Circuit Splits

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Andrew Hoffman, South Carolina Supreme Court Splits with the Ninth Circuit Regarding Stored Communications Act Protections for Webmail, Information LawGroup (Oct. 22, 2012).

• Graham Martin, Circuit Split on Construing Statutory Language in Child Pornography Restitution Cases, Lawyerist.com (Oct. 3, 2012).

• Circuit Split: Severance Payments Not Subject to FICA?, LexisNexis Tax Law Community (Oct. 18, 2012)

• Joseph Celentino, Circuit Split Deepens on Sham Marriage Rulings, matrimonialverification.com (Oct. 18, 2012).

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Joseph Celentino, Circuit Split Deepens on Sham Marriage Rulings, Courthouse News Services (Oct. 16, 2012 7:15 A.M. P.T.).

• Cynthia Augello, Circuit Split: How Does the CFAA Apply to Employment Cases?, jdsupra.com (Oct. 15, 2012).

• Rhonda Cook, Georgia gun group files Supreme Court appeal of ban on guns in ‘places of worship’, Atlanta Journal-Constituton (Oct. 16, 2012).

• Quinn Emanuel Urquhart & Sullivan, LLP, October 2012: International Arbitration Litigation Update (Oct. 16, 2012).

7th Circuit Weighs in on Conflict Over Jurisdictional Question Related to Competing Immigration Actions

Where an alien requests a declaratory decision about their entitlement to be naturalized, does the initiation of a removal proceedings by the U.S. Citizenship and Immigration Services deprive the district court of jurisdiction?

Writing for the Seventh Circuit last Friday in Trinidad Klene v. Janet Napolitano, Chief Judge Easterbrook described the four-way conflict that exists over the issue:

Courts of appeals that have considered the interaction between §1421(c) and §1429 have reached four different conclusions:

• One court of appeals has held that the judicial proceeding becomes moot as soon as the administrative proceeding begins, so the suit must be dismissed for lack of a case or controversy. Awe v. Napolitano, 2012 U.S. App. LEXIS 17469 (10th Cir. Aug. 20, 2012) (nonprecedential).

• Two courts of appeals have held that district courts lose subject-matter jurisdiction once the removal proceeding begins. Barnes v. Holder, 625 F.3d 801 (4th Cir. 2010); Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007).

• Three courts of appeals have held that §1429 does not affect subject-matter jurisdiction but does prevent the courts from providing a remedy, so judgment must go for the agency on the merits. Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008); Zayed v. United States, 368 F.3d 902 (6th Cir. 2004); Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004).

• One court of appeals has held that subject-matter jurisdiction continues and that a remedy is possible—a declaratory judgment of entitlement to citizenship. Gonzalez v. Secretary of Homeland Security, 678 F.3d 254 (3d Cir. 2012).

The Seventh Circuit ultimately concluded that the district judge mistakenly “thought that he had no discretion to exercise.” As such, the court remanded the case “with instructions to decide whether it is appropriate to resolve the dispute through a declaratory judgment and, if so, to decide the merits.”

[*Hat tip to Shannon Duffy of the American Law Institute.]

9th Circuit En Banc Joins Circuit Split Over Interpretation of Immigration Statute

Yesterday the Ninth Circuit sitting en banc issued a 6-5 decision in Cuellar de Osorio v. Mayorkas, an immigration case that has a very good chance of making it onto the Supreme Court’s plenary docket this fall.

The decision affects a child’s ability to immigrate to the U.S. with their undocumented parent if the child turns twenty-one before the U.S. finishes processing their parent’s visa (which can take years).

In 1998, Rosalina Cuellar de Osorio’s mother, a U.S. Citizen, petitioned the U.S. to let her daughter immigrate to the U.S. as the beneficiary of a family-sponsored immigrant visa. Later that year, her visa was approved. Rosalina’s son, who was thirteen years old at the time, was also set to receive a visa and immigrate to the U.S. as soon as his mother received her visa because he was unmarried and under the age of twenty-one.

But due to the limited number of visas issued each year, Lisa’s name was placed on a lengthy waiting list. Finally, just months after her son’s twenty-first birthday in 2005, Rosalina received her visa and was granted entry into the U.S. Rosalina’s son, who had qualified for a visa as a derivative beneficiary of his mother back in 1998, had “aged out” of his beneficiary status by 2005, however. He was therefore no longer eligible to immigrate with his mother as her “child.” 

As such, Rosalina asked the U.S. to keep her son’s name at the top of the waiting list as if he had applied for a visa back in 1998, pursuant to section 3 of the Child Status Protection Act. The U.S. Citizen and Immigration Services denied Rosalina’s request, concluding that the Act did not apply to “derivative beneficiaries” like her son. The district court that subsequently reviewed the decision ultimately deferred to the immigration judge’s interpretation of the Act.

On appeal before the entire Ninth Circuit, the 6-5 majority reversed the decision, instead “conclude[ing] that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.”

Writing for the five dissenters, Judge Milan D. Smith, Jr. argued that the Act was not clear on the issue, as evidenced by the following conflicting interpretations:

The statutory provision at issue in this case, 8 U.S.C. § 1153(h), “is far from a model of clarity.” Robles-Tenorio v. Holder, 444 F. App’x 646, 649 (4th Cir. 2011). The Second Circuit recently held that § 1153(h)(3) means the exact opposite of what the majority holds. See Li v. Renaud, 654 F.3d 376, 382-83 (2d Cir. 2011). Other courts, including the original three-judge panel in this case, concluded that § 1153(h)(3) is ambiguous, and that the Board of Immigration Appeals’s (BIA) decision is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See, e.g., Cuellar de Osorio v. Mayorkas, 656 F.3d 954, 965-66 (9th Cir. 2011), vacated, 677 F.3d 921 (9th Cir. 2012); Zhong v. Novak, No. 08-4597, 2010 WL 3302962, at *7-9 (D.N.J. Aug. 18, 2010); Co v. U.S. Citizenship & Immigration Serv., No. CV 09-776-MO, 2010 WL 1742538, at *4 (D. Or. Apr. 23, 2010); cf. Robles-Tenorio, 444 F. App’x at 649 (“It is unclear whether the text and structure of (h)(1) and (h)(3) can be reconciled in any coherent or reasonable fashion.”). If the meaning of § 1153(h)(3) were truly as clear and unmistakable as the majority holds, it certainly has eluded more than its share of reasonable jurists.

The dissent goes on to note rather ironically that “there is currently a circuit split over whether the existence of a circuit split is evidence of statutory ambiguity,” citing the following cases:

Compare Snell Island SNF LLC v. NLRB, 568 F.3d 410, 419-20 (2d Cir. 2009) (evidence), vacated on other grounds, 130 S. Ct. 3498 (2010), McCreary v. Offner, 172 F.3d 76, 82-83 (D.C. Cir. 1999) (same), and In re S. Star Foods, Inc., 144 F.3d 712, 715 (10th Cir. 1998) (same), with Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1254 n.4 (11th Cir. 2003) (not evidence), aff’d, 545 U.S. 546 (2005), and Rosmer v. Pfizer Inc., 263 F.3d 110, 118 (4th Cir. 2001) (same).

 

9th Circuit Deepens Split Over the Statutory Right to Counsel in Immigration Proceedings

Earlier this week, the Ninth Circuit joined a deep circuit split over the question of whether, to obtain relief, an individual who is denied his or her statutory right to counsel in an immigration proceeding must show that the denial actually prejudiced them. Writing for the court in Montes-Lopez v. Holder, District Judge Raner Collins, sitting by designation, answered the question in the negative.

The case involved an El Salvador native named Mario Montes-Lopez. Mario first set foot on American soil in Eagle Pass, Texas on August 13, 2002. Shortly thereafter, the federal government apprehended him and initiated proceedings to have him removed from the U.S.

Mario hired an attorney to represent him in his immigration proceedings, as was his statutory right to do so. But, by the time his merits hearing rolled around, Mario’s counsel had been suspended from practicing law. Mario therefore asked the immigration judge to push back his hearing date to give him time to find new counsel. The immigration judge denied Mario’s request.  

In reviewing the immigration judge's denial, Judge Collins pointed out that the Ninth Circuit had “never decided . . . whether prejudice is an element of a claim that counsel has been denied in an immigration proceeding.” The opinion continues,

The relevant authority in the sister circuits is split. Baltazar-Alcazar, 386 F.3d at 947 n.6 (collecting relevant out-of-circuit cases). The Second, Third, Seventh, and D.C. Circuits do not require a showing of prejudice, but the Fourth, Fifth, and Tenth Circuits do. Id.; Leslie v. Attorney Gen., 611 F.3d 171 (3d Cir. 2010). We think the reasoning of the Circuits that do not require prejudice is more persuasive and more applicable to this case than the reasoning of the Circuits that do require prejudice.

As such, the court found that the immigration judge who had denied Mario’s continuance had violated Mario’s right to counsel under 8 U.S.C. § 1362, notwithstanding the resulting prejudice or lack thereof. You can read the entire opinion here: Montes-Lopez v. Holder, No. 08-70229, 2012 U.S. App. LEXIS 19554 (9th Cir. Sept. 18, 2012).

4th Circuit Addresses New Right in the Crimmigration Context

In 2010, the Supreme Court in Padilla v. Kentucky found that the Sixth Amendment requires defense counsel to “inform her client whether his plea carries a risk of deportation.” 130 S.Ct. 1473, 1486 (2010). In the short two years that followed, a circuit split has emerged over whether Padilla recognized a new right.

Last week the Fourth Circuit confronted this question in a case in which it was asked to decide whether a defendant had filed a timely motion under 28 U.S.C. § 2255(f)(3) within one year after the Supreme Court's recognition of a "new right" that was retroactively applicable to cases on collateral review. See United States v. Mathur, No. 11-6747 (4th Cir. July 11, 2012).

To answer this question, the court first had to address whether Padilla even recognized a new right. In doing so, Judge Paul Niemeyer pointed to a split among the circuits:

The Third Circuit has concluded that Padilla did not announce a new rule. See United States v. Orocio, 645 F.3d 630, 640-41 (3d Cir. 2011). But the Seventh and Tenth Circuits have concluded that it did. See Chaidez v. United States, 655 F.3d 684, 692 (7th Cir. 2011); United States v. Chang Hong, 671 F.3d 1147, 1151 (10th Cir. 2011).

* * * *

The cases decided under Padilla to date have held either that Padilla did not recognize a new right or that Padilla did recognize a new right but the right was not retroactively applicable to cases on collateral review. The Third Circuit’s decision in Orocio, 645 F.3d at 641, represents the class of cases concluding that Padilla did not recognize a new right.¹ The other federal cases that have considered the matter have concluded that Padilla recognized a new right but that the right was not retroactively applicable to cases on collateral review. See, e.g., United States v. Martinez, ___ F. Supp. 2d ___, 2012 WL 220244, at *1-*2 (D. Mass. 2012) (collecting circuit and district court authority and noting the "developing consensus of federal courts in holding that Padilla announced a new rule of constitutional law and thus, under Teague, does not apply retroactively").²

1.  See also Jiminez v. Holder, No. 10–cv–1528–JAH (NLS), 2011 WL 3667628, at *4 (S.D. Cal. Aug. 19, 2011); United States v. Hurtado-Villa, Nos. CV–10–01814–FJM (MHB), CR–08–01249–PHX–FJM, 2011 WL 4852284, at *5 (D. Ariz. Aug. 12, 2011); United States v. Reid, No. 1:97–CR–94, 2011 WL 3417235, at *3 (S.D. Ohio Aug. 4, 2011); Song v. United States, Nos. CV 09–5184 DOC, CR 98–0806 CM, 2011 WL 2940316, at *2 (C.D. Cal. July 15, 2011); United States v. Dass, No. 05–140(3) (JRT/FLN), 2011 WL 2746181, at *5 (D. Minn. July 14, 2011); Amer v. United States, No. 1:06CR118–GHD, 2011 WL 2160553, at *3 (N.D. Miss. May 31, 2011); Zapata-Banda v. United States, Nos. B:10–256, B:09–PO–2487, 2011 WL 1113586, at *4 (S.D. Tex. Mar. 7, 2011); Marroquin v. United States, No. M-10-156, 2011 WL 488985, at *7 (S.D. Tex. Feb. 4, 2011); United States v. Zhong Lin, No. 3:07–CR–44–H, 2011 WL 197206, at *2 (W.D. Ky. Jan. 20, 2011); Luna v. United States, No. 10CV1659 JLS (POR), 2010 WL 4868062, at *4 (S.D. Cal. Nov. 23, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010).

2.  But cf. Santos-Sanchez v. United States, No. 5:06–cv–153, 2011 WL 3793691 (S.D. Tex. Aug. 24, 2011), which suggested that Padilla is "sui generis" because, according to the court, it is retroactively applicable on collateral review even though it is neither an old rule (and thus routinely applicable on collateral review) nor a new rule falling within a Teague exception. Id. at *10 & n.99.

The Fourth Circuit ultimately avoided picking a side by assuming, “without deciding, that Padilla did recognize a new right, as § 2255(f)(3) requires.”

Circuit Splits in Scholarship

Here are a few recent articles analyzing issues on which the circuit courts are split for your reading pleasure: 

• Michael Tudor & Richard A. Bales, You Say Stay: Staying District Court Proceedings Pending Faa § 16(A) Appeals, 64 S.C. L. Rev. ___ (forthcoming 2012) (SSRN).

Abstract: In 1988 Congress amended the Federal Arbitration Act (FAA) and adopted § 16 governing the appeal of arbitrability decisions as part of the Judicial Improvements and Access to Justice Act. The purpose of the amendment was to ensure that the process of appealing arbitrability determinations does not delay entry into arbitration. Section 16(a) allows an immediate appeal from an anti-arbitration decision while 16(b) precludes an appeal when the decision is in favor of arbitration. However, it does not specify whether district court proceedings must be stayed pending appeal. A circuit split has developed with the majority of circuits concluding that non-frivolous appeals divest the district court of jurisdiction resulting in an automatic stay of proceedings pending appeal. A minority of circuits have concluded that arbitrability appeals do not divest the district court of jurisdiction and the court has discretion of whether to stay proceedings. This article will analyze four central issues that courts address when considering whether to issue a stay pending appeal from a denial of arbitration: the text and purpose of § 16, jurisdiction, analogy to double jeopardy and immunity, and the policy concern of frivolous appeals. This article argues that courts should impose an automatic stay because that approach is most consistent with the text and purpose of the FAA, because it is most consistent with Supreme Court precedent, and because it best effectuates the policy concerns of preventing frivolous appeals and effectuating the intent of signatories to arbitration agreements.

• Danielle Acker Susanj, Should Padilla Be Retroactive?, Working Paper (May 4, 2012) (SSRN).

Abstract: When the Supreme Court decided Padilla v. Kentucky in 2010, it declared that defense lawyers had a duty to inform criminal defendants what the removal consequences of pleading guilty could be, if those consequences were clear. The Padilla majority asserted that the decision would not open the “floodgates” to new claims of ineffective assistance of counsel. Yet if there has not been a flood of cases, there has certainly been a growth of confusion as courts have struggled to determine exactly how far and to whom the gates were opened — does Padilla only apply to criminal cases on direct review and to the behavior of defense lawyers going forward, or do offenders whose convictions were final before Padilla also receive its protection? The answer has split the federal circuit courts and state courts that have considered it, leading the Supreme Court recently to grant certiorari on this difficult issue. The Court’s jurisprudence, the purposes of post-conviction review, and the practical consequences point in various directions on the question of retroactively applying the Padilla rule. The divided arguments and the rule from a divided Court suggest that a divided approach might be the best way forward.

• Laura Jean Eichten, A Felony, I Presume?: 21 USC § 841(b)’s Mitigating Provision and the Categorical Approach in Immigration Proceedings, Working Paper (Apr. 25, 2012) (SSRN).

Abstract: This Comment comprises four parts. In Part I, I provide an overview of the immigration law on cancellation of removal and the challenges in defining “aggravated felony.” I include a detailed discussion of the approaches for dealing with the translation of state law convictions into federal crimes. In Part II I explain the intricacies of the Controlled Substances Act, which, as will be seen in Part III, further complicates the already-complicated process of defining an “aggravated felony.” In Part III I delve into the circuit split surrounding how specifically to analogize state law drug convictions to the misdemeanor provision in the CSA, [21] USC § 841(b)(4).

Finally, in Part IV I propose a framework for translating state law drug convictions to into federal drug convictions under § 841(b)(4). I argue that the circuit courts addressing this issue have failed to give adequate attention to the Supreme Court’s guidance regarding the categorical approach, as well as the original reasons for using the categorical approach in immigration proceedings. This guidance suggests that courts should analyze crimes differently during collateral proceedings at Time Two than they would if they were adjudicating criminal sentencing proceedings at Time One. The framework adopted here would allow the immigration judge to look into the record of conviction under broad statutes to the extent he can find facts that were necessarily decided by the Time One fact finder. But on an empty record — a criminal trial record that indicates neither the quantity nor remunerative nature of the drug transaction — I suggest that state law drug convictions should be presumed to correspond to the CSA’s misdemeanor provision, and thus the noncitizen should be presumed not to have committed an aggravated felony.

Circuit Split Roundup

For the latest news and commentary on areas of law dividing the courts or recently resolved, check out the following links:

• Lee Beck, DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss, Federal Regulations Advisor (May 24, 2012) (HTML).

• Rudolph J. Di Massa, Jr. & Aaron J. Margolis, Supreme Court Addresses Circuit Split Over Cramdown Plans Precluding Credit Bidding, The Legal Intelligencer (May 22, 2012) (HTML).

• Christopher M. Loveland & Jonathan S. Aronie, United States: Another U.S. District Court Follows The Lead Of The D.C. Circuit In Addressing The "First-To-File Bar" Circuit Split And Pushes Back Against An Opportunistic Relator, mondaq.com (May 21, 2012) (HTML).

• Jonathan H. Adler, Court to Consider Standing to Challenge FISA Surveillance, The Volokh Conspiracy (May 21, 2012) (HTML).

• Laura Fishwick, Application Of the First Sale Doctrine To Exclusive Importation Rights After Quality King, Harv. J. L. & Tech. Jolt Digest (May 20, 2012) (HTML).

New Article on Appellate Review of Immigration Decisions

My colleague Scott Rempell has a new article posted on SSRN: Judging the Judges: Appellate Review of Immigration Decisions. While not focused on a clear split between circuits, it does focus on the diversity of federal appellate court decisions regarding the standard of review (and degree of deference) for immigration decisions.  Here is the abstract:    

Immigration can be a divisive issue and the federal appellate courts must decide thousands of immigration cases every year. The outcomes of these decisions have large ramifications for the immigrants facing deportation and the executive agencies tasked with enforcing immigration law. The appellate judges adjudicating these cases hold a wide array of beliefs about the efficacy of the current immigration system. While the scope of appellate courts’ review of immigration decisions appears rigidly circumscribed by statute, the true breadth of appellate court review is much more porous. Thus, the governing framework provides judges with a fair amount of latitude when deciding how they are going to assess an immigration case. This article examines how judges’ immigration predispositions can factor into their decision-making processes. The goal of this article is not to fault judges for expressly or implicitly bringing to bare their perceptions on immigration matters. Indeed, even the sincerest effort to remain neutral cannot erase the individual beliefs and experiences that necessarily couch a judge’s decision-making lens. Rather, this article seeks to identify instances, on both sides of the spectrum, where appellate judges’ viewpoints may lead to outcomes that do not comport with the legal framework of their oversight prerogative. A measured degree of divergence among judicial approaches to immigration cases can be beneficial. However, decisions that stray too far from the established framework negatively impact immigration law and the adjudication process in a number of significant ways. 

 

This is a great contribution to the literature.  Immigration policy, and deportation in particular, are contentious issues today in the United States, with strong arguments in each side of the issue; moreover, the stakes are high enough in individual cases to evoke passionate responses toward potential outcomes.  Partly in response to this potential for strong reactions, our legal system has a number of procedural safeguards surrounding immigration removals, the most objective of which is federal appellate review of the decisions, after intermediate review by the BIA.  Yet even this seemingly far-removed, purely legal review has a number of features that distinguish it from other types of appellate decisionmaking.  The sheer number of appeals, the framework for the scope of review and the degree of deference, and the manner in which appellate courts frame the questions in individual cases, all set these cases apart from normal circuit court review.  Combined with the structural feature of direct review to the circuit courts from the agency tribunal, without an intermediate trial, the task of the appellate courts in these cases becomes particularly important and unique, and invites more searching inquiry into how such decisions proceed.  

Rempell's article pursues this inquiry, analyzing the unique structural and procedural components of this type of review, and several decision mechanisms or rhetorical techniques that introduce discretion, and thus potential bias, into this appellate review.   In the end, appellate review of immigration removal decisions includes enough of these discretionary decisional mechanisms to permit appellate judges to follow their personal predispositions or policy agendas regarding immigration as a general matter when deciding any given case, cloaking the tribunal’s bias in these external aspects of the immigration review process.

For those interested in appellate review or in immigration law, I highly recommend downloading and reading Rempell's article.  Very helpful and worthwhile.

 

-Dru Stevenson

2011-2012's "Busiest" Members of the Supreme Court Bar

Last Friday I posted a sneak preview of a white paper I recently prepared entitled "Supreme Court Yearbook: Class of October Term 2011." In case you missed it, you can find Friday's post here. 

As promised, you can now download the white paper in its entirety on SSRN here. Here is a brief summary of the paper:

Each term the Supreme Court decides a mere seventy-five or so cases out of the more than 8,000 petitions for certiorari seeking review. It’s no surprise then, that, for many attorneys, arguing a case before the highest court in the nation is the crowning achievement of their career. For a select few, however, it is simply business as usual.

Who are these individuals? This year's "Supreme Court Yearbook" provides a look at each member of the Supreme Court Bar who served as the counsel of record in a case during the October Term 2011, ranking them in order based on the number of cases they handled. 

This year's Supreme Court Yearbook similarly ranks the law firms involved in the 2011 term based on the number of cases for which they supplied the counsel of record.

Supreme Court Yearbook: Class of October Term 2011

Last month the Supreme Court capped off a blockbuster term with oral arguments in Arizona v. United States—one of the handful of cases that may dramatically reshape our relationship with the federal government.

Although the term’s landmark cases have spurred endless commentary, speculation, and political maneuvering—not to mention some interesting remarks by the President—there has been relatively little written about the advocates who played an active role in shaping the highly anticipated opinions that the Court will hand down in the weeks to come.*

Each term, including its most recent, the Supreme Court decides a mere seventy-five or so cases out of the more than 8,000 petitions for certiorari seeking review. It’s no surprise then, that, for many attorneys, arguing a case before the highest court in the nation is the crowning achievement of their career. For a select few, however, it is simply business as usual.

Who are these individuals? I’ve compiled a "yearbook" of the advocates who make up the Supreme Court’s “Class of October Term 2011.” The following list ranks the "busiest" members of the Supreme Court Bar, so to speak, in descending order based on the number of cases in which they served as counsel of record. I have also noted each advocate's "firm" (loosely defined to encompass not only private law firms, but also public offices, nonprofits, etc.) and a list of their cases.

Be sure to check back on Monday for the entire list of advocates who made the Class of October Term 2011. In the meantime, here is a list of the advocates who were named as the counsel of record in more than one case during this landmark term:

Donald B. Verrilli, Jr. (10)

     Firm

     Department of Justice (Solicitor General)

     Cases (Petitioner/Respondent)

• Arizona v. United States (R)
• FCC v. Fox Television Stations (P)
• Golan v. Holder (R)
• Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (P)
• Reynolds v. United States (R)
• The Affordable Care Act Cases (P & R)
• United States v. Alvarez (P)
• United States v. Bormes (P)
• Vartelas v. Holder (R)
• Zivotofsky v. Clinton (R)

Paul D. Clement (7)

     Firm

     Bancroft, PLLC

     Cases (Petitioner/Respondent)

• Arizona v. United States (P)
• Armour v. City of Indianapolis (R)
• Christopher v. SmithKline (R)
• Pacific Operators Offshore v. Valladolid (P)
• Perry v. Perez (-)
• PPL Montana v. Montana (P)
• The Affordable Care Act Cases (P & R) 

Carter G. Phillips (7)

     Firm

     Sidley Austin LLP

     Cases (Petitioner/Respondent)

• Douglas v. Independent Living Center of Southern California (R)
• FCC v. Fox Television Stations (R)
• Florence v. Board of Chosen Freeholders of the County of Burlington (R)
• KPMG LLP v. Cocchi (P)
• Roberts v. Sea-Land Services (P)
• Salazar v. Ramah Navajo Chapter (R)
• Southern Union Company v. United States (P)

Argument Over Arizona Immigration Law Caps Off Dynamic Term

Protesters gathered at the steps of the Supreme Court yesterday morning holding signs with slogans like "Thank you Arizona," "SB1070 supports federal immigration law, President Obama doesn't," and "Standing on the side of love."

Meanwhile, inside, the panel of eight* peppered Solicitor General Donald Verrilli with pointed questions about why "the federal government just doesn't want to know who is here illegally or not," as Chief Justice Roberts put it. At one point Justice Scalia inquired, "What does sovereignty mean if it does not include the ability to defend your borders?" Even the liberal bloc's Justice Sonia Sotomayor remarked that the federal government's argument was "not selling very well."

Yesterday's oral argument before the Supreme Court over Arizona's controversial SB 1070 caps off what has been one of the most dynamic terms in recent memory. The Court, which is expected to release its opinion sometime in June, will have to decide four difficult questions that highlight the inherent tension between states and the federal government:

    1.    Can police ask for documentation at traffic stops?

    2.    Is it a crime for a person to be in Arizona illegally?

    3.    Is it a crime for illegal immigrants to solicit work?

    4.    Can police arrest illegal immigrants without a warrant if they deem "probable cause"?

The stakes were raised after Arizona's governor signed SB 1070 into law two years ago, as five other states have since followed suit (Alablama, Georgia, Indiana, South Carolina, and Utah). As I mentioned in a post back in December 2011, the circuit courts have struggled to balance the Constitution's reservation of rights to the states, particularly in matters of law enforcement, with the Constitution's delegation of authority to the federal government over matters of foreign policy and naturalization. You can read more about the resulting circuit split here.

The New York Times has posted a transcript of yesterday's oral argument in Arizona v. United States here. And here is a video of Paul Clement, the attorney representing the State of Arizona, addressing the media following oral argument:

Reason.com's Damon Root, who attended Wednesday's oral argument in Arizona v. United States, offers the following summary of yesterday's debate:

 

*Justice Kagan disqualified herself from the case presumably because of her work on the matter as the solicitor general.

Circuit Split Roundup

For the latest news and commentary on matters of law that are ripe for the U.S. Supreme Court's review, check out the following links: 

• Lee Beck, NLRB Posting Rule III: Posting Rule Enforcement Enjoined, Federal Regulations Advisor (Apr. 17, 2012) (HTML).

• Lee Beck, NLRB Posting Rule II: Posting Rule Exceeded Authority under NLRA, Federal Regulations Advisor (Apr. 14, 2012) (HTML).

• Lee Beck, NLRB Posting rule Enforcement Provisions Struck Down, Federal Regulations Advisor (Mar. 5, 2012) (HTML).

• Howard Bashman, The "Princess Bride," on appeal, How Appealing (Apr. 20, 2012 8:14 PM) (HTML).

• Megan DeLockery, Good News for People Who Get Bored at Work, JETLaw (Apr. 19, 2012) (HTML).

• A. Benjamin Spencer, SCOTUS Resolves Split Re Interpretation of IIRIRA, Split Circuits Blog (Apr. 17, 2012) (HTML).

• Friedland Vining Blog, Supreme Court wants Response from Shoe Giant on Trademark Circuit Split (Apr. 19, 2012) (HTML).

Circuits Divided Over the Types of "Social Groups" Eligible for Asylum

The Immigration and Nationality Act (INA) offers asylum to qualifying foreign refugees who have fled to the U.S. to escape persecution in their home country. To qualify, however, the refugee must be a member of a narrow class. Refugees who belong to a “particular social group” who have a well-founded fear of persecution in their home country comprise one such class. See 8 U.S.C. § 1101(a)(42)(A).

But what exactly qualifies as a “particular social group”? This question is the focus of today’s circuit split. Last Thursday Judge Bye of the Eighth Circuit called attention to a wide circuit split over this issue. The decision, Gaitan v. Holder, reaffirmed a prior decision by the Eighth Circuit in which the court emphasized the importance of "social visibility" and "particularity" as critical components of a “social group” whose members may avoid deportation by qualifying for asylum. No. 10-1724 (8th Cir. Mar. 1, 2012). For example, the Board of Immigration Appeals (BIA) relied on these two elements in refusing to recognize a “‘group of ‘affluent Guatemalans’ targeted for ransom” as a protected social group because the group's members were not perceived as distinct, nor were they visible as a group. Id. (citing Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A. 2007) (finding that the general societal perception of wealthy people did not satisfy the “visibility” prong and that the group failed the “particularity” prong because they were “too amorphous”)).

In Gaitan, the Eighth Circuit similarly found that young adult males who flee to the U.S. to avoid gang violence in El Salvador fail to qualify as a “particular social group” whose members may obtain asylum in the U.S. In concurring with his colleagues, Judge Bye expressed concern that “[i]n essence, the decisions elevated the requirements of ‘social visibility’ and ‘particularity’ from merely some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group.” Gaitan, No. 10-1724 (Bye, J., concurring).

“This new approach to defining ‘particular social group,’” Judge Bye lamented, has “split the circuits as to the validity and permissible extent of the BIA's reliance on ‘social visibility’ and ‘particularity.’” So where do the other circuits stand on the matter? Judge Bye offered the following summary:

Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d Cir. 2011) (concluding the BIA's "social visibility" and "particularity" requirements are inconsistent with prior BIA decisions and rejecting the government's attempt to graft these additional requirements onto petitioner's social group claims); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA's decisions in S-E-G- and E-A-G- for being "inconsistent" with the BIA's precedents in Acosta and Kasinga and for failing to explain the reasons for adopting the "social visibility" criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir. 2009) (denouncing the BIA's insistence on "social visibility," sometimes in its literal form, and charging the BIA might not understand the difference between visibility in a social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir. 2010) (noting being a former gang member is an immutable characteristic and defining former members of the 18th Street gang as a "particular social group" based on their inability to change their past and the ability of their persecutors to recognize them as former gang members), with Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) (upholding the BIA's definition of a particular social group as requiring that "(1) its members share common immutable characteristics, (2) these common characteristics give members 'social visibility, and (3) the group is defined with "sufficient particularity to delimit its membership"); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (upholding the BIA's adoption of the "social visibility" requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir. 2009) (rejecting petitioners' claims the BIA is precluded from considering the visibility of a group); and Fuentes-Hernandez v. Holder, 411 F. App'x 438, 438-39 (2d Cir. 2011) (stating individuals who resisted gang recruitment in El Salvador do not constitute a "particular social group" because their proposed group lacked "social visibility" and "particularity" and because the alleged persecution "did not bear the requisite nexus to a protected ground").

Id.

The Fugitive-Disentitlement Doctrine: Cert Petition Offers Two Splits for the Price of One (Part 1 of 2)

SCOTUSblog’s “Petition of the Day” last Friday, Bright v. Holder, presents the Supreme Court with the unique opportunity to resolve two circuit splits in one case. (I've posted a link to SCOTUSblog's coverage of this petition below). You can read the pending cert petition filed in Bright here, and the Fifth Circuit’s opinion here: Bright v. Holder, 649 F.3d 397 (5th Cir. 2011).

The circuit splits in this case involve the “fugitive-disentitlement doctrine," a mechanism through which an appellate court may dismiss the appeal of a convicted criminal who has fled custody. See Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876). “Under the doctrine, a fugitive is precluded from appellate review ‘as an appropriate sanction’ when he remains at large during ‘the ongoing appellate process.’” Sun v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009) (quoting Ortega-Rodriguez v. United States, 507 U.S. 234, 242 (1993)).

In the immigration context, the circuits are widely split over the question of whether the fugitive-disentitlement doctrine applies to an alien who fails to voluntarily surrender to a removal order, but whose whereabouts are presently known and who has not fled from custody during the pending appeal. 

The following five circuits, according to Bright's cert petition, do not treat appellants who fail to voluntarily surrender themselves for removal as "fugitives" under the fugitive-disentitlement doctrine unless they have actually fled or are hiding from the court:

• 3rd Circuit: Ye v. Attorney Gen., 383 F. App’x 113, 116 (3d Cir. 2010) (unpublished); Arana v. INS, 673 F.2d 75, 77 (3d Cir. 1982) (per curiam).

• 8th Circuit: Nnebedum v. Gonzales, 205 F. App’x 479, 480-81 (8th Cir. 2006).

• 9th Circuit: Sun v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009) (refusing to apply the fugitive-disentitlement doctrine to dismiss the appellant’s case because her whereabouts were known to the appellant's attorney and her previous failure to report for removal from the U.S. did not coincide with the pending appeal).

• 10th Circuit: Martin v. Mukasey, 517 F.3d 1201, 1204 (10th Cir. 2008).

• 11th Circuit: Zhou v. Attorney General, 290 F. App’x 278, 281 (11th Cir. 2008) (unpublished).

“In stark contrast,” according to the Petitioner in Bright, “four other circuits—the Second, Fifth, Sixth, and Seventh—define a ‘fugitive’ as ‘anyone who is told to surrender, and does not,’ whether or not his whereabouts are known.” Bright's petition cites the following cases as having adopted this position:

• 2nd Circuit: Gao v. Gonzalez, 481 F.3d 173, 176 (2d Cir. 2007) ((“[F]or an alien to become a fugitive, it is not necessary that anything happen other than a bag-and- baggage letter be issued and the alien not comply with that letter.”). But see Wu v. Holder, 617 F.3d 97, 100 (2d Cir. 2010).

• 5th Circuit: Bright v. Holder, 649 F.3d 397 (5th Cir. 2011).

• 6th Circuit: Garcia-Flores v. Gonzales, 477 F.3d 439, 442 (6th Cir. 2007).

• 7th Circuit: Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004).

Tomorrow we will look at the second circuit split pending before the Supreme Court in Bright v. Holder, which involves the question of whether a petitioner's “fugitive” status changes once they are in custody. In the meantime, you can read SCOTUSblog's coverage of the petition here: Kali Borkoski, Petition of the day, SCOTUSblog (Feb. 17, 2012, 5:00 PM), http://www.scotusblog.com/2012/02/petition-of-the-day-247/.

[*Hat tip to Lee Beck over at http://www.fedregsadvisor.com/].

Split Over the Right to Effective Counsel in Immigration Proceedings

Yesterday’s post examined a circuit split over whether the Due Process Clause of the Fifth Amendment applies to private regulators. Today’s post covers yet another circuit split over the applicability of the Due Process Clause. This time, however, the circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.

As the Third Circuit recently illustrated in the following footnote, this question has produced a circuit split that can only be described as "ripe for review":

Because immigration proceedings are civil rather than criminal in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Fadiga, 488 F.3d at 157 n.23. But we have recognized (along with a majority of our sister Courts of Appeals) that "[a] claim of ineffective  assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process." Id. at 155; see also Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).³

3. Like our Court, the First, Second, Sixth, Ninth, Tenth, and Eleventh Circuits have held that the Due Process Clause guarantees an alien a right to assistance of counsel that is sufficiently effective to prevent removal proceedings from being fundamentally unfair. See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); United States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003); Denko v. INS, 351 F.3d 717, 723-24 (6th Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); Dakane v. Att'y Gen., 399 F.3d 1269, 1273-74 (11th Cir. 2005). The Fourth and Eighth Circuits have held that there is no such constitutional right. See Afanwi v. Mukasey, 526 F.3d 788, 798 (4th Cir. 2008), cert. granted, vacated, & remanded by 130 S. Ct. 350, 175 L. Ed. 2d 4 (Mem.) (2009); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). Panels of the Seventh Circuit have issued conflicting decisions on the matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (recognizing due process right) with Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005) (denying due process right). The Fifth Circuit has "repeatedly assumed without deciding that an alien's claim of ineffective assistance may implicate due process concerns under the Fifth Amendment." Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).

Contreras v. Att'y Gen. of the U.S., No. 10-4235 (3d Cir. Jan. 4, 2012). Judge Thomas Ambro, writing for the court, summarized the Third Circuit's stance on the issue:

This immigration case requires us to decide, among other things, whether the Fifth Amendment’s Due Process Clause guarantees an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. We hold that it does not, and thus deny the petition for review. 

Supreme Court to Hear Arizona Immigration Case

At the outset of the October 2011 term, USA Today ran an article that declared, “The Supreme Court opens a potentially epic term.” So far, the Court has not disappointed. Having already granted cert in several landmark cases, which include the Health Care Reform Case and GPS Tracking Case, OT 2011 is shaping up to be a blockbuster term indeed. Today the High Court added yet another one to the list: the "Arizona Immigration Case" involving the state's Senate Bill 1070. As the Washington Post reported here, the Court’s decision today “to review Arizona’s controversial illegal immigration law was just the latest addition to what many see as its most important and politically charged docket in recent years."

The case, Arizona v. United States, will force the eight Justices (Justice Kagan will recuse herself) to address the tension between the Constitution’s general reservation of rights to the states, particularly in the area of law enforcement, and the Constitution’s delegation of authority to the federal government over matters of foreign policy and naturalization. Not surprisingly, this thorny issue has produced a split in the circuit courts, which the Court must now resolve.

The question presented to the Court in Arizona asks “whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.” The particular federal immigration law in question is  8 U.S.C. § 1252c, a statute that is sweeping in its scope, yet silent on Congress's desire to preempt overlapping state law.

In 1999, the Tenth Circuit summarized this statute as one that

authorizes state and local law-enforcement officers to arrest illegal aliens if all of the following three conditions are met: (1) the arrest is permitted by state and local law; (2) the alien was deported or left the United States after a previous felony conviction; and (3) prior to arrest, the officer obtains "appropriate confirmation" of the alien's "status" from the INS.

United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (10th Cir. 1999), cert. denied, 528 U.S. 913. In Vasquez-Alvarez, the Tenth Circuit considered “whether Congress intended § 1252c to preempt preexisting state law empowering state and local officers to arrest for violations of federal immigration laws.” In rejecting this proposition, the court found that “[b]oth the plain language and legislative history of § 1252c reflect that Congress intended the provision to displace perceived Federal limitations on the authority of state and local officers to arrest ‘criminal illegal aliens’” rather than limit state and local authority.

More than a decade later, however, the Ninth Circuit reached the exact opposite conclusion in Arizona (see here), as explained in the state's petition to the Supreme Court:

[T]he decision below creates an express and acknowledged circuit split over the preemptive force of the federal immigration laws. The Tenth Circuit views those laws as affirmatively encouraging cooperative enforcement by States; the Ninth Circuit reads such authorization for specific cooperation as negating any inherent state law enforcement authority.

In his 38-page partial dissent, Judge Carlos Bea chastised his Ninth Circuit colleagues in the majority for reading the statute in such a manner, stating, “I cannot join the majority in criticizing the Tenth Circuit for merely reading the statute’s words,” followed by a footnote that adds, “But I can criticize the majority for initiating a needless circuit split between our court and the Tenth Circuit, contrary to our own declared preference to avoid such circuit splits.”

Oral arguments will likely be held in April 2012 followed by a decision as early as June.