removal

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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.

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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.

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This case asks the Supreme Court to determine whether the issue of a petitioner’s request for equitable tolling in filing motions to reopen his deportation proceedings is a purely legal question or a mixed question of law and fact. Petitioners Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles contend that the term “question of law” in 8 U.S.C. § 1252(a)(D) encompasses mixed questions of law and fact, thereby permitting appellate courts to review whether immigration judges or the Board of Immigration Appeals correctly applied the law to settled historical facts. They contend that even if the Court finds that “question of law” does not encompass mixed questions of law and fact, Guerrero and Ovalles assert that the issue of equitable tolling is closer to a legal rather than factual inquiry, therefore also allowing the appellate courts to review the decision. Attorney General William P. Barr counters that “question of law” does not extend to mixed questions of law and fact, and that even if it did, equitable tolling is a primarily factual determination that cannot be subject to judicial review. This case will affect whether courts experience an increase in the amount of litigation and expended resources, and the effectiveness and meaningfulness of judicial review of immigration proceedings.

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In 2007, Juli Pollitt sued Health Care Service Corporation (“HCSC”) in state court for bad-faith insurance practices. HCSC removed the case to federal court, where it was dismissed because the court reasoned that the Federal Employees  Benefit  Act preempted the case. Pollitt appealed, and the Seventh Circuit vacated the lower court decision, holding that removal was inappropriate because the claim was not “completely preempted” by federal law. The Seventh Circuit added that whether the federal officer removal statute applied here was a question of fact and remanded the case for further proceedings. The Supreme Court decision will decide whether a government contractor who provides insurance coverage to federal employees is entitled to remove a suit under either the “complete preemption” doctrine or the federal officer removal statute. This decision is of great importance to all businesses that contract with the federal government.

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This case asks the Supreme Court whether a third-party defendant in a state court class action may remove a counterclaim from state court to federal court. Petitioner Home Depot U.S.A. Inc. (“Home Depot”) argues that the Supreme Court’s case Shamrock Oil & Gas Co. v. Sheets, which holds that an original plaintiff may not remove a counterclaim to federal court, does not apply to third-party defendants. Moreover, Home Depot asserts that the text of the Class Action Fairness Act (“CAFA”) allows for the removal of class action counterclaims by any defendant, including third-party defendants. Conversely, Respondent George W. Jackson—a class action representative who counterclaimed against Home Depot—contends that Shamrock Oil actually bars third-party defendants from removing. Furthermore, Jackson maintains that CAFA’s discussion of removal does not explicitly expand the term “defendant” to third-party defendants, and thus should not be read to allow Home Depot to remove Jackson’s counterclaim. This case has large implications for consumer class action suits in state court, as it will affect class action litigation strategy and forum selection in potentially hostile state courts.

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Although plaintiffs initially decide whether to sue in state or federal courts, per Article III, Section 2 of the Constitution, 28 U.S.C. § 1441(b) allows defendants to remove cases to federal court if opposing parties are citizens of different states. Christophe and Juanita Roche discovered toxic mold in the apartment they were leasing. The Roches filed a complaint in Virginia state court, naming property owners State of Wisconsin Investment Board (“SWIB”) and managers Lincoln Property Company (“Lincoln”) as defendants. SWIB and Lincoln later removed the case to federal district court based on diversity jurisdiction, claiming Wisconsin and Texas citizenship, respectively. After the district court granted Lincoln summary judgment, Roche challenged the court's jurisdiction on the grounds that Lincoln was a partnership with one of its partners residing in Virginia, claiming that Lincoln manipulated federal diversity jurisdiction by litigating the case in the name of another one of the companies in the Lincoln group. The district court ruled in favor of Lincoln, but the Fourth Circuit Court of Appeals reversed, finding that Lincoln had failed to prove its diversity from Roche. In deciding whether the Fourth Circuit erred in its holding, the Supreme Court will determine when Federal Courts can require proof of the diversity of parties not named in the complaint. The Court will also decide whether the Fourth Circuit announced a new and valid rule for determining the citizenship of a limited partnership for diversity jurisdiction purposes.

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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.

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A notice to appear in accordance with 8 U.S.C. § 1229(a) triggers a stop-time rule that prevents noncitizens from accruing uninterrupted time spent in the United States—ten years of which makes a noncitizen eligible to cancel removal. The issue presented to the Supreme Court is whether the information required for a notice to appear must be included in a single document or whether it may be included in multiple documents. Agusto Niz-Chavez argues that the text and purpose of Section 1229(a) indicates that the required information must be included in a single notice and that the Court should not defer to the Board of Immigration Appeal’s (“Board”) interpretation of the statute. In contrast, Attorney General William Barr argues that the text and purpose of Section 1229(a) permits the government to issue notices to noncitizens across multiple documents and the Court should grant the Board deference. The outcome of this case has important implications for the procedural due process rights of immigrants subject to removal proceedings and the administrative burden of those proceedings on immigration courts and other government agencies.

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Pat Osborn sued Barry Haley, a United States Forest Service manager, in state court, alleging that Haley had influenced her employer, Land Between the Lakes Association, to fire her and that, in so doing, Haley had acted outside the scope of his employment. Pursuant to the Westfall Act, the United States Attorney General certified that Haley was acting within the scope of his employment and successfully removed the case to federal district court. Once there, the United States denied that Haley had interfered with Osborn’s employment and proposed to substitute itself for Haley. The district court, however, assumed the veracity of Osborn’s allegations and refused substitution, remanding the action to state court. The Sixth Circuit Court of Appeals subsequently reversed, ruling that the lower court must resolve the factual disputes underlying the scope question and that the Westfall Act forecloses remand to the state court. The Supreme Court’s decision in this case will have significant implications for plaintiffs seeking to bring suit against federal employees and will likewise affect the way that the federal government and its employees respond to such suits.

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This case asks the Supreme Court to determine whether 8 U.S.C. § 1252(a)(2)(B)(i) allows a federal court to review decisions by an executive agency holding that a noncitizen was not eligible for relief from removal. The Eleventh Circuit claimed judicial review of such decisions was barred by 8 U.S.C. § 1252(a)(2)(B)(i) and declined to review a Board of Immigration Appeals decision, which held that because Petitioner Pankajkumar Patel (“Patel”) had previously made a false statement to a federal agency, he was not eligible for such relief. Patel appealed, arguing that 8 U.S.C. § 1252(a)(2)(B)(i) merely bars judicial review of decisions to grant relief, not the prerequisite eligibility decisions. Respondent Attorney General Merrick Garland (“Garland”) interprets the provision to bar judicial review of any discretionary decision, including some eligibility decisions, although he agrees that the Eleventh Circuit erred in holding that 8 U.S.C. § 1252(a)(2)(B)(i) prohibits judicial review of Patel’s particular eligibility decision. This case has important implications for the future of immigration law and procedure, the status of noncitizens in the United States, and the jurisdiction of federal courts.

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