Immigration Cases at the Supreme Court

The U.S. Supreme Court has eight pending immigration cases, and we are likely to see decisions on most or all of them by June 2020, when the Supreme Court ends its current session.  Here is a run-down of the eight cases:

  1. Perhaps the most anticipated case involves the future of DACA. The Supreme  Court will decide whether the Trump Administration’s decision to end DACA was legal.  Based on the oral argument, held in November 2019, the Court is likely to be sharply divided on the question.  If the Supreme Court decides that President Trump legally ended DACA, the next question will be exactly how the Administration will end the program.  Because the future of DACA is very uncertain at this time, we suggest that all persons who currently have DACA to consider applying to renew DACA as soon as possible, before the Supreme Court issues a decision.  Our reason for making this suggestion is that, if the Court rules that President Trump legally ended DACA, then there will no longer be any opportunity to renew DACA.
  2. In Kansas v. Garcia, the Court will decide whether states may prosecute undocumented persons who use stolen data such as Social Security numbers to obtain work, or whether such prosecutions are only permitted by federal officials. The federal I-9 form, which job applicants must complete in order to obtain employment, states that the information put on the form may only be used for federal law purposes.
  3. Another case before the Supreme Court focuses on whether certain noncitizens may appeal certain decisions to federal courts of appeals. Congress has enacted a law that specifically allows federal courts to review “questions of law.”  But federal appeals courts generally do not have the power to review “questions of fact.”  In cases before the Supreme Court this term, two noncitizens filed late motions to reopen their deportation cases.  The Board of Immigration Appeals denied their motions.  The question that the Supreme Court must answer is whether federal appeals courts may review the decisions of the Board of Immigration Appeals.
  4. In Nasrallah v. Barr, the Supreme Court will decide whether or not federal courts have authority to review certain decisions. As we just noted, generally federal appeals courts do not have the power to review “questions of fact.”  But the United States has agreed to follow a document called the Convention Against Torture, and the federal government has laws that state that federal government officials may not send any persons to any countries in which they are likely to be tortured.  In this case, the Supreme Court will decide whether federal appeals courts have the authority to review factual findings that resulted in denying requests for protection under the Convention Against Torture.
  5. The Constitution contains a right to file a habeas corpus petition, which is a challenge to being detained by any government authority. In DHS v. Thuraissigiam, a noncitizen entered the United States and asked for asylum.  A federal immigration official concluded that he did not have a valid asylum claim, and ordered his deportation.  He filed a habeas corpus petition in federal court, challenging his detention by federal officials as unlawful.  Congress passed a law restricting the power of federal courts to hear habeas corpus cases in certain immigration matters, such as this one.  The Supreme Court will decide whether Congress’s law is valid, or whether it violates the Constitution’s right to file a habeas corpus petition.
  6. Congress passed a law making it a crime to encourage illegal immigration for financial gain. A woman in California was convicted of helping noncitizens apply for immigration benefits that they were not entitled to receive.  A federal appeals court concluded that Congress’s law violates the First Amendment because it applies too broadly, potentially making it a crime for a lawyer to advise a client to remain in the United States while her case is pending in Immigration Court.  The Supreme Court will decide whether Congress’s law violates the Constitution.
  7. When a noncitizen applies for certain immigration benefits in Immigration Court, there is a question of whether certain criminal convictions disqualify the person from seeking the benefit. Some minor offenses, such as driving without a license, generally do not disqualify a person, while more serious offenses do.  Most criminal convictions occur in state courts, while lists of disqualifying crimes are based on federal law, listing federal offenses.  Sometimes, it’s unclear whether a conviction under a state law fits within the federal law definition.  In this case, the Supreme Court will decide who bears the burden of this question:  Is it the noncitizen’s responsibility to show that the state conviction is not a disqualifying federal crime?  Or is it the federal government’s job to show that the state conviction is a disqualifying federal crime?
  8. Finally, the Supreme Court will decide a case that focuses on a legal distinction between being “deportable” and being “inadmissible.” A permanent resident (green-card holder) in the United States was convicted of a crime in the United States.  In Immigration Court, he was in danger of losing his permanent resident status as a result of the conviction, and so he applied for a certain benefit that, if approved, would allow him to keep his green-card status.  Immigration law indicates that his criminal conviction makes him “inadmissible,” and so he’s not eligible to apply for the benefit.  He argues, on the other hand, that he’s not asking to be admitted to the United States – he’s already been admitted – and so he should be able to request the benefit.  The Supreme Court will decide whether a permanent resident can be considered “inadmissible” when he is not seeking admission to the United States.

Decisions are expected by the end of June 2020.

Posted in DACA - Deferred Action for Childhood Arrivals, Federal Court Litigation.