The Supreme Court’s Immigration Cases From Last Term
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.”
The Persecutor Bar to Asylum
The U.S. immigration laws include provisions that permit a noncitizen relief from removal if he or she has been persecuted, or faces a well-founded fear of future persecution, on account of political opinion, religion, race, nationality, and membership in a particular social group. There are a number of exclusions from such relief, including one for a noncitizen who persecuted others on account of one of the five enumerated grounds. The Supreme Court in Negusie v. Mukasey held that
“In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar [to asylum] applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.”
The issue presented by the case was whether the provision of the Immigration and Nationality Act that prohibits the granting of asylum to individuals found to have themselves engaged in persecution applies to those who were compelled to do so by threats of deaths or torture. The petitioner in the case, Daniel Girmai Negusie, at age 18, was forcibly conscripted by Eritrean military forces in the longstanding war with Ethiopia. On account of his Ethiopian heritage, however, Negusie refused to fight against those he deemed his “brothers.” His refusal resulted in roughly two years in prison. Following his imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. Torture reportedly is common at the prison. Based on his work at the prison, the Fifth Circuit denied Negusie relief, finding the forcible service as a prison guard irrelevant to the applicability of the provision of the bar of asylum to persons who had persecuted others on account of race, religion, nationality, political opinion, or membership in a particular social group.
The Court reversed the Fifth Circuit’s decision for the U.S. government and remanded. Justice Kennedy wrote the opinion for an 8-1 Court. The Court held that the BIA had wrongly believed itself bound by the Court’s 1981 decision in Federenko, which dealt with another statute (Displaced Persons Act of 1948), and remanded to the agency for consideration of the issue under the asylum provisions of the Immigration & Nationality Act; according to the Court, ordinary deference to the agency’s interpretation of the statute under Chevron was not warranted given the BIA’s incorrect conclusion that it was bound by Federenko. Justice Thomas filed a dissent, claiming that the persecutor bar should apply to a person who persecuted others, coerced or not.
The Government’s Sole Victory: Aggravated Felony Definition
The U.S. government’s sole victory in the Supreme Court’s last Term was in a unanimous opinion by Justice Breyer, which affirmed the Third Circuit’s decision in Nijhawan v. Holder. The Petitioner, an immigrant from India, was convicted of conspiring to commit mail fraud and related crimes. Because the relevant statutes did not require a finding of the amount of a loss, the jury made no such finding. However, at sentencing, petitioner stipulated that the loss exceeded $100 million. He was sentenced to prison and required to make $683 million in restitution. The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an “aggravated felony.” The immigration court found that petitioner’s conviction fell within the “aggravated felony” definition. The Board of Immigration Appeals agreed, as did the Third Circuit, which held that the Immigration Judge could inquire into the underlying facts of a prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000. The Supreme Court affirmed.
What Do Victories for Noncitizens in the Supreme Court Mean?
In the four immigration cases this Term, the Supreme Court applied generally applicable principles of statutory interpretation, traditional equitable doctrines, and deference to administrative agencies. Losses for the U.S. government in the three cases suggests that the Bush administration took some extreme positions on immigration-related matters that even a conservative Supreme Court could not swallow.
Interestingly, the decisions involve bodies of jurisprudence (statutory interpretation, equitable principles, agency deference) that cut across many different bodies of law. The Bush administration made arguments that ran counter to the Court’s general tendency in those areas and lost in three out of four cases. Perhaps the Obama administration understands this, as the Solicitor General has abandoned the Bush administration’s position greatly limiting judicial review of discretionary immigration decisions in a motion to reopen case in which the Supreme Court granted cert.
In sum, wins for noncitizens in this case as well as Flores-Figueroa v. United States, Negusie v. Mukasey, and Nken v. Holder might be surprising to some with this staunchly conservative Supreme Court. But it once again demonstrates that immigration is not a simple liberal/conservative issue. And that the law indeed does matter.