Last Term, the U.S. Supreme Court decided four immigration-related cases. The Court rarely takes so many immigration cases, which suggests that it – like the general public – views immigration as an important issue. In the four decisions, the Court also addressed some conflicts on immigration law among the circuits.
The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects that the Roberts Court sided with noncitizens in 75 percent of the cases. A closer look reveals that the Supreme Court pretty closely followed the law and precedent and rejected positions of the Bush administration that pushed the limits.
The U.S. government has increasingly used identity theft statutes as a tool against undocumented immigrants. The Supreme Court limited the U.S. government’s power to use that tool in Flores-Figueroa v. United States. The decision below, which held for the United States, was unanimously reversed and remanded in an opinion by Justice Breyer. The Court held that prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to an identity being fabricated. In a fairly routine manner, the Court interpreted the language of the statute and in effect applied the traditional rule of lenity, resolving statutory ambiguities in favor of the criminal defendant.
Flores-Figueroa v. U.S. clarifies what federal prosecutors must prove in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increasingly – and aggressively — used identity fraud criminal charges in immigration enforcement. An infamous example is the raid on the Agriprocessors kosher food plant in Postville, Iowa in May 2008, in which hundreds of undocumented workers faced criminal identity theft charges (as opposed to simply being deported, as had generally been the past practice in immigration raids). The Court resolved the conflict that had emerged in the federal appellate courts over the government’s burden of proof in aggravated identity theft cases.
Stays of Removal Pending Appeals
Noncitizens facing deportation who lose appeals of removal orders in the Board of Immigration Appeals often seek a stay of removal while an appeal is pending in the court of appeals. The question in Nken v. Holder was whether 1996 reforms to the immigration statute continued to permit such stays, which until that time had been routinely granted. As a practical matter, many appeals would be abandoned or mooted if the noncitizen were deported.
Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:
“This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.” In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other. Justice Alito, joined by Justice Thomas, dissented, emphasizing that “[t]he Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996.”