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Supreme Court to Rule on Hard-Fought Immigration Issues

By Nadine Wettstein

The U.S. Supreme Court will be ruling on at least four major immigration issues in its 2011-2012 term, which began on October 3, 2011.  The Court may yet add additional cases and issues to the docket. The Court’s decisions promise to settle some long-fought arguments and significantly affect the development of immigration law.  The following is a short summary of the cases and questions the Court already has accepted this term.

Section 212(c) Lives! Must There be a Corresponding Ground of Inadmissibility? The first issue the Court will consider concerns the repealed but still-viable and relevant relief from removal, the §212(c) waiver.  At issue is the BIA’s decision, Matter of Blake, 23 I&N Dec. 722 (BIA 2005).  In Blake, the BIA held that a person found deportable based on an aggravated felony conviction, under INA § 237, was not eligible for a § 212(c) waiver because there was no corresponding ground of inadmissibility for “aggravated felony” under INA § 212.

Almost all the circuit courts of appeal have considered challenges to Blake, and all but the Second Circuit upheld the BIA’s decision.  This is the question the Supreme Court granted certiorari to address:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the INA.

The case is Judulang v. Holder, No. 10-694 [decision in lower court: 06-070986, 2007 U.S. App. LEXIS 22480 (9th Cir. Sept. 17, 2007)].   CLINIC submitted an Amicus Curiae (Friend of the Court) brief to the Supreme Court in this case, focusing on §212(c) relief as ameliorative in nature.  The brief, written by Ira Kurzban, argues that the Blake formulation forecloses §212(c)’s critical function as a discretionary provision of mercy and forgiveness for deserving long-time lawful permanent residents.  

Briefing in Judulang has been completed and the Supreme Court held oral argument on October 12, 2011.  The Court may issue a decision before the end of the year.

Are “Aggravated Felonies” Really Aggravated? The next case scheduled for argument concerns the far-reaching impact of the expanded definition of “aggravated felony.”   The question presented is:

Whether the Ninth Circuit erred in holding that petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2), were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and petitioners were therefore removable.

The Ninth Circuit – in conflict with the Third Circuit, Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004) – held that this offense is an aggravated felony.

In this case, too, CLINIC signed on to an Amicus Curiae brief written by Ira Kurzban.  The brief emphasizes the disastrous emotional, physical, and financial impact on U.S. families of a family member being deported.  The brief argues that Congress intended to limit the definition of “aggravated felony” to the very specific crimes identified in the statute, especially as deeming something an aggravated felony brings numerous severe consequences, deeply affecting families.

The case is Kawashima v. Holder, No. 10-577 [decision in lower court: 615 F.3d 1043 (9th Cir. 2010)].   Oral argument is scheduled for November 7, 2011.

Can a Parent’s Residence be Imputed to a Child? Also this term, the Court will decide whether a parent’s residence in the U.S. and status as an LPR can be “imputed” to – that is, counted by – an unemancipated minor child who lived with the parent, so the child will qualify for cancellation of removal under INA § 240A(a).  That section requires that the cancellation applicant have been lawfully admitted for permanent residence for not less than five years, and that the applicant have resided in the U.S. continuously for seven years, after having been admitted in any status. The Ninth Circuit has held that if the parent meets these requirements but the child does not, the parent’s status and years of residence can be imputed to the child to qualify for cancellation.  We will see if the Supreme Court agrees.

The cases are: Holder v. Gutierrez, No. 10-1542 [decision in lower court: No. 08-70436, 411 Fed. Appx. 121, 2011 U.S. App. Lexis 1414 (9th Cir. 2011); and  Holder v. Sawyers, No. 10-1543 [decision in lower court: No. 08-70181, 399 Fed. Appx. 313, 2010 U.S. App. Lexis 21284 (9th Cir. 2010)].

Does Fleuti (“Innocent, Casual and Brief” Departures) Survive? Before IIRIRA was enacted in 1996, case law had developed the concept of “innocent, casual and brief” departures from the United States. This concept, otherwise known as the Fleuti doctrine, for the case Rosenberg v. Fleuti, 374 U.S. 449 (1963), allowed immigrants to leave the U.S. and return without triggering grounds of inadmissibility.  That is, if the departure was innocent, casual and brief, the person was not considered to be requesting admission on the return.

However, IIRIRA enacted INA § 101(a)(13)(C), which specifies the circumstances under which a returning LPR is not seeking admission to the U.S.  These circumstances do not expressly include the “innocent, casual and brief” concept.  Moreover, LPRs are considered to be seeking admission if they have committed specified offenses.

The question the Court will consider is:

Whether 8 U.S.C. § 1101(a)(13)(C)(v), which removes a legal permanent resident of his right, under Rosenberg v. Fleuti, 374 U.S. 449 (1963), to make “innocent, casual, and brief” trips abroad without fear that he will be denied reentry, applies retroactively to a guilty plea taken prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act.

The case is Vartelas v. Holder, No. 10-1211 [decision in lower court: 620 F.3d 108 (2d Cir. 2010).