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Nasrallah v. Barr

Issues

Does Section 1252(a)(2)(C) of the Immigration and Nationality Act (INA) prohibit federal courts of appeals from reviewing the denial of a claim for relief from removal based on the United Nations Convention Against Torture of a noncitizen ordered removed from the country for committing certain criminal offenses?

This case asks the Supreme Court to determine whether Section 1252(a)(2)(C) of the Immigration and Nationality Act (INA)—which provides that courts do not have jurisdiction to review “final orders of removal” against any noncitizen ordered removed from the country for committing certain criminal offenses—prohibits federal courts of appeals from reviewing the facts underlying orders granting or denying noncitizens relief from deportation under the United Nations Convention Against Torture (CAT). Under CAT, the United States cannot remove a noncitizen to a country where they are likely to be tortured. While Section 1252(a)(2)(C) strips courts of the ability to review “any final order of removal,” Nasrallah argues that CAT orders are distinct orders that fall outside this phrase. Barr, on the other hand, argues that Section 1252(a)(2)(C) intends to include CAT orders within the phrase “final order of removal” and thus limits judicial review of the facts underlying those orders. The outcome of this case will affect the number of opportunities that criminal noncitizens have to challenge the accuracy of the facts underlying a denial of their claim for CAT relief.

Questions as Framed for the Court by the Parties

Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.

Petitioner Nidal Khalid Nasrallah, a native and citizen of Lebanon, entered the United States on a tourist visa in 2006 and later became a lawful permanent resident. Nasrallah v. U.S. Attorney General at 2.

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Seila Law LLC v. Consumer Financial Protection Bureau

Issues

Whether the provision, in the Dodd-Frank Act, restricting the President’s ability to remove the director of the Consumer Financial Protection Bureau violates the Constitution, and if it does, whether the provision can be severed from the remainder of the Dodd-Frank Act.

This case asks whether the President of the United States is unconstitutionally restricted from removing the director of the Consumer Financial Protection Bureau (“CFPB”). Established through part of the Dodd-Frank Act and in response to the financial crisis in 2008, the CFPB regulates the financial markets and enforces consumer protections. The CFPB is headed by a single director who is removable by the President only for “inefficiency, neglect of duty, or malfeasance in office.” Petitioner Seila Law LLC and Respondent CFPB both argue that this removal restriction violates separation of powers because it impermissibly restricts the President’s ability to remove an executive officer. The Court-appointed Amicus Curiae maintains that so long as the President has the exclusive removal power, a modest restriction on that power is constitutional. The outcome of this case has implications on accountability mechanisms used by administrative agencies, state consumer protection regulators, and industries regulated by the CFPB.

Questions as Framed for the Court by the Parties

(1) Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers; and (2) whether, if the Consumer Financial Protection Bureau is found unconstitutional on the basis of the separation of powers, 12 U.S.C. § 5491(c)(3) can be severed from the Dodd-Frank Act.

In response to the financial system’s failures that led to the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).

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Liu v. Securities and Exchange Commission

Issues

Do the federal securities law statutes authorize the Securities and Exchange Commission to obtain disgorgement for violations under the statutes?

This case asks the Supreme Court to determine whether the Securities and Exchange Commission (“SEC”) may obtain disgorgement in civil actions under its power to seek equitable relief, even though the Supreme Court has previously ruled that disgorgement is a penalty rather than an equitable remedy at least under some circumstances. Petitioners Liu and Wang contend that the Supreme Court ruled in Kokesh v. SEC that disgorgement was a penalty, and that therefore the SEC lacks the authority to order Liu and Wang to disgorge any ill-gotten gains in connection with their investment fund. The SEC counters that Kokesh held disgorgement to be a penalty only for statute of limitations purposes. The outcome of this case has implications on the SEC’s effectiveness in future civil actions at deterring financial crime and at making the victims of financial crime whole.

Questions as Framed for the Court by the Parties

Whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty.

Petitioners Charles Liu (“Liu”) and his wife, Xin Wang (“Wang”), operated an investment fund under the EB-5 Immigrant Investor Program for Chinese investors. SEC v. Liu at 2. The United States Citizenship and Immigration Services (“USCIS”) manages and oversees the EB-5 Immigrant Investor Program.

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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 1112. 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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June Medical Services LLC v. Gee

Issues

Under Supreme Court precedent, can a state law require physicians who administer abortions to obtain admitting privileges at hospitals?

This case asks the Supreme Court to determine whether Louisiana’s law, requiring physicians who perform abortions to have admitting privileges at local hospitals, comports with the Court’s precedent. The parties agree that the Louisiana law at issue in this case is substantially similar to the Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. June Medical Services argues that precedent from Whole Woman’s Health and Planned Parenthood of Southeastern Pennsylvania v. Casey control and that Louisiana’s Act is unconstitutional because it unduly burdens women seeking abortions. Doctor Rebekah Gee on behalf of Louisiana argues that June Medical Services lacks standing to bring forth a claim on behalf of their patients and further asserts that Whole Woman’s Health does not control the outcome of this case because the Louisiana Act does not unduly burden women seeking abortions. The outcome of this case has important implications on access to abortion services for women of color and could impact lower courts’ fact-finding authority.

Questions as Framed for the Court by the Parties

Whether the U.S. Court of Appeals for the Fifth Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

In 2014, the Louisiana Legislature passed the Unsafe Abortion Protection Act (“Louisiana Act”), which required abortion providers who perform abortions at local clinics to have admitting privileges at a hospital within thirty miles of the clinic. June Medical Services LLC v.

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United States Forest Service v. Cowpasture River Preservation Association

Issues

Does the Appalachian Trail constitute National Park land, such that only Congress may grant a pipeline right-of-way underneath it?

These two consolidated cases ask the U.S. Supreme Court to determine whether the Mineral Leasing Act authorizes the United States Forest Service to grant a right-of-way under the national trail system. The U.S. Court of Appeals for the Fourth Circuit held that the Forest Service lacks authority to grant a right-of-way for a natural gas pipeline under the Appalachian Trail, which is administered by the National Park Service. The Forest Service and Atlantic Coast Pipeline, the respective Petitioners in each case, contend that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way under any trail that crosses through national forest land owned by the Forest Service. The Respondents, Cowpasture River Preservation Association et al., counter that the Appalachian Trail is National Park land and, accordingly, only Congress—not the Forest Service—may grant a right-of-way. The Court’s decision in these cases will influence future pipeline development, environmental preservation, and the economies of communities along the Appalachian Trail.

Questions as Framed for the Court by the Parties

Whether the United States Forest Service has the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.

 

On September 18, 2015, Atlantic Coast Pipeline, LLC (“Atlantic”) applied to the Federal Energy Regulatory Commission (“FERC”) to own, operate, and construct the Atlantic Coast Pipeline (“ACP” or “the pipeline”). Cowpasture River Preservation Ass’n et al. v. U.S.

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United States v. Sineneng-Smith

Issues

Are certain subsections of 8 U.S.C. § 1324, which criminalize encouraging or inducing an undocumented immigrant to remain in the United States for financial gain, facially unconstitutional in light of the First Amendment’s protection of free speech?

This case asks the Supreme Court to decide whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i)’s federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is facially unconstitutional. The Petitioner, the United States, argues that these provisions do not criminalize speech protected under the First Amendment because “encourage” and “induce” refer only to the facilitation or solicitation of illegal immigration and not to protected speech. The United States thus argues that these provisions have a legitimate sweep because they primarily regulate conduct. The Respondent, Evelyn Sineneng-Smith, counters that “encourage” and “induce” have expansive meanings that extend beyond facilitative conduct. Sineneng-Smith claims that these provisions primarily function to criminalize a wide array of speech that is protected under the First Amendment. The outcome of this case will affect the ways in which citizens may advocate for immigration reform and the nature of professional immigration advice.

Questions as Framed for the Court by the Parties

Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

Respondent Evelyn Sineneng-Smith (“Sineneng-Smith”) ran an immigration consulting firm in California where she helped clients obtain permanent residence in the United States through a Labor Certification program. United States v.

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Lomax v. Ortiz-Marquez

Issues

Does a court’s dismissal without prejudice for failure to state a claim count towards a prisoner’s three strikes under 28 U.S.C. § 1915(g), which would ban him from filing future legal complaints without filing fees?

The Supreme Court will decide whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. § 1915. Section 1915 contains a “three-strikes rule” holding a prisoner liable for litigation costs incurred when filing a civil lawsuit if the prisoner has had three or more prior civil lawsuits dismissed. Petitioner Arthur J. Lomax argues that a court’s dismissal of a complaint without prejudice does not count towards the three-strikes rule that would ban him from filing future legal complaints without filing fees. Lomax supports this argument by noting that dismissal without prejudice does not fall within the meaning of “dismissal” in 28 U.S.C. § 1915(g). Respondent Christina Ortiz-Marquez asserts that this type of dismissal does count towards the three-strike rule because the statute does not differentiate between dismissal with or without prejudice. The Court’s decision will affect a prisoner’s ability to bring civil actions while incarcerated.

Questions as Framed for the Court by the Parties

Whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. 1915(g).

Petitioner, Arthur Lomax, is currently a prisoner at Limon Correctional Facility. Lomax v. Ortiz-Marquez at 2. Before being incarcerated at the Limon Facility, Lomax was incarcerated at the Centennial Correctional Facility in Colorado. Id.

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Opati v. Republic of Sudan

Issues

Can the Foreign Sovereign Immunities Act apply retroactively so that plaintiffs can seek punitive damages against a foreign state for terrorist activities that were carried out prior to the enactment of the current version of the statute?

This case asks the Supreme Court to decide whether it can retroactively apply portions of the Foreign Sovereign Immunities Act (FSIA) to impose punitive damages on a foreign nation. Monicah Opati seeks to recover punitive damages from the Republic of Sudan for its role in al Qaeda’s 1998 embassy bombings. Opati contends that under Republic of Austria v. Altmann, the Act’s immunity exception for foreign states applies retroactively, thereby reaching the al Qaeda bombings even though they occurred prior to the current statute’s enactment. The Republic of Sudan counters that Altmann does not apply here; and, the FSIA’s plaint text does not allow plaintiffs such as Opati to recover punitive damages retroactively under the Act’s immunity exception for foreign states. This case’s outcome implicates the amount of deference given to political branches and could change the balance between plaintiffs suing under FSIA and defendant foreign states.

Questions as Framed for the Court by the Parties

Whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.

In August 1998, al Qaeda, a terrorist organization, launched bomb attacks outside the United States embassies in Kenya and Tanzania. Owens v. Republic of Sudan at 762. These attacks killed many U.S. citizens who were government employees and contractors. Id.

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Shular v. United States

Issues

Does the categorical approach used in determining whether an offense qualifies as a “violent felony” under the Armed Career Criminal Act apply to the determination of what constitutes a “serious drug offense” under the Act?

This case asks the Supreme Court to determine whether the categorical approach under the Armed Career Criminal Act (“ACCA”) should apply to “serious drug offense” determinations. Petitioner Eddie Lee Shular argues that under the ACCA, a “serious drug offense” must be considered under the same offense-matching categorical approach that is applied to a “violent felony” under the Act. Shular further argues that the “serious drug offense” provision of the statute requires a mens rea element in the prior state offense in order to qualify under the ACCA. Respondent United States counters that the categorical approach is not applicable to the “serious drug offense” provision of the ACCA, and that a mens rea element is not a requirement under the Act. The outcome of this case will affect uniformity in the criminal justice system, constitutional avoidance, and the ability of courts to limit detrimental effects and disparate impacts.

Questions as Framed for the Court by the Parties

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the act.

Petitioner Eddie Shular pled guilty to possession with intent to distribute cocaine and being a felon in possession of a fire arm. U.S. v. Shular at 876. Shular was sentenced to 180-months under the Armed Career Criminal Act (“ACCA”). Id.

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