Supreme Court Update

The Supreme Court Update provides information about recent Supreme Court decisions in immigration cases, immigration cases where the Supreme Court has granted a petition for certiorari, and selected pending petitions for certiorari. The site features case summaries, dates for oral argument and additional resources related to each case such as amicus briefs and practice advisories.

Certiorari Granted | Petition for Certiorari Pending | Cases Decided | Supreme Court Resources

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CERTIORARI GRANTED

Court to Consider Relationship between Aggravated Felonies and State Law Offenses

Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011), cert. granted, 132 S. Ct. 1857 (April 2, 2012) (No. 11-702)

The Supreme Court granted certiorari in an immigration case involving removability based on a “drug trafficking” aggravated felony conviction. The case involves the application of the categorical approach.

The question presented is:

Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the [noncitizen] was convicted of conduct that would constitute a federal law felony.

The parties have submitted briefs, and the Court will hear oral argument on October 10, 2012.

Question Presented

Court to Consider Whether Padilla v. Kentucky Applies Retroactively

Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, 132 S. Ct. 2101 3335 (April 30, 2012) (No. 11-820)

The Supreme Court granted certiorari to address the following issue:

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

The parties have submitted briefs, and the Court will hear oral argument on October 30, 2012.

Questions Presented

CASES DECIDED

Court Strikes Down Three Provisions of Arizona SB 1070, Allows One to Stand

Arizona v. United States, No. 11-182, 567 U.S. ___, 132 S. Ct. 2492 (June 25, 2012)

In a 5-3 decision written by Justice Kennedy, the Supreme Court found that three provisions of Arizona SB 1070 were preempted by federal immigration law and so allowed a preliminary injunction against those provisions to become permanent. The Court found that an additional section of the law was not preempted, but did not preclude future legal challenges to that provision. The decision affirmed in part and reversed in part a decision by the Ninth Circuit, see United States v. Arizona, 641 F.3d 339 (9th Cir. 2011).Read more...

Court Finds Parent's Residence and Status is Not Imputed to Child for Cancellation of Removal

Holder v. Martinez Gutierrez, Nos. 10-1542 and 10-1543, 566 U.S. ___, 2012 U.S. LEXIS 3783 (May 21, 2012)

The Supreme Court unanimously affirmed a Board of Immigration Appeals (“BIA”) decision barring lawful permanent resident (“LPR”) children seeking cancellation of removal from using their parents’ years of U.S. residence or LPR status to satisfy the seven-year continuous residency or five-year LPR status requirements under INA § 240A(a). In so doing, the Court reversed the Ninth Circuit, see Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009).

The Supreme Court held that the BIA’s construction of the cancellation of removal statute was permissible under Chevron. Justice Kagan, writing for the Court, began the analysis by noting that the statute’s plain text did not mandate imputation. The Court then went on to reject arguments that (1) the legislative history demonstrates that Congress intended a parent’s residency and status to be imputed to a child for purposes of cancellation of removal and (2) the statute’s goals of family unity demand imputation.

The Court also explained that the regulation is not arbitrary and capricious despite the BIA’s acceptance of imputation in other contexts. The Court found that the BIA consistently “imputes matters involving an alien’s [subjective] state of mind, while declining to impute objective conditions or characteristics” such as duration of residence.

Court Finds Tax Crimes Are Aggravated Felonies

Kawashima v. Holder, 565 U.S. ___, 132 S. Ct. 1166 (2012).

In a 6-3 decision written by Justice Thomas, the Supreme Court affirmed a Ninth Circuit decision holding that convictions for committing and aiding tax evasion in which the Government’s loss exceeds $10,000 qualify as aggravated felonies under INA § 101(a)(43)(M)(i) and therefore, are deportable offenses. In so holding, the Court resolved a circuit split between the Third and Ninth Circuits in favor of the latter. Compare Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004) with Kawashima v. Holder, 615 F.3d 1043 (9th Cir. 2010).

The Court began its analysis by stating that it will employ the categorical approach by looking to the statutory definition of the crime rather than the specific facts of the case. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007). First, the Court found that the elements of the tax crimes at issue, 26 U.S.C. § 7206(1) and (2), clearly establish that commission of the crimes involves fraud or deceit. Second, the Court addressed the Petitioners’ argument that INA § 101(a)(43)(M)(i) must be read in conjunction with INA § 101(a)(43)(M)(ii), and because clause (ii) references a specific tax crime (not at issue here), Congress did not intend clause (i) to cover tax crimes as well. The Court rejected that argument, concluding that the two clauses are not mutually exclusive and thus tax crimes are not excluded from clause (i).

Justice Ginsburg, joined by Justices Breyer and Kagan, issued a dissent in which she challenged the Court’s “dubious” statutory interpretation.

Court Overturns BIA Decision Matter of Blake Regarding 212(c) Eligibility

Judulang v. Holder, No. 10-694, 565 U.S. ___ (Dec. 12, 2011)

The Supreme Court issued a unanimous decision overturning the Board of Immigration Appeals’ (Board or BIA) policy of restricting relief from removal, namely section 212(c) waivers, for many lawful permanent residents (LPRs) with old criminal convictions. Under the Board’s now-rejected policy, LPRs found deportable were eligible for 212(c) relief only if they could show that the ground of deportation was substantially equivalent to a ground of inadmissibility. The Board’s policy, referred to as the “comparable ground test,” was announced in the 2005 decisions Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). The Legal Action Center has issued a Practice Advisory offering strategies for LPRs and others impacted by the decision. Read more...

Court Affirms Right of Certain LPRs to Travel Abroad

Vartelas v. Holder, No. 10-1211, 565 U.S. __ (2012)

In a 6-3 decision, the Supreme Court ruled that INA § 101(a)(13)(C)(v) -- which states that lawful permanent residents (LPRs) are regarded as seeking "admission" to the United States if they previously committed certain criminal offenses -- does not apply retroactively to guilty pleas that were entered before the law took effect. In so doing, the Court overturned a lower court decision holding the law applied to convictions occurring prior to the law's 1997 effective date, when LPRs possessed the right to take temporary trips abroad without fear of being denied rentry upon return. The Legal Action Center has issued a Practice Advisory offering strategies for LPRs affected by the decision.

Read more...

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