Turkmen, et al. v. Hasty, et al., 789 F.3d 216, at 3 (2nd Cir. 2015).

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