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

Contact Us! Please contact the Clearinghouse at clearinghouse@immcouncil.org if you know of any additional resources or changes in the status of cases that are not indicated here.

CERTIORARI GRANTED

Court to Hear Child Status Protection Act Case

Mayorkas v. DeOsorio, No. 12-930 (cert. granted June 24, 2013)

The Supreme Court will hear oral argument on December 10, 2013 in the Child Status Protection Act (CSPA) case Mayorkas v. DeOsorio.  The Court will consider whom Congress intended to benefit by INA § 203(h)(3), a provision which allows beneficiaries of certain visa petitions to retain earlier priority dates after “aging-out” (turning 21) and losing child status.  The government sought Supreme Court review of an en banc decision of the Ninth Circuit holding that § 203(h)(3) applied to derivative beneficiaries of the Family 3d and 4th preference categories, as well as those in the Family 2A category.  DeOsorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012).  In so holding, the Ninth Circuit rejected the Board of Immigration Appeals’ interpretation of § 203(h)(3) as applying only to derivative beneficiaries of the Family 2A preference category.  Matter of Wang, 25 I&N Dec. 28 (BIA 2009). 

The American Immigration Council is amicus in this case.  Read more about our CSPA litigation on our Child Status Protection Act website.

CASES DECIDED

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, No. 11-702, 569 U.S. ___, 2013 U.S. LEXIS 3313 (Apr. 23, 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 case left many issues and arguments unresolved.

Justices Sotomayor and Ginsberg dissented.

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

Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492 (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).

The Court found that Sections 3, 5(C), and 6 of Arizona SB 1070 were preempted by federal law.  Section 3, which would have made it an Arizona state offense for unauthorized immigrants to violate the federal law requiring them to apply for registration with the federal government and to carry a registration card, was found to intrude upon an area of law that Congress has entrusted entirely to the federal government. The Court also held that Section 5(C), which would have made it a state crime for immigrants without work authorization to apply for work, solicit work in a public place, or perform work in Arizona, was preempted by the comprehensive federal system that regulating unauthorized employment of noncitizens. Finally, the Court found that Section 6, authorizing law enforcement to arrest immigrants without a warrant where probable cause existed that they committed a public offense making them removable from the United States, was preempted by the federal immigration enforcement scheme, which only allows local police to perform the functions of federal immigration officers in limited circumstances. In so finding, the Court implicitly rejected Arizona’s argument that local police have inherent authority to make arrests for civil violations of the immigration laws.Read more...

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

Holder v. Martinez Gutierrez, 566 U.S. ___, 132 S. Ct. 2011 (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.