Monday, June 15, 2015
With two decisions today, the Supreme Court decided a total three immigration cases in the 2014 Term. This is about the average over the last six Terms. The decisions are:
Mellouli v. Lynch: The Court ejected a removal order based on a state conviction for possession of drug paraphernalia, in this case a sock used to conceal a prescription drug. The Court found that the Board of Immigration Appeals ruling was contrary to the immigration statute. The immigrant, Moones Mellouli, prevailed in this case.
Mata v. Lynch: In this case, which was no surprise in light of fact that the Solicitor General did not defend the ruling in its favor below, the Court found that the court of appeals had jurisdiction to review a claim of equitable tolling of the time limit on a motion to reopen removal proceedings. The immigrant Reyes Mata, previously convicted of assault, prevailed in this case.
Kerry v. Din: In this case, a splintered Supreme Court vacated and remanded a court of appeals ruling that a consular officer had failed to provide an adequate justification (simply citing the lengthy "terrorist activity" provision of the Immigration and Nationality Act) for denial of a visa to a spouse of a U.S. citizen. No opinion commanded a majority. The doctrine of consular nonreviewability remains intact, as does the exception articulated in Kleindienst v. Mandel (1972) allowing for limited judicial review of visa decisions. Although the U.S. government prevailed in this case, six Justices agreed that limited judicial review of consular officer visa decisions was appropriate.
All of the decisions applied ordinary modes of statutory interpretation and administrative agency review to immigration decisions of the Executive Branch. Two of the three cases involved immigrants convicted of crimes, a particular focus of the Obama administration's removal efforts. The third -- and only one in which the U.S. government prevailed -- involved the specter of "terrorist activity."
In my estimation, there were no real surprises in any of the Supreme Court's immigration decisions from the 2014 Term. The Roberts Court continues to pursue what I have termed immigration law unexceptionalism in its immigration decisions.