Thursday, October 1, 2009

American Immigration Law Foundation: Upcoming Supreme Court Session to Decide Two Critical Immigration Issues

When the Supreme Court convenes next week, their docket will include two cases that will have a significant impact on immigrants. The cases explore the intersection of the criminal justice system and immigration, and immigrants' access to federal court review.

Both cases present the Supreme Court with opportunities to reaffirm that immigrants must be afforded fair process and a meaningful opportunity to be heard. The first case, Padilla v. Kentucky (and here), set for October 13, will examine the important role that lawyers play in safeguarding the rights of immigrants. The Court will decide whether a criminal defense attorney has the obligation to provide foreign-born defendants with advice about what impact their criminal case will have on their immigration case. It will also decide whether defendants have a remedy when defense attorneys provide incorrect advice.

The second case, Kucana v. Holder, which the Solictor General has registered agreement with the Petitioner that thecourt of appeals erred and is set for argument on November 10, deals with immigrants' access to federal court review - review that provides necessary oversight of government decision-making in immigration cases. The case will decide whether circuit courts have jurisdiction over certain decisions (motions to reopen) by the Board of Immigration Appeals. "Fundamental principles of fairness should compel the Court to rule in favor of Padilla and Kucana," said Beth Werlin, attorney at AILF's Legal Action Center. "Given the stakes, namely potential deportation and in some cases, permanent banishment from the U.S., the Supreme Court should carefully consider these cases and then reaffirm that immigrants are entitled to fair process."

An adverse decision in either case has the potential to reverse favorable decisions from other courts. This is a particularly acute concern in Kucana: the Seventh Circuit's decision conflicts with all the other federal courts of appeals' decisions that have considered whether motions to reopen are reviewable. The Supreme Court's decision will likely resolve the issue for all the federal courts.


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