Saturday, November 16, 2019

Immigration in the Supreme Court, 2019 Term: DACA, Judicial Review, Federalism, Etc.

By my count, there are nine non-consolidated immigration cases before the Supreme Court in the 2019 Term.  This is the largest number of immigration cases before the Court in one Term in recent years.  (For a review of the immigration cases decided during the 2009-13 Terms, click here.).  That should not be surprising given the Trump administration's many immigration initiatives. 

The three consolidated DACA cases are receiving the most attention.  That is especially the case this week with numerous news reports and op/eds about the oral arguments in the DACA cases. However, there are other cases -- especially those involving judicial review -- which may have broader impacts on immigration law.

Here is the immigration line-up for the 2019 Term.

1.  The DACA Cases:  There are three consolidated cases in which three circuits found that the Trump administration's rescission of DACA was unlawful.   My views about the case can be found here and here.       

Department of Homeland Security v. Regents of the University of California [Arg: 11.12.2019 Trans.]

Trump v. NAACP, [Arg: 11.12.2019 Trans.]

McAleenan v. Vidal, [Arg: 11.12.2019 Trans.]


2.  Bivens Claim for Cross Border Shooting:  Hernandez v. Mesa. [Arg: 11.12.2019 Trans.]

Issue: Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.  The case involves a shooting by a U.S. immigration officer of a Mexican youth who was on Mexican soli.


3.  Judicial Review of Immigration Decisions.  These four cases could have big impacts on the judicial review of agency immigration decisions.

Department of Homeland Security v. Thuraissigiam. Issue: Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.   The case involves a challenge to expedited removal of an asylum seeker.


Nasrallah v. BarrIssue: Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.   A decision in this case could affect judicial review of fact findings in many relief from removal cases.


Guerrero-Lasprilla v. Barr [Arg: 12.9.2019]:  Issue: Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”


Ovalles v. Barr, [Arg: 12.9.2019].  Issue: Whether the "criminal alien" bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.


4.  Federal Preemption of State Immigration Enforcement Laws:  Kansas v. Garcia. [ Trans./Aud.]. Issues: (1) Whether the Immigration Reform and Control Act (IRCA) expressly pre-empts the states from using any information entered on or appended to federal Form I-9; and (2) whether the IRCA impliedly preempts Kansas’ prosecution of respondents. Put differently, the issue is whether the federal immigration laws preempt the state identity fraud law as applied to undocumented workers.

5.  Interpretation of the Immigration Laws or Criminal Laws Involving Immigration

Barton v. Barr  Trans./Aud.Issue: Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1).

U.S. v. Sineneng-Smith. Issue: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.


It could be a big Term for immigration law.  I would expect the DACA decision to be handed down near the end of June, as the Court winds down for the end of the Term.  Stay tuned!


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