Professor Cindy G. Buys, SIU School of Law
Immigration Project Board Member
The following are the major immigration law-related cases on the Supreme Court’s docket during the 2020-21 term. Decisions in these cases are expected between now and June 2021.
Pereida v. Barr, Docket No. 19-438
(Granted December 18, 2019; Argued October 14, 2020)
Pereida, a native and citizen of Mexico, pled no contest to a Nebraska criminal attempt charge arising from his use of a fraudulent social security card to obtain employment. When the government brought removal proceedings against him, he requested the discretionary form of relief known as cancellation of the removal. However, the government took the position that his misdemeanor criminal attempt charge constitutes a crime involving moral turpitude (CIMT) making him ineligible for cancellation. The Nebraska statute under which Pereida was charged is divisible with subsections, some of which qualify as CIMTs and at least one of which does not. Using the modified categorical approach, both the Board of Immigration Appeals (BIA) and the Eighth Circuit Court of Appeals held that it was not possible to determine from the record which subsection formed the basis of Pereida’s conviction or whether he was convicted of a CIMT. Thus, Pereida was not able to sustain his burden of proving eligibility for cancellation. The Supreme Court will now decide whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act (INA). Answering this question will depend in part on respective burdens of proof and whether an ambiguity in the record of conviction should be held against the noncitizen.
Niz-Chavez v. Barr, Docket No. 19-863
(Petition for Cert. Granted June 8, 2020; Argued Nov. 9, 2020)
In March 2013, Immigration and Customs Enforcement (ICE) served Niz-Chavez, a Guatemalan native and citizen, with a notice to appear (NTA) before an immigration judge at a date and time to be later determined. In May 2013, Niz-Chavez received a notice that a hearing was scheduled for June 2013. Niz-Chavez attending the hearing and expressed his intent to seek withholding of removal under the INA and relief under the Convention Against Torture (CAT). Following a hearing on the merits of his case in 2017, the Immigration Judge (IJ) denied Niz-Chavez’s request for withholding and relief under CAT but granted him voluntary departure. On appeal to the BIA, Niz-Chavez challenged the IJ’s conclusions, but also argued that his case should be remanded because his NTA was deficient under the Supreme Court’s 2018 decision in Pereira v. Sessions. Pereira held that an NTA that does not include the specific time and place of the noncitizen’s removal proceeding does not trigger the stop-time rule in 8 U.S.C. § 1229. The stop-time rule states that a written NTA specifying the time and place of the hearing ends a noncitizen’s accrued time in the United States necessary for a form of discretionary relief called cancellation of removal. The BIA denied the request for remand, which was affirmed by the Sixth Circuit on appeal. The Supreme Court is to decide whether the service of multiple documents, here, an NTA without a date and time, followed by a hearing notice with a date and time, are sufficient to trigger the stop-time rule.
Pham v. Guzman Chavez, Docket No. 19-897
(Petition for Cert. Granted June 15, 2020; Argued Jan. 11, 2021)
The respondents are a group of noncitizens who entered the United States without lawful permission, were deported, re-entered again without lawful permission, and are subject to deportation via reinstated removal orders. Respondents sought withholding of removal due to a fear of persecution or torture in the countries designated in their removal orders. They are being detained pending hearings on their withholding claims and seek individualized bond hearings to determine whether they are eligible for release on bond while waiting for those hearings. The government argues that 8 U.S.C. § 1231 (Detention and Removal of Aliens Ordered Removed) governs the matter, making detention mandatory; while the respondents argue that 8 U.S.C. § 1226 (Apprehension and Detention of Aliens) governs, which would allow respondents to seek release on bond. The Fourth Circuit found in favor of the noncitizens. The Supreme Court will decide which federal law applies to the detention of a noncitizen who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal.
Rosen v. Dai, Docket No. 19-1155
(Petition for Cert. Granted October 2, 2020; Set for Argument Feb. 23, 2021)
Dai, a Chinese citizen, sought asylum in the United States. When he was denied asylum, withholding of removal, and protection under CAT, the Immigration Judge did not make an express finding that he lacked credibility. The Ninth Circuit Court of Appeals stated that absent a finding the Dai was not credible, his testimony was entitled to the presumption of credibility. The Supreme Court is to decide whether a court of appeals can presume that an immigrant’s testimony is credible and true if neither an immigration judge nor the BIA specifically made an adverse credibility determination. This case has been consolidated with Rosen v. Alcaraz-Enriquez, Docket No. 19-1156.
Sanchez v. Wolf, Docket No. 20-315
(Petition for Cert Granted Jan. 8, 2021)
Plaintiffs Jose Sanchez and Sonia Gonzales are husband and wife and citizens of El Salvador who initially entered the United States without authorization in 1997. Following a series of earthquakes in their home country in 2001, they applied for and received a humanitarian form of relief known as temporary protected status (TPS). In 2014, they applied to become lawful permanent residents (LPR) in the United States under 8 U.S.C. §1255, which requires that the applicants have been “inspected and admitted or paroled” into the country. The Immigration Service took the position that Sanchez and Gonzales had not been “admitted” to the United States and thus were ineligible for LPR status. Plaintiffs contested this decision, arguing that they were admitted when they received TPS. The District Court sided with the plaintiffs; the Third Circuit Court of Appeals reversed. The Sixth and Ninth Circuits have found that persons granted TPS have been “admitted” to the United States whereas the Fifth Circuit joined the Third Circuit in holding that TPS does not constitute an “admission.” The Supreme Court will resolve this circuit split by determining whether a person who initially entered the United States without proper authorization and is granted TPS under 8 U.S.C. § 1254a(f)(4) has been lawfully “admitted” to the United States such that the person is later eligible to become a lawful permanent resident under 8 U.S.C. §1255.
Trump v. Sierra Club, Docket No. 20-138
(Petition for Cert. Granted October 19, 2020; Set for Argument Feb. 22, 2021)
The Trump Administration obtained over $15 billion in federal funds to expand a wall along the border of the United States and Mexico. The Administration obtained money through a transfer of funds internally between Department of Defense accounts in response to a request from the Department of Homeland Security. Section 8005 of the Department of Defense Appropriations Act limits the ability of the Secretary of Defense to transfer funds. In July 2020, a panel of the U.S. Court of Appeals for the Ninth Circuit held that it was unlawful for the Trump Administration to use funding intended for the Department of Defense to build the border wall. Assuming the case is not mooted by a change in policy of the new Biden Administration, the Supreme Court is to decide whether Section 8005 of the Department of Defense Appropriations Act authorizes the president to divert $2.5 billion in military funds to pay for the border wall.
United States v. Palomar-Santiago, Docket No. 20-437
(Petition for Cert. Granted Jan. 8, 2021)
Palomar-Santiago is a citizen of Mexico who became a LPR of the United States in 1990. In 1991, he was convicted of felony driving under the influence (DUI) in California. In 1998, he received a NTA informing him that his DUI made him removable from the United States because it constituted a “crime of violence” and thus an “aggravated felony” within the meaning of 8 U.S.C. §1101(a)(43). After a hearing, Palomar-Santiago was deported. Three years later, the Ninth Circuit Court of Appeals determined that the felony DUI of which Palomar-Santiago had been convicted was not a deportable offense. In the meantime, Palomar-Santiago had reentered the United States without authorization, was caught and indicted for illegal reentry. The U.S. District Court determined that Palomar-Santiago had met his burden of showing that he had been wrongfully deported from the United States and dismissed the indictment. The Ninth Circuit Court of Appeals affirmed. The Supreme Court will determine whether charges that a noncitizen illegally reentered the United States should be dismissed when the noncitizen’s removal was based on a misclassification of a prior conviction.
Wolf v. Innovation Law Lab, Docket No. 19-1212
(Petition for Cert. Granted October 19, 2020; Set for Argument Mar. 1, 2021)
A group of asylum seekers along with immigration non-profit organizations sued the Department of Homeland Security over the Migrant Protection Protocol (“MPP” or “Remain in Mexico” policy). This policy required asylum seekers to return to Mexico while their requests for protection are being processed. Assuming the case also is not mooted by a change in policy by the incoming Biden Administration, the Supreme Court will decide a series of issues relating to the MPP. These issues include: (1) whether the MPP is a lawful implementation of the statutory authority conferred by 8 U.S.C. §1225(b)(2)(C); (2) whether the MPP is consistent with any applicable and enforceable non-refoulement obligations; (3) whether the MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking; and (4) whether the district court’s universal preliminary injunction is impermissibly overbroad.