Sunday, January 15, 2012

Preview of Supreme Court Argument in Vartelas v. Holder, Court Takes Up Six Immigration Cases This Term

Here is my preview on SCOTUSblog of the oral argument on January 18 in the U.S. Supreme Court, with two other immigration cases (Holder v. Gutierrez and Holder v. Sawyers), in Vartelas v. Holder. In that case, the Court will address the ability of Panagis Vartelas to return from a one week trip to Greece to visit his parents and the U.S. government's efforts to apply the grounds of inadmissibility (crime involving moral turtiptude) to him even though Vartelas would not have been subject to removal if he had not left the country. Among the issues raised in the case are the retroactive application of 1996 immigration reform amendments -- the criminal conviction at issue was entered before 1996 -- and the contininuing vitality of Rosenberg v. Fleuti (1963).

Counsel for Petitioner is criminal law expert Professor Stephanos Bibas, Director of the Supreme Court Clinic at the University of Pennsylvania Law School. Professor Bibas was co-counsel in the landmark case of Padilla v. Kentucky (2010), which held that a noncitizen could base an ineffective assistance of counsel claim on an attorney's failure to inform him of the immigration consequences of a plea bargain in a criminal case. James A Feldman, Lecturer in Law who from 1989 to 2006 was an Assistant to the Solicitor General, was on the brief in Vartelas with Professor Bibas.

The Supreme Court has taken up six immigration cases this Term, slightly more than in recent years. (Two (Gutierrez and Sawyers) involve similar issues and will have consolidated arguments.). Last December, the Court in Judulang v. Holder rejected as arbitrary and capricious the ruling of the Board of Immigration Appeals that a lawful permanent resident convicted of a crime was not eligible for relief from deportation. Last November, the Court heard arguments in Kawashima v. Holder, a removal case based on a criminal conviction for a false statement on corporate tax returns. Next week, the Court will hear Vartelas, Gutierrez, and Sawyers, all that involve application of the Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Last but not least, the Court will decide Arizona v. United States, the case involving the constitutionality of Arizona's S.B. 1070 and the power of the states to regulate immigration.

One might wonder why the Supreme Court seems so interested in immigration. Arizona v. United States has generated international controversy and raises important issues concerning federal versus state power to regulate immigration, federalism, and U.S. immigration law and its enforcement. The importance of the case, as well as the fact that Alabama, Georgia, South Carolina, and other states have passed statutes similar to Arizona's S.B. 1070, helps explain the cert grant in that case.

The other five immigration cases involve the removal of noncitizens from the United States. The fact that the Obama administration is removing close to 400,000 noncitizens a year suggests that there are more removal orders that can be appealed today than in the past. And the 1996 amendments have a hard -- some would say harsh -- edge. These facts, as well as the fact that immigration is a hot issue that is on the national radar, may help explain why the Court has taken these immigration cases.


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