Supreme Court to Consider Whether Discretionary Decision Bar Precludes Courts from Reviewing Motions to Reopen
Kucana v. Holder, 533 F.3d 534 (7th Cir. 2008), cert. granted, 2009 U.S. LEXIS 3158 (Apr. 27, 2009) (No. 08-911)

The Supreme Court will hear a case addressing the scope of INA § 242(a)(2)(B)(ii), the bar to judicial review of discretionary decisions, and whether this section bars federal courts from reviewing motions to reopen. Section 242(a)(2)(B)(ii) of the INA, provides that "no court shall have jurisdiction to review … any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a)."

In Kucana, the Seventh Circuit found that the discretionary decision bar applies to motions to reopen. In doing so, it relied on its prior decision Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), holding that INA § 242(a)(2)(B)(ii) bars review over a request for a continuance. The Seventh Circuit's decision in Kucana conflicts with all the other circuit court decisions to consider INA § 242(a)(2)(B)(ii)'s applicability to motions to reopen.

Interestingly, the government agrees with the petitioner that INA § 242(a)(2)(B)(ii) does not apply to motions to reopen and filed a brief supporting the petitioner. The Court invited a private attorney to brief and argue the case, as amicus curiae, in support of the judgment below. The Court scheduled oral argument for November 10, 2009.

• Question Presented
• Merits Briefs

Supreme Court to Consider Whether Defendant Can Seek Relief When Criminal Attorney Misadvised Him of Immigration Consequence of Plea
Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008), cert. granted,, 2009 U.S. LEXIS 1453 (U.S. Feb. 23, 2009) (No. 08-651)

The Supreme Court granted petition for certiorari to consider whether criminal defense counsel must inform a client of the immigration consequences of a plea and if not, whether counsel's gross misadvice about the consequences is a ground for setting aside a plea. Specifically, the Court will address:

1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the INA, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and

2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

The petitioner in this case is a lawful permanent resident who has lived in the United States for almost 40 years and has served in the U.S. army. He pled guilty to trafficking in marijuana, which renders him removable based on an aggravated felony conviction under INA § 101(a)(43)(B) (illicit trafficking in a controlled substance). His criminal defense counsel incorrectly advised him that his plea would not affect his immigration status. After learning that his lawyer misadvised him, the petitioner sought post-conviction relief in the Kentucky state court. The Kentucky Supreme Court ultimately held that because the immigration consequences were collateral to the criminal case, the Sixth Amendment was not implicated and thus the petitioner was not entitled to accurate advice from his attorney on this issue.

The Kentucky Supreme Court’s position on whether the petitioner should be allowed to seek post-conviction relief represents the minority view. The majority of state and federal courts to consider the issue have held that misadvice may be ineffective assistance of counsel; this is so even in jurisdictions where the courts have said there is no affirmative duty to advise defendants of the immigration consequences of a plea.

The Court set oral argument for October 13, 2009.

• Merits Briefs

The following are cases in which one of the parties has filed a petition for certiorari, but the Court has not yet decided whether it will hear the case. This is not an exhaustive list of all pending cert petitions. Rather, these cases present just some of the issues that the Court may decide to hear.

Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), petition for cert. filed, (Apr. 3, 2009) (No. 08-1234). The availability of habeas corpus relief to Guantanamo detainees seeking release into the United States.

Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008), petition for cert. filed, (Jan. 16, 2009) (No. 08-906). Right to effective assistance of counsel.

Kim v. Holder, 560 F.3d 833 (8th Cir. 2009), petition for cert. filed, (May 4, 2009) (No. 08-1356). Applicability of the rescission statute's five year statute of limitations to removal proceedings.

Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), petition for cert. filed, (July 15, 2009) (No. 09-60). Whether a second misdemeanor possession conviction is an aggravated felony.

Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), petition for cert. filed sub nom. Chamber of Commerce v. Candelaria, (July 24, 2009) (No. 09-115). Challenge to Arizona state law prohibiting employers from knowingly or intentionally employing an unauthorized immigrant.

Gomis v. Holder, 571 F.3d 353 (4th Cir. 2009), petition for cert. filed, (Aug. 11, 2009) (No. 09-194). Jurisdiction to review application of law to fact in the context of one year filing deadline for asylum.

Supreme Court Finds Categorical Approach Not Applicable for Determining Loss Amount for Fraud Offense
Nijhawan v. Mukasey, 557 U.S. __, 2009 U.S. LEXIS 4320 (June 15, 2009)

The Supreme Court addressed what evidence an IJ may consider to determine removability based on an aggravated felony conviction under INA § 101(a)(43)(M)(i), an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. In a unanimous decision, the Court held that the IJ did not err in looking beyond the record of conviction and considering the petitioner's sentencing stipulation and restitution order to determine the amount of loss to the victim. The Court found that "Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion." The Court also rejected the application of a modified categorical approach, which would limit the IJ's consideration to judicially determined facts.

However, the Court noted that the immigration statute mandates "fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to the victims." The government has the burden of establishing the loss amount by clear and convincing evidence. Moreover, the loss amount must be tied to the specific counts covered by the conviction. The Court's decision is consistent with the BIA's approach, as set forth in Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007).

Read the opinion.

Supreme Court Reverses Second Circuit Decision On Suit Filed by Immigrant Detained After 9/11
Ashcroft v. Iqbal, No. 07-1015, 556 U.S. __, 2009, 2009 U.S. Lexis 3472 (May 18, 2009)

On May 18, 2009, a divided Supreme Court reversed the Second Circuit's decision upholding the denial of a motion to dismiss respondent's complaint alleging constitutional violations by defendants. Following his arrest and detention for more than 150 days in a maximum security detention center after 9/11 attacks, respondent Iqbal, who is a Muslim and a native of Pakistan, filed a lawsuit against then-Attorney General, John Ashcroft and other officers and officials. The complaint alleged that government officials adopted an unconstitutional policy of subjecting certain individuals to harsh conditions of confinement based on their race, religion, or national origin. Iqbal claimed that petitioners violated his First and Fifth Amendment rights.

On interlocutory appeal, the Second Circuit affirmed the district court's denial of the officials' motion to dismiss the complaint based on qualified immunity, concluding that Iqbal's complaint was sufficient to state a claim. The Supreme Court granted certiorari and then reversed. In an opinion by Justice Kennedy, the Court held that the complaint failed to plead sufficient facts to state a claim of intentional discrimination by the named government officials. It reasoned that Iqbal's allegations were conclusory because they were without factual context and therefore not entitled to be assumed as true. Furthermore, the Court reasoned that the complaint failed to plausibly establish discriminatory purpose because of alternative, more likely explanations for the disparate impact on respondent. The Court remanded the case to the Court of Appeals and ordered the court to decide whether to remand to the district court so Iqbal can seek leave to amend his complaint.

Read the opinion.

Supreme Court Rejects Government's Argument in Aggravated Identity Theft Case
Flores-Figueroa v. United States, No. 08-108, 556 U.S. __, 2009 U.S. LEXIS 3305 (May 4, 2009)

In a unanimous decision, the Supreme Court held that the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), requires federal prosecutors to show that a defendant knew the means of identification belonged to another person.

Section 1028A(a)(1) imposes a mandatory two-year additional sentence on individuals convicted of certain crimes if, during the commission of those crimes, the individual "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." The government had argued that the word "knowingly" modifies only "transfers, possesses, or uses," and thus the government need not prove that the defendant knew that the means of identification belonged to another person. The Supreme Court disagreed. The Court noted, "[a]s a matter of ordinary English grammar, it seems natural to read the statute's word 'knowingly' as applying to all the subsequently listed elements of the crime."

The Court's order reversed the Eighth Circuit's prior decision in the case. It also overturned decisions in the Fourth and Eleventh Circuits, holding that knowledge was not required.

Read the opinion.

Read AILF's press release.

Supreme Court Holds that Traditional Stay Standard Applies to Stays of Removal Pending a Petition for Review
Nken v. Holder, No. 08-681, 556 U.S. __, 2009 U.S. LEXIS 3121 (April 22, 2009)

The Supreme Court held that a court of appeals should apply the traditional criteria governing stays when adjudicating a stay of removal pending a petition for review. In doing so, the Court rejected the government’s argument that the stringent standard in INA § 242(f)(2) (“clear and convincing evidence” that the removal order “is prohibited as a matter of law") applies. The Court’s decision reversed the Fourth and Eleventh Circuits, which had held that INA § 242(f)(2) applies to stays of removal pending petitions for review.

Under the traditional standard for stays, the court shall consider (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. The Court noted that the first two factors are most critical. The last two factors merge because the government is the respondent. In addition, the Court advised “that the burden of removal alone cannot constitute the requisite irreparable injury” and that courts should not assume that “‘ordinarily, the balance of hardships will weigh heavily in the applicant’s favor,’” as the Ninth Circuit had assumed previously. The Court remanded the case to the court of appeals to apply the traditional standard to the petitioner’s request for a stay of removal.

Chief Justice John G. Roberts, Jr. wrote the opinion for the Court. Justice Kennedy, joined by Justice Scalia, authored a concurrence, and Justice Alito, joined by Justice Thomas, dissented.

Read the opinion.

Supreme Court Holds that Fifth Circuit Misapplied Fedorenko v. United States to Find the Persecutor Bar Applies Even if Persecution was the Product of Duress
Negusie v. Holder, No. 07-499, 555 U.S. ___, 2009 U.S. LEXIS 1768 (Mar. 3, 2009)

In an 8-1 decision, the Supreme Court held that the Fifth Circuit misapplied the Supreme Court case, Fedorenko v. United States, 449 U.S. 490 (1981), to find that the persecutor bar at INA § 208(b)(2)(A)(i) applies even if a person's assistance in persecution was coerced or the product of duress.

Negusie involved an Eritrean citizen who worked as an armed prison guard. He objected to and occasionally disobeyed orders to inflict punishment on the prisoners. Nonetheless, relying on its earlier decisions that found Fedorenko controlling, the BIA ruled that Negusie assisted in the persecution of others and therefore was statutorily ineligible for asylum and withholding of removal. The Fifth Circuit affirmed the BIA's decision, noting that whether Petitioner was compelled to assist authorities or whether he shares the authorities' intentions is irrelevant.

The Supreme Court disagreed and held that Fedorenko addressed a different statute enacted for a different purpose and should not control the BIA's interpretation of the persecutor bar at issue in Negusie. Because the BIA wrongly deemed its interpretation of the persecutor bar to be mandated by Fedorenko, and therefore did not interpret the statute in the first instance, the Court applied the ordinary remand rule established in INS v. Ventura, 537 U.S. 12 (2002), and remanded to the BIA to fully consider the statutory question presented. The court noted that the persecutor bar provision is ambiguous and therefore, the BIA's interpretation of the statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Read the opinion and the transcript of the oral argument.

Supreme Court Holds that Noncitizens Granted Voluntary Departure Must Be Allowed to Seek Reopening; Court Rejects Automatic Tolling

Dada v. Mukasey, 128 S. Ct. 2307 (2008)

A divided Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period in order “to safeguard the right to pursue a motion to reopen.” The Court, however, rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

This case resolves a circuit split. Four courts had found that the filing of a motion to reopen automatically tolls the voluntary departure period. See Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325 (11th Cir. 2006). Three courts concluded otherwise. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert. pending, No. 06-1252 (filed Mar. 22, 2007); Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127 S. Ct. 1874 (2007); Chedad v. Gonzales, 497 F.3d 57 (1st Cir. 2007) (pet. for reh'g filed Oct. 15, 2007).

Read a summary of the decision.

AILF and AILA appeared as amicus curiae in this case. AILF issued a Q&A offering analysis and initial steps to consider. Also, read AILF’s press release.

Prevailing Party May Recover Paralegal Fees Under EAJA
Richlin Security Service Co. v. Chertoff, 128 S. Ct. 2007 (2008)

The Court held that under the Equal Access to Justice Act (EAJA) a prevailing party may recover its paralegal fees from the government at the prevailing market rates. The government had argued that paralegal services are recoverable only at “reasonable cost” and that such costs should be measured from the perspective of the attorney rather than the client. The Court rejected the government’s arguments. In so doing, it reversed an underlying Federal Circuit decision and reached a decision that is consistent with the majority of circuits to have addressed the issue. The decision is available on the Supreme Court’s website.

Criminal Sentencing Decision
United States v. Rodriquez, 128 S. Ct. 1783 (2008)

The Court examined whether a state drug-trafficking offense, for which state law authorizes a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e). In a 6-3 decision, the Court concluded that it does. The decision is available on the Supreme Court’s website.

The Court’s decision reversed a Ninth Circuit decision. In the underlying case, the Ninth Circuit had applied its precedent United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). In Corona-Sanchez, the court found that a petty theft conviction could not qualify as an aggravated felony because the maximum possible sentence for a violation without statutory recidivist enhancements was six months.

Particularly Serious Crime and Jurisdiction; Case Dismissed

Ali v. Achim, 128 S. Ct. 29 (2007)

The Supreme Court granted certiorari to determine whether the Seventh Circuit erred 1) when it concluded that an offense does not need to be an aggravated felony to be classified as a “particularly serious crime,” and 2) when it construed the scope of the court’s jurisdiction to review the BIA’s particularly serious crime determinations under 8 U.S.C. §§ 1252(a)(2)(B)(ii) and (a)(2)(D). On December 21, 2007, the petitioner filed a motion for voluntary dismissal asking the Court to dismiss the writ of certiorari pursuant to a settlement agreement. The motion states that the petitioner and the government entered into a settlement agreement and petitioner has agreed not to pursue his claims for asylum and withholding of removal. The Court dismissed the case on December 27, 2007.

Remand Rule Keisler v. Gao, 128 S. Ct. 345 (2007)

• The Supreme Court granted certiorari, vacated the judgment, and remanded the case to the Second Circuit for further consideration in light of Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613, 164 L. Ed. 2d 358 (2006).
• In Gonzales v. Thomas, the Court held that the Ninth Circuit erred by deciding, without prior resolution by the BIA, that the asylum applicants and their family would constitute a "particular social group" and should have applied the "ordinary remand rule" rather than deciding the asylum case in the first instance. The underlying court of appeals decision in Gao involves an asylum claim based on membership in a "particular social group."

• On Tuesday February 20, 2007, the Court denied Haroon Rashid’s petition for certiorari. The Tenth Circuit had upheld a finding that Rashid was removable because his misdemeanor assault conviction constituted an "aggravated felony." On December 6, 2006, Justice Breyer had stayed the deportation pending the Supreme Court's ruling on his petition for certiorari.


Resources:

• Emergency Motion for Stay of Deportation Pending Writ of Certiorari

• In a January 17, 2007 decision written by Justice Breyer, the Supreme Court found that a person who aids or abets a theft falls within the scope of the generic definition of theft. The Attorney General had sought certiorari in this Ninth Circuit removal case. The respondent, a permanent resident, was convicted of violating section 10851(a) of the California Vehicle Code. He was placed in removal proceeding and charged with removability based on an aggravated felony conviction, to wit, a theft offense as defined in INA § 101(a)(43)(G). The Ninth Circuit, relying on Penuliar v. Gonzales, 435 F.3d 961 (9th Cir. 2005), which held that the California statute is broader than the generic definition of theft, reversed the finding of removal.
• The Supreme Court looked to the generic definition of theft and applied the approach set forth in Taylor v. United States, 495 U.S. 575 (1990), to determine whether a conviction qualifies as a “theft offense.” The Court first held that a person who aids or abets a theft falls within the generic definition of theft offense because an aider and abettor is treated no differently than a principal under state and federal criminal law.
• The Court next considered Duenas-Alvarez’s argument that the California statute is broader than the generic definition of theft because it defines “‘aiding and abetting’ such that an aider and abettor is criminally responsible not only for the crime he intends, but also for any crime that ‘naturally and probably’ results from his intended crime.” The Court reviewed several cases cited by Duenas-Alvarez to support this argument. The Court concluded, however, that these cases did not show that the California statute is applied “in the special (nongeneric) manner” that would distinguish it from theft offenses in other jurisdictions.
• The Court declined to consider two additional claims raised by Duenas-Alvares: (1) the California statute holds liable accessories after the fact (which does not require the government to show that the person committed a theft) and (2) “theft offense” includes joyriding or the limited deprivation of the use of a car. The Court found that the lower court had not considered these claims and remanded the case for further proceedings consistent with the opinion.

• On January 8, 2007, the Supreme Court granted a writ of certiorari, vacated the judgment, and remanded the case to Eighth Circuit for further consideration in light of Lopez v. Gonzales. The case is Tostado-Tostado v. Carlson, No. 06-6766.
• On December 5, 2006, the Supreme Court, in an 8-1 decision, held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not “aggravated felonies” as defined under INA § 101(a)(43)(B) ("drug trafficking crimes"). In unqualified terms, the Court said, “Unless a state offense is punishable as a federal felony it does not count.” The Court rejected the government’s broad interpretation of what constitutes an aggravated felony and resolved a circuit split. Justice Souter authored the majority opinion, from which Justice Thomas dissented. See here to read the opinion.
• The Court also dismissed the writ of certiorari in the companion case, Toledo-Flores v. U.S., No. 05-7664, 549 U.S. ___ (2006). Toledo-Flores addressed the aggravated felony issue in the criminal sentencing context. The Court noted that the writ of certiorari was improvidently granted.


Resources:

• New York State Defenders Association Practice Advisories and Amicus Brief

• In a summary order dated June 26, 2006, the Supreme Court vacated the Eighth Circuit’s judgment and remanded the case for further consideration in light of 71 Fed. Reg. 27,585, the interim rule regarding adjustment of status for arriving aliens.
• The interim rule, effective May 12, 2006, deleted the absolute bar to adjustment of status for an arriving alien in removal proceedings.


Resources:

• AILF Practice Advisory: “Arriving Aliens” and Adjustment of Status: What is the Impact of the Government’s Interim Rule of May 12, 2006? (Updated October 3, 2006)
• AILF Litigation Clearinghouse Issue Page: “Arriving Aliens” and Adjustment of Status

Reinstatement of Removal Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)

• In a decision dated June 22, 2006, the Supreme Court held that INA §241(a)(5) – the reinstatement of removal provision – may be applied to persons who reentered the U.S. prior to the effective date of IIRIRA (April 1, 1997) and who did not take any affirmative steps to legalize status before that date.
• The Court’s decision rested on the retroactivity analysis in Landgraf v. USI Film Products, 511 U.S. 244 (1994).
• The Court concluded that there was no retroactive effect because petitioner’s conduct – remaining in the U.S. after illegal reentry – was not completed before the enactment of INA §241(a)(5).


Resources:

• AILF Practice Advisory: Reinstatement of Removal (updated July 11, 2006)

RICO Claim for Hiring Undocumented Workers, Mohawk Indus. v. Williams, 547 U.S. 516 (2006)

• In a per curiam opinion dated June 5, 2006, the Supreme Court held that certiorari was improvidently granted and remanded the case to the Eleventh Circuit for reconsideration in light of Anza v. Ideal Steel Supply Corp., another RICO case the Court decided the same day.
• In Mohawk, plaintiffs, employees of Mohawk Industries, alleged that their employer violated the RICO Act by conspiring and working with various third party recruiters. They alleged that these recruiters concealed undocumented immigrants in order to depress the wages of its authorized employees.
• The court had granted certiorari on the narrow issue of whether a defendant corporation and its agents can constitute an “enterprise” under the RICO Act, 18 U.S.C. §§1961-69, in light of the settled rule that a RICO defendant must “conduct” or “participate in” the affairs of some larger enterprise and not just its own affairs.

Remand Rule Gonzales v. Thomas, 547 U.S. 183 (2006)

• In a per curiam decision dated April 17, 2006, the Supreme Court vacated the Ninth Circuit’s decision and remanded the case for further consideration of the asylum claim.
• The Court ruled that the Ninth Circuit erred by deciding, without prior resolution by the BIA, that the asylum applicants and their family would constitute a “particular social group.”
• Relying on INS v. Ventura, 537 U.S. 12 (2002), the court found that the Ninth Circuit should have applied the “ordinary remand rule” rather than deciding the asylum case in the first instance.

Remand Rule Gonzales v. Tchoukhrova, 549 U.S. 801 (2006)

• In a summary order dated April 17, 2006, the Supreme Court vacated the Ninth Circuit’s decision and remanded the case “for further consideration in light of Gonzales v. Thomas, 547 U.S. ___ (2006).” In Thomas, the Court held that the Ninth Circuit should have applied the “ordinary remand rule,” and remanded the case to the BIA for further analysis.
• The Court’s ruling in Tchoukhrova indicates that the Ninth Circuit erred by reaching issues that the BIA had not ruled on in the first instance.