Supreme Court Action This Week

The Supreme Court issued two opinions on Monday of this week.  One overturned a practice of the Board of Immigration Appeals (BIA) that had been in place for decades.  The Court viewed the application of the “comparative grounds rule” as arbitrary and capricious in deportation proceedings.  That case is Judulang v. Holder (10-694).  The Court examined the application of §212(c) of the Immigration and Nationality Act which permitted the Attorney General to provide discretionary relief to aliens who lawfully lived in the United States for seven years, left the country temporarily, and then returned.  The exclusion proceeding would be based on a crime that fell within a separate list in the Act.  The Court notes that §212(c) had been repealed in 1996 but it still broadly applied to resident aliens living in the United States before the rule was repealed.

The BIA had applied the rule in allowing discretionary relief the context of deportation hearings, which had its own list of crimes that supported deportation, provided they were comparable to the list of crimes that supported exclusion.  The Court examined the application of the rule and found that there was no statutory basis to extend §212(c) to deportation hearings; that comparing the list of crimes became an arbitrary judgment call depending on how the crime was categorized making the BIA’s deportation decisions a “sport of chance.”  The Administrative Procedure Act precludes this as arbitrary and capricious.

I leave it to someone more versed in immigration law to explain the impact of this decision.  The Immigration Prof Blog calls the background of the case complex and will post an analysis of the decision later in the week.  Commentary on the case is here and here.  Justice Kagan wrote the opinion for a unanimous Court.  

The second case is Hardy v. Cross (11-74).  It concerns the “highly deferential standard” reviewing courts must give state courts when considering habeas corpus decisions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254.  As typical in these cases, the result is fact dependent.

Cross was tried in Illinois for kidnapping and sexual assault.  His victim reluctantly testified at trial, and her testimony was described as halting, with pauses between her responses to questions.  The jury found Cross not guilty on the kidnapping charge and was unable to reach a verdict on the sexual assault charge, resulting in a mistrial.  On retrial, the victim had initially agreed to testify but was unavailable, ostensibly out of fear or anxiety at the prospect of appearing on the stand.  Her mother told prosecutors that she had run away.  Investigators contacted her family and other individuals extensively seeking the victim’s whereabouts without any success.  The trial court granted the State motion to use the victim’s prior testimony against.  The clerk who read it at the second trial did not use pauses that would have characterized it similar to the original testimony.  The jury convicted Cross on charges of criminal sexual assault and acquitted him of aggravated sexual assault.  

The Illinois Appellate Court upheld the conviction, noting as did the trial court, that the State used extraordinary efforts to locate the victim for appearance at the second trial.  The Illinois Supreme Court denied leave to appeal and the defendant filed a habeas corpus petition in federal court.  The District Court denied relief, but the Seventh Circuit reversed, holding the State did not do enough to contact the victim, citing other leads the State might have pursued.  The Court of Appeals criticized the State for not issuing a subpoena to the victim as another ground of reversal.

The Supreme Court held that it never required the State to issue a subpoena in Confrontation Clause cases where the witness went into hiding.  Additionally, it never required the State to pursue all possible avenues to discover the witness’ whereabouts, especially in hindsight.  Based on that reasoning, and the deference standard in the AEDPA, the Court reversed the Seventh Circuit in a Per Curiam opinion.  [MG]