Tuesday, July 12, 2011
It might be surprising to some that, over the last few years, immigrants have fared fairly well in a conservative U.S. Supreme Court.
In 2010, the Court ruled in the blockbuster decision of Padilla v. Kentucky that a noncitizen could base an ineffective assistance of counsel claim on an attorney's alleged failure to inform him of the removal consequences of a criminal conviction. This case continues to have major ripple effects, in no small part because of the U.S. government's focus on "criminal aliens" in its removal efforts.
In the same Term that it decided Padilla v. Kentucky, the Court rejected the U.S. government's expansive definition of "aggravated felony" subjecting an immigrant to removal based on a state misdemeanor drug conviction.
The 2010 Term was not an outlier. In the previous Term, immigrants won 3 of the 4 immigration decisions issued by the Court, including some fairly significant victories involving stays of removal and the elements for criminal identity theft.
This Term, however, immigrants did not fare so well in the Supreme Court.
In Chamber of Commerce of United States of America v. Whiting, the Court, in an opinion written by Chief Justice John Roberts, held that the Arizona law penalizing, and possibly subjecting to revocation, the business licenses of the employers of undocumented immigrants, is not preempted by federal immigration law. While I think that the decision should not be read expansively -- and, for example, does not dictate a finding that Arizona's S.B. 1070 is constitutional, the Whiting decision unquestionably fueled efforts of state legislatures to regulate immigration. Only time will tell what the legal limits on the states in this sphere will be.
In another case from this Term, Flores-Villar v. United States, the Court by a 4-4 vote affirmed the Ninth Circuit's rejection of a constitutional challenge to distinctions in the nationality laws that establish different citizenship standards for children born out of wedlock outside of the United States, depending on whether the child’s mother or father was a U.S. citizen. This sort of gender discrimination is something that only can be found nowadays in the immigration laws, shielded as they are by the plenary power doctrine (an enduring relic of the era of the Chinese exclusion laws).
In addition, the Court vacated and remanded in light of Whiting the Third Circuit decision striking down much of the infamous City of Hazleton, Pennsylvania ordinance designed to regulate immigration, which, among other things, barred landlords from renting to undocumented immigrants. While this kind of action is fairly common when the Court decides a case with similar issues as those raised in a petition for certiorari, the ordinance in the Hazleton case is much broader than the state law at issue in Whiting. One can only hope that the Court does not see the two laws as very similar.
There was one sliver of hope for immigrants in the Court's actions from last Term. The Court denied certiorari in Martinez v. Regents of the University of California, in which the California Supreme Court rejected a challenge to a California law (AB 540) allowing graduates of California high schools, including undocumented students, to pay the same fees as state residents to attend the University of California, California State University, and community college systems. One, of course, should not read too much into a denial of cert. Still, the order allows states like Califonia, at least for now, to have in-state fee systems that, in certain circumstances, allow certain undocumented students to pay in-state fees.
We will see what the next Term holds for immigrants. Will the Court decide the constitutionality of Arizona's S.B. 1070?