Immigration SCOTUS Case Law & Research

Immigration Index (alphabetical by topic)

USC 8 Ch. 12 Section 1101 (15) ABC’s

Most-Cited Sections of INA

LGBTQI Case Law and Resources

Third Circuit Immigration Cases

Fifth Circuit Immigration Cases

Ninth Circuit Immigration Cases

1st/2nd/4th/6th/7th/8th/10th/11th Circuit Cases

BIA Decisions

 

Summaries of Articles and Books

Writeup: Sarah Rogerson, The Politics of Fear: Unaccompanied Children and the Case of the Southern Border, 61 Vill. L. Rev. 843 (2017).

Writeup: Ingrid Eagly et al., Detaining Families: A Study of Asylum Adjudication in Family Detention. CA Law Rev. 106:785 (2018).

Writeup: The Right to be Heard from Immigration Prison: Locating a Right of Access to Counsel for Immigration Detainees in the Right of Access to Courts. HLR 132:726 No.2 (Dec.2018) [Article pdf here]

Writeup: Taymoor M. Pilehvar & Lory D. Rosenberg, How Much Blood to Cross the Northern Border? Reconsidering the Blood Quantum Requirement of INA 289. 1 AILA L. J. 31 (2019).

Writeup: Ted R. Bromund & Sandra A. Grossman, Challenging a Red Notice: What Immigration Attorneys Need to Know About INTERPOL. 1 AILA L. J. 19 (2019).

Writeup: Cyrus D. Mehta, The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference. 1 AILA L. J. 47 (2019).

Writeup:  Elizabeth Montano & Rebecca Sharpless, “Divisibility Redux: ‘Alternatively Phrased Statutes’ and State Law in the Post-Mathis Categorical Approach. 2 AILA Law J ___ (2019)

Writeup: Shoba Sivaprasad Wadhia, Banned: Immigration Enforcement in the Time of Trump. New York University Press: 2019. (Word Doc)

SCOTUS Opinions

Yick Wo v. Hopkins [118 U. S. 356 (1886)]: due process for aliens on American soil: SF ordinance re. laundries was unequally applied, discriminating against Chinese laundries. (Word brief) (Pdf brief)

Chae Chan Ping v. U.S. (The Chinese Exclusion Case) [130 U. S. 581 (1889)]: Congress has power to limit, modify, or repeal treaties through legislation. Valid to uphold Scott Act of 1888 which excluded Chinese immigrants, contrary to Burlingame Treaty of 1868. Courts don’t get to review these legislative decisions. (pdf brief) (Word brief)

Nishimura Ekui v. U.S., 142 U.S. 651 (1892): Public charge case; applied plenary power of Congress both to exclusion and enforcement procedures.

Fong Yue Ting v. U.S., 149 U.S. 698 (1893): Permission to stay for 10 years after 1893 if could produce a white witness to residency prior to 1892. Plenary power of Congress extended to deportation. Dissents said deportation should have a higher standard of review because alien is already present; also procedural due process.

Wong Wing v. U. S. [163 U. S. 228 (1896)]: Due process for aliens on American soil even when subject to final order of deportation. Punishment of hard labor exceeded Fifth and Sixth Amendment rights. (Word brief) (Pdf brief)

United States v. Wong Kim Ark, 169 U.S. 649 (1898): A child bornin the United States to parents who are not U.S. citizens is a citizen of the United States. (Word brief) (Pdf brief)

Yamataya v. Fisher (The Japanese Immigrant Case) [189 U. S. 86 (1903)]: Fifth Amendment entitles aliens due process of law in deportation proceedings because they are inside U.S. Also heightened scrutiny toward procedural due process. 

Kaplan v. Tod [267 U. S. 228 (1925)]: alien who had not entered U. S.

Russian Volunteer Fleet v. U.S., 282 U.S. 481 (1931): Relied on Yick Wo and Wong Wing for protection of non-enemy aliens present within U.S. territory.

Bridges v. Wixon, 326 U.S. 135 (1945): attempt to deport union activist and Marxist Harry Bridges; deportation as punishment, required heightened due process.

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948): deportation as punitive, requires heightened due process. General interpretive rule for immigration statutes: ambiguous deportation statutes or regulations must be read in the light most favorable to the alien.

Johnson v. Eisentrager [339 U. S. 763 (1950)]: No Fifth Amendment protections to aliens outside U. S.

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950): Deportation requires a hearing (Due Process Clause); deportation must not be conducted by an official who mixes prosecutorial and judicial roles.

United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950): plenary power to exclude even the wife of a citizen.

Carlson v. Landon [342 U. S. 524 (1952)]: upholding temporary detention of alien during deportation proceeding.

Harisiades v. Shaughnessy, 342 U.S. 580 (1952): substantive immigration law: LPR  deported for former membership in Communist Party. Plenary power to deport, so no judicial inquiry appropriate.

Heikkila v. Barber [345 U. S. 229 (1953)]: Challenging the validity of a deportation order.

Shaughnessy v. U.S. ex rel. Mezei [345 U. S. 206 (1953)]: Previously lawfully admitted alien returned after trip abroad and was deemed inadmissible; detained at Ellis Island for 21 months, which doesn’t count as being in the U.S. Reentry doctrine: exclusion all over again.

Kwong Hai Chew v. Golding [344 U. S. 590 (1953)]: due process for aliens on American soil: returning LPR denied reentry; Court held that the exclusion regulation did not apply here. See also Motomura, Plenary Power (Yale L.J. 1990).

Shaughnessy v. Pedreiro [349 U. S. 48 (1955)]: Review of deportation orders.

U.S. v. Witkovich [353 U. S. 194 (1957)]: limits discretion of AG re. asking questions of alien scheduled for deportation.

Leng May Ma v. Barber [357 U. S. 185 (1958)]: alien paroled into U. S. pending hearing had not technically entered the country.

Rosenberg v. Fleuti, 374 U.S. 449 (1963): LPR went to MX for a few hours, not readmitted because gay. Court redefined “entry”–he had already been admitted in 1952, so government could not exclude/deport him in 1956 upon his return from MX.

Woodby v. INS, 385 U.S. 276 (1966): Government has burden to show deportability by clear and convincing evidence; deportation as punishment, LPR has ties to community; heightened due process for LPR.

Cheng Fan Kwok v. INS [392 U. S. 206 (1968)]: challenges to determinations made during deportation proceedings/motions to reopen.

Kleindienst v. Mandel, 408 U.S. 753 (1972): Court upheld denial of nonimmigrant visa to Belgian Marxis professor who had been invited to lecture at American universities. First distinction by Court of difference between legislative and executive actions in immigration, with respect to judicial scrutiny.

Mathews v. Diaz [426 U. S. 67 (1976)]: due process for aliens on American soil.

London v. Plasencia, 459 U.S. 21 (1982): LPR denied reentry after a brief trip to MX. Court held that even a returning LPR subject to exclusion can invoke the Due Process Clause (doesn’t matter that they are standing outside the country!).

Plyler v. Doe [457 U. S. 202 (1982)]: Equal Protection for aliens on American soil: TX school district case. Majority said TX can’t exclude children of undocumented immigrants from public schools. (Summary)

INS v. Chadha [462 U. S. 919 (1983)]: Congress’s power over immigration is subject to constitutional limitations.

INS v. Rios-Pineda [471 U.S. 444 (1985)]: Prolonging litigation in order to remain in US

U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987): IJ had failed to explain availability of relief from deportation or noncitizens’ right to appeal. Charged later with illegal reentry. Court reached constitutional issue and held that due process does not permit the imposition of criminal sanctions unless the underlying civil order is subject to meaningful judicial review. (Pre-§ 1326(d))

U. S. v. Verdugo-Urquidez [494 U. S. 259 (1990)]: Fifth Amendment does not extend protection to aliens outside U. S.

INS v. Doherty [502 U.S. 314 (1992)]: Delay of deportation via continuances.

Reno v. Flores [507 U.S. 292 (1993)]: Majority upholds challenged INS regulation that restricts the release from INS detention of unaccompanied minors only to presumptively appropriate adults (parents, guardians). Dissent by Stevens suggests there’s a diff. entre custody that’s institutional and custody that’s familial/personal. [Sections 1252 & 1357] (Word brief) (Pdf brief)

Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993): After 1991 coup in Haiti, pro-democracy activits and economic migrants embarked for FL. U.S. Coast Guard intercepted them on the high seas and returned them to Haiti. Holding: Neither the INA nor the UN Protocol (Article 33) prohibit refoulement when encountering would-be immigrants prior to reaching the U.S. border. (Word brief) (Pdf brief)

Zadvydas v. Davis [533 U. S. 678 (2001)]: Aliens designated for removal but unable to be removed cannot constitutionally be held indefinitely past the 90-day removal period, but only for a “reasonable” amount of time. [Section 1231(a)(6)] (Word brief) (Pdf brief)

INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam): CA limited to reviewing issues decided by the BIA (rather than the IJ).

Demore v. Kim [   (2003)] Upheld indefinite detention without bond hearing.

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 (2006): The reinstatement provision of the 1996 Act was not impermissibly retroactive because the reinstatement itself “does not penalize an alien for reentry (criminal and civil penalties do that).”

Padilla v. KY, 599 U.S. 356 (2010): Affirmative duty under Sixth Amendment to warn clients of criminal consequences to immigration outcomes (e.g., automatic deportation of LPR because of pleading guilty to an aggravated felony like trafficking in controlled substances). (Word Doc Summary) (PDF Summary)

Scialabba v. De Osorio, 573 U. S. 41 (2014):  Child Status Protection Act (CSPA) only applies to those who aged out as primary beneficiaries, not derivative beneficiaries (through grandparents, uncles, or aunts). [Section 1153(h)(3)] (Word brief) (Pdf brief)

***Pereira v. Sessions [585 U. S. ___ (2018)]: A “Notice to Appear” does not qualify as such if it does not have the time and place specified, since these are required by the statute in order for a NA to be valid. [Section 1229] (Word brief) (Pdf brief)

Jennings v. Rodriguez,138 S.Ct. 830 (2018): Court rejected notion that statute implies that bond hearings should be repeated after every 6 months detention, with the burden on the government to prove that an alien is a flight risk or danger to the community. (Summary)

Nielsen v. Preap, 586 U.S. ___ (2019) [Section 1226(a) & (c)] Yes, even criminal aliens who are arrested years after their release from criminal custody must be held without a bond hearing. (Summary)

Barton v. Barr, No. 18-725 (US 2020) [Sections 1229b, 1182(a)(2), 1227(a)(2)] For purposes of the stop-time rule, the offense that precludes cancellation of removal need not be an offense that leads to removal. (But note Sotomayor’s dissent, which asserts that the majority totally misread the statute at 1229b, and that there is a different standard for LPRs regarding what offense necessarily triggers the stop-time rule.) (Word Doc Summary) (PDF Summary)

U.S. v. Palomar-Santiago, 593 U.S. ___ (2021) [Sections 1326(a), 1326(d), 1227(a)(2)(A)(iii), 1101(a)(43)(F)] Noncitizen indicted for unlawful reentry after removal who wants to collaterally attack the underlying order must meet all three prongs of Section 1326(d): (1) administrative exhaustion; (2) judicial review; AND (3) fundamental unfairness of order. (Word Doc Summary) (PDF Summary)

Niz-Chavez v. Garland, 141 S. Ct. 1474 (April 29, 2021): Ruling that “a” Notice To Appear in Sec. 1229(a)(1) assumes ONE notice that contains charges, time, date, & place of hearing, not a series of notices with the different information. In other words, a subsequent Hearing Notice from the court with time, date, and place does not “cure” a defective NTA for purposes of the stop-time rule in Sec. 1229b(b)(1) regarding continuous presence. (Word Doc Summary) (PDF Summary)

Garland v. Dai, 141 S. Ct. 1669 (June 1, 2021): [8 U.S.C. § 1252(b)(4)(B), 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C)] A rebuttable presumption of credibility inheres to an appeal from IJ to BIA, absent any finding of adverse credibility; however, the CAs handle petitions for review, not appeals, in immigration cases, so there is no presumption of credibility on the part of the respondent. (Word Doc Summary) (PDF Summary)

Sanchez et ux. v. Mayorkas, No. 20-315 S. Ct. (June 7, 2021): [8 U.S.C. Sections 1254a & 1255] EWI + TPS ≠ LPR. (Word Doc Summary) (PDF Summary)

Johnson v. Guzman-Chavez, 594 U.S. ___ (June 29, 2021): [8 U.S.C. Sections 1226 & 1231] A noncitizen under reinstatement of removal cannot request bond while waiting for a withholding-only proceeding because their removal order is already administratively final. (Word Doc Summary) (PDF Summary)

DOJ Decisions (A.G.)

Matter of Castro-Tum [27 I&N Dec. 271 (A.G. May 2018)]: (<–Summary) Immigration judges and the BIA don’t have the general authority to suspend immigration cases by administrative closure. Overruled by Matter of Cruz-Valdez28 I&N Dec. 326 (A.G. 2021).

Matter of L-A-B-R et al. [27 I&N Dec. 405 (A.G. Aug. 2018)]: (<– Summary) Judges should follow a multi-factor rubric to assess whether to grant a motion to continue when application for collateral relief is pending during an alien’s removal proceedings.

Matter of S-O-G- & F-D-B- [27  I&N Dec. 462 (A.G. Sept. 2018)]: Immigration judges have no inherent authority to terminate or dismiss cases. (Summary here.)

Matter of Ortega Lopez (2018): Re. animal fighting and moral turpitude. (Summary)

Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018): vacating Matter of A-R-C-G-; DV and gang-related violence will not usually qualify for asylum status; membership in a PSG must be a central reason (in the mind of the persecutor) for the violence; if non-governmental abuse, then gov’t must either condone or be utterly helpless to stop it; BIA, IJs & asylum officers must conform to this opinion’s decision. (Summary)

Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020): Poor conditions in a mental health facility in MX do not amount to “torture” under CAT because there is no element of intentionality(Word Doc Summary) (PDF Summary)

Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021): A.G. Garland overrules Castro-Tum, giving IJs back the ability to administratively close cases while other applications are pending (and for any other reason that seems good to them).

NINTH CIRCUIT

Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998): Affirmatively misleading forms given to immigrants charged with document fraud deprived them of their due process rights.

Romani v. INS, 146 F.3d 737 (9th Cir. 1998): In absentia deportation order; MTR denied because of failure to appear — but family was in courthouse at the right time, and were mistakenly told by their lawyer’s assistant not to enter the courtroom. No exceptional circumstances needed, because it wasn’t technically a “failure to appear.” (Word Doc Summary) (PDF Summary)

US. V. Hinojosa-Perez, 206 F.3d 832 (9th Cir. 2000): respondent failed to exhaust administrative remedies (although he had been informed of them).

Singh v. INS, 295 F.3d 1037 (9th Cir. 2002): Petitioner for AOS missed court by 2 hours and was ordered deported in absentia. 9th Cir. deemed his situation exceptional, especially because he was not trying to avoid negative consequences in court, and because he was eligible for LPR. (Word Doc Summary) (PDF Summary)

U.S. v. Luna-Madellaga 315 F.3d 1224 (9th Cir. 2003): Sentencing enhancement case (enhanced penalty of up to 20 years for an alien who reenters after removal for commission of an aggravated felony)

U.S. v. Leon-Paz, 340 f.3d 1003 (9th Cir. 2003): District court erred in rejecting respondent’s collateral attack on the original removal order, which was a violation of due process. If defendant is prejudiced, lower court must dismiss the indictment on remand.

U.S. v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004): Denial of due process in underlying removal as collateral attack on gov’t attempt to remove after reentry.

Chete Juarez v. Ashcroft, 376 F.3d 944 (9th Cir. 2004): Exceptional circumstances for MTR (pre-IIRIRA) — respondent’s case was delayed 5 years at the BIA, which reversed the IJ’s decision about whether she was eligible for cancellation of deportation. Respondent received no notice, despite change of address form. Had shown diligence re. her case in the past, though. (Word Doc Summary) (PDF Summary)

U.S. v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. 2004): due process violated when IJ failed to inform alien of eligibility for voluntary departure.

U.S. v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004): §1326(d)’s requirements of exhaustion and deprivation of judicial review are satisfied when the government misinforms an alien that he is ineligible for relief.

Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005): BIA must accept new facts as true unless inherently unbelievable.

U.S. v. Diaz-Luevano, 494 F.3d 1159 (9th Cir. 2007) (per curiam): Sentencing enhancement case (enhanced penalty of up to 20 years for an alien who reenters after removal for commission of an aggravated felony)

Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc): Reinstatement procedure, relying on prior removal order without going through administrative procedure all over again. Upheld validity of a summary reinstatement, but only because underlying order was lawful.

U.S. v. Arias Ordonez, 597 F.3d 972 (9th Cir. 2010): Government can’t reinstate or indict on the basis of an invalid removal order (e.g., when respondent has been misinformed about his rights). (Word Doc Summary) (PDF Summary)

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc): PSG of witnesses who testified in open court against gang members is cognizable. Witness of her father’s murder testified against his killers and was later stalked. (Word Doc Summary) (PDF Summary)

Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015): “The family remains the quintessential particular social group” (at 1128). Gang vendetta against family following their murder of respondent’s father. BIA should have considered this argument on appeal but didn’t. (Word Doc Summary) (PDF Summary)

Preap v. Johnson (9th Cir. 2016):

Khoury v. Asher (9th Cir. 2016):

Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017): Reinstatement of removal order. MTR & reconsider negative reasonable fear determination. “Extortion plus” counts if there is a nexus to a protected ground. Guatemala, extortion. (Word Doc Summary) (PDF Summary)

Ochoa-Oregel (9th Cir. 2018): Invalidation of illegal reentry conviction: legal permanent resident was denied due process (for a collateral attack on invalid removal order) because he was ordered removed in absentia. (Summary here)

Vasquez-Vale v. Sessions (9th Cir. 2018): OR’s witness-tampering statute does not describe moral turpitude. (Summary)

Bartolome v. Sessions, 904 F.3d 803 (9th Cir. 2018): Sua sponte MTR of reasonable fear hearing found in 8 C.F.R. Section 1003.23(b)(1) by the simple expedient of ending a sentence early (“IJ may at any time reopen a case in which he or she has rendered a decision on his or her own motion” sounds good until you hit the next words: “solely in order to correct a ministerial mistake or typographical error . . . or to reissue the decision to correct a defect in service.”) (Word Doc Summary) (PDF Summary)

Marinelarena v. Barr, F.3d 2019 WL 3227458, 19 Cal. Daily Op. Serv. 6909 (en banc) (9th Cir. 2019): Cancellation of removal was denied by IJ, BIA, & 9th circuit panel because connection between state & federal rules re. controlled substance was ambiguous, and that meant petitioner failed to reach burden proving she didn’t meet the federal statute’s requirements. En banc circuit court reversed, so now the ambiguity works in her favor. (Summary here)

Peters v. Barr, No. 16-73509 (9th Cir. April 2, 2020): Ruling that “through no fault of his own” reasonably includes the negligence of an attorney, for purposes of an exception to a bar on applying for AOS while >180 days out of lawful status. Sets 8 U.S.C. Sec. 1255(c)(2) up against its regulatory commentary in 8 C.F.R. Sec. 1245.1(d)(2) (which the court rules is improperly narrow, limiting “through no fault of his own” to actors appointed by regulation to help the non-citizen). (Word Doc Summary) (PDF Summary)