For years, practitioners in North and South Carolina have been the victims of a forced marriage with the Atlanta Immigration Court and the 11th Circuit Court of Appeals.  In late 2008, we finally got our own Immigration Court in Charlotte, NC.  Yesterday, the BIA issued its first precedent decision originating from the Charlotte Immigration Court.  And it was a big one…

Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault (which was dismissed by the State of NC) and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana.  

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and AILA Amicus Committee stepped in to provide amicus support.  During this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Yesterday, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D). 

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”  Our work is not done.  The AILA Amicus Committee believes returning to the plain language of the statute means not only overruling Matter of Saysana, but also Rojas.  Like Saysana, Rojas has led to a mountain of litigation and the inconsistent application of our mandatory detention statute nationwide. 

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).   Our committee celebrates the Board’s decision yesterday in Garcia-Arreola, but also looks forward to fully restoring the exercise of discretion in Immigration Court.

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The mess that is Arizona’s Senate Bill 1070 is under legal attack.  The case is  Friendly House v. Whiting, 10-CV-01061-JWS.  On June 4, 2010, the plaintiffs represented by an impressive group of lawyers from the ACLU, NILC, MALDEF, Asian Pacific American Legal Center, the NAACP, the National Day Laborer Organizing Network, and the private firm of Munger, Tolles, & Olson filed a preliminary injunction seeking to prevent SB 1070 from taking effect on July 29, 2010 — the date it becomes effective.  Several organizations maintain updates on the case: MALDEF’s updates, ACLU’s updates,  NDLON’s Arizona Campaign, NILC’s updates.  The Immigration Policy Center of the American Immigration Council has written and researched extensively on SB 1070 with the most recent piece called a Q&A Guide to Arizona’s New Immigration Law (PDF).

AILA, along with numerous other organizations, filed amicus briefs in support of the preliminary injunction.  As we write, more briefs are being filed.  Here, we recap some of the key briefs and the key arguments they present:

The amicus briefs filed included an incredible number of voices expressing their concerns regarding the enactment of S.B. 1070. Numerous different groups filed, including the American Immigration Lawyers Association (AILA), International Longshore and Warehouse Union (ILWU), National Council of La Raza (NCLR), Legal Momentum, and the Lawyers’ Committee for Civil Rights Under Law (LCCRUL). While the overall message presented is unified against the law, each organization applied its particular expertise to provide unique insights for the reasons why S.B. 1070 is impracticable and unconstitutional.

AILA’s brief articulates its concerns regarding the mechanisms by which law enforcement will identify immigrants that it deems removable. AILA is fearful that local authorities will misapply federal immigration laws.  This is problematic because immigration is a federal issue and determining removability requires a legal determination which local police are largely unqualified to make. Additionally, the enactment of the Arizona statute indicates that the state is unsatisfied with federal programs meant to identify undocumented immigrants, and the state is taking it upon itself to remedy the situation—expending its own resources and utilizing local law enforcement agents who have little or no training in regulations pertaining to immigration law.

The amicus brief filed by the ILWU detailed why S.B. 1070 is unconstitutional because it violates Equal Protection, freedom of speech, Due Process under the Fourteenth Amendment, the right to seek employment under the Fifth and Fourteenth Amendments, and is preempted by federal statute.  Additionally, it is unconstitutionally vague, making its enforcement impracticable.

The NCLR focused its attention on how the new law in Arizona will affect immigrants’ access to benefits such as public education, medicine, and proper nutrition. Additionally, its brief addresses the discriminatory animus of S.B. 1070 and how it will affect Latinos—not only as individuals but also as business owners. The NCLR also notes that the new law draws little attention to the large population of Canadians that spend their winters in Arizona, some of whom may have an undocumented status in the U.S. Additionally, the NCLR also addresses the probable increase in violent crimes perpetrated against vulnerable undocumented immigrants due to their fear of approaching authorities to report crimes, which directly contradicts Congressional intent in enacting the T and U-visas.

Legal Momentum expanded on the importance of protecting victims of crime, detailing that S.B. 1070 will affect Arizona families, particularly those that are victim to abuse. Undocumented immigrants will fear law enforcement officers and refrain from asking them for help to prevent their own or a family member’s deportation. Many U.S. citizens that are children of immigrants live in Arizona, and if their parents are deported, they are left in the country with few options. Either stay separated from their family or chose to leave their home. 

Finally, LCCRUL filed a brief detailing that S.B. 1070 violates the fundamental right to travel. This unconstitutional burden on travel creates two classes of citizens—citizens that are able to prove their citizenship and those that lack access to the necessary types of documentation needed to meet the requirements listed in S.B. 1070. Some groups (such as American Indians) may have documentation that satisfies the requirements of adequate identification as required by the statute, but may not actually qualify as U.S. citizens. Certain states, such as New Mexico and Washington, award driver’s licenses to individuals without requiring proof of citizenship, and individuals from these states may be detained when entering Arizona. This would make these individuals targets of law enforcement officials who are required to detain undocumented individuals, causing citizens of these states to be treated differently than a citizen of Arizona, and thus, violating U.S. citizens’ fundamental right to travel.

The different voices represented by the amicus briefs filed in support of the Plaintiffs in Friendly House v. Whiting creates an amalgam of information that clearly establishes why S.B. 1070 should be enjoined. The Arizona statute is impracticable and a liability for local law enforcement agencies and the discrimination and bias it produces will negatively impact immigrant families—citizens and non-citizens alike.

It is increasingly common for immigration lawyers who lose circuit cases to get calls from lawyers offering a deal that is too good to be true. The callers say that at absolutely no cost to you or your client, they will prepare a costly petition for writ of certiorari and take over all of the work to handle the case at the Supreme Court. All you need to do is say yes, and they will take care of the rest.

Like all deals that seem too good to be true, this one requires careful thought. Yes, your client wants to stop deportation. Yes, the circuit decision was wrong. But neither one means that you should necessarily seek review in the Supreme Court or, if you do, take on the services of the first big name law firm or law school clinic that calls.

Why? It should come as no surprise that the Supreme Court is a treacherous place for litigating immigration cases. Although we have had some big wins, we have also had major losses. And even if there is a chance at a win, everyone, including your client who lost in the circuit, has an interest in having the best possible strategy pursued.

Two years ago, lawyers from leading immigration advocacy organizations (including the AILA amicus committee) came together to form the Supreme Court Immigration Law Working Group. The purpose of the group is to assist lawyers who receive calls from firms offering to handle Supreme Court cases, to develop a coherent strategy for Supreme Court intervention in immigration cases, and to plan strategies for effective presentation of relevant issues when a case is taken up by the Supreme Court. You can reach the group at clearinghouse@immcouncil.org.

Here are some basic steps that the working group follows:

First: does a client with a losing circuit case have other options? Sometimes, there is another option, for example, through consular processing or a U visa. The lawyer who calls offering to take your case to the Supreme Court probably isn’t interested in those other options. But other immigration lawyers might be able to help you sort them out. In addition, sometimes, resolution of the issue that makes your case attractive to the Supreme Court lawyers may not really help your client. Again, immigration lawyers can assist in sorting that out.

Second: is the client’s case the best vehicle for presenting the issue? There are many ways of preserving a client’s ability to benefit from a Supreme Court decision, even if another case is the one that is heard by the Supreme Court. For example, you can seek rehearing or an extension of time while other cases so forward. The key is to figure out which is the best case to go forward.

Third: if it makes sense to seek Supreme Court review, who will do the best job? It is important to look for lawyers who will work with immigration experts and who will be as interested in a good result through settlement or agency interpretation as they are in a merits argument in the Supreme Court.

Fourth: if it makes sense to go to the Supreme Court, who can take on the work of ensuring a good set of amicus briefs that will present the issues? These briefs take time to write and it is important to ensure that each serves a discrete purpose. Otherwise, there is a danger of briefs that are at cross-purposes or simply do not get read.

Finally: what is the plan once there is a decision? The lawyers calling to take on the case are probably not thinking about the possible administrative and legislative fallout from a decision. But every Supreme Court case has the potential to set off agency action or legislative proposals. As an advocacy community, we need to be prepared for these consequences.

All said, the lawyers offering you free services may be very talented and have much to contribute. But think carefully about what is being offered before you sign on the dotted line. And give the advocates with the Supreme Court Immigration Law Working Group a chance to provide you with some advice as you negotiate this terrain.

– guest blogging by Nancy Morawetz, Professor of Clinical Law, New York University School of Law. Nancy coordinates the Supreme Court Immigration Law Working Group.

Discretion. The better part of valor. A sentiment that the foolish lack. The only thing more dangerous than a friend without discretion is the inability to police it. Like the jewel of gold in the swine’s snout, so too is the Immigration & Nationality Act without judicial review of the Attorney General’s discretionary decisions.

We like Kucana v. Holder, __ U.S. __, 08-911, the Supreme Court’s decision from January 20, 2010. It doesn’t sweep broadly, it doesn’t reach out and decide unnecessary issues. But it also didn’t avoid the issues presented by adopting Justice Alito’s overly narrow reading of the statute (in his concurrence). Its effect will be modest but positive. Courts will now again review denials of reopening – and continuances and similar rules – for abuse of discretion. Which is how it should be.

Our belief that the Supreme Court would get it right was shaken after oral arugment. But reading the justices is like reading tea leaves; an art form not best suited for the suit-n-tie crowd.

In particulars, the question before the Supreme Court was:

Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals.

Motions to reopen are specified as discretionary in the regulations, but not the statute. The Supreme Court had to decide whether it was sufficient to trigger 1252(a)(2)(B)(ii) for something to be specified as discretionary under the regulations. The answer, in short, was no. Justice Ginsburg wrote for a unanimous court, with Justice Alito concurring in the judgment, reversing the CA7′s decision to the contrary.

The analysis was impressively textual (not a surprise from Justice Ginsburg). In isolation, the Court thought the term, specified “under,” to be ambiguous. Relying on fairly standard canons of statutory construction, the Court looked to other indicia. It looked to the placement of (B)(ii), noting that 1252(a)(2)(A) and 1252(a)(2)(C) are both entirely focused on other statutory provisions. It compared (B)(ii) with (B)(i), which bars review over specified types of relief in the statute. It also compared the types of relief for which (B)(i) bars jurisdiction, noting that they were “substantive decisions” which decide whether someone can stay or must go.

Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings: The motion to reopen is a procedural device serving to ensure “that aliens [a]re getting a fair chance to have their claims heard.” Tr. of Oral Arg. 17. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing

The Court also looked to the the history of the statute. In 1996, at the same time Congress adopted IIRIRA’s jurisdiction-stripping provisions (including (a)(2)(B)(ii)), Congress it codified most of the regulations pertaining to reopening, but left the discretionary language in the regulations out of the statute. Nor did Congress change that in Real ID, though a ton of CtApps had interpreted (B)(ii) as not barring jurisdiction over reopening.

And then of course, there’s a general presumption in favor of reviewability of administrative decisions.

Thus, the Kucana decision put to rest a question that had been percolating for some time in the Courts of Appeal.

Other issues remain (and we are grateful that the Court did not reach out to decide these questions). The Court flagged two issues which it did not decide: (a) whether the bars to review over discretionary relief (e.g., adjustment of status) would thus bar review over reopening decisions in that context, and (b) whether sua sponte reopening would be beyond federal court jurisdiction, notwithstanding today’s decision. Unflagged but no less important were several other issues not addressed in Kucana. The Court didn’t take a position on the holdings of many Courts of Appeals (endorsed by Zadvydas) that 1252(a)(2)(B) only bars review over discretionary decisions, as opposed to findings of law or fact. It didn’t address what precise language would be required to trigger 1252(a)(2)(B)(ii); i.e., does the statute need to use the actual word “discretion”; is it sufficient to use permissive language such as “may”; or must the courts examine the entire statutory context to determine whether something is discretionary? The Court didn’t say. Finally, it might be that Kucana’s claims could have been characterized as questions of law under 1252(a)(2)(D), at least under the CA9′s rule in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); but the Supreme Court said nothing of that.

Justice Alito concurred separately to note that the regulations had promulgated under the authority of 8 USC 1103(a), which is in subchapter 1 of the INA. Because 1252(a)(2)(B)(ii) only applies to items specified as discretionary in subchapter 2 of Title 8; thus, if the reopening regs were specified under 1103(a), there would be no need to reach the questions decided by the Court. He would have decided the case on those narrower grounds.

–guest blogging by Chuck Roth. Chuck is the Director of Litigation at the National Immigrant Justice Center, www.immigrantjustice.org, and is the author of a blog of federal court decision summaries at www.immigrantjustice.org/litigationupdate

Things have been busy in the federal courts of appeals and the Board of Immigration Appeals. Plus, the Supreme Court weighed in on jurisdictional issues. In the last week, several major decisions have been announced — new posts soon!

The American Immigration Lawyers Association participates as amicus curiae in matters of
interest to the Association that advance the interest of the Association, its members, and
generally promotes the orderly and beneficial development of the law. AILA generally drafts
its own briefs on matters of importance to it and actively seeks out cases in which the
Association has an interest. From time to time, AILA will also sign on to briefs written by
others. AILA members are encouraged to seek out Amicus assistance on important cases
early in the course of litigation. The complete guidelines are here.

How To Obtain AILA Amicus Assistance

If you wish to obtain AILA Amicus assistance in a particular case or wish to raise an issue
that merits AILA’s consideration because it could impact the Association’s interest, you may
contact any member of the AILA Amicus Committee. When making a request, it is
important to explain how the case impacts AILA’s interest. There is an on-line form for
submitting requests for assistance which can be accessed here:

http://spreadsheets.google.com/embeddedform?key=pw6-Ghz9CaSUFcVWGAaksIw