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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: July 24, 2015

Certiorari Granted | Cases Decided | Supreme Court Resources

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Court to Consider Whether Certain State Offenses Without Interstate Commerce Element Qualify as Aggravated Felonies

Torres v. Lynch, 14-1096 (cert. granted Jun. 29, 2015)

The Supreme Court granted certiorari to determine whether a state conviction can qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43) on the ground that the relevant offense is “described in” a federal statute where the federal statute requires an interstate commerce element.

Section 1101(a)(43) categorizes a long list of offenses as aggravated felonies, a classification that leads to harsh immigration consequences. Some aggravated felonies are defined using the generic name of a crime (for example, murder), while others are defined only by reference to a federal statute. In Torres, the Court will consider whether a state offense can qualify as an aggravated felony “described in” a federal statute if the specified federal offense requires an element of interstate commerce and the relevant state offense includes no such element. The Second Circuit, which issued the decision below, see Torres v. Holder, 764 F.3d 152 (2d Cir. 2014), agreed with the Fourth, Fifth, Seventh, Eighth, and Ninth Circuits that no interstate commerce element is required in the state offense; the Third Circuit takes the opposite view. The Court will hear Torres during the October 2015 term.


Court Finds that Fifth Circuit Has Jurisdiction to Review Denial of Equitable Tolling of Motion to Reopen Deadline

Reyes Mata v. Lynch, 576 U.S. ___, 135 S. Ct. 2150 (2015)

In an 8-1 decision, the Supreme Court overturned the Fifth Circuit Court of Appeals and held that federal courts have jurisdiction to review Board of Immigration Appeals (BIA) denials of requests to equitably toll the deadline for filing motions to reopen removal orders. The decision strongly reaffirmed the importance of federal court review of motions to reopen.

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. Nine Courts of Appeals already recognize that the deadlines are subject to equitable tolling, a long-recognized principle through which courts can waive the application of non-jurisdictional statutes of limitations if a plaintiff was diligent but nonetheless unable to comply with the filing deadline. In contrast, the Fifth Circuit determined that it lacks jurisdiction to even consider denials of requests for equitable tolling. In this case, Petitioner Noel Reyes Mata sought equitable tolling of the motion to reopen deadline based upon prior ineffective assistance of counsel. After the BIA denied his request, the Fifth Circuit held that, under its binding precedent, the court lacked jurisdiction to review the decision. Before the Supreme Court, the government agreed with Mr. Reyes Mata that the Fifth Circuit erred, and the Supreme Court appointed amicus to argue in support of the Fifth Circuit’s judgment.Read more...

In a Narrow Decision, Court Determines that Government Need Not Further Explain Visa Denial

Kerry v. Din, 576 U.S. ___, 135 S. Ct. 2128 (2015)

In a 5-4 judgement, the Supreme Court overturned the Ninth Circuit and found that Fauzia Din, a United States citizen, was not entitled to further explanation of why the government denied her husband a visa. Previously, consular officials informed Ms. Din without further explanation that the denial was pursuant to 8 U.S.C. § 1182(a)(3)(B), which describes a broad array of terrorism-related grounds of inadmissibility.

Justice Scalia delivered the judgment of the court and a plurality opinion, joined by Chief Justice Roberts and Justice Thomas. In the plurality’s view, a U.S. citizen lacks any constitutional interest in living in the United States with her spouse and, therefore, does not have a right to know the factual basis which caused the government to deny her spouse’s visa petition. Justice Kennedy concurred in the judgment but filed a separate opinion, joined by Justice Alito. He found that, assuming that Ms. Din had a constitutional interest in residing with her husband, the citation to the statutory ground of inadmissibility that the government provided as an explanation satisfied her due process rights. Justices Breyer, Ginsberg, Sotomayor, and Kagan dissented.

Court Reaffirms Categorical Approach in Analysis of Minor Drug Paraphernalia Offense

Mellouli v. Lynch, 575 U.S. ___, 135 S. Ct. 1980 (2015)

The Court held, in a 7-2 decision, that in order for a noncitizen to be removable as an individual who has been convicted of an offense “relating to” a list of federally controlled substances, see 8 U.S.C. § 1227(a)(2)(B)(i), the government must show that the conviction in question relates to a substance controlled by the federal government. Furthermore, the Court agreed that immigration judges should rely on the categorical approach to determine whether a state conviction renders a noncitizen removable under section 1227(a)(2)(B)(i).

This case arose after Petitioner Moones Mellouli, then a lawful permanent resident, pleaded guilty to misdemeanor possession of drug paraphernalia—namely, a sock in which he had hidden four pills—under Kansas state law. The pills, allegedly Adderall, were never identified in relevant court documents. Subsequently, immigration authorities charged Mr. Mellouli as removable under section 1227(a)(2)(B)(i).Read more...

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.