Wednesday, May 23, 2012
So far, the Supreme Court has issued four immigration decisions this Term. There will likely be five in total. Court watchers eagerly await the Court to decide Arizona v. United States, which has received the most attention by far of the Court's immigration decisions from the 2011 Term. Much more will be said, I am sure, when the Court decides that case, which could well have a dramatic impact on the future of the many immigration enforcement laws passed in recent years by state legislatures.
The Court’s four other immigration decisions, however, offer critically important insights about how the Court approaches more run-of-the-mill immigration cases that are the bread-and-butter of immigration law practice. In total, the decisions are firmly in the mainstream of constitutional, statutory, and administrative law jurisprudence.
The unexceptional nature of the Court's four immigration decisions may be surprising to students of immigration law who have been well-schooled in the “plenary power doctrine,” which historically has immunized substantive immigration law provisions from meaningful judicial review, and in fact represents an important deviation from mainstream constitutional law.
In a rather unexceptional – if not workmanlike -- fashion, the Court in the four non-Arizona immigration cases decided in the 2011 Term generally treats the review of immigration cases like it treats other the review of other agency actions.
Two of the four decisions were unanimous and written by Justice Elena Kagan, the most junior Justice on the Court. One central lesson of decisions is that the Court will protect immigrants from arbitrary removal decisions of the Board of Immigration Appeals (BIA) and, at the same time, defer to the BIA’s reasonable interpretation of the immigration laws. The Court has followed a relatively consistent pattern in this regard in recent years, with an occasional blockbuster like Arizona v. United States (I admittedly am speculating) and Padilla v. Kentucky.
1. Deference to the BIA: Judulang v. Holder
In Judulang v. Holder, the Supreme Court addressed a case in which the U.S. government sought to remove from the United States a lawful permanent resident who had lived here since 1974, based on a 1989 voluntary manslaughter conviction. Former Section 212(c) of the Immigration and Nationality Act provides for a “waiver of excludability” allowing a noncitizen to enter, and resist removal from, the country despite a criminal conviction. The U.S. government sought to remove Joel Judulang from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.” The Board of Immigration Appeals (BIA) ruled, and the Ninth Circuit affirmed, that a “crime of violence” was not “comparable” to any ground for exclusion and that Judulang was not eligible for relief.
Judulang argued that the BIA’s interpretation of the relevant statutory provisions was arbitrary and capricious. The Supreme Court agreed. Writing for a unanimous Court, Justice Elena Kagan began the opinion for the Court as follows:
"This case concerns the Board of Immigration Appeals’ . . . policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious. The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it." (emphasis added).
In reaching that conclusion, the Court applied ordinary administrative law principles. The Court held that the BIA’s ruling “flunked” minimal judicial review. Finding that the BIA’s interpretation of the statute was not reasonable, the Court emphasized that “[w]e must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case.”
As in Judulang v. Holder, the Supreme Court has in recent years subjected the immigration decisions of the government to the same standards of judicial review as applied to other agency actions. The Court also has applied the same basic principles of statutory interpretation to the immigration laws that it applies to other statutes.
2. Deference to the BIA: Vartelas v. Holder
The issue before the Supreme Court in Vartelas v. Holder was the application of Immigration & Nationality Act § 101(a)(13)(C)(v),which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the amended definition of “admission” into the United States, a lawful permanent resident returning from a brief trip outside the country who had been convicted of certain criminal offenses was deemed to be seeking admission into the country. The U.S. government relied on the new statutory provision to deny admission to Vartelas based on conviction for a “crime involving moral turpitude.”
Vartelas would not have been subject to deportation if he had not left the United States. Before 1996, as a lawful permanent resident, he would have been free to take a short trip out of the country.
In an opinion by Justice Ruth Bader Ginsburg, the Supreme Court rejected the BIA’s order that Vartelas be returned to Greece:
"We conclude that the relevant provision of IIRIRA, § 1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction. The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction."
In so holding, the Court applied the “presumption against retroactive legislation” and the general retroactivity rules from Landsgraf v. USI Film Products (1994). The Court found that, in pleading guilty to the criminal charge in 1994, Vartelas “likely relied” on the law as it existed at that time, which allowed him the freedom to take brief trips outside the United States.
In an opinion joined by Justices Thomas and Alito, Justice Scalia dissented. The dissent viewed the activity regulated by the 1996 amendment as reentry into the United States after a trip outside the country. Consequently, the new statutory language was not applied retroztively because Vartelas's readmission to the United States after a trip abroad occurred years after the effective date. Justice Scalia accused the majority of going beyond the statutory language to achieve a fair result.
In sum, the Court found for Vartelas in a narrowly drawn opinion that found that the retroactive application of 1996 amendments to the immigration laws would be unconstitutional. Applying the standard test for the retroactive application of new laws, the Court concluded that Vartelas could not be subject to the 1996 amendment. The Court did not address broader questions, including the constitutional rights of lawful permanent residents.
For further commentary, click here.
3. Deference to the BIA: Holder v. Gutierrez and Holder v. Sawyers
In these consolidated cases, the Supreme Court reviewed the question whether the Board of Immigration Appeal’s decision to forbid the imputation of the years of a parent’s residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal. Writing for a unanimous Court, Justice Elena Kagan deferred to the BIA’s construction of the statute.
The Court concluded that the Board’s rejection of imputation of the time of parent’s residence to the child for purposes of eligibility for relief was a permissible construction of the statutory provision (which seemed pretty clear cut to the Court) in question (8 U.S.C. § 1229b(a)). As a reasonable construction of the statute, the agency’s interpretation was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The decision has all the trappings of the run-of-the-mill Chevron deference case.
4. Deference to the BIA: Kawashima v. Holder
In Kawashima v. Holder, the U.S. Supreme Court, in a majority (6-3) decision written by Justice Clarence Thomas, affirmed the Ninth Circuit's holding that a tax crime was an “aggravated felony” under the U.S. immigration laws subjecting an immigrant to removal. Joined by Justices Breyer and Kagan, Justice Ginsburg dissented.
The issue before the Court was whether that the convictions of Akio and Fusako Kawashima, natives of Japan who had been lawful permanent residents since 1984, for the filing, and aiding and abetting in filing, a false statement on a corporate tax return constituted “aggravated felonies,” thereby making them removable from the United States. Engaging in a straight-forward analysis of the statutory language, the Court concluded that the crimes constituted "aggravated felonies" subjecting them to removal.
At various times, the Supreme Court has applied the “rule of lenity” to interpret ambiguities in a deportation statute in favor of the noncitizen fighting deportation. Justice Thomas and the majority did not seem to see any ambiguities in the removal statute that warranted invocation of the rule of lenity. In contrast, Justice Ginsburg in dissent relied on the rule of lenity as a basis for her interpretation of the statute in favor of the noncitizen.
In Kawashima v. Holder, the Court engaged, as often is the case in immigration cases, in a debate over statutory construction of the complex immigration laws. This is a run-of-the-mill statutory interpretation case. Justice Thomas focuses on the plain meaning of the statute and Justice Ginsburg reads more into the statutory text (and structure of two sub-sections). As with the other decisions discussed in this post, I do not see this immigration case having much of an impact on immigration cases.
Nearly twenty years ago in Responding to the “Litigation Explosion”: The Plain Meaning of Executive Branch Primacy Over Immigration, 71 North Carolina Law Review 413 (1993), I criticized a series of Supreme Court immigration decisions that applied ordinary principles of statutory construction and administrative law in the review of agency immigration decisions. My claim was that, given the important life and liberty issues at stake in an immigration case, the courts should engage in more exacting judicial review of agency removal decisions.
The Supreme Court obviously has not embraced my suggested approach. Nonetheless, the good news is that the Court is engaging in meaningful review of agency decisions and applying ordinary administrative law principles in that review, not blindly deferring to the Board of Immigration Appeals. In terms of statutory interpretation, the Court is, as in other cases, focusing on the plain meaning of the text of the statute. The immigration attorney should take to heart the Court’s devotion to rigorous statutory construction and expect ordinary – but not excessive – deference to the agency by the courts to the rulings of the BIA.