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Supreme Court Update

The Supreme Court Update provides information about recent Supreme Court decisions in immigration cases and other cases which may be of interest to immigration attorneys, as well as information about immigration cases in which the Supreme Court has granted a petition for certiorari. The site features case summaries, dates for oral argument and, in some cases, additional resources such as amicus briefs and related practice advisories.

 Last updated: April 30, 2015

Certiorari Granted | Cases Decided | Supreme Court Resources

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Court to Consider Jurisdiction over Requests for Equitable Tolling of Motion to Reopen Deadline

Mata v. Lynch, No. 14-185 (cert. granted Jan. 16, 2015)

On April 29, 2015, the Court heard oral arguments in Mata v. Lynch, a case addressing federal court jurisdiction over BIA denials of requests for equitable tolling of the motion to reopen filing deadline. By statute, individuals who have been ordered removed have the right to file one motion to reopen which, in most cases, is subject to strict filing deadlines. See 8 U.S.C. §§ 1229a(c)(7), (b)(5)(C). Nine Courts of Appeals recognize that the deadlines are subject to equitable tolling, a long-recognized principle through which courts can waive the application of certain non-jurisdictional statutes of limitations where a plaintiff was diligent but nonetheless unable to comply with the filing deadline. The Fifth Circuit, however, has failed to address the applicability of equitable tolling to motion to reopen deadlines in a published decision. Instead, the court has found that it lacks jurisdiction over denials of requests for equitable tolling, because the court believes that they are essentially requests that the BIA reopen a case sua sponte, see Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008). The Fifth Circuit precedent on this issue does not address distinctions between requests for equitable tolling of the filing deadline for statutory motions to reopen and requests for sua sponte reopening—a separate, regulatory procedure that allows the BIA or an immigration judge to reopen a case at any time. See 8 C.F.R. §§ 1003.23(b)(1), 1003.2(a).

Petitioner Noel Mata sought equitable tolling of the deadline to file a motion to reopen based upon ineffective assistance of counsel. After the BIA denied his request, the Fifth Circuit Court of Appeals held that it lacked jurisdiction to review the decision. The Petitioner argues that the Fifth Circuit erred in holding that it has no jurisdiction. The government agrees with the Petitioner, and the Supreme Court appointed amicus to argue in support of the Fifth Circuit’s judgment.

Amicus Brief: The American Immigration Council, the American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild, represented by the law firm of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., submitted an amicus brief in the case, explaining the time-consuming process that noncitizens facing removal must go through to make an ineffective assistance of counsel claim and presenting the stories of several immigrants whose requests for tolling of reopening deadlines originally were denied by the BIA.

Court to Hear Consular Non-reviewability Case

Kerry v. Din, No. 13-1402 (cert. granted Oct. 2, 2014)

In Kerry v. Din, a case addressing the availability of federal court review for visa denials, the Supreme Court heard oral argument on February 23, 2015. The government often argues that such review is barred pursuant to the doctrine of consular non-reviewability, which provides that courts should not review consular officers’ visa decisions due to their wholly discretionary nature; the Supreme Court previously held that federal court review is not appropriate where the visa decision is based on a facially legitimate and bona fide reason. Kliendienst v. Mandel, 408 U.S. 753 (1972). In Din, a U.S. citizen sought review of the denial of her application for a visa for her husband, after consular officials stated only that the denial was pursuant to INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), which describes a broad array of terrorism-related grounds of inadmissibility. The government sought certiorari after the Ninth Circuit Court of Appeals held that Ms. Din had a “constitutionally protected due process right to limited judicial review of her husband's visa denial” based on her liberty interest in her marriage and that citation to § 212(a)(3)(B), absent any allegation regarding what rendered the individual seeking entry into the United States inadmissible, is insufficient to show that a visa denial is facially legitimate under Mandel. See Din v. Kerry, 718 F.3d 856 (9th Cir. 2013).

Court to Consider Removal Based on Convictions Related to a Federally Controlled Substance

Mellouli v. Holder, No. 13-1034 (cert. granted Jun. 30, 2014)

The Supreme Court heard oral argument on January 14, 2015 in Mellouli v. Holder. The case addresses removability pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for individuals who have been “convicted of a violation of . . . any law or regulation . . . relating to a controlled substance (as defined in section 802 of [the Controlled Substances Act]) . . . .” The Petitioner sought certiorari after the Eighth Circuit Court of Appeals held that he was removable pursuant to §237(a)(2)(B)(i), regardless of whether the government had established that his drug-paraphernalia conviction was connected to a federally controlled substance. See Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013).


Divided Court Upholds Matter of Wang

Scialabba v. Cuellar de Osorio, 573 U.S. ___, 135 S. Ct. 22 (2014)

In a 5-4 judgment, the Court ruled that Congress did not intend for derivative beneficiaries of the Family 3rd and 4th preference categories to benefit from INA § 203(h)(3), a provision that allows beneficiaries of certain visa petitions to retain earlier priority dates after “aging out”—that is, turning 21—and losing child status. As a result, many young immigrants who were included on their parents’ visa petitions as minors cannot be credited with time spent waiting in a visa line with their families, and instead will be placed at the back of a different visa line. The Court reversed the en banc decision of the Ninth Circuit, De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012), and upheld the BIA’s limited interpretation of § 203(h)(3) in Matter of Wang, 24 I&N Dec. 28 (BIA 2009), which found that the statute only applied to derivative beneficiaries in the Family 2A category.

Justice Kagan announced the judgment of the Court and delivered an opinion joined by Justices Ginsberg and Kennedy. Chief Justice Roberts filed an opinion concurring in the judgment, which Justice Scalia joined. Justices Alito and Sotomayor filed dissents; Justice Sotomayor’s dissent was joined by Justice Breyer and, except as to one footnote, by Justice Thomas.Read more...

Court Broadly Defines “Misdemeanor Crime of Violence,” But Limits Applicability of Holding

United States v. Castleman, 572 U.S. ___, 134 S. Ct. 1405 (2014)

In a 9-0 judgment, the Court reversed the decision of the Sixth Circuit Court of Appeals. The Court held that a conviction pursuant to a statute which criminalizes conduct including offensive touching and bodily injury through indirect force qualifies as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9), which bars individuals with domestic violence convictions from possessing guns or ammunition. However, the Court expressly noted that its decision does not cast doubt on prior decisions of the courts of appeals and the BIA which have held that a “crime of violence” requires force beyond offensive touching, nor upon statutes, including the INA, which tie the definition of a “crime of domestic violence” to the definition of a more generic crime of violence.

Justice Kagan delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer and Kagan. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justices Alito filed an opinion concurring in the judgment, joined by Justice Thomas.

The National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project issued a Practice Advisory addressing Castleman’s impact on immigration cases.

Court Disallows Modified Categorical Approach Except Where Statute Divisible

Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013)

In an 8-1 decision written by Justice Kagan, the Supreme Court held that sentencing courts must apply the categorical approach – and only the categorical approach – to a federal defendant unless the underlying statute of conviction is ‘divisible.’

Descamps concerns the analytical approach courts must undertake when determining what federal consequences (usually sentence enhancement or removal) attach to a particular conviction. The default approach is called the categorical approach, wherein the court compares the elements set forth in the criminal statute to the INA removal ground or other federal law at issue. The facts in the criminal case are irrelevant. All that matters are the elements of the statute of conviction. The rationale for an elements-centric approach, as the Court explained in Descamps, is multifold: it comports with the text and history of the statutes it was created to apply (often the Armed Career Criminal Act and the INA), it avoids Sixth Amendment concerns that would arise form sentencing courts’ making factual findings that belong to juries, and it averts the practical difficulties and potential unfairness of a factual approach.Read more...

Court Rejects Application of “Aggravated Felony” Label to Some State Law Marijuana Distribution Convictions

Moncrieffe v. Holder, 569 U.S. ___, 133 S. Ct. 1678 (2013)

In a 7-2 decision, the Supreme Court held that a state conviction for a marijuana distribution is not a drug trafficking aggravated felony where the state statute upon which it was based covers social sharing of a small amount of marijuana. Thus, noncitizens facing deportation based upon such convictions are not barred from pursuing discretionary relief.

In an opinion written by Justice Sotomayor, the Court unequivocally affirmed the applicability of the categorical approach.  The Court explained that the Georgia drug offense at issue would only qualify as an aggravated felony if it necessarily prescribes felony punishment under the Controlled Substances Act (CSA). The CSA treats distribution of small amounts of marijuana for no remuneration as misdemeanors.  See 21 USC §§ 841(a), (b)(4). As a result, a conviction under a state statute that encompasses such distribution offenses is not necessarily punishable as a felony under the CSA and thus is not an aggravated felony.  The Court rejected the government’s arguments that immigration courts should re-litigate criminal cases to determine whether convictions involved only a small amount of marijuana for no remuneration. 

Justices Thomas and Alito issued dissents.

Practice AdvisoryMoncrieffe v. Holder:  Implications for Drug Changes and Other Issues Involving the Categorical Approach (May 2, 2013)

Court Holds that Padilla v. Kentucky Does Not Apply Retroactively to Certain Convictions

 Chaidez v. United States, 568 U.S. ___, 133 S. Ct. 1103 (2013)

In a 7-2 decision written by Justice Kagan, the Court held that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively to collateral review of convictions final at the time of that decision.  Padilla found that a noncitizen could raise a claim of ineffective assistance of counsel under the Sixth Amendment if his criminal defense attorney failed to advise him of the immigration consequences of a guilty plea. In Chaidez, the Court found that its previous decision went beyond applying the existing standards for ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). Because the preliminary question answered by the Padilla Court – whether the Sixth Amendment right to counsel encompassed advice about collateral consequences of convictions – was not settled at the time of its decision in 2010, it held that Padilla created a new rule of criminal procedure and thus did not apply in collateral challenges to past convictions under the principles set forth in Teague v. Lane, 489 U.S. 288 (1989).

The National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project issued a Practice Advisory addressing efforts to obtain post-conviction relief under Padilla after the Chaidez decision.  

The case left many issues and arguments unresolved.

Justices Sotomayor and Ginsberg dissented.